United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE.
Waseem Daker has filed a motion to proceed in forma
pauperis on appeal. For the following reasons, the Court
finds that Plaintiff has a good faith basis to take this
appeal and that he is not barred by the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. § 1915(g),
from proceeding with this appeal in forma pauperis.
Plaintiff's motion to proceed in forma pauperis
on appeal (ECF No. 17) is therefore GRANTED.
1915(g), often referred to as the “three strikes”
provision of the PLRA, prevents a prisoner from
Bring[ing] a civil action . . . 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.
Order dated May 6, 2014 (ECF No. 5), the Court determined
Plaintiff had amassed three strikes for purposes of §
1915(g), denied Plaintiff leave to file his Complaint in
forma pauperis, and dismissed Plaintiff's Complaint
without prejudice to his submitting a new complaint form and
the full filing fee. Plaintiff filed a notice of appeal of
the Court's May 6, 2014 Order on July 21, 2014 (ECF No.
9), after the Court denied Plaintiff's motion to vacate
that Order. At the time he filed his notice of appeal,
Plaintiff did not move in this Court to proceed on appeal
in forma pauperis. See Fed. R. App. Proc.
24(a) (“[A] party to a district-court action who
desires to appeal in forma pauperis must file a motion in the
district court.”); see also 28 U.S.C. §
1915(a)(3). On August 19, 2014, the Eleventh Circuit Court of
Appeals dismissed Plaintiff's appeal in Case Number
14-13257 for want of prosecution because Plaintiff never paid
the filing and docketing fees to this Court.
4, 2016, the Eleventh Circuit issued an opinion in another of
Plaintiff's appeals in which it concluded that six of
Plaintiff's prior dismissals for lack of jurisdiction and
want of prosecution could not be classified as § 1915(g)
strikes. Daker v. Comm'r, Ga. Dep't Corr.,
820 F.3d 1278, 1286 (11th Cir. 2016). The court
“express[ed] no view” on whether any other
dismissals of Plaintiff's prolific pro se
filings could qualify as strikes. See Id. at 1281,
1286 (noting that Plaintiff is a “serial
litigator” who “has submitted over a thousand
pro se filings in over a hundred actions and appeals
in at least nine different federal courts”). Based on
the Eleventh Circuit's ruling in Daker,
Plaintiff moved to reinstate the appeal in this case because
the Court's May 6, 2014, Order designated Plaintiff as a
“three-striker, ” denied his motion to proceed
in forma pauperis, and dismissed his Complaint on
those grounds. The Eleventh Circuit granted Plaintiff's
motion to reinstate his appeal on August 18, 2016, but
Plaintiff did not file for leave to proceed in forma
pauperis on appeal in this Court until January 19, 2017.
The issue of whether Plaintiff may proceed with his
reinstated appeal in forma pauperis is now properly
before the Court.
to 28 U.S.C. § 1915(a)(1), a court may authorize an
appeal of a civil action or proceeding without prepayment of
fees or security therefor if the putative appellant has filed
“an affidavit that includes a statement of all
assets” and “state[s] the nature of the . . .
appeal and [the] affiant's belief that the person is
entitled to redress.” If the trial court certifies in
writing that the appeal is not taken in good faith, however,
such appeal may not be taken in forma pauperis; in
addition, the PLRA prohibits a prisoner from
“appeal[ing] a judgment in a civil action or
proceeding” in forma pauperis if he has three
strikes. 28 U.S.C. § 1915(a)(3), (g); see also
Fed. R. App. P. 24(a)(3).
faith” means that an issue exists on appeal that is not
frivolous under an objective standard. See Coppedge v.
United States, 369 U.S. 438, 445 (1962). “An issue
is frivolous when it appears that ‘the legal theories
are indisputably meritless.'” Ghee v. Retailers
Nat'l Bank, 271 F. App'x 858, 859 (11th Cir.
2008) (per curiam) (quoting Carroll v. Gross, 984
F.2d 392, 393 (11th Cir. 1993)). The Court's May 6, 2014,
Order counted as strikes various cases or appeals that the
Eleventh Circuit has since concluded do not qualify as
strikes for purposes of § 1915(g). Accordingly, the
Court cannot say that Plaintiff does not have a good faith
basis for appealing in this case.
addition to determining that Plaintiff has a good faith basis
for appealing this case, the Court is also obligated to
ensure that Plaintiff is not a three-striker for purposes of
the PLRA before it grants a motion to permit Plaintiff to
appeal in forma pauperis. See 28 U.S.C.
§ 1915(g) (“[i]n no event shall a
prisoner . . . appeal a judgment in a civil action or
proceeding” in forma pauperis if he has
accumulated three strikes (emphasis added)). After reviewing
PACER records, the Court cannot determine with absolute
certainty that Plaintiff is a “three-striker” for
purposes of § 1915(g) without considering the cases
relied upon in the Court's May 6, 2014, Order.
noted above, Plaintiff filed his notice of appeal in this
case on July 21, 2014, but he did not signify his intent to
proceed under § 1915 by moving in this Court to proceed
with that appeal in forma pauperis until January 19,
2017, nearly five months after the Eleventh Circuit
granted his motion to reinstate his appeal. In the interim,
Plaintiff filed dozens of additional cases or appeals, and he
also accrued additional strikes as courts dismissed various
of his filings as frivolous, malicious, or for failure to
state a claim.
generally appears that a prisoner's three-strikes status
must be determined at the time the prisoner files his or her
notice of appeal. Cf. Dollar v. Coweta Cnty. Sheriff
Office, 510 F. App'x 897, 900 (11th Cir. 2013) (per
curiam) (“Our published decisions have consistently
looked at the time of filing when considering
whether § 1915(g) prevents a prisoner from proceeding
in forma pauperis.”); cf. also Williams v.
Paramo, 775 F.3d 1182, 1187, 1192-93 (9th Cir. 2015)
(holding that “a court of appeals may require a
three-strike prisoner seeking forma pauperis status
to show an imminent danger at the time the notice of appeal
is filed” and noting that the three other circuit
courts have reached similar conclusions); Banos v.
O'Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per
curiam) (holding that three-strikes litigant must allege
imminent danger existed at the time he “seeks to file
his complaint or notice of appeal IFP” because §
1915(g) “clearly refers to the time when the action or
appeal is filed or the motion for IFP status is made”);
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.
1999) (quoting Banos for the proposition that the
use of the present tense in § 1915(g) “clearly
refers to the time when the action or appeal is filed or the
motion for IFP status is made”).
even though Plaintiff accrued more than three strikes before
he filed his IFP motion in the above-captioned case,
Court finds those strikes cannot be counted for purposes of
determining whether Plaintiff was a three-striker on the date
he “appeal[ed] a judgment” in this case.
See 28 U.S.C. § 1915(g). After eliminating
those strikes from consideration, it appears Plaintiff
accrued only two strikes prior to filing his notice of appeal
in this case. See Daker v. Mokwa, Order Denying
Leave to Proceed IFP, ECF No. 2 in Case No.
2:14-cv-00395-UA-MRW (C.D. Cal. Feb. 4, 2014) (denying leave
to proceed in forma pauperis and dismissing case
after conducting screening under 28 U.S.C. §
1915(e)(2)(B) and finding claims were frivolous and failed to
state a claim upon which relief may be granted); Daker v.
Warren, Order Dismissing Appeal, Case ...