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Gay v. Williams

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


June 11, 2010

ANTHONY GAY, INMATE #62251, PLAINTIFF,
v.
MICHAEL WILLIAMS, DEFENDANT.

The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

Plaintiff Anthony Gay, a prisoner in the Tamms Correctional Center, has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. He also seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

A prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 "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). In the Seventh Circuit, a strike may be counted if any portion of an action is dismissed for these enumerated grounds. See George v. Smith, 507 F.3d 605, 607-08 (7th Cir. 2007); Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004).

Gay has had three or more prior prisoner actions dismissed, or partially dismissed, on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See, e.g., Gay v. Powers, Case No. 98-cv-772-GPM (S.D. Ill., filed Oct. 26, 1998) (dismissed as legally frivolous and for failure to state a claim); Gay v. Page, Case No. 99-cv-365-MJR (S.D. Ill., filed May 26, 1999) (dismissed for failure to state a claim); Gay v. Montgomery, Case No. 99-cv-366-GPM (S.D. Ill., filed May 26,1999) (dismissed as legally frivolous); Gay v. Welbourne, Case No. 00-cv-029-GPM (S.D. Ill., filed Jan. 5, 2000) (dismissed as legally frivolous). Further, the allegations in the instant complaint do not show that Gay is under imminent danger of serious physical injury.*fn1

Accordingly, the motion for leave to proceed in forma pauperis is DENIED. This action is DISMISSED without prejudice to Gay bringing this claim in a fully pre-paid complaint.

The Clerk shall CLOSE THIS CASE.

IT IS SO ORDERED.

MICHAEL J. REAGAN United States District Judge


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