           Case: 18-11383   Date Filed: 10/28/2019   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-11383
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:16-cv-00158-JRH-GRS



WASEEM DAKER,

                                                           Plaintiff-Appellant,

                                    versus

UNITED STATES OF AMERICA,
SCOTT L. POFF,

                                                        Defendants-Appellees.

                      ________________________

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

                            (October 28, 2019)

                   ON PETITION FOR REHEARING

Before WILLIAM PRYOR, MARTIN and NEWSOM, Circuit Judges.

PER CURIAM:
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      Waseem Daker petitions for rehearing of our August 7, 2019, opinion that

affirmed the denial of his motion for recusal and the dismissal of his complaint.

We GRANT the part of Daker’s petition that challenges our determination that he

waived review of the order denying his motion for recusal, but we DENY the

remainder of Daker’s petition and leave unchanged our opinion that affirmed the

dismissal of Daker’s complaint. We VACATE and WITHDRAW our earlier

opinion and substitute the following revised opinion that affirms the denial of

Daker’s motion for recusal on the merits.

      Daker, a Georgia prisoner, appeals pro se the dismissal of his complaint that

a federal official violated his civil rights, 42 U.S.C. § 1983, and the denial of his

motion for recusal. After a magistrate judge denied Daker’s motion for recusal, the

district court dismissed Daker’s complaint with prejudice after determining that he

was ineligible to proceed in forma pauperis with three actions or appeals that

counted as strikes against him under the Prison Litigation Reform Act, 28 U.S.C. §

1915(g). We affirm the denial of Daker’s motion for recusal and the dismissal of

his complaint. But because a prisoner disqualified from proceeding as a pauper

under section 1915(g) should have his complaint dismissed without prejudice, we

vacate the order of dismissal and remand with instructions for the district court to

dismiss Daker’s complaint without prejudice.




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      The magistrate judge did not abuse his discretion by refusing to recuse from

Daker’s case. Daker alleged that the magistrate judge was biased or prejudiced

against him. 28 U.S.C. § 144. But neither the magistrate judge’s adverse rulings,

see United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004), his familiarity

with Daker’s litigation, or his statement about sanctioning Daker for frivolous

filings, see Christo v. Padgett, 223 F.3d 1324, 1334 (11th Cir. 2000), manifested

any partiality or antagonism against Daker. “[J]udicial remarks . . . that are critical

or disapproving of, or even hostile to, . . the parties, or their cases, ordinarily do

not support a bias or partiality challenge” unless “they reveal an opinion that

derives from an extrajudicial source . . . .” Liteky v. United States, 510 U.S. 540,

555 (1994). The remarks Daker complained of revealed no personal bias.

      The magistrate judge also did not abuse his discretion by denying Daker’s

motion to recuse every district court judge in the Southern District of Georgia.

Daker alleged that, “due to the close working relationship between the judges and

the Clerk, the judges are likely to have bias in favor of the Clerk” or appear to be

biased. 28 U.S.C. § 455. “A charge of partiality must be supported by some factual

basis” and not simply “be based on ‘unsupported, irrational or highly tenuous

speculation.’” United States v. Cerceda, 188 F.3d 1291, 1292 (11th Cir. 1999).

Daker’s conjecture that the district court judges might be, or might appear to be,

partial was insufficient to warrant their recusal.


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      The district court did not err by dismissing Daker’s complaint on the ground

that he was ineligible to proceed in forma pauperis. The Prison Litigation Reform

Act bars a prisoner from proceeding as an indigent if he “has, on 3 or more prior

occasions, while incarcerated . . ., brought an 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). Three of the five actions

and appeals relied on by the district court—Daker v. Nat’l Broad. Co., No. 15-330

(2d Cir. May 22, 2015); Daker v. Warren, No. 13-11630 (11th Cir. Mar. 4, 2014);

and Daker v. Mokwa, No. 14-cv-395 (C.D. Cal. Mar. 19, 2014)—qualified as

strikes. In National Broadcasting, the Second Circuit dismissed Daker’s appeal on

the ground that “it ‘lacks an arguable basis either in law or in fact.’ Neitzke v.

