*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this opinion should not be published and is not precedent except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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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
2

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 goodtime 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 feepayment 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.
4

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
 

2It 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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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.