                Case: 14-12139       Date Filed: 05/04/2016       Page: 1 of 15


                                                                            [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-12139
                               ________________________

                          D.C. Docket No. 5:12-cv-00459-CAR


WASEEM DAKER,

                                                                          Plaintiff-Appellant,

                                             versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, et al.,

                                                                       Defendants-Appellees.


                               ________________________

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

                                        (May 4, 2016)

Before WILLIAM PRYOR, ANDERSON, and PARKER,∗ Circuit Judges.

WILLIAM PRYOR, Circuit Judge:



∗
 Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit, sitting
by designation.
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      This appeal presents a question of first impression about the “three strikes”

provision of the Prison Litigation Reform Act, which ordinarily denies in forma

pauperis status to a prisoner who “on 3 or more prior occasions” brought a federal

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).

Waseem Daker is a state prisoner and a serial litigator in federal courts. Daker has

submitted over a thousand pro se filings in over a hundred actions and appeals in at

least nine different federal courts. In this lawsuit, the district court denied Daker’s

petition to proceed in forma pauperis because it concluded that he had six strikes

under the Act. Two of Daker’s earlier filings were dismissed for lack of

jurisdiction, and the other four were dismissed for want of prosecution. In three of

the four dismissals for want of prosecution, a judge of this Court determined that

Daker could not proceed in forma pauperis because his filings were frivolous. But

a single circuit judge cannot dismiss an action or appeal, Fed. R. App. P. 27(c);

instead, panels of this Court dismissed Daker’s filings because he failed to pay the

filing fee, 11th Cir. R. 42-1(b). Although Daker is a serial litigant who has clogged

the federal courts with frivolous litigation, we must follow the text of the Act,

which does not classify his six prior dismissals for lack of jurisdiction and want of

prosecution as strikes. We vacate the dismissal of Daker’s complaint and remand

for further proceedings.



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                                I. BACKGROUND

      Waseem Daker is a Georgia prisoner serving a life sentence for murder. He

was convicted in October 2012 after unsuccessfully representing himself at trial.

Daker was in jail awaiting trial from 2010 to 2012, and he was in prison for

aggravated stalking from 1996 to 2005.

      In November 2012, Daker filed his current lawsuit against the Commissioner

of the Department of Corrections and other officials for various violations of his

civil rights. Along with his complaint, Daker filed a petition to proceed in forma

pauperis. He also asked for a preliminary injunction requiring the prison to give

him access to a law library.

      In his petition to proceed in forma pauperis, Daker attested that he is

indigent and cannot afford the filing fee. He swore that he has been unemployed

since 2010, earned no income in the last year except for a $50 loan from his

brother that the prison seized immediately, and has $0 in his checking, savings, and

prison accounts. In terms of his assets, Daker disclosed that he owns a house that

he purchased for $395,000 in 2005. Although his family still lives there, Daker

attested that the house has “lost value” and that he is “unable to make [the]

mortgage payments.” As for his debts, Daker alleged that he owes $345,000 on his

mortgage, $25,000 in student loans, $36,000 in attorney’s fees, and $2,000 to the

prison.



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      The Commissioner filed a motion to dismiss the complaint. The

Commissioner argued that Daker is ineligible to proceed in forma pauperis for two

reasons: he had at least three strikes under the Act when he filed his complaint and

he is not indigent.

      The Commissioner identified six previous filings by Daker. Two were

dismissed for lack of jurisdiction: Daker v. Head, No. 01-14624 (11th Cir. Jan. 25,

2002), an interlocutory appeal from a civil lawsuit that this Court dismissed “for

lack of jurisdiction”; and Aziyz v. Tremble, No. 05-11696 (11th Cir. May 9, 2005),

an interlocutory appeal from a civil lawsuit that this Court dismissed “for lack of

jurisdiction.” Four were dismissed for want of prosecution: Daker v. Barrett,

No. 03-15771 (11th Cir. July 26, 2004), an appeal from a civil lawsuit that this

Court dismissed “for want of prosecution because [Daker] has failed to file [an]

appellant brief within the time fixed by the rules”; In re Daker, No. 12-12073 (11th

Cir. July 12, 2012), a petition for a writ of mandamus that this Court dismissed

“for want of prosecution” under Eleventh Circuit Rule 42-1(b) “because . . . Daker

failed to pay the $450 docket fee . . . within the time fixed by the rules”; In re

Daker, No. 12-12072 (11th Cir. Aug. 6, 2012), a petition for a writ of mandamus

and habeas corpus that this Court dismissed “for want of prosecution” under Rule

42-1(b) “because . . . Daker failed to pay the $450 docket fee . . . within the time

fixed by the rules”; and Georgia v. Daker, No. 12-12519 (11th Cir. Nov. 5, 2012),



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an appeal from a remand order that this Court dismissed “for want of prosecution”

under Rule 42-1(b) “because . . . Daker has failed to pay the filing and docketing

fees . . . within the time fixed by the rules.” In the last three dismissals, a single

judge of this Court denied Daker’s petitions to proceed in forma pauperis because

his filings were “frivolous.”

