Petition for Writ of Certiorari — Waseem Daker, Petitioner v. Timothy Ward, et al.

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In The

Supreme Court of the United States

FILED

DEC 2 8 2021

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WASEEM DAKER,

Petitioner,

v.

TIMOTHY WARD, etal.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

WASEEM DAKER

Petitioner, pro se

ID#901373

Smith S.P.

P.O. Box 726

Glennville, GA 30427

QUESTIONS PRESENTED

Petitioner alleged that Georgia Department of

Corrections (GDC) officers place him in imminent

danger of contracting hepatitis or HIV by forcibly

shaving him with a damaged, unsanitized razor on a

semi-monthly basis in a prison system where both

blood-borne diseases are endemic. The Eleventh Cir­

cuit panel held that those allegations were “too specu­

lative” to satisfy the exception because petitioner “has

not contracted an infectious disease” or alleged the

same of another prisoner despite the “longstanding

custom.” No other circuit follows this rule. Judge Ros­

enbaum dissented, explaining that the correct test is

whether the allegations “allow a court to draw reason­

able inferences” of future “danger.” Five circuits follow

this rule.

The panel also held that Petitioner’s lawsuit

was duplicative of two prior, similar lawsuits that

were based on different forcible shaving instances,

and therefore, malicious. Although other circuits hold

that duplicative lawsuits are subject to dismissal as

malicious, the panel’s decision is a notable outlier. No

other circuit would hold that petitioner’s challenge is

malicious. All other circuits hold that duplicative

means nearly identical.

The questions presented are as follows

I. Whether an incarcerated person must allege

presently occurring or certain-to-occur serious physi­

cal injury in order to successfully invoke the “immi­

nent danger of serious physical injury” exception to

the Prison Litigation Reform Act “three-strikes” provision, 28 U.S.C. § 1915(g)?

II. Whether three cases challenging three

chronologically distinct episodes of forcible shavings,

but motivated by the same long-standing department

policy are “duplicative,” and therefore subject to sua

sponte dismissal under the Prison Litigation Reform

Act (PLRA) provision authorizing pre-service dismis­

sal of “malicious” complaints, 28 U.S.C. § 1915A?

LIST OF PARTIES

All parties do not appear in the caption of the

case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of

this petition is as followsAllen, Marty, Respondent;

Ammons, Jennifer, Respondent;

Anderson, Michael, Respondent;

Black, Nathan, Respondent;

Bobbitt, Trevonza, Respondent;

Brooks, Timothy, Respondent;

Bryson, Homer, Respondent;

Chatman, Bruce, Respondent;

Daker, Waseem, Petitioner;

Doe, John [GDC Director of Internal Affairs], Re­

spondent;

Dozier, Gregory, Respondent;

Evans, Ms. [First Name Unknown (“FNU”)], Respond­

ent;

Foulk, Rodney, Respondent;

Fountain, Lisa, Respondent;

Geiger, Dr. [FNU], Respondent;

m

Georgia Department of Corrections, Respondent;

Hartmeyer, Ashley, Respondent;

Hutcheson, Joseph L., Respondent;

James, Carrie, Respondent;

Jones, Terry L., Respondent;

Kilgore, Shirley, Respondent;

Koon, Jack, Respondent;

Lewis, Dr. Sharon, Respondent;

Lyte, Valiant, Respondent;

Mendez, Michael, Respondent;

Mikell, Marcus, Respondent;

Mitchell, Jason, Respondent;

Moye, Terry Deon, Respondent;

Myrick, Ricky L., Respondent;

Nobilio, Wade Garrett, Respondent;

Ogden, Sheldon, Respondent;

Shuemake, Ronnie, Respondent;

Smith, Calvin Milton, Respondent;

Smith, Cindy L., Respondent;

Stanton, Otis, Respondent;

IV

State of Georgia, Respondent;

Toole, Robert, Respondent;

Turner, Dr. Steven A., Respondent;

Upton, Steve, Respondent;

Ward, Timothy, Respondent;

Williams, Curmit, Respondent;

Wilson, Fred, Respondent;

Wright, Arsenio, Respondent;

LIST OF RELATED CASES

Daker v. Dozier, No. 5:i7-CV-00025, U. S. District

Court for the Middle District of Georgia. Judg­

ment entered July 18, 2017.

