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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11418
Non-Argument Calendar
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D.C. Docket No. 6:16-cv-00057-JRH-RSB
WASEEM DAKER,
Plaintiff-Appellant,
versus
HOMER BRYSON,
Commissioner, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
________________________
(August 8, 2019)
Before MARCUS, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Waseem Daker, a pro se Georgia prisoner, appeals the district court’s
dismissal without prejudice of his 42 U.S.C. § 1983 complaint pursuant to the Prison
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Litigation Reform Act (“PLRA”), 28 U.S.C § 1915(g). On appeal, Daker argues
that: (1) he is not a “three-striker” under § 1915(g); (2) he nevertheless meets the
imminent-danger exception to § 1915(g); and (3) § 1915(g) is unconstitutional under
the First Amendment’s “breathing-space” principle. After careful review, we affirm.
We review de novo a district court’s dismissal under § 1915(g). Mitchell v.
Nobles,
873 F.3d 869, 873 (11th Cir. 2017). We also review de novo the legal
question of the constitutionality of a statute. Ranch House, Inc. v. Amerson,
238
F.3d 1273, 1277 (11th Cir. 2001).
First, we are unpersuaded by Daker’s claim that the district court erred by
concluding that he is a “three-striker” under § 1915(g). Section 1915(g) of the PLRA
generally bars a prisoner from proceeding in forma pauperis (“IFP”) if he has
previously filed three or more meritless lawsuits.
Mitchell, 873 F.3d at 872. This
provision is commonly known as the “three strikes” provision.
Id. In Daker v.
Comm’r,
820 F.3d 1278, 1283 (11th Cir. 2016), cert. denied,
137 S. Ct. 1227 (2017),
an earlier case brought by this same plaintiff, we explained that, under § 1915(g),
the only dismissals that may be counted as strikes are dismissals on the grounds that
the claims were frivolous, malicious, or failed to state a
claim. 820 F.3d at 1283–
84. Further, we do not count a dismissed action as a strike unless the court made an
express statement indicating that the case was frivolous.
Id. at 1284.
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Here, the district court did not err in concluding that Daker is a “three-striker,”
because three of the cases the court listed were properly counted as strikes. First,
the district court properly counted case no. 13-11630 as a strike because that case
was dismissed as frivolous by a panel of this Court in 2014. See Order, No. 13-
11630 (11th Cir. Mar. 4, 2014). As for Daker’s argument that case no. 13-11630 is
no longer frivolous due to “subsequent developments,” he fails to show how the
decision in that case was affected by unrelated appeals in his other cases. Second,
case no. 15-330 from the Second Circuit properly counts as another strike because
that court dismissed that appeal as without “arguable basis in law or in fact,” making
the case frivolous. See Order, No. 15-330 (2d Cir. May 22, 2015); see also Nietzke
v. Williams,
490 U.S. 319, 325 (1989) (holding that a complaint is frivolous for
purposes of § 1915(g) “where it lacks an arguable basis either in law or in fact”).
Daker’s claim that this Court’s 2016 decision (Daker,
820 F.3d 1278) undermines
the Second Circuit’s 2015 decision has no merit since we did not address the Second
Circuit’s in our opinion, nor otherwise invalidate its ruling.
And, finally, the district court properly counted case no. 14-cv-395 from the
United States District Court for the Central District of California as Daker’s third
strike because that case was dismissed as frivolous as well -- a determination that
Daker does not challenge on appeal. See Order, No. 2:14-cv-00395 (C.D. Cal. Feb.
4, 2014); see also Order, No. 14-55653 (9th Cir. June 11, 2014) (concluding that the
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appeal of that case also was frivolous). Because these three cases all became final
before Daker filed the instant complaint in May 2016, Daker’s status as a “three-
striker” was established by the time he filed his complaint. Thus, we affirm the
district court’s determination that Daker is a “three-striker.”
Nor, moreover, did the district court err in determining that Daker does not
meet the imminent-danger exception to § 1915(g). As we’ve explained, “the sole
exception to the three strikes bar is where the prisoner is under imminent danger of
serious physical injury.”
Mitchell, 873 F.3d at 872 (quotation omitted). In applying
the imminent-danger exception, we view a pro se plaintiff’s complaint as a whole
and construe it liberally. Brown v. Johnson,
387 F.3d 1344, 1350 (11th Cir. 2004).
In Brown, we held that a plaintiff had sufficiently shown imminent danger where he
alleged a “total withdrawal of treatment for serious diseases [HIV and hepatitis], as
a result of which he suffer[ed] from severe ongoing complications, [was] more
susceptible to various illnesses, and his condition [would] rapidly deteriorate.”
Id.
at 1350. Among other things, Brown had said that due to the medication withdrawal,
he was suffering “prolonged skin and newly developed scalp infections, severe pain
in the eyes and vision problems, fatigue and prolonged stomach pains.”
Id.
Applying Brown in Mitchell, we said that a plaintiff satisfies the imminent-danger
exception if he alleges “a ‘total’ lack of treatment . . . causing ‘severe ongoing
complications.’”
