942 F.3d 1252
11th Cir.2019Background
- Plaintiff: Waseem Daker, a Georgia prisoner and frequent pro se filer (numerous prior federal filings and appeals).
- Complaint: Challenged Fulton County Jail's hardcover book ban and alleged destruction of property, denial of legal mail, and violations of the First Amendment, Due Process, and RLUIPA; sought IFP status.
- District court: Denied IFP and dismissed under the PLRA three-strikes rule, 28 U.S.C. § 1915(g); alternatively found Daker not indigent.
- Daker's appeals: Argued the district court miscounted strikes (challenging inclusion of a Second Circuit dismissal) and that § 1915(g) is unconstitutional (equal protection, access to courts, and First Amendment "breathing space").
- Eleventh Circuit: Found the Second Circuit dismissal expressly labeled frivolous, counted it plus multiple Eleventh Circuit frivolous-dismissal strikes, held no imminent danger, and rejected constitutional and as-applied challenges; affirmed dismissal and denied appointment of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Daker had ≥3 strikes under §1915(g) | Second Circuit dismissal shouldn’t count because it relied on an earlier Georgia district-court strikes finding; other dismissals were erroneous | Several prior appeals were expressly dismissed as frivolous; those count as strikes | Affirmed: multiple prior frivolous dismissals (including the Second Circuit) establish ≥3 strikes |
| Whether §1915(g) violates access-to-courts or equal protection | PLRA deprives indigent prisoners of meaningful access and discriminates against frequent filers | Rivera controls: no right to free access; §1915(g) regulates fee status, not the ability to file; rational basis review satisfied | Rejected: Rivera forecloses these constitutional challenges |
| Whether the First Amendment "breathing space" doctrine invalidates §1915(g) | The rule punishes honest mistakes and chills pro se speech by denying IFP without margin for error | No First Amendment right to free court access or to speak in court for free; breathing-space concerns about liability for speech don’t apply to filing fees | Rejected: breathing-space principle inapplicable to fee-waiver rule |
| Whether §1915(g) is unconstitutional as applied to Daker (fundamental interest) | His claims (book ban, returned legal mail) implicate fundamental rights warranting fee waiver | Fundamental-interest exceptions are narrow (family relationships, bodily injury); these claims do not meet that standard | Rejected: no fundamental-interest exception applies; §1915(g) constitutional as applied |
Key Cases Cited
- Daker v. Commissioner, 820 F.3d 1278 (11th Cir. 2016) (interpreting which dismissals qualify as strikes under §1915(g))
- Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998) (upholding §1915(g) against access-to-courts and equal protection challenges)
- Jones v. Bock, 549 U.S. 199 (2007) (procedural abrogation noted in context)
- Snyder v. Phelps, 562 U.S. 443 (2011) (discussing "breathing space" for speech about public issues)
- Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (speech-protection rule to avoid chilling public debate)
- Miller v. Donald, 541 F.3d 1091 (11th Cir. 2008) (noting fee waiver may be required when fundamental interests are at stake)
- Lewis v. Casey, 518 U.S. 343 (1996) (right of prisoners to meaningful access to the courts)