Daker v. Ward, No. 17-13384, U. S. Court of Appeals

for the Eleventh Circuit Judgment entered

June 7, 2021.

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

1

LIST OF PARTIES .............

m

LIST OF RELATED CASES

v

TABLE OF AUTHORITIES

X

PETITION FOR A WRIT OF CERTIORARI... 1

OPINIONS BELOW..................................

1

JURISDICTION.... .....................................

1

STATUTORY PROVISIONS INVOLVED...... 1

STATEMENT OF THE CASE..................

3

REASONS FOR GRANTING THE WRIT...... 9

I. Whether an incarcerated person must allege

presently occurring or certain-to*occur

serious physical injury in order to suc­

cessfully invoke the “imminent danger

of serious physical injury” exception to

the Prison Litigation Reform Act “threestrikes” provision, 28 U.S.C. § 1915(g)? 9

A. There is a Circuit conflict on the

question presented

9

B. The issue presented is of exceptional

public importance.

11

vi

TABLE OF CONTENTS

(continued)

Page

II. Whether three cases challenging three

chronologically distinct episodes of forci­

ble shavings, but motivated by the same

long-standing department policy are

“duplicative,” and therefore subject to

sua sponte dismissal under the Prison

Litigation Reform Act (PLRA) provision

authorizing pre-service dismissal of

“malicious” complaints, 28 U.S.C. §

1915A?

11

Vll

TABLE OF CONTENTS

(continued)

Page

A. There is a Circuit conflict on the

question presented...............

12

B. The issue presented is of exceptional

public importance

15

CONCLUSION

16

vni

TABLE OF CONTENTS

(continued)

Page

Appendix:

Eleventh Circuit Opinion......................... App.l

Judge Rosenbaum’s Dissenting Opinion

App.30

District Court Order Dismissing Complaint

App.39

District Court Order Denying Reconsideration

.......................................................App.58

Eleventh Circuit Order Denying Rehearing En

Banc

App.63

IX

TABLE OF AUTHORITIES

Cases

Adams v. Cal. Dep’i ofHealth Servs.,

487 F.3d 684 (9th Cir. 2007)......... 13

Andrews v. Cervantes, 493 F.3d 1047

(9th Cir. 2007).................................. 10

Brown v. Davids, No. 19-1557, slip op.

(6th Cir. Nov. 12, 2019)................... 14

Cottle v. Bell, 229 F.3d 1142, 2000 WL

1144623 (4th Cir. 2000)................... 14

Curtis v. Citibank, N.A., 226 F.3d 133

(2d Cir. 2000) ................................... 13

Daker v. Bryson, 841 F. App’x 115 (llth

Cir. 2020)

7 n.l

Daker v. Comm’r, Ga. Dep’t of Corr.,

820 F.3d 1278 (llth Cir. 2016). 12-13

Fuller v. Wilcox, 288 F. App’x 509 (10th

Cir. 2008)

11

Page

Gibbs v. Cross, 160 F.3d 962 (3d Cir.

1998)

9, 10

Holt v. Hobbs, 574 U.S. 352 (2015) ......3

Lewis v. Sullivan, 279 F.3d 526, 531

(7th Cir. 2002)

10, 11

Kelly v. Maxum Specialty Ins. Grp., 868

F.3d 274 (3d Cir. 2017)

13

Martin v. Shelton, 319 F.3d 1048 (8th

Cir. 2003) .......................................... 10

Njie v. Yurkovich, 720 F. App’x 786 (7th

Cir. 2018)

14

Pittman v. Moore, 980 F.2d 994 (5th

Cir. 1993) ........................................ 13

Smith v. S.E.C., 129 F.3d 356 (6th Cir.

1997).................................................... 13

Vandiver v. Prison Health Servs., Inc.,

727 F.3d 580 (6th Cir. 2013)........... 9

STATUTES:

28 U.S.C. § 1254(1)

1

28 U.S.C. § 1915A...

passim

28 U.S.C. § 1915(g) ..

passim

XI

IIX

■V

PETITION FOR A WRIT OF CERTIORARI

Waseem Dakar respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit in

Dakerv. Ward, et al., No. 17-13384. .

OPINIONS BELOW

The Opinion of the Court of Appeals is pub"

lished and reported at Daker v. Ward, 999 F3d 1300

(llth.Cir. June 7, 2021.)

