              Case: 17-11418    Date Filed: 08/08/2019   Page: 1 of 8


                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-11418
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 6:16-cv-00057-JRH-RSB

WASEEM DAKER,

                                                  Plaintiff-Appellant,

                                versus

HOMER BRYSON,
Commissioner, et al.,

                                                  Defendants-Appellees.

                          ________________________

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

                                 (August 8, 2019)

Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Waseem Daker, a pro se Georgia prisoner, appeals the district court’s

dismissal without prejudice of his 42 U.S.C. § 1983 complaint pursuant to the Prison
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Litigation Reform Act (“PLRA”), 28 U.S.C § 1915(g). On appeal, Daker argues

that: (1) he is not a “three-striker” under § 1915(g); (2) he nevertheless meets the

imminent-danger exception to § 1915(g); and (3) § 1915(g) is unconstitutional under

the First Amendment’s “breathing-space” principle. After careful review, we affirm.

      We review de novo a district court’s dismissal under § 1915(g). Mitchell v.

Nobles, 873 F.3d 869, 873 (11th Cir. 2017). We also review de novo the legal

question of the constitutionality of a statute. Ranch House, Inc. v. Amerson, 238

F.3d 1273, 1277 (11th Cir. 2001).

      First, we are unpersuaded by Daker’s claim that the district court erred by

concluding that he is a “three-striker” under § 1915(g). Section 1915(g) of the PLRA

generally bars a prisoner from proceeding in forma pauperis (“IFP”) if he has

previously filed three or more meritless lawsuits. Mitchell, 873 F.3d at 872. This

provision is commonly known as the “three strikes” provision. Id. In Daker v.

Comm’r, 820 F.3d 1278, 1283 (11th Cir. 2016), cert. denied, 137 S. Ct. 1227 (2017),

an earlier case brought by this same plaintiff, we explained that, under § 1915(g),

the only dismissals that may be counted as strikes are dismissals on the grounds that

the claims were frivolous, malicious, or failed to state a claim. 820 F.3d at 1283–

84. Further, we do not count a dismissed action as a strike unless the court made an

express statement indicating that the case was frivolous. Id. at 1284.




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      Here, the district court did not err in concluding that Daker is a “three-striker,”

because three of the cases the court listed were properly counted as strikes. First,

the district court properly counted case no. 13-11630 as a strike because that case

was dismissed as frivolous by a panel of this Court in 2014. See Order, No. 13-

11630 (11th Cir. Mar. 4, 2014). As for Daker’s argument that case no. 13-11630 is

no longer frivolous due to “subsequent developments,” he fails to show how the

decision in that case was affected by unrelated appeals in his other cases. Second,

case no. 15-330 from the Second Circuit properly counts as another strike because

that court dismissed that appeal as without “arguable basis in law or in fact,” making

the case frivolous. See Order, No. 15-330 (2d Cir. May 22, 2015); see also Nietzke

v. Williams, 490 U.S. 319, 325 (1989) (holding that a complaint is frivolous for

purposes of § 1915(g) “where it lacks an arguable basis either in law or in fact”).

Daker’s claim that this Court’s 2016 decision (Daker, 820 F.3d 1278) undermines

the Second Circuit’s 2015 decision has no merit since we did not address the Second

Circuit’s in our opinion, nor otherwise invalidate its ruling.

      And, finally, the district court properly counted case no. 14-cv-395 from the

United States District Court for the Central District of California as Daker’s third

strike because that case was dismissed as frivolous as well -- a determination that

Daker does not challenge on appeal. See Order, No. 2:14-cv-00395 (C.D. Cal. Feb.

4, 2014); see also Order, No. 14-55653 (9th Cir. June 11, 2014) (concluding that the


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appeal of that case also was frivolous). Because these three cases all became final

before Daker filed the instant complaint in May 2016, Daker’s status as a “three-

striker” was established by the time he filed his complaint. Thus, we affirm the

district court’s determination that Daker is a “three-striker.”

      Nor, moreover, did the district court err in determining that Daker does not

meet the imminent-danger exception to § 1915(g). As we’ve explained, “the sole

exception to the three strikes bar is where the prisoner is under imminent danger of

serious physical injury.” Mitchell, 873 F.3d at 872 (quotation omitted). In applying

the imminent-danger exception, we view a pro se plaintiff’s complaint as a whole

and construe it liberally. Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004).

In Brown, we held that a plaintiff had sufficiently shown imminent danger where he

alleged a “total withdrawal of treatment for serious diseases [HIV and hepatitis], as

a result of which he suffer[ed] from severe ongoing complications, [was] more

susceptible to various illnesses, and his condition [would] rapidly deteriorate.” Id.

at 1350. Among other things, Brown had said that due to the medication withdrawal,

he was suffering “prolonged skin and newly developed scalp infections, severe pain

in the eyes and vision problems, fatigue and prolonged stomach pains.”            Id.