Mitchell, 873 F.3d at 874. In Mitchell, we held that the plaintiff
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had shown imminent danger because he claimed the defendants had completely
withdrawn treatment for his Hepatitis C, and cirrhosis had begun.
Id. at 873–75.
For comparison purposes, the Eighth Circuit decided in Martin v. Shelton that
a prisoner’s claim of imminent danger of serious physical injury had failed -- a
decision we cited as persuasive authority in Brown. See
Brown, 387 F.3d at 1350
(citing Martin v. Shelton,
319 F.3d 1048 (8th Cir. 2003)). In Martin, the prisoner
alleged that he was twice forced to work outside in inclement weather, once in cold
weather without warm clothing and then later in hot weather, despite his blood
pressure
condition. 319 F.3d at 1050. The complaint included “conclusory assertions
that defendants were trying to kill Martin by forcing him to work in extreme
conditions despite his blood pressure condition.”
Id. The Eighth Circuit held that
“[t]his type of general assertion is insufficient to invoke the exception to § 1915(g)
absent specific fact allegations of ongoing serious physical injury, or of a pattern of
misconduct evidencing the likelihood of imminent serious physical injury.”
Id.
Here, Daker alleges that the defendants’ grooming regulations pose an
imminent danger to him by forcing him to shave his beard with unsanitized clippers
and that he is denied nutritionally adequate food causing him significant weight-loss.
Based on these allegations, however, we cannot say he faces anything near the
imminent danger of suffering serious or continuing harm that the plaintiffs suffered
in Brown and Mitchell, when their life-sustaining medicines were withdrawn and
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they were already undergoing adverse medical conditions. For starters, Daker
undermines his own claim about nutritionally inadequate food by admitting that he’s
been placed on a special diet to help remedy the lack of nutrition that he is receiving.
As for his allegations concerning the clippers, nothing suggests that he is suffering
from any current consequences, much less “a ‘total’ lack of treatment . . . causing
‘severe ongoing complications.’”
Mitchell, 873 F.3d at 874. Instead, Daker alleges
that being forced to use unsanitized clippers could expose him to diseases -- a claim
that is simply too speculative to establish that he is under imminent danger of serious
physical injury. See
Martin, 319 F.3d at 1050 (upholding § 1915(g)’s application
where there was no allegation of ongoing danger, other than “conclusory assertions
that defendants were trying to kill Martin by forcing him to work in extreme
conditions despite his blood pressure condition”). Thus, we agree with the district
court that Daker has not shown imminent danger.
Finally, we are unpersuaded by Daker’s argument that § 1915(g) is
unconstitutional. In Rivera, we addressed challenges to the constitutionality of §
1915(g) on several grounds, including the First Amendment right to access the courts
and the Fourteenth Amendment right to equal protection. Rivera v. Allin,
144 F.3d
719, 723 (11th Cir. 1998), abrogated in part on other grounds by Jones v. Block,
549
U.S. 199, 215 (2007). As we explained, Congress is not obligated to provide free or
unlimited access to the courts.
Id. 723–24. Further, § 1915(g) “does not prevent a
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prisoner with three strikes from filing civil actions; it merely prohibits him from
enjoying IFP status.”
Id. “To be sure, proceeding IFP in a civil case is a privilege,
not a right -- fundamental or otherwise.”
Id. Thus, imposition of a modest filing fee
on prisoners with “three strikes” is reasonable because “Congress is no more
compelled to guarantee free access to federal courts than it is to provide unlimited
access to them.”
Id. (quotation omitted).
The “breathing-space” principle is the idea that, for the First Amendment to
meaningfully protect freedom of speech, individuals need some margin for error --
in other words, the ability to advance insulting, outrageous, or inadvertently false
speech -- when discussing matters of public concern before they can be held liable
for the effects their speech has on others. E.g., Snyder v. Phelps,
562 U.S. 443, 458
(2011); Hustler Magazine, Inc. v. Falwell,
485 U.S. 46, 52 (1988) (explaining that
defamation liability for statements about public figures requires a showing of falsity
and the requisite culpability to prevent a chilling effect on public speech).
Here, Daker attempts to avoid the application of Rivera by framing his
challenge to § 1915(g) as an argument about the restriction of speech, rather than the
restriction of access to the courts. Nonetheless, Rivera forecloses this challenge
because there is no meaningful distinction between Rivera’s holding that individuals
do not have a First Amendment right to access the courts for free, and Daker’s claim
that individuals have a First Amendment right to speak in the courts for free. In fact,
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Daker recognizes that the right to access to the courts and the right to free speech are
governed by the same standards, citing Wayte v. U.S.,
470 U.S. 598, 610 n.11 (1985).
Because there is no First Amendment right to access (or speak in) the courts for free,
the “breathing-space” principle is inapplicable to this case and we affirm. 1
AFFIRMED.
1
In addition, Waseem Daker’s motion for appointment of counsel is DENIED.
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