           Case: 15-10144   Date Filed: 04/06/2018     Page: 1 of 8


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                          Nos. 15-10176; 15-10144
                          Non-Argument Calendar
                        ________________________

               D.C. Docket Nos. 6:14-cv-00047-BAE-JEG,
                       6:14-cv-00047-BAE-JEG




WASEEM DAKER,

                                                Plaintiff - Appellant,

                                  versus

PATRICK HEAD,
JESSE D. EVANS,
MARY E. STALEY,
BRIAN OWENS,
TIMOTHY WARD, et al.,

                                                Defendants - Appellees.

                        ________________________

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

                              (April 6, 2018)
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Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Waseem Daker, who is incarcerated and proceeding pro se, appeals the

district court’s dismissal of his complaint alleging that prison and county officials

infringed his constitutional rights in violation of 42 U.S.C. § 1983. The district

court dismissed Daker’s complaint after concluding that he could not proceed in

forma pauperis because at least three of his previous filings counted as strikes

under the Prison Litigation Reform Act’s (“PLRA”) “three strikes” provision, 28

U.S.C. § 1915(g). The district court alternatively dismissed Daker’s complaint

because he improperly joined unrelated defendants and claims. After careful

review, we vacate and remand.

                              I.      BACKGROUND

      Daker filed his § 1983 complaint against thirty two Cobb County and

Georgia Department of Corrections officials, alleging violations of his

constitutional rights resulting from the conditions of his confinement. He

requested damages, a declaratory judgment that the defendants’ actions violated his

constitutional rights, and injunctive relief. As a matter of course, Daker filed an

amended complaint incorporating all of the allegations in his original complaint

and asserting additional constitutional violations. He also filed three motions for

preliminary injunctions.


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      A magistrate judge granted Daker leave to proceed in forma pauperis, but

later vacated the order after concluding that Daker had violated the PLRA’s three

strikes provision, which provides:

      In no event shall a prisoner bring a civil action . . . [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 magistrate judge concluded that four of Daker’s

previous filings had been dismissed because they were “frivolous, malicious, or

fail[ed] to state a claim,” and therefore counted as strikes under the PLRA:

      (1) In re Daker, No. 11-11937 (11th Cir. filed Apr. 29, 2011),
      (2) Georgia v. Daker, No. 12-12519 (11th Cir. filed May 9, 2012),
      (3) In re Daker, No. 12-12073 (11th Cir. filed Apr. 19, 2012), and
      (4) Daker v. Mokwa, No. 2:14-cv-395 (C.D. Cal. filed Jan. 16, 2014)

Doc. 13 at 2 (quoting 28 U.S.C. § 1915(g)).1 Based on these purported strikes, the

magistrate judge concluded that Daker could not proceed in forma pauperis and

recommended that the district court dismiss Daker’s amended complaint without

prejudice. Alternatively, the magistrate judge recommended dismissal of Daker’s

amended complaint for improper joinder because Daker had not shown how “his

various claims against the various [d]efendants from several penal institutions

[were] related.” Id. at 5.

      1
          All citations in the form “Doc. #” refer to the district court docket entries.
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      The district court adopted the magistrate judge’s recommendations over

Daker’s objections, dismissed Daker’s amended complaint without prejudice,

and—because Daker could not proceed on his claims—denied his motions for

preliminary injunctions. Daker then filed a motion to alter or amend the judgment

under Federal Rule of Civil Procedure 59(e). The district court denied this motion,

concluding that Daker had “failed to provide any new argument or evidence.”

Doc. 34 at 2.

      Daker filed two notices of appeal. The first designated the district court’s

order dismissing his amended complaint. The second designated the district

court’s order denying his Rule 59(e) motion. This is Daker’s consolidated appeal.

                        II.      STANDARDS OF REVIEW

      We review interpretations of the PLRA de novo. Brown v. Johnson, 387

F.3d 1344, 1347 (11th Cir. 2004). We also review de novo the district court’s

construction of the Federal Rules of Civil Procedure. Hemispherx Biopharma, Inc.

v. Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir. 2008). But we

review for abuse of discretion the denial of a motion for preliminary injunction.

Forsyth Cty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011).




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                                III.   DISCUSSION

A.    The District Court Erred by Dismissing Daker’s Amended Complaint
      Under the PLRA’s Three Strikes Provision.

      Daker first argues that the district court erred in concluding that he had three

or more strikes under the PLRA. We recently held that six of Daker’s previous

filings do not count as strikes. Daker v. Comm’r, Ga. Dep’t. of Corrs., 820 F.3d

1278, 1284-85 (11th Cir. 2016). Among these filings were two that the district

court relied upon as strikes in this case: In re Daker, No. 12-12073 (11th Cir. filed

Apr. 19, 2012), and Georgia v. Daker, No. 12-12519 (11th Cir. filed May 9, 2012).

