Hafed v. Federal Bureau of Prisons
635 F.3d 1172
| 10th Cir. | 2011Background
- Hafed is a federal prisoner appealing two district court orders in Nos. 09-1090 and 09-1365 (10th Circuit).
- He filed multiple motions and sought in forma pauperis status, along with extensions and protective orders.
- The court amended a December 28, 2010 order and set a deadline for full payment of the filing fee in No. 09-1365.
- The court held three prior dismissals as strikes under 28 U.S.C. § 1915(g), triggering prepayment unless imminent danger was shown.
- The court concluded Hafed did not allege imminent danger, so the three-strikes rule bars proceeding in No. 09-1365 unless fees are prepaid.
- No. 09-1090 concerns an interlocutory order; it may become moot if the fee for No. 09-1365 is not prepaid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hafed had three strikes under § 1915(g). | Hafed argues he lacks three strikes or that imminent danger excuses prepayment. | Appellees contend Hafed accumulated three properly counted strikes before 09-1365. | Three strikes found; Hafed barred from proceeding without prepayment. |
| Whether a § 1915A dismissal counts as a strike. | Hafed asserts certain § 1915A dismissals should count as strikes. | Defendants maintain that dismissals under § 1915A can count when grounds align with § 1915(g). | Dismissals under § 1915A count as strikes if grounded in frivolousness, maliciousness, or failure to state a claim. |
| When a strike ripens for counting under § 1915(g). | Hafed seeks counting from filing dates or certiorari decisions favorable to his position. | Defendants argue strikes ripen from certiorari denial/dismissal or from time to file an appeal, as applicable. | Strike dates run from Supreme Court certiorari denial/dismissal or expiry of certiorari period; appellate or district dismissals may count from appeal expiry. |
| Whether the Seventh Circuit dismissal for nonpayment counts as a strike. | Hafed contends nonpayment dismissal should not count as a strike. | Defendants argue the chain of events (frivolousness/merits attack) can render the nonpayment dismissal a strike. | Dismissal for nonpayment can count as a strike when it was caused by earlier frivolousness finding. |
| Whether Hafed's imminent-danger allegations satisfy the ×imminent-danger exception. | Hafed contends imminent danger to life/safety excuses prepayment. | Defendants argue allegations are vague and conclusory and fail the imminent-danger standard. | Imminent-danger exception not satisfied; prepayment required. |
Key Cases Cited
- Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775 (10th Cir. 1999) (set three-strikes framework and timing for counting strikes)
- Dubuc v. Johnson, 314 F.3d 1205 (10th Cir. 2003) (examines timing and applicability of strikes under PLRA)
- Kinnell v. Graves, 265 F.3d 1125 (10th Cir. 2001) (imminent-danger exception requires specific allegations)
- White v. Colorado, 157 F.3d 1226 (10th Cir. 1998) (imminent danger must be pled at time of filing)
- Thompson v. Drug Enforcement Admin., 492 F.3d 428 (D.C. Cir. 2007) (treats ‘but for’ causation in strikes context; nonprepayment consequences)
- O'Neal v. Price, 531 F.3d 1146 (9th Cir. 2008) (dismissal as strike where denial of leave to proceed counts)
- Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775 (10th Cir. 1999) (see above; listed again for emphasis)