           Case: 18-13800   Date Filed: 02/14/2020   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 18-13800; 18-14984
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:18-cv-00171-MTT-CHW



WASEEM DAKER,

                                                           Plaintiff-Appellant.

                                  versus

WARDEN,

                                                          Defendant-Appellee.

                      ________________________

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

                            (February 14, 2020)

Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Waseem Daker, a Georgia prisoner proceeding pro se, appeals the district

court’s dismissal without prejudice of his petition for writ of habeas corpus, 28

U.S.C. § 2254. In the petition, Daker raised claims concerning his placement in

disciplinary segregation. The district court construed the petition as a 42 U.S.C.

§ 1983 complaint and dismissed it pursuant to 28 U.S.C. § 1915(g). On appeal,

Daker argues that the district court erred by concluding that his claims were not

cognizable under § 2254 and did not demonstrate that he was in imminent danger

of serious physical injury, as required by § 1915(g). He also argues that the district

court abused its discretion in dismissing his action without giving him notice or an

opportunity to amend his complaint.

                                          I.

      We review the denial of a § 2254 petition de novo. McNair v. Campbell, 416

F.3d 1291, 1297 (11th Cir. 2005). Under our prior-panel-precedent rule, “a prior

panel’s holding is binding on all subsequent panels unless and until it is overruled

or undermined to the point of abrogation by the Supreme Court or by this court

sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

Under this rule, “a later panel may depart from an earlier panel’s decision only

when the intervening Supreme Court decision is ‘clearly on point.’” Atl. Sounding

Co., Inc. v. Townsend, 496 F.3d 1282, 1284 (11th Cir. 2007).




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      State prisoners have two main avenues of relief on complaints related to

their imprisonment under federal law: habeas corpus petitions under § 2254 and

complaints under § 1983. Muhammad v. Close, 540 U.S. 749, 750 (2004). We

have stated that “[t]hese avenues are mutually exclusive: if a claim can be raised in

a federal habeas petition, that same claim cannot be raised in a separate § 1983

civil rights action.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006).

      Claims challenging the fact or duration of a sentence fall within the “core”

of habeas corpus, while claims challenging the conditions of confinement “fall

outside of that core and may be brought pursuant to § 1983.” Nelson v. Campbell,

541 U.S. 637, 643 (2004). Stated another way, if a claim “would not necessarily

spell speedier release, that claim does not lie at the core of habeas corpus, and may

be brought, if at all, under § 1983.” Skinner v. Switzer, 562 U.S. 521, 535 n.13

(2011) (internal quotation marks omitted).

      The Supreme Court previously speculated that a habeas corpus claim might

be actionable where a prisoner is “put under additional and unconstitutional

restraints during his lawful custody.” Preiser v. Rodriguez, 411 U.S. 475, 499

(1973). However, the Court has never followed that speculation. Muhammad, 540

U.S. at 751 n.1. Further, the Court has allowed a claim that a prisoner was denied

procedural due process when being placed in disciplinary segregation to proceed

under § 1983, although it did not address the cognizability of such claims in those



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proceedings. See Sandin v. Conner, 515 U.S. 472, 477–87 (1995). Nevertheless,

we have specifically held that such claims may proceed in a habeas petition,

concluding that “release from administrative segregation . . . . falls into the

category of fact or duration of . . . physical imprisonment.” Krist v. Rickets, 504

F.2d 887, 887–88 (5th Cir. 1974) (internal quotation mark omitted).

      Claims that a prison has violated the Eighth Amendment are cognizable

under § 1983. See Thomas v. Bryant, 614 F.3d 1288, 1303–04 (11th Cir. 2010).

Release from custody is generally not an available remedy for a violation of the

Eighth Amendment. Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990).

However, in Sheley, we remanded, in a habeas proceeding, for an evidentiary

hearing on an Eighth Amendment claim that the length of an inmate’s

administrative segregation constituted cruel and unusual punishment. Sheley v.

Dugger, 833 F.2d 1420, 1428–30 (11th Cir. 1987) (per curiam).

      First Amendment claims are also cognizable under § 1983. See, e.g., Hakim

v. Hicks, 223 F.3d 1244, 1246 (11th Cir. 2000) (addressing a free-exercise claim);

Chapell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (per curiam) (addressing an

access-to-the-courts claim); Beard v. Banks, 548 U.S. 521, 527 (2006) (addressing

a challenge to restrictions on incoming mail).

