             Case: 16-17507   Date Filed: 10/02/2019   Page: 1 of 9


                                                       [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-17507
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:16-cv-03745-RWS



WASEEM DAKER,

                                               Plaintiff - Appellant,


                                    versus


REBECCA KEATON,
Clerk,
JAY E. STEPHENSON,
Former Clerk,
LISA BLALOCK,
Deputy Clerk,
DARLENE CORBITT,
Deputy Clerk, Cobb County Superior Clerk,
MARY ELLEN STALEY, et al.,

                                               Defendants - Appellees.
              Case: 16-17507      Date Filed: 10/02/2019   Page: 2 of 9


                            ________________________

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

                                  (October 2, 2019)

Before WILSON, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:

      Waseem Daker, a Georgia prisoner proceeding pro se, appeals the dismissal

of his civil rights complaint. The district court dismissed Daker’s complaint

without prejudice because it concluded that he had at least three prior filings that

count as strikes under the Prison Litigation Reform Act’s (“PLRA”) “three-strikes”

provision. 28 U.S.C § 1915(g). After careful review, we conclude that the district

court erred because three of the five dismissals it identified do not qualify as

strikes under the PLRA. We vacate the dismissal of Daker’s complaint and

remand for further proceedings.

                                          I.

      In this action, Daker filed a § 1983 complaint against the Clerk of the Cobb

County Superior Court, various Cobb County Superior Court judges, and other

individuals. He alleged that the defendants delayed processing his habeas corpus

petitions and mandamus actions, denying him access to the courts. At the time he

filed the complaint, Daker sought leave to proceed in forma pauperis.


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      A magistrate judge recommended that the court deny Daker leave to proceed

in forma pauperis and that the action be dismissed without prejudice. The

magistrate judge found that Daker had five complaints or appeals that had been

dismissed as frivolous:

      (1) Daker v. Warden, No. 15-13148 (11th Cir. May 26, 2016);

      (2) Daker v. Mokwa, No. 2:14-cv-395 (C.D. Cal. Mar. 19, 2014);

      (3) Georgia v. Daker, No. 12-12519 (11th Cir. Nov. 5, 2012);

      (4) In re Daker, No. 11-11937 (11th Cir. June 3, 2011); and

      (5) Daker v. Garner, No. 00-12534 (11th Cir. Dec. 4, 2000).

The magistrate judge determined that each of these dismissals constituted a strike

under the PLRA. Because Daker had three or more strikes under the PLRA and

had not paid the filing fee at the time that he filed suit, the magistrate judge

recommended that his complaint be dismissed without prejudice.

      Daker objected to the recommendation. After de novo review, the district

court overruled the objection, adopted the magistrate judge’s recommendation, and

dismissed the complaint without prejudice. The district court noted that in three

cases or appeals—Daker v. Warden, No. 15-13148; Daker v. Mokwa, No. 2:14-cv-

395; and Daker v. Garner, No. 00-12534—the dismissing court had found that

Daker’s complaint or appeal was frivolous.

      Daker filed a timely notice of appeal.


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                                               II.

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

Nobles, 873 F.3d 869, 873 (11th Cir. 2017).

                                               III.

       “Ordinarily, a federal litigant who is too poor to pay court fees may proceed

in forma pauperis,” meaning “the litigant may commence a civil action without

prepaying fees or paying certain expenses.” Coleman v. Tollefson, 135 S. Ct.

1759, 1761 (2015); see 28 U.S.C. § 1915(a)(1). But the PLRA’s “three-strikes”

provision limits when prisoners may proceed in forma pauperis. See 28 U.S.C.

§ 1915(g); Daker v. Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278, 1283 (11th Cir.

2016). This provision states that a prisoner may not

       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). The relevant inquiry to determine whether § 1915(g) bars a

prisoner’s complaint is whether he had three or more strikes at the time that he

filed his civil action or appeal. See Vanderberg v. Donaldson, 259 F.3d 1321,

1324 (11th Cir. 2001) (“After the third meritless suit, the prisoner must pay the full

filing fee at the time he initiates suit.”).


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      In Daker v. Commissioner, we considered whether the dismissals of six of

Daker’s prior appeals counted as strikes under the PLRA. 820 F.3d at 1281. In

that case, the district court found that Daker had incurred six strikes because two

previous appeals had been dismissed for lack of jurisdiction and four previous

appeals had been dismissed for want of prosecution. Id. at 1281-82. We disagreed

and held that none of these dismissals counted as a strike. Id. at 1281.

      We began by addressing when a dismissal counted as a strike under the

PLRA. Looking to the PLRA’s plain language, we explained that for a dismissal

to count as a strike the dismissal must have been based on the ground that the

action or appeal was “frivolous, malicious, or fail[ed] to state a claim” for relief.

Id. at 1283-84 (internal quotation marks omitted). We explained that to conclude

an action or appeal was dismissed as frivolous, “the dismissing court” had to have

made “some express statement” that indicated the action or appeal was frivolous,

meaning it lacked an arguable basis in law or fact. Id. at 1284.

