Waseem Daker v. USA, et al., No. 18-11383 (11th Cir. 2019)

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The court issued a subsequent related opinion or order on October 28, 2019.

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Case: 18-11383 Date Filed: 08/07/2019 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-11383 Non-Argument Calendar ________________________ D.C. Docket No. 4:16-cv-00158-JRH-GRS WASEEM DAKER, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, SCOTT L. POFF, Defendants-Appellees. ________________________ Appeal from the United States District Court for the Southern District of Georgia ________________________ (August 7, 2019) Before WILLIAM PRYOR, MARTIN and NEWSOM, Circuit Judges. PER CURIAM: Case: 18-11383 Date Filed: 08/07/2019 Page: 2 of 6 Waseem Daker, a Georgia prisoner, appeals pro se the dismissal of his complaint that a federal official violated his civil rights, 42 U.S.C. § 1983, and the denial of his motion for recusal. After a magistrate judge denied Daker’s motion for recusal, the district court dismissed Daker’s complaint with prejudice after determining that he was ineligible to proceed in forma pauperis with three actions or appeals that counted as strikes against him under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). We affirm the denial of Daker’s motion for recusal and the dismissal of his complaint. But because a prisoner disqualified from proceeding as a pauper under section 1915(g) should have his complaint dismissed without prejudice, we vacate the order of dismissal and remand with instructions for the district court to dismiss Daker’s complaint without prejudice. Daker waived his right to challenge the denial of his motion for recusal of every district court judge in the Southern District of Georgia. After the magistrate judge denied Daker’s motion for recusal on July 25, 2016, see 28 U.S.C. § 636(b)(1)(A), Daker had 14 days, or until August 8, 2016, to object to the decision, see Fed. R. Civ. P. 72(a). Because Daker did not object until August 11, 2016, he waived his right to appeal the adverse ruling. See Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007). It matters not that Daker filed a motion to reconsider on August 3, 2016, because that motion challenged the docketing of his motion for recusal, not its denial. 2 Case: 18-11383 Date Filed: 08/07/2019 Page: 3 of 6 The district court did not err by dismissing Daker’s complaint on the ground that he was ineligible to proceed in forma pauperis. The Prison Litigation Reform Act bars a prisoner from proceeding as an indigent if he “has, on 3 or more prior occasions, while incarcerated . . ., brought an action or appeal . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). Three of the five actions and appeals relied on by the district court—Daker v. Nat’l Broad. Co., No. 15-330 (2d Cir. May 22, 2015); Daker v. Warren, No. 13-11630 (11th Cir. Mar. 4, 2014); and Daker v. Mokwa, No. 14-cv-395 (C.D. Cal. Mar. 19, 2014)—qualified as strikes. In National Broadcasting, the Second Circuit dismissed Daker’s appeal on the ground that “it ‘lacks an arguable basis either in law or in fact.’ Neitzke v. Williams, 490 U.S. 319, 325 (1989),” which is the definition the Neitzke Court gave “a complaint . . . [that] is frivolous,” id. In Warren, we expressly dismissed Daker’s interlocutory appeal on a “find[ing] that [it] [was] frivolous.” And in Mokwa, the district court dismissed Daker’s “amended complaint . . . as frivolous and for failure to state a claim,” after which the Ninth Circuit dismissed Daker’s “appeal [a]s frivolous,” Daker v. Mokwa, No. 14-55653 (June 11, 2014). Although the dismissal without prejudice of two civil actions that Daker filed in the Northern District of Georgia—Daker v. Robinson, No. 12-cv-00118, and Daker v. Dawes, No. 12-cv-00119—did not count as strikes because they were dismissed for failure 3 Case: 18-11383 Date Filed: 08/07/2019 Page: 4 of 6 to pay a filing fee, Daker already had accumulated the requisite three strikes to deny his motion to proceed in forma pauperis. See 28 U.S.C. § 1915(g). Daker argues that he is entitled to proceed as an indigent under the exception for a “prisoner [who] is under imminent danger of serious physical injury,” id., but we disagree. Daker never alleged in his complaint that he faced “a present imminent danger to proceed under section 1915(g) . . . .” Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004). Daker alleged that the Clerk for the Southern District of Georgia violated his rights by returning his civil complaint on the basis that venue was incorrect. One year later, Daker moved to amend his complaint to add a claim of imminent danger in response to the magistrate judge’s recommendation to dismiss Daker’s complaint. Daker did not seek written consent from the Clerk or request leave to amend his pleading, and the district court did not consider Daker’s motion to amend. See Fed. R. Civ. P. 15(a). And Daker failed to allege “a present imminent danger” in his proposed amended complaint. Daker alleged that he had been exposed to fecal matter, received inadequate dental care, and had been denied outdoor exercise, but those hardships did not endanger Daker. Daker’s allegation that using unsanitary and damaged clippers on his beard might increase his risk of contracting an infectious disease was too speculative to constitute imminent harm. And Daker’s allegations that he had been denied medication and treatment for nerve damage and weight issues related to events in 4 Case: 18-11383 Date Filed: 08/07/2019 Page: 5 of 6 the past, which do not qualify for the imminent danger exception. See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). Daker challenges the constitutionality of section 1915(g), but his arguments fail. Section 1915(g) does not infringe on a prisoner’s freedom of speech under the First Amendment because denying a prisoner the right to proceed in forma pauperis does not censor what issues he can litigate. Daker argues that section 1915(g) violates his right to access the courts under the First Amendment and his right to equal protection under the Fifth Amendment, but those arguments are foreclosed by Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998), abrogated in part on different grounds by Jones v. Bock, 549 U.S. 199 (2007) (exhaustion). In Rivera, we held that section 1915(g) does not thwart prisoners from having “adequate, effective, and meaningful” access to the courts “to prevent grave bodily harm,” id. at 724, or violate a prisoner’s right to equal protection because requiring the payment of a reasonable filing fee bears a rational relation to the legitimate governmental interest of deterring frivolous litigation, id. at 727–28. Rivera does not conflict with Procup v. Strickland, 792 F.2d 1069, 1071, 1074 (11th Cir. 1986), in which we held that a district court could not prohibit a prisoner from filing a pro se complaint, or with Cofield v. Alabama Public Service Commission, 936 F.2d 512, 518 (11th Cir. 1991), in which we held that a district court could not deny a prisoner in forma pauperis status prospectively. 5 Case: 18-11383 Date Filed: 08/07/2019 Page: 6 of 6 The district court erred by dismissing Daker’s complaint with prejudice. “[T]he 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 three strikes provision of § 1915(g).” Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). That error requires us to vacate the order of dismissal and to remand the case for the district court to dismiss Daker’s complaint without prejudice. We AFFIRM the dismissal of Daker’s complaint, but we VACATE the order of dismissal and REMAND with instructions for the district court to dismiss the complaint without prejudice. 6

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