Miller v. Barrow et al

Filing 4

ORDER denying 2 Motion for Leave to Proceed in forma pauperis and dismissing action without prejudice . Signed by Judge Hugh Lawson on 7/12/2006. (nbp,HL)

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Miller v. Barrow et al Doc. 4 Case 7:06-cv-00055-HL-RLH Document 4 Filed 07/12/2006 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION CHARLES LAMAR MILLER, : : Plaintiff : : VS. : : DONALD BARROW; Lt. T. : FOUNTAIN, : : Defendants : ____________________________________: CIVIL ACTION NO.: 7:06-CV-55 (HL) ORDER Plaintiff CHARLES LAMAR MILLER, an inmate at Ware State Prison in Waycross, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. 1983. Plaintiff has also sought leave to proceed without prepayment of the $350.00 filing fee or security therefor pursuant to 28 U.S.C. 1915(a). 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 inmates right to due process of law; or an inmates 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). Case 7:06-cv-00055-HL-RLH Document 4 Filed 07/12/2006 Page 2 of 2 A review of court records reveals that plaintiff has filed numerous civil actions in federal courts in the State of Georgia while incarcerated. At present, at least three of these actions or appeals have been dismissed as frivolous pursuant to 28 U.S.C. 1915: Miller v. Sikes, 3:04-CV-32 (DHB) (S.D. Ga. July 21, 2004); Miller v. Sikes, 3:04-CV-32 (DHB) (appeal dismissed as frivolous on November 4, 2004); and Miller v. Daniel, 1:04-CV-143 (CC) (N.D. Ga. July 2, 2004). Because plaintiff has had three 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. If plaintiff wishes to bring a new civil rights action, he may do so by submitting new complaint forms and the entire $350.00 filing fee at the time of filing the complaint.1 SO ORDERED, this 12th day of July, 2006 s/ Hugh Lawson HUGH LAWSON UNITED STATES DISTRICT JUDGE lnb In Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002), the Eleventh Ciruit 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. 1

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