      Here, the district court erred in concluding that Daker could not challenge

his disciplinary segregation in a § 2254 proceeding. Although the Supreme Court



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has suggested that such claims might not be cognizable in a habeas proceeding, it

has not done so in an opinion that is “clearly on point,” so as to overrule our

precedent, which says that such claims are cognizable. However, Daker’s First and

Eighth Amendment claims were cognizable under § 1983 and, therefore, not

cognizable under the mutually exclusive remedy of § 2254. Although we allowed

an Eighth Amendment claim to proceed under § 2254 in Sheley, that inmate was

challenging the duration of his segregation as unconstitutional, so that claim was

within the “core” of habeas. In contrast, Daker claims only that he was denied

adequate food and medical care and was exposed to unsanitary conditions.

Accordingly, we vacate the district court’s order to the extent that it concluded that

Daker’s procedural-due-process claim was not cognizable in a § 2254 proceeding,

and we remand for further proceedings as to that claim.

                                          II.

      We review the denial of leave to proceed in forma pauperis (IFP) for abuse

of discretion, but we review the interpretation of § 1915(g) de novo. Daker v.

Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278, 1283 (11th Cir. 2016). A district court

abuses its discretion if it applies an improper legal standard, fails to follow proper

procedures in making its determination, or makes clearly erroneous findings of

fact. Johnson v. Breeden, 280 F.3d 1308, 1326 (11th Cir. 2002).




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      Where a prisoner has, on three or more previous occasions, brought an

action or appeal that was dismissed as frivolous, malicious, or failing to state a

claim, he is prohibited from bringing another civil action without paying the filing

fee unless he is under imminent danger of serious bodily injury. 28 U.S.C.

§ 1915(g). A prisoner with three such “strikes” against him is only entitled to

proceed without payment of court fees if he is in imminent danger of serious injury

at the time that he files his suit. Medberry v. Butler, 185 F.3d 1189, 1192–93 (11th

Cir. 1999). A prisoner’s allegation of past imminent danger is insufficient to

invoke the imminent-danger exception. Id. at 1193. When determining whether a

plaintiff has met his burden of proving that he is in imminent danger of serious

physical injury, his complaint is construed liberally, and his allegations are

accepted as true. Brown v. Johnson, 387 F.3d 1344, 1349–50 (11th Cir. 2004). The

issue is not whether each specific physical condition or symptom complained of

might constitute serious injury, but “whether his complaint, as a whole, alleges

imminent danger of serious physical injury.” Id. at 1350.

      Daker’s allegations regarding his weight loss and the food provided to

inmates in disciplinary segregation, the presence of “fecal projections,” the

adequacy of dental and medical care, and the denial of outdoor exercise do not

establish that he was under imminent danger of serious injury at the time that he




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filed his suit. Accordingly, the district court did not abuse its discretion in

determining that Daker was not entitled to proceed IFP.

                                          III.

      When an inmate is barred from proceeding IFP under § 1915(g), the full

filing fee must be paid at the time that the prisoner initiates his suit. Vanderberg v.

Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Accordingly, when a district

court denies leave to proceed IFP pursuant to § 1915(g), it must dismiss the

complaint without prejudice, without giving the inmate an opportunity to arrange

payment of the fee. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per

curiam).

      “Due process does not always require notice and the opportunity to be heard

before dismissal.” Vanderberg, 259 F.3d at 1324. A dismissal without prejudice is

usually not an abuse of discretion, as the petitioner can simply re-file his action.

See, e.g., Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir.

1983) (per curiam) (finding no abuse of discretion where dismissal for failure to

file a court-ordered brief was without prejudice). However, if an order has the

effect of precluding a plaintiff from refiling his claim due to the running of the

statute of limitations, then the dismissal is tantamount to a dismissal with

prejudice. Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981).




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       When “a more carefully drafted complaint” might state a claim, the plaintiff

must be given a chance to amend. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th

Cir. 2001) (per curiam). However, a district court need not allow an amendment

where (1) “there has been undue delay, bad faith, dilatory motive, or repeated

failure to cure deficiencies” through prior amendments; (2) amending the

complaint would prejudice the opposing party; or (3) “amendment would be

futile.” Id.

       The district court did not abuse its discretion in dismissing Daker’s pleading

without giving him an opportunity to amend because district courts are required to

dismiss a three-striker’s suit once IFP is denied. In any event, amendment would

have been futile, as even Daker’s allegations on appeal are insufficient to

demonstrate imminent danger of serious physical injury. Furthermore, the district

court’s dismissal was without prejudice. Although Daker asserts that the dismissal

was effectively with prejudice, he did not elaborate on that assertion, and our

review of the record has not revealed any reason why he would be prevented from

bringing his claims in a new § 1983 proceeding.

       Accordingly, we affirm the dismissal of Daker’s properly construed § 1983

claims, and we vacate and remand in part as to Daker’s procedural due-process

claim relating to his segregation for further proceedings that are consistent with

this opinion.



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AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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