JURISDICTION

The Court of Appeals affirmed Petitioner’s appeal from the dismissal of Petitioner’s Complaint on

June 7, 2021. (App.

.) The Court of Appeals denied

a petition for rehearing on August 30, 2021. (App.__ .)

On December 7, 2021, Justice Thomas granted an ap_

plication for extension of time to file Petition for Writ

of Certiorari until December 28, 2021. Application No.

21A206. This Court's jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This Court involves Title 28, United States

Code (“U.S.C.) § 1915(g) of the Prison Litigation Re­

form Act (“PLRA”), commonly known as the “threestrikes provision, which provides in pertinent part:

1

(g) In no event shall a pris­

oner bring a civil action or

appeal a judgment in a civil

action or proceeding under

this section if the prisoner

has, on 3 or more prior occa­

sions, while incarcerated or

detained in any facility,

brought an action or appeal

in a court of the United

States that was dismissed

on the grounds that it is

frivolous, malicious, or fails

to state a claim upon which

relief may be granted, un­

less the prisoner is under

imminent danger of serious

physical injury.

This Court involves Title 28, United States

Code (“U.S.C.) § 1915A, which provides in pertinent

part:

(a) Screening.—

The court shall review, be­

fore docketing, if feasible or,

in any event, as soon as

practicable after docketing,

a complaint in a civil action

in which a prisoner seeks

redress from a governmen­

tal entity or officer or em­

ployee of a governmental

entity.

2

(b) Grounds for Dismis­

sal.—

On review, the court shall

identify cognizable claims

or dismiss the complaint, or

any portion of the com­

plaint, if the complaint—

(1) is frivolous, malicious, or

fails to state a claim upon

which

relief may be

granted; or

(2) seeks monetary relief

from a defendant who is im­

mune from such relief.

STATEMENT OF THE CASE

Petitioner is a devout Muslim who, like

many people of faith, wears a religiously mandated

beard. See Holt v. Hobbs, 574 U.S. 352, 362 (2015)

(“Petitioner’s belief is by no means idiosyncratic”).

For nearly a decade, GDC personnel at various pris­

ons have employed dangerous means to coerce peti­

tioner’s compliance with rules that infringe on his

religious practice. Their methods include the use of

tasers and chemical spray, ECF 1-1 at 10; pro­

longed solitary confinement in cells covered in hu­

man excrement and teeming with the vermin at­

tracted to it, ECF 1-1 at 22; and potential exposure

to hepatitis and HIV through nearly monthly forced

shaving with unsanitized communal razors in a

prison system rife with those communicable diseases,

3

ECF 1-1 at 6-7. As a result, petitioner has con­

sistently suffered serious injury, from chemical

burns on his genitals, ECF 1-1 at 9-10; ECF 45

at 11; to infection from exposure to human waste,

ECF 1-1 at 20; to wounds from the razors them­

selves, ECF 1-1 at 7. And GDC personnel fre­

quently threaten to unleash even worse, one going

so far as to pledge to “bury [petitioner] before [he]

retire[s].” ECF 45 at 10.

This case is about the forced shavings and

resulting injuries that occurred at Georgia State

Prison (GSP) from December 21, 2016, through

January 10, 2017. Weeks before that period, Peti­

tioner reminded GSP officers that his beard was

essential to his religious exercise. ECF 1-1 at 8.

GSP personnel responded with a promise to “beat”

petitioner and then forcibly shave him. ECF 45 at

5*6. When petitioner still refused to voluntarily re­

move his beard, GSP personnel did not holdback.

On December 21, 2016, GSP personnel sanc­

tioned petitioner with solitary confinement, where

he was denied his religious property and access to

worship services. ECF 1-1 at 8, 23-24. On January 3,

2017, when petitioner again refused to remove his

beard, GSP personnel transferred him to another

solitary confinement cell, this one caked with a

prior occupant’s feces. ECF 1-1 at 9. Because GSP

personnel refused petitioner’s repeated requests for

cleaning supplies, ECF 1-1 at 9, 22, he was ex­

posed to this fecal matter for more than three

months, ECF 16 at 18. Contemporaneously denied

out-of-cell exercise, petitioner had no break from

4

the filth, ECF 1-1 at 25, and the prolonged expo­

sure led to several sinus infections, ECF 1-1 at 291

ECF 14 at 2.

