GILLILAN v. MCCLAIN

Filing 4

ORDER Denying Plaintiff's request to proceed in forma pauperis and Dismissing this action without prejudice. Ordered by Judge C. Ashley Royal on 7/26/11. (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GREGORY LINSTON GILLILAN,

:
:
Plaintiff
:
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VS.
:
:
HENNEY MCCLAIN,
:
:
Defendant
:
____________________________________:

CIVIL ACTION NO. 5:11-CV-281 (CAR)

ORDER

Plaintiff GREGORY LINSTON GILLILAN, presently incarcerated at Rogers State Prison
in Reidsville, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. §1983. Plaintiff has
not paid the $350.00 filing fee or sought leave to proceed without prepayment of the filing fee or
security therefor pursuant to 28 U.S.C. § 1915(a). However, because Plaintiff has not paid the filing
fee, the Court will assume he wishes to proceed in forma pauperis.
The Prison Litigation Reform Act provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g)
The Eleventh Circuit has concluded that §1915(g) does not violate the following: The
doctrine of separation of powers; an inmate’s right of access to the courts; an inmate’s right to due
process of law; or an inmate’s right to equal protection. Accordingly, the Eleventh Circuit has
upheld the constitutionality of §1915(g). Rivera v. Allin, 144 F.3d 719, 721-27 (11th Cir. 1998),
abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
A review of court records reveals that Plaintiff has a prolific filing history. In fact, since
2006 he has filed more approximately 171 civil actions in the United States District Courts for the
Middle and Southern Districts of Georgia. At present, at least eleven (11) of these complaints or

appeals have been dismissed as frivolous pursuant to 28 U.S.C. § 1915: Gillian v. Pollark, 1:07-CV50 (WLS)(M. D. Ga. April 4, 2007); Gillilan v. Galloway, 1:06-CV-71 (WLS)(M. D. Ga. March 5,
2007); Gillilan v. Scarborough, 1:05-CV-172 (WLS)(M. D. Ga. February 2, 2007); Gillilan v.
Harrison, 1:06-CV-176 (WLS)(M. D. Ga. January 31, 2007); Gillilan v. Bell, 1:07-CV-3 (WLS) (M.
D. Ga. January 11, 2007); Gillilan v. Thomas, 1:06-CV-122 (DHB)(S. D. Ga. January 10, 2007);
Gillilan v. Johnson, 1:06-CV-177 (WLS)(M. D. Ga. January 8, 2007)( Additionally, a later appeal
was dismissed as frivolous in this case on April 25, 2007); Gillilan v. Cannon, 1:06-CV-114
(WLS)(M. D. Ga. August 8, 2006); Gillian v. Hilton, 1:05-CV-133 (WLS)(M.D. Ga. August 18,
2006)(Additionally, a later appeal was dismissed in this case on May 8, 2007).
Because Plaintiff has had at least eleven (11) prior dismissals, he cannot proceed in forma
pauperis in the instant case unless he can show that he qualifies for the “imminent danger of serious
physical injury” exception of § 1915(g). Plaintiff has not made such a showing.
Therefore, Plaintiff’s request to proceed in forma pauperis is DENIED and the instant action
is DISMISSED without prejudice.1 The Court notes that Plaintiff is incarcerated in the Georgia
State Prison in Reidsville, Georgia. If Plaintiff wishes to bring a new civil rights action against this
Defendant, he may do so by submitting new complaint forms and the entire $350.00 filing fee at the
time of filing the complaint in the Southern District of Georgia.
SO ORDERED, this 26th day of July, 2011.

S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT

lnb

1

In Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002), the Eleventh Circuit held that a
prisoner cannot simply pay the filing fee after being denied in forma pauperis status, he must
pay the filing fee at the time he initiates the suit.