      The Commissioner also submitted material to prove that Daker could not

proceed in forma pauperis because he is not indigent. The Commissioner

submitted a “Zestimate” from Zillow.com, which valued Daker’s house at

$489,217—contradicting his assertion that his house has “lost value.” The

Commissioner also submitted a report and recommendation from Magistrate Judge

Scofield in a separate case. Judge Scofield stated that Daker owns a house “worth

substantially more than its mortgage.” Judge Scofield also doubted that Daker’s

other debts were real because Daker never disclosed them in his previous petitions

to proceed in forma pauperis. Daker’s alleged debt for attorney’s fees was “all the

more dubious,” according to Judge Scofield, “because Daker represented himself

at his murder trial, and the court-appointed backup counsel were court-paid.”

      On February 25, 2014, a magistrate judge agreed with both of the

Commissioner’s arguments and recommended denying Daker’s petition to proceed

in forma pauperis. The district court adopted the report and recommendation of the

magistrate judge on March 24, 2014. The district court stated that Daker “ha[d] not



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filed an objection” to the report of the magistrate judge. Because Daker could not

proceed in forma pauperis and had not paid the filing fee, the district court

dismissed his complaint without prejudice. It also denied his request for a

preliminary injunction because Daker provided “no facts regarding his current

access to legal materials” and no explanation of how he suffered an injury.

      Although the district court concluded that Daker had not objected to the

report and recommendation of the magistrate judge, Daker had objected in a filing

dated March 13, 2014. The district court missed this filing because it did not arrive

until April 4, 2014—11 days after the district court dismissed Daker’s complaint.

In the March 13 filing, Daker objected to the report and recommendation of the

magistrate judge on several grounds. With respect to his indigence, Daker argued

that the magistrate judge should not have relied on the report from Judge Scofield

because it was an “extrajudicial” source. He also disagreed with the suggestion by

Judge Scofield that he did not owe attorney’s fees; Daker alleged that the state

court required him to “reimburse the county for court-appointed counsel” as part of

his sentence. Daker further objected to the Zestimate from Zillow.com because it

was unreliable and “inflated.” Contrary to the Zestimate, Daker argued that

comparable houses in his neighborhood had recently sold for $330,000, $320,000,

$285,900, $310,000, $285,000, and $290,000—all less than the $345,000 he owes




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on his mortgage. Finally, Daker cited several orders in which other courts found

that he was indigent on “the same facts” he alleged in his current petition.

                             II. STANDARDS OF REVIEW

      We review the denial of a petition to proceed in forma pauperis for abuse of

discretion, Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 (11th Cir. 2004),

but we review interpretations of the Act de novo, Brown v. Johnson, 387 F.3d

1344, 1347 (11th Cir. 2004). We review the denial of a preliminary injunction for

abuse of discretion. Forsyth Cty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032,

1039 (11th Cir. 2011).

                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain why the district

court erred when it concluded that Daker had three or more strikes under the Act.

Second, we explain why the district court abused its discretion when it found that

Daker is not indigent. Although Daker also complains about the denial of his

motion for a preliminary injunction, we see no abuse of discretion and do not

discuss the issue further.

   A. The District Court Erred When It Concluded that Daker Had Six Strikes.
      The Commissioner contends that Daker’s six dismissals for lack of

jurisdiction and want of prosecution qualify as strikes under the Act. For this and

any other question of statutory interpretation, our predecessor court endorsed



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Justice Frankfurter’s three-part test: “(1) Read the statute; (2) read the statute;

(3) read the statute!” Dobbs v. Costle, 559 F.2d 946, 948 n.5 (5th Cir. 1977)

(quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in

Benchmarks 196, 202 (1967)). Applying that test resolves this appeal.

      The three-strikes provision of the Act bars a prisoner who is not in danger of

physical injury and has had three frivolous, malicious, or meritless filings from

proceeding in forma pauperis:

      In no event shall a prisoner bring a civil action or appeal a judgment
      in a civil action or proceeding [in forma pauperis] 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). Three specific grounds render a dismissal a strike:

“frivolous,” “malicious,” and “fails to state a claim upon which relief may be

granted.” Under the negative-implication canon, these three grounds are the only

grounds that can render a dismissal a strike. See Antonin Scalia & Bryan A.

