United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S APPLICATION
FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE,
DISMISSING WITHOUT PREJUDICE HIS CIVIL RIGHTS COMPLAINT, AND
DENYING HIS MOTION TO EXPEDITE
D. Borman United States District Judge.
prisoner Lance Adam Goldman (“Plaintiff”),
currently confined at the Saginaw Correctional Facility in
Freeland, Michigan, has filed a pro se civil rights complaint
pursuant to 42 U.S.C. § 1983 (entitled an
“Emergency Complaint for Injunctive Relief”), as
well as an application to proceed without prepayment of the
filing fee for this action and a motion to expedite review of
his case. In his complaint, Plaintiff alleges that his food
trays contain a chemical spray that is transferring to his
food and making him sick and that he has not been seen by
medical staff for his symptoms of fever, shakes, sweats,
migraines, mouth sores, sour mouth, irritated throat, stomach
pain, and diarrhea. He names Warden T. Winn, Food Service
Director Crawford, Resident Unit Manager Zummer, Corrections
Officers Luna and Trombley, and Nurses Curtina Jones and
Carla Gross as the defendants in this action. He seeks
injunctive relief, fees, and costs.
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. The Court's
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
Goldman v. Bridenstein, No. 2:18-CV-143, 2018 WL
5773187, *1 (W.D. Mich. Nov. 2, 2018) (frivolous);
Goldman v. Michigan, No. 2:18-CV-11666, 2018 WL
3436777, *1 (E.D. Mich. July 17, 2018) (failure to state a
claim), recon. den. 2019 WL 462508 (E.D. Mich. Feb.
6, 2019); Goldman v. Michigan, No. 1:17-CV-774, 2017
WL 4173509, *4 (W.D. Mich. Sept. 21, 2017) (failure to state
a claim); Goldman v. Consumers Credit Union, No.
1:16-CV-1372, 2017 WL 1404862, *1 (W.D. Mich. Apr. 20, 2017)
(failure to state a claim); Goldman v. N.C. Prisoner
Legal Svs., No. 5:13-ct-03158-F, 2014 U.S. Dist. LEXIS
200883 (E.D. N.C. Oct. 9, 2014) (frivolous); Goldman v.
Johnson, et al., No. 5:11-CT-3031-D, 2011 U.S. Dist.
LEXIS 156667 (E.D. N.C. Sept. 16, 2011) (frivolous).
Plaintiff has also previously been notified of his
three-strike status and been denied leave to proceed without
prepaying the filing fee in at least one other case. See,
e.g., Goldman v. Michigan Dept. of Corr., No.
2:19-CV-11597, 2019 WL 2866502 (E.D. Mich. July 3, 2019)
(denying Plaintiff leave to proceed in forma pauperis and
dismissing complaint based upon three prior strikes).
Plaintiff is a “three-striker” who cannot proceed
without prepayment of the filing fee unless he shows that he
is “under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). Plaintiff
acknowledges that he is a three-striker, but alleges that he
is under imminent danger of being poisoned, getting cancer,
and becoming seriously ill. To fall within the exception to
the three strikes rule, a prisoner must allege that the
threat or prison condition is “real and
proximate” and the danger of serious physical injury
must exist at the time the complaint is filed. See
Rittner v. Kinder, 290 Fed.Appx. 796, 797-98 (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, 416 Fed.Appx. 560, 562 (6th Cir.
2011) (“[T]he plain language of § 1915(g) requires
the imminent danger to be contemporaneous with the
complaint's filing.”). Finally, as the Sixth
Circuit recently clarified, the type of physical injury
alleged must “have potentially dangerous consequences
such as death or severe bodily harm” to qualify as
“serious” for purposes of § 1915(g).
Gresham v. Meden, 938 F.3d 847, 850 (6th Cir. 2019).
fails to show that he is under imminent danger of serious
physical injury. His complaints of mouth and throat
irritation, fever and chills, headaches, stomach pain, and
diarrhea, while unpleasant, are not sufficiently serious to
justify an exception to the three strikes rule. Such episodic
physical discomfort is not life-threatening nor does it
constitute severe bodily harm as envisioned by the Sixth
Circuit in Gresham. Id. (finding that
alleged injuries of chest pain, restlessness, seizures,
vomiting, stomach cramps, and dizziness arising from
supervised medications were insufficient to meet the
exception). Moreover, Plaintiff's concerns about
potential future harm, such as cancer or other serious
illness, are speculative at best and insufficient to satisfy
the exception to the three strikes rule. Plaintiff fails to
establish that he should be allowed to proceed without
prepayment of the filing fee despite the fact that he has had
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 for this action
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 civil rights complaint accompanied by the
full 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, in whole or in part, 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 relief.” Given this
decision, the Court also DENIES Plaintiff's motion to
expedite as moot.
the Court concludes that it has properly applied the
“three strikes” provision of 28 U.S.C. §
1915(g) such that an appeal from this order cannot be ...