Opinion
No. 5:05-CV-401(CAR).
November 23, 2005
ORDER
Pro se Plaintiff KENNETH COPELAND, who is also known as Robert Carswell, filed the instant complaint under 42 U.S.C. § 1983. Plaintiff also seeks leave to proceed without pre-payment of the filing fee or security therefor pursuant to 28 U.S.C. § 1915(a).
Pursuant to the provisions of the Prison Litigation Reform Act (" PLRA") pertaining to a prisoner's ability to proceed in forma pauperis, as codified at 28 U.S.C. § 1915(g):
[I]n 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 three 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 that 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.
Under the "three strikes" provision of the Prison Litigation Reform Act (" PLRA"), a prisoner is precluded from proceeding in forma pauperis if at least three prior prison generated lawsuits or appeals by the prisoner were dismissed as frivolous, malicious or failing to state a claim upon which relief may be granted (dismissal without prejudice for failure to exhaust administrative remedies and dismissal for abuse of judicial process are also properly counted as strikes). 28 U.S.C. § 1915(g); Fed.R.Civ.P. 12(b)(6); See Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998).
The Eleventh Circuit has concluded that section 1915(g) does not violate an inmate's right to access to the courts, the doctrine of separation of powers, an inmate's right to due process of law, or an inmate's right to equal protection. Accordingly, the Eleventh Circuit upheld the constitutionality of section 1915(g). Rivera, 144 F.3d at 721-27.
A review of court records on the U.S. Party/Case Index reveals that Plaintiff has accumulated three "strikes" in the United States District Court of the Middle District of Georgia at the time this lawsuit was initiated. See, Carswell v. Francisco, 5:00-CV-162-WDO (M.D. Ga.); Carswell v. Owens, 5:02-CV-155-CAR (M.D. Ga.); Carswell v. Gilbert, 5:99-CV-164-DF (M.D. Ga.). As such, Plaintiff 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 section 1915(g). This Court finds no indication that Plaintiff is "under imminent danger of serious physical injury."
Because Plaintiff has more than three prior dismissals and is not under imminent danger of serious injury, his 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 $250.00 filing fee at the time of filing the complaint. As the Eleventh Circuit stated in Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002), 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. SO ORDERED.