On January 10, 2017, GSP personnel

stormed petitioner’s cell and deployed a taser and

K9 spray, leaving him with chemical burns, ECF

1-1 at 9*10. GSP personnel then dragged petitioner

to the barber’s chair, pinned his arms, causing

nerve and muscular damage, ECF 1-1 at 10, and

forcibly shaved him, id. They employed an unsanitized, communal razor notwithstanding the fact

that blood-borne diseases like hepatitis and HIV

are endemic behind bars and easily transmissible

via shared shaving implements. ECF 1-1 at 6-7.

To make matters worse, GDC razors allegedly have

“broken guards or other damage that exposes the

skin to sharp edges,” Op. 29-30, Rosenbaum, J.,

dissenting, and which cut petitioner on numerous

occasions, each time augmenting the risk of con­

tracting a potentially deadly disease, ECF 1-1 at

7-8. And since the January 2017 incident, little

has changed—the beatings and forcible shavings are

largely distinguishable from one another only on

the bases of dates, perpetrators, and location. ECF 45

at 7-13.

On January 19, 2017, petitioner filed a civil

rights complaint. As relevant, petitioner raised in­

dividual-capacity as-applied claims under the

Eighth Amendment, RLUIPA, and the Free Exer­

cise clause, against the GSP personnel who ex­

tracted and then forcibly shaved him on January

10, 2017 as well as facial challenges under

RLUIPA and the Free Exercise clause to the GDC

policies restricting his religious liberty. ECF 1-1 at

5

25-27. An indigent three-striker, he sought to in­

voke the imminent danger exception, including on

the bases that (l) forcible shaving exposed him to

an intolerable risk because it was a vector for

deadly blood-borne pathogens like hepatitis and

HIV, and (2) prolonged solitary confinement in a

cell filthy with another prisoner’s excrement was

similarly dangerous. ECF 1-1 at 28-29; ECF 16 at 933; ECF 45 at 7-15, 17-19.

Prior to service, the district court sua sponte

dismissed petitioner’s complaint on two primary

grounds. First, it concluded that petitioner was not

in imminent danger of serious physical injury and

therefore could not pay the filing fee in install­

ments. App.

.. Second, it held that petitioner’s

claims were duplicative of two others and therefore

subject to pre-service dismissal under a provision of

the PLRA concerning malicious filings. App.

. The

Eleventh Circuit affirmed.

To start, the Eleventh Circuit held that

Daker v. Owens, No. 5H2-cv459 (M.D. Ga.) (Daker

1)—originally filed November 20, 2012 and

amended on September 6, 2016—and Daker v.

Bryson, No. 5G6-CV-538 (M.D. Ga.) (Daker It)—

filed December 4, 2016—were duplicative of the

January 19, 2017, complaint in this matter. App.

___• Daker I and Daker II were filed prior to the

January 10, 2017, forcible shaving at issue in this

case; were premised on episodes of forcible shaving

occurring in 2012-2013 at the Georgia Diagnostic

and Classification Prison (GDCP) and November 910, 2016, at GSP, respectively; and did not reflect

prolonged exposure to excrement-smeared solitary

confinement cells. The Eleventh Circuit nonetheless

6

concluded that this case, Daker I, and Daker II

“raised ‘essentially the same’ allegations and claims”

because all three raise facial challenges to GDC’s

policy restricting religious beards and as-applied

challenges to specific incidents of forcible shaving

with unsanitary communal razors. App.___. Fur­

ther, this matter described the prior forcible shav­

ings that were a focus of Daker I and Daker II,

and Daker //likewise described the forcible shav­

ings that were a focus of Daker /—that is, all

three complaints contextualized GDC’s long-stand­

ing practice of enforcing restrictions through forci­

ble shaving. Id. These similarities were fatal, the

majority held.1 App.___.