Garner, Reading Law 107–11 (2012). Neither “lack of jurisdiction” nor “want of

prosecution” are enumerated grounds, so a dismissal on either of those bases,

without more, cannot serve as a strike. Other circuits agree. See Haury v. Lemmon,

656 F.3d 521, 523 (7th Cir. 2011); Thompson v. DEA, 492 F.3d 428, 437 (D.C. Cir.

2007); Butler v. DOJ, 492 F.3d 440, 443–44 (D.C. Cir. 2007); Tafari v. Hues, 473



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F.3d 440, 442–44 (2d Cir. 2007); Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.

2005).

      The Commissioner argues that Daker’s filings were frivolous, but we cannot

conclude that an action or appeal “was dismissed on the grounds that it is

frivolous” unless the dismissing court made some express statement to that effect.

By using the phrase “was dismissed” in the past tense and the phrase “on the

grounds that,” the Act instructs us to consult the prior order that dismissed the

action or appeal and to identify the reasons that the court gave for dismissing it.

We cannot conclude that an action or appeal “was dismissed on the grounds that it

is frivolous” based on our present-day determination that the action or appeal was

frivolous or based on our conclusion that the dismissing court could have

dismissed it as frivolous. We must interpret the order of dismissal and figure out

what the dismissing court actually did.

      Daker’s appeals were not dismissed as frivolous. Our prior orders instead

dismissed his filings for “lack of jurisdiction” and “want of prosecution.” A

dismissal for want of prosecution says nothing about the underlying merits of the

appeal, see Butler, 492 F.3d at 443–44; it means only that the appellant failed to

comply with our internal rules, see 11th Cir. R. 42-1(b). Similarly, a dismissal for

lack of jurisdiction ordinarily does not—indeed, cannot—express any view on the

merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). And



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a dismissal for lack of jurisdiction, without more, does not prove that the

appellant’s assertion of jurisdiction was itself frivolous. The Supreme Court has

explained the difference between an assertion that is frivolous and an assertion that

is wrong. See Neitzke v. Williams, 490 U.S. 319, 326–29 (1989). An assertion is

not “frivolous” unless it “lacks an arguable basis either in law or in fact.” Id. at

325. All we can deduce from a mere dismissal for lack of jurisdiction is that the

prisoner’s assertion of jurisdiction was wrong; we cannot know whether the

dismissing court concluded that the higher standard for frivolousness was satisfied

unless the court expressly says so. Of course, the dismissing court does not need to

invoke any magic words or even use the word “frivolous,” see Rivera v. Allin, 144

F.3d 719, 731 (11th Cir. 1998), abrogated in part on other grounds by Jones v.

Bock, 549 U.S. 199 (2007), although such language certainly aids our review, see

Martinez, 364 F.3d at 1308. But the dismissing court must give some signal in its

order that the action or appeal was frivolous. See Byrd v. Shannon, 715 F.3d 117,

126 (3d Cir. 2013). Our prior orders gave no such signal.

      True, three of the dismissals for want of prosecution—In re Daker, No. 12-

12073; In re Daker, No. 12-12072; and Georgia v. Daker, No. 12-12519—were

dismissed after a single judge of this Court denied Daker’s petitions to proceed in

forma pauperis because his arguments were “frivolous.” Two of our sister circuits

have held that this sequence of events results in a strike. See Hafed v. Fed. Bureau



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of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011); Thompson, 492 F.3d at 433. The

D.C. and Tenth Circuits reason that the judge’s “determination that the appeal . . .

was frivolous when [he] denied appellant’s motion for [in forma pauperis] can

properly be termed the ‘but for’ cause of [the] court’s subsequent dismissal.”

Hafed, 635 F.3d at 1179 (quoting Thompson, 492 F.3d at 433). Any other reading

of the Act would be “hypertechnical,” according to our sister circuits. Id. (quoting

Thompson, 492 F.3d at 433). We respectfully disagree.

      A dismissal for want of prosecution, even after the denial of a petition to

proceed in forma pauperis on the grounds of frivolousness, cannot be a strike

under the Act. Petitions for permission to proceed in forma pauperis are typically

decided by a single judge. See 11th Cir. R. 27-1(d)(3). When a single judge

concludes that a prisoner is ineligible to proceed in forma pauperis, the judge

enters an order “denying” the prisoner’s petition, not an order “dismissing” the

action or appeal. That distinction is important because, under the Federal Rules of

Appellate Procedure, a single judge “may not dismiss or otherwise determine an

appeal or other proceeding.” Fed. R. App. 27(c). Only a panel of this Court can

dismiss a petition or appeal. With respect to Daker, panels of this Court dismissed

his filings for “want of prosecution” under Eleventh Circuit Rule 42-1(b) because

he failed to pay the filing fee. Nothing in those orders suggested that the panels

agreed with the single judges that Daker’s arguments were frivolous. On the



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contrary, both our internal rules and the Act allow a panel to dismiss an action or

appeal as “frivolous,” 11th Cir. R. 42-4; 28 U.S.C. § 1915(e)(2)(B)(i), but the

orders dismissing Daker’s filings invoked neither provision.

