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Daker v. Jackson

United States Court of Appeals, Eleventh Circuit

November 15, 2019

WASEEM DAKER, Plaintiff-Appellant,
v.
THEODORE JACKSON, Sheriff, A. FRALEY, Deputy, DEPUTY UNDERWOOD, (First Name Unknown), A. SAUNDERS, Deputy, R. UNDERWOOD, Deputy, et al., Defendants-Appellees.

          Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:17-cv-00366-RWS

          Before NEWSOM, BRANCH and BLACK, Circuit Judges.

          PER CURIAM.

         Waseem Daker is "a Georgia prisoner serving a life sentence for murder" and a "serial litigant who has clogged the federal courts with frivolous litigation" by "submit[ting] over a thousand pro se filings in over a hundred actions and appeals in at least nine different federal courts." Daker v. Comm'r, Ga. Dep't of Corr., 820 F.3d 1278, 1281 (11th Cir. 2016) (Daker v. Commissioner). In his instant action, Daker appeals the district court's sua sponte dismissal of his 42 U.S.C. § 1983 civil rights complaint alleging the Fulton County Jail's policy banning hardcover books violated his rights under the First Amendment, due process, and the Religious Land Use and Institutionalized Persons Act. The complaint also alleged Daker's due process rights were violated when his property was destroyed pursuant to the hardcover book ban. Finally, Daker alleged the jail violated his right of access to the courts because the mailroom returned his legal mail to sender. Daker requested permission to proceed in forma pauperis (IFP). The district court denied that request and dismissed Daker's complaint pursuant to the "three-strikes" bar of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g).[1]

         On appeal, Daker contends the district court erred in determining he had at least three strikes under the PLRA and that the "three-strikes" provision of the PLRA is unconstitutional because it violates a prisoner's rights to equal protection, access the courts, and the First Amendment's "breathing space" principle.[2] After review, [3] we affirm the district court.

         I. DISCUSSION

         A. Three Strikes

         Daker lists the seven dismissals the district court identified when it determined he had three strikes and perfunctorily asserts "[e]ach of these were errors." However, he specifically argues it was error for the district court to count a dismissal by the Second Circuit in Daker v. NBC, No. 15-330 (2d Cir. May 22, 2015) as a strike because the Second Circuit cited an order by the Northern District of Georgia determining he had three strikes based on dismissals for want of prosecution, which may have been in error based on our decision in Daker v. Commissioner.

         Section 1915(g) reads:

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) (emphasis added).

         In Daker v. Commissioner, we explained that, under § 1915(g), the only dismissals that may be counted as strikes are dismissals on the grounds the claims were frivolous, malicious, or failed to state a claim. 820 F.3d at 1283-84. Because lack of jurisdiction and want of prosecution are not enumerated grounds under § 1915(g), such dismissals, without more, cannot serve as strikes. Id. at 1284. "A dismissal for want of prosecution, even after the denial of a petition to proceed [IFP] on the grounds of frivolousness, cannot be a strike" because IFP petitions are decided by a single judge, and a single judge may not dismiss an appeal. Id. at 1285. We cannot conclude that an action was dismissed as frivolous unless the dismissing court made some express statement to that effect. Id. at 1284.

         Daker's argument the Second Circuit dismissal does not count as a strike is meritless. That case counts as a strike because that court expressly dismissed that appeal as without "arguable basis in law or in fact," making the case frivolous. Daker v. NBC, No. 15-330 (2d Cir. May 22, 2015).

         In any case, the district court identified six other, separate occasions in which this Court sua sponte dismissed Daker's appeals for frivolity.[4] These six dismissals constitute strikes[5] and establish that Daker, on three or more prior occasions, brought "an action or appeal" that was dismissed on the grounds it was frivolous, and he was barred from proceeding IFP without some showing of imminent danger. See 28 U.S.C. ยง 1915(g). A hardcover book ban and the return of his legal mail to sender in 2013 do not constitute imminent danger of ...


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