Daker v. Comm’r, 820 F.3d at 1282, 1286. Under Daker v. Commissioner, the

district court erred in counting these two filings as strikes. Id.

      The district court also erred in concluding that a third filing, In re Daker,

No. 11-11937 (11th Cir. filed Apr. 29, 2011), counted as a strike. That filing was

dismissed “pursuant to [Daker’s] motion for voluntary dismissal,” In re Daker, No.

11-11937 (11th Cir. Aug. 24, 2011), not because it was “frivolous, malicious, or

fail[ed] to state a claim upon which relief [could] be granted,” 28 U.S.C. § 1915(g).

True, before Daker moved for voluntary dismissal, a single judge of this Court

denied Daker’s motion to proceed in forma pauperis because Daker’s arguments

were “frivolous.” In re Daker, No. 11-11937 (11th Cir. June 3, 2011). But we

have held that a single judge’s denial of a motion to proceed in forma pauperis on

the ground of frivolousness does not automatically transform a filing into a strike
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because “a single judge ‘may not dismiss or otherwise determine an appeal or other

proceeding.’” Daker v. Comm’r, 820 F.3d at 1285 (quoting Fed. R. App. P. 27(c)).

Instead, the dispositive question is why the filing was dismissed. 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.

       The district court did not err, however, in concluding that the fourth filing,

Daker v. Mokwa, No. 2:14-cv-395 (C.D. Cal. filed Jan. 16, 2014), counted as a

strike. A previous filing counts as a strike if it was dismissed with “some express

statement” of frivolity. Daker v. Comm’r, 820 F.3d at 1284. In Mokwa, the

district court dismissed Daker’s complaint because his claims were “speculative

and frivolous.” Daker v. Mokwa, No. 2:14-cv-395 (C.D. Cal. Mar. 19, 2014). As a

result, the district court properly counted Mokwa as a strike.

       Because three of the four previous filings that the district court relied upon

cannot count as strikes according to our decision in Daker v. Commissioner, 820

F.3d 1278, the district court erred in concluding that Daker had three or more

strikes under the PLRA. 2 The district court therefore erred in dismissing Daker’s

complaint for failure to pay the filing fee.




       2
         We express no opinion on whether Daker has any strikes beyond the filings identified
by the district court.
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B.     The District Court Abused Its Discretion by Dismissing Daker’s
       Amended Complaint for Improper Joinder.

       The district court alternatively dismissed Daker’s amended complaint

because he alleged unrelated claims against unrelated defendants. Daker argues

that this, too, was error.

       “Persons . . . may be joined in one action as defendants” as long as (1) the

claims against them “aris[e] out of the same transaction, occurrence, or series of

transactions or occurrences” as the underlying action, and (2) “[a] question of law

or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a).

Even if a plaintiff joins defendants in contravention of this rule, however, the

proper remedy is for the district court to dismiss those defendants or sever the

plaintiff’s claims against them. Fed. R. Civ. P. 21. “Misjoinder of parties is not a

ground for dismissing an action.” Id.

       Here, the district court misapplied Rule 21 by dismissing Daker’s amended

complaint in its entirety. Even though it appears that Daker asserted unrelated

claims against unrelated defendants, the district court should have exercised its

authority under Rule 21 sua sponte to dismiss improper defendants and sever

unrelated claims. By instead dismissing Daker’s amended complaint in its entirety,

the district court abused its discretion.3


       3
        Because we hold that the district court erred in dismissing Daker’s amended complaint,
we need not address whether the district court also erred in denying Daker’s Rule 59(e) motion.
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C.     The District Court Abused Its Discretion by Denying Daker’s Motions
       for Preliminary Injunctions.

       When the district court denied Daker’s motions for preliminary injunctions,

it reasoned only that Daker “c[ould not] proceed with this cause of action.” Doc.

13 at 5. Because this reasoning was erroneous for the reasons discussed above, the

district court abused its discretion when it denied Daker’s motions for preliminary

injunctions.

                                 IV.    CONCLUSION

       For the foregoing reasons, we vacate the district court’s order dismissing

Daker’s amended complaint and denying his motions for preliminary injunctions

and remand for reconsideration of whether Daker may proceed in forma pauperis.4

       VACATED and REMANDED.




       4
         Daker’s Motion for Preliminary Injunction and Second Motion for Preliminary
Injunction are DENIED.
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