from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:17-cv-00366-RWS
NEWSOM, BRANCH and BLACK, Circuit Judges.
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).
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. After review,  we affirm the district
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.
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
28 U.S.C. § 1915(g) (emphasis added).
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.
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,
case, the district court identified six other, separate
occasions in which this Court sua sponte dismissed
Daker's appeals for frivolity. These six dismissals
constitute strikes 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. § 1915(g). A hardcover
book ban and the return of his legal mail to sender in 2013
do not constitute imminent danger of ...