USCA11 Case: 20-12956 Date Filed: 06/22/2021 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12956
Non-Argument Calendar
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D.C. Docket No. 1:20-cv-02175-TWT
WILLIE DAVIS,
Plaintiff-Appellant,
versus
CITY OF ATLANTA,
ATLANTA POLICE DEPARTMENT,
OFFICER WOODLEY BAUCHCAULT,
Atlanta Police Department,
OFFICER COSTELLO,
W/M; Atlanta Police Officer,
PUBLIC DEFENDER OFFICE,
Atlanta Judicial Circuit,
et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 22, 2021)
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Before JORDAN, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Willie Davis, a state prisoner, appeals pro se from the district court’s dismissal
without prejudice of his complaint for misrepresenting his previous federal filings,
under
28 U.S.C. § 1915(e)(2)(B), and because he had three “strikes” under
28 U.S.C.
§ 1915(g) and failed to pay the filing fee. Davis argues that his poor eyesight caused
him to unintentionally omit his previous filings from the complaint. He also argues
that he is under imminent danger, so Section 1915(g) should not apply, and the
district court erred in counting one of his prior cases as a strike under
Section 1915(g).
We review a district court’s sua sponte dismissal under Section
1915(e)(2)(B)(i) for abuse of discretion. Hughes v. Lott,
350 F.3d 1157, 1160 (11th
Cir. 2003). Under Section 1915(e)(2)(B)(i), a district court must dismiss an IFP
action if the court determines that the action is “frivolous or malicious.”
28 U.S.C.
§ 1915(e)(2)(B)(i). “A finding that the plaintiff engaged in bad faith litigiousness or
manipulative tactics warrants dismissal.” Attwood v. Singletary,
105 F.3d 610, 613
(11th Cir. 1997) (applying prior version of Section 1915(e)(2)(B)(i), then codified
as Section 1915(d)).
We review de novo a dismissal under Section 1915(g). Miller v. Donald,
541
F.3d 1091, 1100 (11th Cir. 2008). Section 1915(g), commonly known as the “three
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strikes” provision, provides that a prisoner may not file a civil lawsuit “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). A prisoner with three strikes must show that he is in imminent
danger “at the time that he seeks to file his suit in district court or seeks to proceed
with his appeal or files a motion to proceed IFP.” Medberry v. Butler,
185 F.3d 1189,
1192-93 (11th Cir. 1999) (quotation marks omitted). Accordingly, “a prisoner’s
allegation that he faced imminent danger sometime in the past is . . . insufficient.”
Id. at 1193. When determining whether a plaintiff has met his burden of proving that
he is in imminent danger of serious physical injury, we look to the plaintiff’s
complaint, which must be construed liberally, and accept the allegations as true.
Brown, 387 F.3d at 1349-50. However, although courts accept the prisoner’s
allegations as true, they are “not required to credit conclusory allegations,
unwarranted deductions of facts or legal conclusions masquerading as facts.” See
Warren Tech., Inc. v. UL LLC,
962 F.3d 1324, 1328 (11th Cir. 2020) (quotation
marks omitted) (discussing the standard for reviewing whether a complaint states a
claim for relief). Further, our review is not whether each specific physical condition
or symptom complained of might constitute serious injury, but rather, “whether his
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complaint, as a whole, alleges imminent danger of serious physical injury.” Brown,
387 F.3d at 1350.
The district court did not abuse its discretion by dismissing Davis’s complaint
under
28 U.S.C. § 1915(e)(2)(B)(i) because Davis misrepresented his litigation
history. His explanation that this misrepresentation was due to poor eyesight is
insufficient because he stated multiple times in his complaint that he had not filed
previous federal lawsuits when prompted for further details.
Further, we agree with the district court that Davis has three strikes under
Section 1915(g) and failed to show that he was in imminent danger at the time of the
filing of his complaint. His allegations of threats at the time of his arrest are not
sufficient to show imminent danger because they occurred in the past and are no
longer imminent. The threats that he alleges from an Atlanta police officer and the
Fulton County District Attorney’s office are not imminent because he did not
explain, beyond conclusory allegations, how those who threatened him could have
access to the prison, and he conceded that the Warden was aware of the threats and
looking into them. Accordingly, we affirm.
AFFIRMED.
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