Next, a majority of the Eleventh Circuit held

that the risk of “expos [ure] ... to an infectious

disease like HIV or hepatitis” from “being forcibly

shaved with damaged and unsanitary clippers” is

“too speculative to establish” that petitioner was

“under imminent danger.” App. ___. In light of

“GDC’s longstanding custom to use damaged and

unsanitary clippers,” the majority reasoned that

petitioner “arguably would have contracted an mfectious disease” if the practice “truly posed an

1 The panel described a prior unpublished

opinion of the Eleventh Circuit as holding that

Daker II was duplicative of Daker I Op. 20, n.9

(citing Daker v. Bryson, 841 F. App’x 115,120-21

(llth Cir. 2020)). But that’s not quite right. The

Daker II Court, like the district court in that case,

found that some, but not all, of the claims raised in

Daker II were duplicative of those raised in Daker I.

See 841 F. App’x at 121.

7

imminent danger” and he did not allege that anyone

else had. App.___.

Judge Rosenbaum dissented from this hold­

ing. Authoritative and comprehensive research from

the Centers for Disease Control and Prevention

(CDC), the American Barber Institute (ABI), and

other sources confirmed what petitioner alleged—

hepatitis and other blood-borne viruses are spread

through communal razors and clippers, which pose

a significant risk of infection. App.___. “And that’s

when the clippers were actually cleaned”—at GSP,

though, the communal clippers “are not disinfected in

any way, they are damaged, and they are used on

a population statistically known to include those

with bloodborne disease at significantly greater

rates than in the general population.” App.___.

Enhancing this risk, GDC does not track hepatitis

infections, and thus “prison barbers may not know

when they have used clippers on an infected per­

son”; the frequency of forced shavings “necessarily

augments the chances” of petitioner becoming in­

fected! and the GDC itself “must recognize this

real risk because its standard operating procedures

require . . . clean [ing] and sanitize [ing] clippers after

each use.” App.___.

Beyond faulting the majority for “secondguess [ing] the CDC” and disregarding the serious

risk to petitioner, Judge Rosenbaum dissented on

the basis that the majority erected an erroneous

legal standard—“an impossible hurdle to clear”—by

requiring petitioner to show either that he or an­

other prisoner “actually contract [ed] HIV or hepatitis”

from GDC’s “use of unsanitized, damaged clippers.”

App.

. To start, petitioner could not divine the

8

source of an HIV or hepatitis infection. Id. The

correct test, in any event, is whether “as a matter

of scientific knowledge, the allegations allow a

court to draw reasonable inferences that there is

a danger that a prisoner repeatedly shaved with un­

sanitized, damaged clippers used previously on other

prisoners . . . will contract hepatitis.” App. ___.

(emphasis added). Employing that rule, adopted by

other circuits, petitioner adequately alleged immi­

nent danger of serious physical injury. App.___.

REASONS FOR GRANTING THE PETITION

I. Whether an incarcerated person must allege pres­

ently occurring or certain-to-occur serious

physical injury in order to successfully invoke

the “imminent danger of serious physical injury”

exception to the Prison Litigation Reform Act

“three-strikes” provision, 28 U.S.C. § 1915(g)?

A. There is a Circuit conflict on the question

presented.

Every other circuit to have reached the issue

sides with Judge Rosenbaum—the test is whether

the “allegations allow a court to draw reasonable

inferences that there is a danger” of suffering se­

rious physical injury. App.

. Alleging presently

occurring or certain-to-occur serious physical injury

is not required. Gibbs v. Cross, 160 F.3d 962, 965

(3d Cir. 1998) (three-strikers can proceed IFP

“without waiting for something to happen to

them”); Vandiver v. Prison Health Servs., Inc., 727

F.3d 580, 587 (6th Cir. 2013) (“We reject the notion

that the inclusion of the word ‘imminent’ in §

9

1915(g) allows us to grant IFP status only after

a plaintiffs condition has deteriorated.”); Lewis v.

Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)

(“[0]nce the beating starts, it is too late to avoid

the physical injury.”); Martin v. Shelton, 319 F.3d

1048, 1050 (8th Cir. 2003) (exception in § 1915(g)

may be premised upon “a pattern of misconduct

evidencing the likelihood of imminent serious phys­

ical injury”); Andrews v. Cervantes 493 F.3d 1047,

1056 (9th Cir. 2007) (credible risk of future harm

satisfies § 1915(g); requiring more would “create

an untenable Catch-22, in which filings would al­

ways be either too early or too late to invoke the

provision”).

The Third Circuit’s rationale is illustrative.

