United States District Court, N.D. Georgia, Atlanta Division
July 14, 2014
KELVIN CAIN, Plaintiff,
D. J. INLOW, Defendant.
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
ALLAN J. BAVERMAN, Magistrate Judge.
PRISONER CIVIL RIGHTS 42 U.S.C. § 1983
Plaintiff, Kelvin Cain, confined in the Gwinnett County Detention Center in Lawrenceville, Georgia, has submitted a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. [Doc. 1.] Plaintiff alleges that Defendant, D. J. Inlow, a law enforcement officer, committed perjury in Plaintiff's state court criminal proceeding. [ Id. at 3-4.] Plaintiff has also submitted a copy of his inmate account statement, which the undersigned construes as an application to proceed in forma pauperis. [Doc. 1-1.]
Court records indicate that Plaintiff, while incarcerated, has filed at least three cases that have been dismissed as frivolous or for failure to state a claim. See Order and Opinion, Cain v. Gwinnett Cnty. Det. Ctr. Prison Health Care Providers, No. 1:10-cv-1476-TWT, at 2-3 (N.D.Ga. June 14, 2010) (listing Plaintiff's frivolous cases). A prisoner may not bring a civil action in federal court in forma pauperis "if [he] 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). Plaintiff does not allege that he is under imminent danger of serious physical injury. Therefore, Plaintiff may not proceed in forma pauperis.
When § 1915(g) does not allow a prisoner to proceed in forma pauperis, "the proper procedure is... to dismiss the complaint without prejudice...." Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam). A prisoner who wishes to pursue his claims must refile the action with full payment of the filing fee. "The 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." Id.
Accordingly, the undersigned RECOMMENDS that Plaintiff be DENIED in forma pauperis status and that this action be DISMISSED WITHOUT PREJUDICE.
The Clerk is DIRECTED to terminate the reference to the undersigned.
IT IS SO RECOMMENDED and DIRECTED,