GILLILAN v. BLANKENSHIP

Filing 4

ORDER: Plaintiff's presumed request to proceed in forma pauperis is DENIED, and the instant action is hereby DISMISSED without prejudice. 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. Ordered by Judge Marc Thomas Treadwell on 9/15/2011. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GREGORY GILLILAN,
Plaintiff
VS.
SERGEANT BLANKENSHIP,
Defendant
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CIVIL NO. 5:11-CV-357-MTT-MSH

ORDER
Plaintiff GREGORY GILLILAN, a prisoner at the Wheeler State Correctional
Facility in Alamo, 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). Because Plaintiff has
not paid the filing fee, the Court will assume he wishes to proceed in forma pauperis.
Under 28 U.S.C. ' 1915(g), a prisoner is prohibited from bringing a civil action in
federal court in forma pauperis
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.
This code section, known as the Athree strikes@ provision of the Prison Litigation Reform
Act, does not violate 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.
See Rivera v. Allin, 144 F.3d 719, 721-27 (11th Cir. 1998), abrogated on other grounds by

Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L.Ed.2d 798 (2007). Thus, dismissal of
a prisoner complaint under this section is constitutional. Id. In fact, the proper procedure
for a district court faced with a prisoner who seeks in forma pauperis status but is barred
by the "three strikes" provision is to dismiss the complaint without prejudice. Dupree v.
Palmer, 284 F.3d 1234, 236 (11th Cir. 2002).
A review of court records on the U.S. District Web PACER Docket Report reveals
that Plaintiff has a prolific filing history and has far exceeded the three Astrikes@ allowed by
the PLRA. In fact, more than a dozen of complaints or appeals filed by Plaintiff have been
dismissed for failure to state a claim or as frivolous pursuant to 28 U.S.C. ' 1915. See
e.g., Gillilan v. Paul, 6:08cv51 (GRS) (S.D. Ga. July 10, 2008); Gillian v. Pollark,
1:07-CV-50 (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) (A later appeal was also 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) (A later appeal was also dismissed in this
case on May 8, 2007).
Because Plaintiff has had more than a dozen prior dismissals, he cannot proceed
in forma pauperis in the instant case unless he can show that he qualifies for the
Aimminent danger of serious physical injury@ exception of ' 1915(g). He has not done so
here. The Court also notes that Plaintiff is currently incarcerated at Wheeler State Prison

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in Alamo, Georgia, which is not located in the Middle District. Thus, if Plaintiff does wish to
file a claim alleging that he is in Aimminent danger of serious physical injury,@ the proper
venue for such claim is the Southern District of Georgia, where Wheeler State Prison is
located.
Plaintiff=s presumed request to proceed in forma pauperis is, therefore, DENIED,
and the instant action is hereby DISMISSED without prejudice. 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 15th day of September, 2011.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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