999 F.3d 1300
11th Cir.2021Background
- Plaintiff Waseem Daker is an exceptionally prolific pro se serial litigant who has brought hundreds of federal filings and is an admitted "three-striker" under the PLRA.
- On January 16, 2017 Daker filed a § 1983 complaint alleging (inter alia) enforcement of GDC grooming rules that forced him—an observant Muslim who keeps a ~3" beard—to be shaved with unsanitized and damaged clippers, use of force (including MK-9 chemical agent) during shavings, and harsh Tier II disciplinary conditions (unsanitary cell, denial of exercise/religious materials, missed medical appointments).
- The district court dismissed the complaint without prejudice on two alternative grounds: (1) barred from proceeding IFP under 28 U.S.C. § 1915(g) (three-strikes) because Daker failed to show he was under "imminent danger" of serious physical injury; and (2) as malicious/abusive and duplicative under 28 U.S.C. § 1915A(b)(1), because the claims repeated pending suits ("Daker I" and "Daker II").
- The court emphasized Daker had filed multiple prior, substantially similar forced-shaving complaints within months of each other and was experienced in federal pro se litigation—supporting a finding of knowing duplication and abuse of process.
- The Eleventh Circuit affirmed: it held the duplicative-malicious dismissal was within the district court’s discretion and, alternatively, that Daker’s allegations (unsanitized/damaged clippers, past cuts/burns, Tier II conditions) were too speculative or past-tense to satisfy the § 1915(g) imminent-danger exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal under 28 U.S.C. § 1915A(b)(1) as malicious/duplicative was proper | Daker contended the complaint raised claims distinct from his other suits and sought relief for ongoing injuries from forced shavings and Tier II conditions | Defendants argued the complaint repeated claims already pending in Daker I and Daker II and was knowingly filed to evade fees—an abuse of judicial process | Affirmed: dismissal without prejudice as malicious/duplicative was within discretion because complaint knowingly duplicated pending actions |
| Whether § 1915(g) three-strikes bar applied and IFP denial was proper | Daker asserted the imminent-danger exception applied due to ongoing risk from unsanitized clippers, force, and current unsanitary confinement | Defendants pointed to Daker’s three-strike status and argued his allegations showed only past incidents or speculative future harm, not present imminent danger | Affirmed: Daker is a three-striker and failed to allege present imminent danger; IFP properly denied |
| Whether allegations about unsanitized/damaged clippers and forced shaves showed imminent danger of serious physical injury | Daker argued recurring use of unsanitized, damaged clippers on a population with high hepatitis/HIV prevalence made contracting a bloodborne disease imminent | Defendants argued the transmission risk was speculative, Daker had long-standing exposure without infection, and past injuries (cuts/burns) do not demonstrate imminent serious harm | Held: Allegations too speculative and historical; risk not shown to be imminent or sufficiently likely to meet § 1915(g) exception |
| Whether conditions in Tier II (feces, missed medical care, deprivation of exercise/religion) established imminent danger or required separate venue | Daker claimed current conditions caused infections and ongoing harm | Defendants noted such conditions might support claims but did not demonstrate imminent serious physical injury and some claims were mis-joined or in improper venue | Held: Tier II allegations do not show imminent danger; district court alternatively noted mis-joinder/venue problems and dismissal without prejudice was proper |
Key Cases Cited
- Mitchell v. Nobles, 873 F.3d 869 (11th Cir. 2017) (de novo review and framework for § 1915(g) three-strikes and imminent-danger analysis)
- Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999) (imminent-danger exception requires danger at time suit is filed; past dangers insufficient)
- Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004) (imminent danger must be present and supported by specific factual allegations)
- Bingham v. Thomas, 654 F.3d 1171 (11th Cir. 2011) (standards for frivolity/maliciousness review under § 1915A reviewed for abuse of discretion)
- Zocaras v. Castro, 465 F.3d 479 (11th Cir. 2006) (abuse-of-discretion standard for dismissal as frivolous/malicious)
- McWilliams v. Colorado, 121 F.3d 573 (10th Cir. 1997) (duplicative/repititious litigation may be dismissed as frivolous/malicious)
- Pittman v. Moore, 980 F.2d 994 (5th Cir. 1993) (repetitious filings that duplicate pending suits may be malicious under PLRA)
- Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007) (alleged risk of contracting hepatitis can plausibly raise imminent-danger concerns)