          Case: 14-13257   Date Filed: 10/09/2018   Page: 1 of 4


                                                    [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-13257
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 5:14-cv-00138-MTT-CHW



WASEEM DAKER,

                                            Plaintiff - Appellant,

versus

PATRICK H. HEAD,
District Attorney, Cobb County,
JESSE D. EVANS,
Assistant District Attorney, Cobb County,
JUDGE MARY E. STALEY,
Superior Court Cobb County,
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
TIMOTHY WARD,
Assistant Commissioner, GDOC, et al.,

                                            Defendants - Appellees,

UNITED STATES OF AMERICA,

                                            Intervenor.
                Case: 14-13257       Date Filed: 10/09/2018      Page: 2 of 4


                              ________________________

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

                                     (October 9, 2018)

Before WILSON and JORDAN, Circuit Judges, and GRAHAM, * District Judge.

PER CURIAM:

       Waseem Daker, a Georgia inmate, appeals the dismissal of his complaint

and denial of his motion to proceed in forma pauperis (IFP) under 28 U.S.C. §

1915. On appeal, Daker argues that the district court’s three-strike determination

was erroneous.

       During his incarceration for murder, Daker has filed over a hundred pro se

suits. In April 2014, Daker filed a complaint under 42 U.S.C. § 1983 against

various individuals involved in his incarceration. Daker also filed a motion to

proceed IFP under 28 U.S.C. § 1915. Ordinarily, under the Prison Litigation

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

[IFP],” meaning that “the litigant may commence a civil action without prepaying

fees or paying certain expenses.” Coleman v. Tollefson, 135 S. Ct. 1759, 1761

(2015); 28 U.S.C. § 1915(a)(1). But the PLRA also contains a so-called three

strikes provision, which prevents a prisoner from qualifying for IFP status if he has

       *
         Honorable James L. Graham, United States District Judge for the Southern District of
Ohio, sitting by designation.
                                               2
                 Case: 14-13257        Date Filed: 10/09/2018        Page: 3 of 4


filed three or more federal actions or appeals that were dismissed as “frivolous,

malicious,” or “fail[ing] to state a claim . . . .” 28 U.S.C. § 1915(g).

The district court identified five strikes against Daker, dismissed his complaint

without prejudice, and denied his IFP motion. Daker appealed. We dismissed

Daker’s original appeal for failure to pay docketing fees.

       Two years later, Daker once again appeared before us in a separate appeal.

See Daker v. Comm’r, Georgia Dep’t of Corr., 820 F.3d 1278 (11th Cir. 2016)

(Daker I). In Daker I, we held that six of Daker’s cases were not strikes under §

1915(g). The district court in the instant appeal relied on three of those cases to

determine Daker’s three-strike status. 1 Following Daker I, we granted Daker’s

motion to reinstate his appeal in the instant litigation.

       A prisoner’s three-strike status under section 1915(g) is determined when he

“bring[s] a civil action or appeal,” 28 U.S.C. § 1915(g), for which he seeks to

proceed IFP. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002);

Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (“After the third

meritless suit, the prisoner must pay the filing fee at the time he initiates suit.”)

       1
          The district court identified five of Daker’s previous actions as strikes: In re Daker, No.
12-12072 (11th Cir. Aug. 6, 2012); In re Daker, No. 12-12073 (11th Cir. July 12, 2012);
Georgia v. Daker, No. 12-12519 (11th Cir. Nov. 5, 2012); In re Daker, No. 11-11937 (11th Cir.
June 3, 2011); In re Daker, No. 12-14369 (11th Cir. Dec. 11, 2012). In Daker I, we held the first
three cases are not strikes. See Daker I, 820 F.3d at 1283–84. Although not necessary to
disposition of this appeal, we also recently held that a fourth case on which the district court
relied is not a strike. See Daker v. Head, 730 Fed. App’x 765, 767 (11th Cir. April 6, 2018)
(“Daker voluntarily dismissed In re Daker, No. 11-11937 (11th Cir. Aug. 24, 2011), so the
district court erred in concluding that it counted as a strike.”).
                                                  3
                 Case: 14-13257       Date Filed: 10/09/2018        Page: 4 of 4


(emphasis added). For a civil proceeding in district court—like Daker’s section

1983 suit—the operative filing is the complaint. For an appeal, the operative filing

is the notice of appeal. There may very well be strikes among the litany of cases

Daker filed after his complaint. But that is inconsequential to the three-strike

determination in this action. Because at least three of the five filings relied upon

by the district court do not count as strikes after Daker I, the district court erred in

denying Daker’s IFP motion and dismissing his complaint. 2

       The judgment of the district court is reversed, and this action is remanded

for further proceedings consistent with this opinion.

       REVERSED.




       2
          Daker makes several other arguments on appeal. He argues: first, that even if he did
have three strikes, he fell under the “imminent danger” exception in section 1915(g); second, that
the district court erred in denying his motion to vacate under Federal Rule of Civil Procedure
59(e); third, that he was entitled to notice and an opportunity to respond before the district court
dismissed his complaint and denied his IFP motion sua sponte; and finally, that the three-strike
provision of section 1915 is unconstitutional as applied to him. Because we reverse on the
district court’s three-strike determination, we decline to reach these arguments.
                                                 4