Williams, 490 U.S. 319, 325 (1989),” which is the definition the Neitzke Court

gave “a complaint . . . [that] is frivolous,” id. In Warren, we expressly dismissed

Daker’s interlocutory appeal on a “find[ing] that [it] [was] frivolous.” And in

Mokwa, the district court dismissed Daker’s “amended complaint . . . as frivolous

and for failure to state a claim,” after which the Ninth Circuit dismissed Daker’s

“appeal [a]s frivolous,” Daker v. Mokwa, No. 14-55653 (June 11, 2014). Although

the dismissal without prejudice of two civil actions that Daker filed in the Northern

District of Georgia—Daker v. Robinson, No. 12-cv-00118, and Daker v. Dawes,

No. 12-cv-00119—did not count as strikes because they were dismissed for failure


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to pay a filing fee, Daker already had accumulated the requisite three strikes to

deny his motion to proceed in forma pauperis. See 28 U.S.C. § 1915(g).

      Daker argues that he is entitled to proceed as an indigent under the exception

for a “prisoner [who] is under imminent danger of serious physical injury,” id., but

we disagree. Daker never alleged in his complaint that he faced “a present

imminent danger to proceed under section 1915(g) . . . .” Brown v. Johnson, 387

F.3d 1344, 1349 (11th Cir. 2004). Daker alleged that the Clerk violated his rights

by returning his civil complaint on the basis that venue was incorrect. One year

later, Daker moved to amend his complaint to add a claim of imminent danger in

response to the magistrate judge’s recommendation to dismiss Daker’s complaint.

Daker did not seek written consent from the Clerk or request leave to amend his

pleading, and the district court did not consider Daker’s motion to amend. See Fed.

R. Civ. P. 15(a). And Daker failed to allege “a present imminent danger” in his

proposed amended complaint. Daker alleged that he had been exposed to fecal

matter, received inadequate dental care, and had been denied outdoor exercise, but

those hardships did not endanger Daker. Daker’s allegation that using unsanitary

and damaged clippers on his beard might increase his risk of contracting an

infectious disease was too speculative to constitute imminent harm. And Daker’s

allegations that he had been denied medication and treatment for nerve damage and




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weight issues related to events in the past, which do not qualify for the imminent

danger exception. See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999).

      Daker challenges the constitutionality of section 1915(g), but his arguments

fail. Section 1915(g) does not infringe on a prisoner’s freedom of speech under the

First Amendment because denying a prisoner the right to proceed in forma

pauperis does not censor what issues he can litigate. Daker argues that section

1915(g) violates his right to access the courts under the First Amendment and his

right to equal protection under the Fifth Amendment, but those arguments are

foreclosed by Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998), abrogated in part on

different grounds by Jones v. Bock, 549 U.S. 199 (2007) (exhaustion). In Rivera,

we held that section 1915(g) does not thwart prisoners from having “adequate,

effective, and meaningful” access to the courts “to prevent grave bodily harm,” id.

at 724, or violate a prisoner’s right to equal protection because requiring the

payment of a reasonable filing fee bears a rational relation to the legitimate

governmental interest of deterring frivolous litigation, id. at 727–28. Rivera does

not conflict with Procup v. Strickland, 792 F.2d 1069, 1071, 1074 (11th Cir. 1986),

in which we held that a district court could not prohibit a prisoner from filing a pro

se complaint, or with Cofield v. Alabama Public Service Commission, 936 F.2d

512, 518 (11th Cir. 1991), in which we held that a district court could not deny a

prisoner in forma pauperis status prospectively.


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      The district court erred by dismissing Daker’s complaint with prejudice.

“[T]he proper procedure is for the district court to dismiss the complaint without

prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant

to the three strikes provision of § 1915(g).” Dupree v. Palmer, 284 F.3d 1234,

1236 (11th Cir. 2002). That error requires us to vacate the order of dismissal and to

remand the case for the district court to dismiss Daker’s complaint without

prejudice.

      We AFFIRM the denial of Daker’s motion for recusal. We also AFFIRM

the dismissal of Daker’s complaint, but we VACATE the order of dismissal and

REMAND with instructions for the district court to dismiss the complaint without

prejudice.




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