Waseem Daker v. Commissioner of the Georgia Department of Corrections

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-11449
Non-Argument Calendar
____________________
WASEEM DAKER,
Plaintiff-Appellant,
versus
COMMISSIONER OF THE GEORGIA DEPARTMENT OF
CORRECTIONS,
ASSISTANT COMMISSIONER, DEPARTMENT OF
CORRECTIONS,
WARDEN,
Facility Director,
STEVE UPTON,
Deputy Facility Director,
OTIS STANTON,
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2 Opinion of the Court 19-11449
Statewide Tier Coordinator, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 6:17-cv-00110-JRH-BWC
____________________
Before NEWSOM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Waseem Daker, a serial litigator and Georgia prisoner pro-
ceeding pro se, appeals following the dismissal of his civil action
raising claims under 42 U.S.C. § 1983 and the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), where he had also
sought to proceed in forma pauperis (“IFP”). The district court dis-
missed Daker’s complaint without prejudice for three independent
reasons: (1) He, as a prisoner, had three previous “strikes”—cases
previously dismissed as either frivolous or malicious or for failure
to state a claim—under the Prison Litigation Reform Act (“PLRA”),
and he didn’t qualify for the “imminent danger of serious physical
injury” exception to proceed IFP; (2) he abused the judicial process
by misrepresenting his financial assets and not disclosing his prior
and active litigation history; and (3) he failed to exhaust available
administrative remedies. On appeal, Daker disputes each of these
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19-11449 Opinion of the Court 3
reasons and also argues that the district court erred when it denied
him leave to amend his complaint. We hold that the district court
correctly concluded that Daker didn’t qualify for the “imminent
danger of serious physical injury” exception to the PLRA’s three-
strikes rule and properly dismissed his case without prejudice. Be-
cause we affirm on this ground, we don’t reach the others. We also
conclude that the court didn’t abuse its discretion by denying
Daker leave to amend his complaint.1
Under the PLRA, a prisoner may not proceed IFP and in-
stead must pay the court’s full filing fee at the time he brings suit if
he has previously had at least three cases dismissed for being either
frivolous or malicious or for failure to state a claim. 28 U.S.C.
§ 1915(g). “[T]he proper procedure is for the district court to dis-
miss 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) (per curiam). Daker concedes that he has at least
three strikes under this rule.
The only exception to the three-strikes rule is if the prisoner
is “under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). “To satisfy this exception, the prisoner must show he is
1 “This court reviews de novo the district court’s interpretation of the Prison
Litigation Reform Act’s (PLRA) filing fee provision.” Dupree v. Palmer, 284
F.3d 1234, 1235 (11th Cir. 2002) (per curiam). “We review a district court’s
denial of leave to amend under the abuse of discretion standard.” Newton v.
Duke Energy Fla., LLC, 895 F.3d 1270, 1275 (11th Cir. 2018).
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4 Opinion of the Court 19-11449
in imminent danger at the time that he seeks to file his suit in dis-
trict court”: “Allegations that the prisoner has faced imminent dan-
ger in the past are insufficient.” Daker v. Ward, 999 F.3d 1300,
1310–11 (11th Cir. 2021) (quotation omitted). While we construe
the plaintiff’s complaint liberally and accept its allegations as true,
“[g]eneral assertions . . . are insufficient to invoke the exception . . .
absent specific fact allegations of ongoing serious physical injury,
or of a pattern of misconduct evidencing the likelihood of immi-
nent serious physical injury.” Id. at 1311 (quotation omitted).
Moreover, the alleged imminent injury must be sufficiently “seri-
ous”: It must be “severe” or “life-threatening.” Id. at 1313.
Daker has failed to allege an imminent danger of serious
physical injury. Daker’s complaint alleges that the prison-official
defendants will forcibly shave his beard, exposing him to the sup-
posedly serious, imminent physical dangers of (1) the defendants’
use of physical force and (2) being shaved with “unsanitized clip-
pers.” The problem for Daker is that he filed an almost identical
suit in a different district in 2017, see CM/ECF for M.D. Ga., No.
5:17-cv-00025, Doc. 1-1 at 28, and both the district court and this
Court rejected his claim that the threat of forced shaving made him
eligible for the imminent-danger exception to the PLRA. Specifi-
cally, we held that Daker’s allegation that he could contract an in-
fectious disease from unsanitary clippers was “not sufficient[ly] . . .
‘imminent’ for purposes of § 1915(g).” Daker, 999 F.3d at 1312. We
also held that to the extent that force would be used to effectuate
the prison’s grooming policy, “the kinds of minor injuries Daker
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19-11449 Opinion of the Court 5
alleges were caused by being forcibly shaved, such as burns, cuts,
and bruises, fall short of the seriousness of injury that this Court
has found satisfies the imminent danger standard.” Id. at 1313.
Given these holdings, we conclude that Daker has similarly failed
to allege an imminent danger of serious physical injury in his com-
plaint in this case, Daker didn’t qualify for this exception to the
three-strikes rule, and the district court properly dismissed his case
without prejudice.
The district court also didn’t abuse its discretion when it de-
nied Daker leave to amend his complaint. First, contrary to
Daker’s argument on appeal, he submitted his proposed amended
complaint more than 21 days after his initial complaint, which
means that he did not have the right under Fed. R. Civ. P. 15(a) to
amend as a matter of course. Second, the court properly denied
leave to amend because the proposed amended complaint sought
to add separate and unrelated claims against a multitude of defend-
ants that Daker hadn’t included in his initial complaint. See Fed.
R. Civ. P. 20(a)(2); Doc. 14 at 15. Third, because the dismissal was
without prejudice, Daker could simply have refiled an amended
complaint in a new case. 2 Therefore, the district court didn’t abuse
2 Contrary to Daker’s assertions, the court’s dismissal without prejudice
wasn’t tantamount to a dismissal with prejudice due to the running of any
statute of limitations. See Justice v. United States, 6 F.3d 1474, 1482 n.15 (11th
Cir. 1993). Rather, the court’s dismissal order was issued in January 2018 and
the injuries alleged in Daker’s initial complaint took place in July 2017. There-
fore, assuming that the two-year statute of limitations applicable to § 1983 ac-
tions in Georgia would apply here, see Lovett v. Ray, 327 F.3d 1181, 1182 (11th
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6 Opinion of the Court 19-11449
its discretion when it dismissed Daker’s case without prejudice and
denied him leave to amend his complaint.
AFFIRMED.
Cir. 2003) (per curiam), the district court dismissed Daker’s case without prej-
udice before the statute of limitations on his claims had run.