      We find the contrary reasoning of our sister circuits regarding single-judge

orders unpersuasive. The D.C. and Tenth Circuits reason that the single judge’s

denial of the petition to proceed in forma pauperis on the grounds of frivolousness

is the “but for” cause of the panel’s dismissal of the appeal for want of prosecution.

Hafed, 635 F.3d at 1179; Thompson, 492 F.3d at 433. But the concept of but-for

causation appears nowhere in the text of the Act. As explained, the Act uses the

phrase “was dismissed on the grounds that,” which instructs us to find the order of

dismissal and identify the grounds for that order. The Act is concerned with the

grounds articulated in the order, not the sequence of events that may have “caused”

the dismissal. This reading is not “hypertechnical,” Hafed, 635 F.3d at 1179

(quoting Thompson, 492 F.3d at 433); it is the natural one.

      Even if but-for causation were somehow relevant under the Act, the denial

of Daker’s petitions to proceed in forma pauperis was not the but-for cause of his

dismissals. The but-for cause was his failure to pay the filing fee. When his

petitions to proceed in forma pauperis were denied on the grounds of

frivolousness, this Court notified Daker that he had 14 days to pay the filing fee or

else his filings would be dismissed by the clerk. See 11th Cir. R. 42-1(b). This



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waiting period was not a charade: if Daker had paid the filing fee on time, then a

three-judge panel would have had to determine anew whether his filing was

frivolous. Daker’s failure to pay the filing fee, not the frivolity determinations by

the judges who denied his petitions to proceed in forma pauperis, was the but-for

cause of his dismissals for want of prosecution.

      We acknowledge that our interpretation does not further the “purpose” of

“deter[ring] frivolous suits,” Bruce v. Samuels, 136 S. Ct. 627, 632 (2016). Our

interpretation means that a prisoner can file unlimited frivolous appeals and avoid

getting strikes by declining to prosecute the appeals after his petitions to proceed in

forma pauperis are denied. See Butler, 492 F.3d at 444. But “even the most

formidable argument concerning the statute’s purposes could not overcome the

clarity we find in the statute’s text.” Nichols v. United States, 136 S. Ct. 1113,

1119 (2016) (quoting Kloeckner v. Solis, 133 S. Ct. 596, 607 n.4 (2012)). We must

interpret the statute that Congress enacted, not rewrite the text to match our

intuitions about unstated congressional purposes.

      The district court erred when it concluded that Daker had three or more

strikes under the Act. The six dismissals identified by the Commissioner are not

strikes under the plain meaning of the text. We express no view on whether Daker

has any other strikes. We also express no opinion as to whether one or more of the

six dismissals might have failed to qualify as strikes for other reasons. We hold



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only that the district court erred when it relied on the two dismissals for lack of

jurisdiction and the four dismissals for want of prosecution to conclude that Daker

was ineligible to proceed in forma pauperis.

     B. The District Court Abused Its Discretion When It Found that Daker Is
                                    Not Indigent.

      The second reason that Daker was ineligible to proceed in forma pauperis,

according to the district court, was that he is not indigent. The Commissioner

defends this alternative ruling on appeal, but the only argument he makes in his

brief is that Daker “failed to object” to the report of the magistrate judge. The

Commissioner is mistaken.

      Daker objected to the report and recommendation of the magistrate judge in

his March 13 filing, and that filing was timely. “Under the ‘prison mailbox rule,’ a

pro se prisoner’s court filing is deemed filed on the date it is delivered to prison

authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.

2009). “Absent evidence to the contrary,” we “assume that [the prisoner’s filing]

was delivered to prison authorities the day he signed it.” Washington v. United

States, 243 F.3d 1299, 1301 (11th Cir. 2001). Daker signed his objections on

March 13, 2014—16 days after the magistrate judge issued the report and

recommendation. The deadline was 17 days, see Fed. R. Civ. P. 72(b)(2), 6(d), so

Daker’s objections were timely.




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      Because the district court missed Daker’s objections, it never considered his

arguments about his indigence. Accordingly, it abused its discretion by denying his

petition to proceed in forma pauperis on that basis. See Thomas v. Evans, 880 F.2d

1235, 1242 (11th Cir. 1989). We remand so that the district court can consider

Daker’s arguments in the first instance. We express no view about his arguments

or whether he is indigent.

                               IV. CONCLUSION

      We VACATE the dismissal of Daker’s complaint and REMAND for

further proceedings.




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