         Case: 15-14286   Date Filed: 08/04/2017   Page: 1 of 4


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 15-14286
                      Non-Argument Calendar
                    ________________________

             D.C. Docket No. 5:15-cv-00088-CAR-CHW

WASEEM DAKER,

                                                         Plaintiff-Appellant,

                                versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
TIMOTHY WARD,
Assistant Commissioner,
RICK JACOBS,
Facilities Director,
STEVE UPTON,
Deputy Facilities Director,
ROBERT E. JONES,
General Counsel, et al.,

                                                      Defendants-Appellees.

                    ________________________

             Appeal from the United States District Court
                 for the Middle District of Georgia
                   ________________________

                          (August 4, 2017)
              Case: 15-14286     Date Filed: 08/04/2017    Page: 2 of 4


Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Waseem Daker, a Georgia prisoner, appeals pro se the dismissal of his

complaint of violations of his civil rights on the ground that his allegations of

poverty were untruthful. 28 U.S.C. § 1915(e)(2)(A). Daker contends that the

district court erred in dismissing his complaint sua sponte under section

1915(e)(2)(A) without first providing him notice of its intent to dismiss and an

opportunity to respond. We vacate and remand.

      We review the denial of a motion for leave to proceed in forma pauperis for

an abuse of discretion. Daker v. Comm’r, Ga. Dep’t of Corrs., 820 F.3d 1278,

1283 (11th Cir. 2016), cert. denied, 137 S. Ct. 1227 (2017).

      Although the statute provides that “the court shall dismiss [a] case” if it

determines at any time that a prisoner’s allegation of poverty is untrue, 28 U.S.C.

§ 1915(e)(2)(A), our precedents make clear that a district court must provide the

prisoner notice and an opportunity to be heard before dismissing a case with

prejudice. Under an earlier version of section 1915, which gave the district court

discretion to dismiss a case if the allegation of poverty was untrue but did not

mandate dismissal, we held that a district court could dismiss with prejudice only if

the plaintiff acted willfully or in bad faith. See Dawson v. Lennon, 797 F.2d 934,

935‒36 (11th Cir. 1986) (finding that plaintiff’s pattern of attempting to deceive


                                           2
              Case: 15-14286     Date Filed: 08/04/2017    Page: 3 of 4


the courts about his financial status in multiple cases supported a dismissal with

prejudice). And we ruled that, where withdrawals from an inmate’s account are

being considered as an attempt to hide assets, the district court should provide the

inmate notice and an opportunity to explain the withdrawals before denying him

status as a pauper. Collier v. Tatum, 722 F.2d 653, 655‒56 (11th Cir. 1983). In

other contexts, we also ruled that sua sponte dismissals with prejudice are

disfavored, especially when the court has not provided the plaintiff with notice of

its intent to dismiss or an opportunity to respond. See Tazoe v. Airbus S.A.S., 631

F.3d 1321, 1336‒37 (11th Cir. 2011) (concluding that the district court erred in

dismissing sua sponte a plaintiff’s complaint for forum non conveniens without

first providing her notice and an opportunity to be heard); Am. United Life Ins. Co.

v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007) (explaining that we have

prohibited sua sponte dismissals with prejudice where the court failed to provide

notice and an opportunity to respond); Betty K Agencies, Ltd. v. M/V MONADA,

432 F.3d 1333, 1337‒38 (11th Cir. 2005) (stating that dismissal with prejudice,

whether sua sponte or on motion, is an extreme sanction that may be imposed only

when there is a clear pattern of misconduct and lesser sanctions would not suffice).

      We must consider the dismissal entered by the district court as a dismissal

with prejudice because the district did not state otherwise in its order. “Unless the

dismissal order states otherwise, . . . any dismissal not under [Rule 41]—except


                                          3
               Case: 15-14286     Date Filed: 08/04/2017    Page: 4 of 4


one for lack of jurisdiction, improper venue, or failure to join a party under Rule

19—operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b); see also

Costello v. United States, 365 U.S. 265, 286‒87 (1961) (explaining that, where a

court sua sponte dismisses a case on a ground not provided for in Rule 41 based on

the plaintiff’s failure to satisfy a precondition, that dismissal operates as an

adjudication on the merits). A dismissal with prejudice bars the litigant from

refiling the same complaint even if the litigant is prepared to pay the filing fee.

      The district court abused its discretion when it sua sponte dismissed Daker’s

complaint with prejudice based on its determination that his allegations of poverty

were untruthful without first providing him notice and an opportunity to explain

the perceived deficiencies in his allegations of poverty. Although Daker had notice

that courts had been dubious of his allegations of poverty in some earlier cases, we

cannot say that the district court could dispense with the necessity of providing

Daker notice and an opportunity to be heard before the dismissal of this case.

Accordingly, we vacate the order dismissing Daker’s complaint and remand for the

district court to provide Daker an opportunity to be heard about the truthfulness of

his allegations of poverty.

      VACATED and REMANDED.




                                           4