Applying Brown in Mitchell, we said that a plaintiff satisfies the imminent-danger

exception if he alleges “a ‘total’ lack of treatment . . . causing ‘severe ongoing

complications.’” Mitchell, 873 F.3d at 874. In Mitchell, we held that the plaintiff


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had shown imminent danger because he claimed the defendants had completely

withdrawn treatment for his Hepatitis C, and cirrhosis had begun. Id. at 873–75.

      For comparison purposes, the Eighth Circuit decided in Martin v. Shelton that

a prisoner’s claim of imminent danger of serious physical injury had failed -- a

decision we cited as persuasive authority in Brown. See Brown, 387 F.3d at 1350

(citing Martin v. Shelton, 319 F.3d 1048 (8th Cir. 2003)). In Martin, the prisoner

alleged that he was twice forced to work outside in inclement weather, once in cold

weather without warm clothing and then later in hot weather, despite his blood

pressure condition. 319 F.3d at 1050. The complaint included “conclusory assertions

that defendants were trying to kill Martin by forcing him to work in extreme

conditions despite his blood pressure condition.” Id. The Eighth Circuit held that

“[t]his type of general assertion is insufficient to invoke the exception to § 1915(g)

absent specific fact allegations of ongoing serious physical injury, or of a pattern of

misconduct evidencing the likelihood of imminent serious physical injury.” Id.

      Here, Daker alleges that the defendants’ grooming regulations pose an

imminent danger to him by forcing him to shave his beard with unsanitized clippers

and that he is denied nutritionally adequate food causing him significant weight-loss.

Based on these allegations, however, we cannot say he faces anything near the

imminent danger of suffering serious or continuing harm that the plaintiffs suffered

in Brown and Mitchell, when their life-sustaining medicines were withdrawn and


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they were already undergoing adverse medical conditions. For starters, Daker

undermines his own claim about nutritionally inadequate food by admitting that he’s

been placed on a special diet to help remedy the lack of nutrition that he is receiving.

As for his allegations concerning the clippers, nothing suggests that he is suffering

from any current consequences, much less “a ‘total’ lack of treatment . . . causing

‘severe ongoing complications.’” Mitchell, 873 F.3d at 874. Instead, Daker alleges

that being forced to use unsanitized clippers could expose him to diseases -- a claim

that is simply too speculative to establish that he is under imminent danger of serious

physical injury. See Martin, 319 F.3d at 1050 (upholding § 1915(g)’s application

where there was no allegation of ongoing danger, other than “conclusory assertions

that defendants were trying to kill Martin by forcing him to work in extreme

conditions despite his blood pressure condition”). Thus, we agree with the district

court that Daker has not shown imminent danger.

      Finally, we are unpersuaded by Daker’s argument that § 1915(g) is

unconstitutional. In Rivera, we addressed challenges to the constitutionality of §

1915(g) on several grounds, including the First Amendment right to access the courts

and the Fourteenth Amendment right to equal protection. Rivera v. Allin, 144 F.3d

719, 723 (11th Cir. 1998), abrogated in part on other grounds by Jones v. Block, 549

U.S. 199, 215 (2007). As we explained, Congress is not obligated to provide free or

unlimited access to the courts. Id. 723–24. Further, § 1915(g) “does not prevent a


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prisoner with three strikes from filing civil actions; it merely prohibits him from

enjoying IFP status.” Id. “To be sure, proceeding IFP in a civil case is a privilege,

not a right -- fundamental or otherwise.” Id. Thus, imposition of a modest filing fee

on prisoners with “three strikes” is reasonable because “Congress is no more

compelled to guarantee free access to federal courts than it is to provide unlimited

access to them.” Id. (quotation omitted).

      The “breathing-space” principle is the idea that, for the First Amendment to

meaningfully protect freedom of speech, individuals need some margin for error --

in other words, the ability to advance insulting, outrageous, or inadvertently false

speech -- when discussing matters of public concern before they can be held liable

for the effects their speech has on others. E.g., Snyder v. Phelps, 562 U.S. 443, 458

(2011); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) (explaining that

defamation liability for statements about public figures requires a showing of falsity

and the requisite culpability to prevent a chilling effect on public speech).

      Here, Daker attempts to avoid the application of Rivera by framing his

challenge to § 1915(g) as an argument about the restriction of speech, rather than the

restriction of access to the courts. Nonetheless, Rivera forecloses this challenge

because there is no meaningful distinction between Rivera’s holding that individuals

do not have a First Amendment right to access the courts for free, and Daker’s claim

that individuals have a First Amendment right to speak in the courts for free. In fact,


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Daker recognizes that the right to access to the courts and the right to free speech are

governed by the same standards, citing Wayte v. U.S., 470 US 598, 610 n.11 (1985).

Because there is no First Amendment right to access (or speak in) the courts for free,

the “breathing-space” principle is inapplicable to this case and we affirm. 1

         AFFIRMED.




1
    In addition, Waseem Daker’s motion for appointment of counsel is DENIED.
                                               8
