GILLILAN v. RODRIGUEZ

Filing 4

ORDER DENYING Plaintiff's motion to proceed in forma pauperis and DISMISSING WITHOUT PREJUDICE 1 Complaint filed by GREGORY LINSTON GILLILAN. Ordered by Judge Marc Thomas Treadwell on 9/23/2011. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GREGORY GILLILAN,
Plaintiff
vs.
Deputy Warden of Security OLMO
RODRIGUEZ,
Defendant
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NO. 5:11-CV-382 (MTT)
ORDER

Plaintiff GREGORY GILLILAN, presently an inmate at Wheeler Correctional
Facility (“WCF”) in Alamo, Georgia, has filed a pro se civil rights complaint under 42
U.S.C. § 1983. Parties instituting non-habeas civil actions are required to pay a filing
fee of $350.00, unless they qualify for in forma pauperis status. 28 U.S.C. §§ 1914(a),
1915. Because Plaintiff has failed to pay the required filing fee, the Court assumes that
he wishes to proceed in forma pauperis in this action.
Plaintiff’s sole named Defendant is WCF Deputy Warden of Security Olmo
Rodriguez. According to Plaintiff, Rodriguez threatened to lock Plaintiff down for his
filing lawsuits against Rodriguez’s “staff.”
Under 28 U.S.C. § 1915(g), the “three strikes rule” of the Prison Litigation Reform
Act, a prisoner may not bring an in forma pauperis civil action or appeal:
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).
A review of court records reveals that Plaintiff has filed more than 162 civil
actions in the United States District Courts, and at least 11 of those complaints or
resulting appeals have been dismissed as frivolous, malicious, or failing to state a claim.
See Gillilan v. Davis, 5:11-cv-208 (MTT) (M.D. Ga. May 31, 2011) (listing cases).
Plaintiff’s allegations clearly do not satisfy the “imminent danger of serious physical
injury” exception. Plaintiff’s motion to proceed in forma pauperis is therefore DENIED.
Additionally, venue in this district is improper. The venue provision of 28 U.S.C.
§ 1391(b) provides in relevant part:
A civil action wherein jurisdiction is not founded solely on
diversity of citizenship may ... be brought only in (1) a judicial
district where any defendant resides, if all defendants reside
in the same state, [or] (2) a judicial district in which a
substantial part of the events or omissions giving rise to the
claim occurred....
28 U.S.C. § 1391(b).
The Defendant is located, and all of the events alleged in the complaint occurred,
in Wheeler County, which is situated in the Southern District of Georgia. 28 U.S.C. §
90(c)(2). As this Court has informed Plaintiff in prior orders, the proper venue for actions
arising at WCF is the Southern District of Georgia, not this district.
Title 28 U.S.C. § 1406(a) provides that a district court may transfer a case to
another court where it might have been properly filed. However, the court should
transfer the case only if doing so is in the interest of justice. A transfer of this case
would not be in the interests of justice because Plaintiff has more than three strikes and
has failed to allege sufficient facts to indicate that he is in “imminent danger of serious
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physical injury.”
In light of the foregoing, the instant action is hereby DISMISSED WITHOUT
PREJUDICE.
SO ORDERED, this 23rd day of September, 2011.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

cr

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