In Gibbs, the plaintiff alleged that “dust, lint and

shower odor” emanated from his cell vent “for

some time” and caused him to suffer “severe head­

aches, change in voice, mucus that is full of dust

and lint, and watery eyes.” 160 F.3d at 964. Hop­

ing to invoke the imminent danger exception, plain­

tiff alleged that “depending on the nature of the

particles he is breathing, there is a significant pos­

sibility that he is under imminent danger of seri­

ous physical injury.” Id. at 965. The Third Circuit

was “unimpressed” with the prison officials’ argu­

ment that the allegation was too speculative, hold­

ing that incarcerated people “ought to be able to

complain about ‘unsafe, life-threatening condition[s]

in their prison’ without waiting for something to

happen to them.” Id. In so holding, the Third Cir­

cuit relied upon “common knowledge that improper

ventilation and the inhalation of dust and lint parti­

cles can cause disease.” Id. at 966.

10

The Tenth Circuit also follows Judge Rosen­

baum’s formulation in an unpublished opinion, see,

e.g., Fuller v. Wilcox, 288 F. App’x 509, 511 (10th

Cir. 2008) (unpublished), but has not issued a

published opinion.

B. The issue presented is of exceptional public

importance.

The panel majority demands that someone

“actually contractD HIV or hepatitis” before a fed­

eral court entertain petitioner’s challenge to a pol­

icy of shaving him semi-monthly under circum­

stances that the scientific establishment has con­

sistently described as potentially deadly. Op. 25.

By that time, of course, “it is too late to avoid the

physical injury” he fears. Lewis, 279 F.3d at 531.

The panel majority has turned the imminent dan­

ger safety valve into a “chimerical, □ cruel joke on

prisoners.” Id.

The public has a great interest in preventing

the spread of infectious diseases such HIV and hepa­

titis in prison. And, because most prisoners will even­

tually be released back into society, the issue is of

great importance to the public health as well.

II. Whether three cases challenging three chronologi­

cally distinct episodes of forcible shavings, but

motivated by the same long-standing depart­

ment policy are “duplicative,” and therefore

subject to sua sponte dismissal under the

Prison Litigation Reform Act (PLRA) provision

authorizing pre-service dismissal of “malicious”

complaints, 28 U.S.C. § 1915A?

li

A. There is a Circuit conflict on the question

presented.

The Eleventh Circuit holding is exceptionally

important to revisit for a second reason. The Court

held that petitioner’s lawsuit was “duplicative” of

two prior cases and therefore subject to dismissal

under the PLRA provisions authorizing sua sponte

dismissal of “malicious” actions. App.___, citing 28

U.S.C. §§ 1915 and 1915A. The Eleventh Circuit

erred in two ways, one creating a lopsided circuit

split. As an initial matter, although several other

circuits have held that duplicative suits are subject

to sua sponte dismissal under sections 1915 and

1915A, see App.

that conclusion would likely

surprise the PLRA’s drafters. Regardless, the panel’s

decision is an outlier among the circuits. Start with

the statute. In concluding that “duplicative” complaints are subject to sua sponte dismissal under the

provision of the PLRA reserved for “malicious” and

“frivolous” complaints, those that “failO to state a

claim,” and those against immune defendants, the

Eleventh Circuit ignored this Court’s three-part ap­

proach to statutory interpretation: “(l) Read the

statute; (2) read the statute! (3) read the statute!”

Dakerv. Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278,

1283 (llth Cir. 2016). There are four enumerated

grounds for dismissing an incarcerated person’s

complaint sua sponte prior to service. 28 U.S.C. §§

1915 and 1915A. Duplicative complaints are not

among them. “Under the negative-implication

canon, these [four] grounds are the only grounds”

upon which sua sponte dismissal may be grounded

at the screening stage. Daker, 820 F.3d at 128384. The Court “must interpret the statute that

Congress enacted, not rewrite the text to match

12

[its] intuitions about unstated congressional purposes.” Id. at 1285-86 (emphasis added).

Assuming arguendo that Congress meant

“duplicative” when it wrote “malicious,” there is

another problem with the Eleventh Circuit’s holding:

Every other circuit to have examined this issue in

a published opinion interprets duplicative to mean

nearly identical. See, e.g., Curtis v. Citibank, N.A.,

226 F.3d 133, 136, 140 (2d Cir. 2000) (dismissal appropriate only if suits are “entirely duplicative”; it

is an abuse of discretion to dismiss complaints

concerning “events arising after” previously filed

complaint); Pittman v. Moore, 980 F.2d 994, 994

(5th Cir. 1993) (defining duplicative complaints as

those where the “claims [a]re the same”); Smith v.

