United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE APPLICATION FOR LEAVE
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE, DENYING
MOTION TO APPOINT COUNSEL AND SUPPLEMENT COMPLAINT (Dkt. 7),
AND DISMISSING THE CIVIL RIGHTS COMPLAINT
A. GOLDSMITH United States District Judge
prisoner Martin Antonio Solomon (“Plaintiff”),
currently confined at the Charles Egeler Reception and
Guidance Center in Jackson, Michigan, has filed a pro se
civil rights complaint pursuant to 42 U.S.C. § 1983 and
an application to proceed without prepayment of the filing
fee for this action. In his complaint, Plaintiff raises
claims concerning his medical care while in custody at the
Wayne County Jail in 2017. Plaintiff names Correct Care
Solutions, medical personnel, the Wayne County Sheriff's
Department, Wayne County, the Wayne County Sheriff, jail
employees, and others as the defendants in this action and
seeks monetary damages. On July 25, 2019, Plaintiff filed an
amended complaint (Dkt. 6), along with an accompanying motion
for leave to supplement his complaint and to appoint counsel
the Prison Litigation Reform Act (“PLRA”), Pub.
L. No. 104-134, 110 Stat. 1321 (1996), a prisoner may be
precluded from proceeding without prepayment of the filing
fee in a civil action under certain circumstances. The
statute states, in relevant part:
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). In short, the “three
strikes” provision requires a federal court to dismiss
a civil case where the prisoner seeks to proceed without
prepayment of the filing fee if, on three or more previous
occasions, a federal court has dismissed the prisoner's
action because it was frivolous or malicious or failed to
state a claim upon which relief may be granted. Id.; see
also Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.
2002) (holding that “the proper procedure is for the
district court to dismiss the complaint without prejudice
when it denies the prisoner leave to proceed in forma
pauperis pursuant to the provisions of §
is a prolific litigator in federal court and court records
reveal that he has filed at least three prior civil actions
which have been dismissed as frivolous or for failure to
state a claim upon which relief may be granted. See
Solomon v. Macomb Co. Corp., et al., No. 2:12-CV-14537
(E.D. Mich. Dec. 13, 2012); Solomon v. Berghuis, et
al., No. 2:12-CV-12049 (E.D. Mich. July 30, 2012);
Solomon v. Wayne Co. Corp., No. 2:11-CV-12330 (E.D. Mich.
June 10, 2011); Solomon v. Caruso, et al., No.
2:07-CV-102 (W.D. Mich. Oct. 24, 2007). Additionally,
Plaintiff has previously been denied leave to proceed in
forma pauperis in other federal lawsuits under the three
strikes rule. See Solomon v. Boles, et al., No.
1:14-CV-541 (W.D. Mich. June 9, 2014); Solomon v.
Olivette Products, LLC, et al., No. 2:13-CV-13666 (E.D.
Mich. Oct. 17, 2013).
Plaintiff is a “three-striker” who cannot proceed
without prepayment of the filing fee unless he can
demonstrate that he is “under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). To
fall within this statutory exception, a prisoner must allege
that the threat or prison condition is “real and
proximate” and that the danger of serious physical
injury exists when the complaint is filed. See Rittner v.
Kinder, 290 Fed.Appx. 796, 797-798 (6th Cir. 2008)
(citing Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir. 2003); Abdul-Akbar v. McKelvie, 239 F.3d 307,
313 (3d Cir. 2001) (en banc)). An assertion of past danger is
insufficient to invoke the exception, id., as is an assertion
of the potential for future harm. See Vandiver v.
Vasbinder, No. 08-2602, 2011 WL 1105652, at *2 (6th Cir.
2011) (“[T]he plain language of § 1915(g) requires
the imminent danger to be contemporaneous with the
events giving rise to Plaintiff's complaint and amended
complaint do not meet the foregoing standard. Rather, the
allegations in both complaints concern events and injuries
(involving a broken catheter in his bladder) that occurred in
2017. Plaintiff thus fails to show that he falls within the
exception to the three strikes rule or that he should
otherwise be allowed to proceed without prepayment of the
filing fee despite having three or more prior lawsuits
dismissed as frivolous or for failure to state a claim upon
which relief may be granted.
the Court denies Plaintiff's application for leave to
proceed without prepayment of the filing fee, denies his
motion to appoint counsel and supplement his complaint (Dkt.
7), and dismisses his civil rights complaint pursuant to 28
U.S.C. § 1915(g). This dismissal is without prejudice to
the filing of a new complaint with payment of the $350.00
filing fee and the $50.00 administrative fee. Any such
complaint will be reviewed to determine whether it should be
served upon the defendants or summarily dismissed under 28
U.S.C. § 1915A(b), which requires a federal court to
dismiss a complaint brought against governmental entities,
officers, and employees if the complaint is “frivolous,
malicious, or fails to state a claim upon which relief may be
granted” or “seeks monetary relief from a
defendant who is immune from such ...