      We then explained that an order dismissing an appeal for want of

prosecution was not a determination that the appeal was frivolous. Id. at 1284. An

order dismissing an appeal for want of prosecution did not evaluate the underlying

merits of the appeal and thus could not constitute a finding that the appeal was

frivolous. Id. We thus concluded that the four orders dismissing Daker’s prior

appeals for want of prosecution, without more, did not constitute strikes. Id.


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       We acknowledged that in three of these appeals, we had dismissed the

appeal for want of prosecution after a single judge on our Court had entered an

order denying Daker leave to proceed in forma pauperis on the basis that his

appeal was frivolous. Id. at 1285. We rejected the argument that the single-judge

order meant that Daker’s appeal had been dismissed as frivolous. We explained

that a single-judge order could not be treated as an order dismissing an appeal

because under Federal Rule of Appellate Procedure 27(c) a single judge “may not

dismiss or otherwise determine an appeal or other proceeding.” Id. (quoting Fed.

R. App. P. 27(c)). Consistent with Rule 27(c), the orders denying Daker leave to

proceed in forma pauperis had not ended his appeals. In each appeal, after Daker

was denied leave to proceed in forma pauperis, he had an opportunity to pay the

filing fee, which would have allowed him to proceed with the appeal. 1 Id. When

Daker subsequently failed to pay the filing fee, a three-judge panel of our Court

decided to dismiss the appeal for want of prosecution. Id.

       We also explained the two appeals dismissed for lack of jurisdiction did not

constitute strikes. Id. at 1284. Because a dismissal for lack of jurisdiction

established only “that the prisoner’s assertion of jurisdiction was wrong,” we held



       1
          If Daker had paid the filing fee, a three-judge panel would have determined anew
whether his appeal was frivolous. See 28 U.S.C. § 1915(e)(2)(B) (“Notwithstanding any filing
fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time
if the court determines that . . . the action or appeal . . . is frivolous or malicious . . . .”).

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that “without more” such a dismissal did “not prove that the appellant’s assertion

of jurisdiction was itself frivolous.” Id.

      Turning to this case, the district court found that Daker had five prior

dismissals that qualified as strikes. As an initial matter, we agree with the district

court that two of the dismissals constitute strikes. In Daker v. Warden, 15-13148,

a three-judge panel of this Court expressly found that the appeal was frivolous and

dismissed the appeal. And in Daker v. Mokwa, 2:14-cv-395, the district court

judge dismissed Daker’s action on the basis that that his complaint was frivolous

and failed to state a claim for relief. Because each dismissing court made an

express statement that Daker’s complaint or appeal was being dismissed as

frivolous and/or for failure to state a claim for relief, we agree with the district

court that these two dismissals count as strikes.

      But we hold that the remaining three dismissals identified by the district

court do not count as strikes. As an initial matter, binding precedent established

that the dismissal of Daker’s appeal in Georgia v. Daker, No. 12-12519, does not

count as a strike. In Daker v. Commissioner, we held that the dismissal of this

appeal does not count as a strike because the appeal was dismissed for failure to

prosecute. See Daker v. Comm’r, 820 F.3d at 1282. Given our prior decision, the

district court erred when it counted this dismissal as a strike.




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       The dismissals in In re Daker, No. 11-11937, and Daker v. Garner, No. 00-

12534, also do not count as strikes. Each appeal was dismissed after Daker filed a

motion to voluntarily dismiss it. Because Daker voluntarily dismissed the appeals,

we cannot say that either appeal was dismissed on the ground that it was

“frivolous, malicious, or fail[ed] to state a claim upon which relief [could] be

granted.” 28 U.S.C. § 1915(g).

       True, for each appeal, Daker moved to voluntarily dismiss the appeal after a

single judge of our Court found that his arguments were frivolous and denied him

leave to proceed in forma pauperis. But as we explained in Daker v.

Commissioner, such a single-judge order does not establish that the appeal was

dismissed as frivolous. See 820 F.3d at 1284-85. Because there was no

subsequent determination by a three-judge panel that the appeal was frivolous, we

hold that the district court erred in treating each of these dismissals as a strike.

       In sum, the district court erred when it found that the dismissals in Georgia

v. Daker, No. 12-12519; In re Daker, No. 11-11937; and Daker v. Garner, No. 00-

12534, count as strikes. Because we conclude that only two of the dismissals that

the district court identified count as strikes under the PLRA, the court erred in

dismissing Daker’s complaint under the PLRA’s three-strikes provision. 2



       2
          We express no view on whether Daker had any strikes beyond the filings identified by
the district court. Nothing in this opinion forecloses the district court upon remand from
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                                                IV.

       For the reasons set forth above, we VACATE the order dismissing Daker’s

complaint and remand for further proceedings.




considering whether Daker incurred strikes when any of his other cases or appeals were
dismissed.
         Dakar also argues on appeal that the district court’s application of the three-strikes
provision to him was unconstitutional. Because we conclude that Daker did not have three
strikes, we need not address this argument

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