Opinion
CIVIL ACTION NO. 5:09-CV-133 (HL).
April 13, 2009
ORDER
Plaintiff MICHAEL LONDON, presently incarcerated at Ware State Prison in Waycross, 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).
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 four of these complaints have been dismissed as frivolous pursuant to 28 U.S.C. § 1915: London v. Baker, 1:05-cv-2531 (CC) (N.D. Ga. Oct. 20, 2005); London v. Baker , 5:04-cv-50 (WTM) (S.D. Ga. Sept. 16, 2004); London v. Battle , 5:00-cv-102 (WDO) (M.D. Ga. September 1, 2000); and London v. Leager , 1:99-cv-2695 (CC) (N.D. Ga. November 10, 1999).
Because plaintiff has had at least four 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). The Court notes that plaintiff is incarcerated in the Ware State Prison in Waycross, Georgia. If plaintiff wishes to file a claim alleging that he is in "imminent danger of serious physical injury," the proper venue for such claim is the Southern District of Georgia, where Ware State Prison is located, not this district.
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 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.
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.