S.E.C., 129 F.3d 356, 361 (6th Cir. 1997) (for two

cases to be considered “truly duplicative” of one

another they must be “materially on all fours”);

Adams v. Cal. Dep’t ofHealth Servs., 487 F.3d 684,

689, 693 (9th Cir. 2007) (“duplicative” complaints

are those where “the causes of action and relief

sought, as well as the parties or privies to the

action, are the same”; noting that it would be an

abuse of discretion to dismiss as duplicative a “sec­

ond suit . . . based on events occurring subsequent

to the filing of [plaintiffs] complaint in the first

action”); cf. also Kelly v. Maxum Specialty Ins. Grp.,

868 F.3d 274, 285 (3d Cir. 2017) (in the context

of “parallel” proceedings, defining “truly duplicative”

complaints as those where “the parties and the

claims are identical”).

Unpublished circuit opinions also break from

the panel’s definition. See, e.g., Cottle v. Bell, 229

F.3d 1142, 2000 WL 1144623, *1 (4th Cir. 2000)

13

(two complaints are “not duplicative” of each other

although they challenged the same conduct—here,

exposure to environmental tobacco smoke—at two

different prisons, each managed by different DOC

personnel); Brown v. Davids, No. 19-1557, slip op.

at 45 (6th Cir. Nov. 12, 2019) (claims not duplicative

although the arose from the same events, turned on

the same allegations, and raised the same claims

considering that they challenged chronologically dis­

tinct incidents).

The Seventh Circuit’s unpublished opinion in

Njie v. Yurkovich, 720 F. App’x 786, 789 (7th Cir.

2018), is particularly instructive. There, a practic­

ing Rastafarian filed two complaints, each raising

RLUIPA, Free Exercise, and Eighth Amendment

claims against prison officials who enforced a re­

ligious grooming policy through forcible shaving,

denials of contact visits, and retaliatory conduct.

Id. The Seventh Circuit held that the lawsuits were

not duplicative despite the “overlap,” because they

(l) concerned chronologically distinct denials of

contact visits; (2) were brought against different

defendants; and (3) the second case concerned an

incident of forced shaving and additional retaliatory

acts that were not at issue in the first case. Id.

So it is here. Petitioner’s three complaints

concern chronologically distinct events, are brought

against different defendants with only minimal

overlap, and each raises claims the others do not.

As just one example, only this matter challenges

exposure to human feces. Apart from this Court,

petitioner’s complaint would not have been sub­

jected to dismissal as malicious. To be sure, peti­

tioner’s cases raise facial challenges to longstanding

14

GDC policies animating distinct episodes of unlaw­

ful behavior. But because the as-applied claims

are different—involving different incidents of forced

shaving, different defendants, unique claims, and

sometimes different prisons—this suit was not dupli­

cative of Daker I and Daker II.

B. The issue presented is of exceptional public

importance.

As shown above, Petitioner’s three complaints

concern chronologically distinct events, are brought

against different defendants with only minimal

overlap, and each raises claims the others do not.

As just one example, only this matter challenges

exposure to human feces. Apart from this Court,

petitioner’s complaint would not have been sub­

jected to dismissal as malicious. To be sure, peti-:

tioner’s cases raise facial challenges to longstanding

GDC policies animating distinct episodes of unlaw­

ful behavior. But because the as-applied claims

are different—involving different incidents of forced

shaving, different defendants, unique claims, and

sometimes different prisons—this suit was not dupli­

cative of Daker I and Daker II.

The Eleventh Circuit approach here would pe­

nalize prisoners for filing multiple lawsuits arising

from a policy or custom even where those lawsuits are

based on different instances where the policy or cus­

tom or enforced or implemented. Thus, the issue pre­

sented is of exceptional public importance.

CONCLUSION

15

For the foregoing reasons, Petitioner respect­

fully requests that the petition for a writ of certiorari

be granted.

Respectfully Submitted,

WASEEM DAKER, pro se

Petitioner, pro se

ID#901373

Smith S.P.

P.O. Box 726

Glennville, GA 30427

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