UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40369
DANIEL SOLOMAN,
Plaintiff-Appellant,
VERSUS
JAMES A. COLLINS, Director; CAROL S. VANCE; ELLEN J. HALBERT; ALLEN
B. POLUNSKY, Chairman; JOSHUA W. ALLEN; R.H. DUNCAN; GILBERTO
HINOJOSA; JOHN WARD; ROBERT WILSON; S.O. WOODS, JR.; WAYNE SCOTT,
Director, Texas Department of Criminal Justice, Institutional
Division; JACK GARNER, Warden; ANDY MASSINGILL; JOHN DOE, I; JOHN
DOE, II; JOHN DOE, III; TIM WILKINSON; MICHAEL O’GUIN, Captain;
CHARLES POWELL; LARRY MCGUIRE; JANIE COCKRELL; BRUCE ROSEBERRY;
JEFFERY CALFEE; DAWN GROUNDS; CHRISTOPHER BELL,, Telford Unit
employee; STANLEY MELVIN, Telford Unit employee; ROBBIE PROCTOR,
Telford Unit employee,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(5:96-C-148)
June 26, 1998
Before REAVLEY, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis (“IFP”), Daniel
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Soloman, Texas inmate #319470, filed a civil rights complaint
against various Texas Department of Criminal Justice (“TDCJ”)
officials and members of the Texas Board of Criminal Justice.
Soloman alleged a violation of the Eighth Amendment based on the
defendants’ failure to protect him from the following circumstances
arising from events at the TDCJ Telford Unit: 1) the physical
design of the Telford Unit; 2) the means by which inmates were
assigned custodial classifications; 3) the lack of training for
guards in detecting instances of assault, sexual abuse, and
extortion rackets within the general population of prisoners; 4)
Soloman’s assignments to general population, although Soloman was
physically distinguishable as vulnerable and a potential victim as
well as having a history of receiving inmate assaults; 5) the lack
of proper supervision at the Telford Unit; 6) several inmate
assaults against Solomon in 1995, some resulting in stab wounds; an
excessive-use-of-force incident in November 1995 which resulted in
a false disciplinary charge against Soloman and the loss of good-
time credit; 7) the danger faced by Solomon by being placed in
administrative segregation (“ad-seg”) housing with inmates assigned
there for security reasons instead of for protective custody; and
8) alteration of Soloman’s prison record to indicate incorrectly
that his ad-seg custody is for security reasons and not for
protective reasons.
The district court dismissed the complaint pursuant to 28
U.S.C. § 1915(g), finding that Solomon had filed at least three
prior civil rights suits which were dismissed as frivolous and that
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his allegations failed to demonstrate that Soloman “is in imminent
danger of serious bodily injury.” § 1915(g). The dismissal was
without prejudice and provided that the judgment would be vacated
if Solomon paid the filing fee within thirty days from the entry of
judgment. After Soloman filed a notice of appeal, the district
court granted him leave to proceed on appeal IFP and ordered a fee-
payment schedule.
ANALYSIS
The district court’s determination that § 1915(g) bars Soloman
from proceeding IFP in a civil action seems incongruous with the
grant of leave to appeal IFP. Section 1915(g) provides:
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.
The district court did not err in finding, and Soloman does
not contest the fact, that he has had at least three dismissals on
the basis of frivolousness. See Soloman v. Pittcock, No. 92-CV-519
(E.D. Tex. Jan. 7, 1993); Soloman v. Collins, No. TY-88-238-CA
(E.D. Tex. Aug. 29, 1988); Soloman v. McKaskle, No. H-84-41 (S.D.
Tex. June 19, 1987).
In light of Soloman’s three strikes, he cannot proceed on
appeal IFP unless the statutory exception applies, that is, unless
he “is under imminent danger of serious physical injury.” §
1915(g); see Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
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1996). This case requires us to determine what showing must be
made by a plaintiff who asserts that he should be allowed to
proceed IFP because he is in imminent danger of serious physical
injury. The plain language of the statute leads us to conclude
that a prisoner with three strikes is entitled to proceed with his
action or appeal only if he is in imminent danger at the time that
he seeks to file his suit in district court or at the time that he
seeks to proceed with his appeal or files a motion to proceed IFP.
See 1915(g).
The only other circuit that has addressed this issue came to
a different conclusion. The Third Circuit, in Gibbs v. Roman, 116
F.3d 83 (3rd Cir. 1997), held that an inmate filing a complaint
pursuant to § 1915(g) must allege imminent danger at the time of
the alleged incident that serves as the basis of the complaint
rather than at the time the complaint was filed. Gibbs, 116 F.3d
at 86. We read the statute to require the inquiry concerning the
prisoner’s danger to be made at the time of the IFP motion.
In revising § 1915, the 104th Congress intended to discourage
the filing of frivolous IFP law suits. See H.R.REP., NO.104-21, §
202, at 22 (1995). Congress designed the new IFP provision to
require every IFP litigant to pay the requisite filing fees in
full. 28 U.S. C. § 1915(b). However, IFP status allows an indigent
litigant to make periodic partial payments as his ability to pay
allows and does not require full payment before the litigation goes
forward. Id. If a litigant abuses the IFP privilege, as evidenced
by three “strikes” (dismissals for frivolousness), § 1915(g) has
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the effect of delaying litigation of the merits of a claim until
the fee is paid in full.2 When such a delay threatens “imminent
danger of serious physical injury,” the litigant will be granted
IFP status in spite of his past abuse and allowed to pay out his
filing fee obligations. In order to implement this statutory
scheme, we must determine if danger exists at the time the
plaintiff seeks to file his complaint or notice of appeal IFP.
Likewise, the language of § 1915(g), by using the present tense,
clearly refers to the time when the action or appeal is filed or
the motion for IFP status is made.
Applying this standard to Soloman, we conclude that he is not
entitled to proceed with this appeal IFP. He has not alleged, much
less established, that he faced imminent danger of serious physical
injury at the time that his notice of appeal was filed. We
therefore REVOKE his IFP status and dismiss his appeal. The appeal
may be reinstated if Soloman pays the appeal fees within thirty
days of this dismissal.
IFP STATUS REVOKED. APPEAL DISMISSED.
2
It is possible that a potential litigant who is denied IFP
status under this provision will not have the ability to pay the
entire filing fee within the statute of limitations or, in the case
of an appeal, within the time for filing an appeal, and will
thereby be precluded from litigating or appealing his case on the
merits. This circuit has held the “three strike” provision of §
1915(g) constitutional in spite of this risk. See Carson v.
Johnson, 112 F.3d 818 (5th Cir. 1997).
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