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

Date Filed: 06/07/2021

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-13384

Non-Argument Calendar

D.C. Docket No.. 5:i7-17-cv-00025-CAR-MSH

WASEEM DAKER,

Plaintiff-Appellant,

versus

TIMOTHY WARD,

Assistant Commissioner,

JACK KOON,

Facilities Director,

STEVE UPTON,

Deputy Facilities Director,

OTIS STANTON,

State Wide Tier Coordinator,

JENNIFER AMMONS,

General Counsel,

STATE OF GEORGIA, et al.,

Defendants-Appellees.

App. 1

Appeal from the United States District Court

for the Middle District of Georgia

(June 7, 2021)

Before WILSON, ROSENBAUM and HULL, Circuit

Judges.

HULL, Circuit Judge.

Waseem Daker, a Georgia prisoner serving a

life sentence for murder, appeals the district court’s

order that dismissed his 42 U.S.C. § 1983 action

against the State of Georgia, the Georgia Department

of Corrections (“GDC”), and approximately 42 Georgia

correctional officials. The district court’s dismissal

was based on two separate grounds- (l) the threestrikes provision in the Prison Litigation Reform Act

(“PLRA”), 28 U.S.C. § 1915(g); and (2) alternatively,

as malicious and an abuse of the judicial process un­

der 28 U.S.C. § 1915A(b)(l). After careful review, and

with the benefit of oral argument, we affirm the dis­

trict court’s dismissal without prejudice.

I. BACKGROUND

A. Daker’s History as a Serial Litigant

Daker is an extraordinarily prolific serial liti­

gant in the federal courts. In 2016, this Court pointed

out that Daker had “submitted over a thousand pro se

filings in over a hundred actions and appeals in at

least nine different federal courts.” Daker v. Comm’r.

Ga. Den’t of Corr.. 820 F.3d 1278, 1281 (llth Cir.

App. 2

2016). In fact, the Public Access to Court Electronic

Records (“PACER”) database lists 296 civil actions

and appeals filed in federal courts to date that involve

Waseem Daker. As a serial litigant, Daker has

“clogged the federal courts with frivolous litigation.”

Id.

Some of Daker’s cases have been dismissed for

lack of jurisdiction or want of prosecution, which dis­

missals do not count as a strike under the threestrikes provision of the PLRA. Id. at 1284-85. However,

Daker is now an admitted three-striker, as he has had

many actions and appeals dismissed as frivolous or for

failure to state a claim. See Daker v. Jackson. 942 F.3d

1252, 1256-57 & n.4 (llth Cir. 2019) (listing six ap­

peals Daker filed between May 26, 2016 and Decem­

ber 19, 2016 that were dismissed as frivolous and con­

stituted “strikes” under the PLRA); Daker v, Robinson.

802 F. App’x 513, 515 (llth Cir. 2020) (identifying four

cases that constituted strikes); Daker v. Robinson. No.

17-10329, slip op. at 3 (llth Cir. filed Oct. 4, 2017)

(concluding for the first time on appeal that Daker

“clearly qualified as a three-strikes litigant” based on

five appeals dismissed as frivolous).

Further, since Daker was convicted of murder

in 2012, he has filed at least 46 civil actions in the dis­

trict courts of Georgia and at least 150 appeals in this

Court.1 In addition, Daker has filed 28 U.S.C. § 2254

1 Daker’s days as a serial filer predate his 2012

murder conviction. In 1996, Daker was convicted of

aggravated stalking, for which he served a ten-year

sentence. Daker v. Ray, 275 Ga. 205, 563 S.E.2d 429

(Ga. 2002); see also Daker v. State, 243 Ga. App. 848,

App. 3

petitions that were dismissed or partially dismissed

for raising claims that should have been brought in a

civil action under § 1983. See e.g.. Daker v. Warden.

805 F. App’x 648 (llth Cir. 2020) (affirming dismissal

of First and Eighth Amendment challenges to Daker’s

administrative segregation brought in § 2254 petition).

Daker has also attempted without success to in­

tervene in civil actions filed by other Georgia prison­

ers, in part because his motions were deemed efforts

to circumvent the requirement to pay a filing fee. See,

e.g.. Daker v. McLaughlin, 806 F. App’x 939, 940 (llth

Cir. 2020) (affirming district court’s denial of Daker’s

motion to intervene where “Daker’s complaint alleged

different wrongs and different incidents at a different

prison” because “Daker was not entitled to circumvent

the requirement that he pay a filing fee, 28 U.S.C. §

1915(b), by intervening in another prisoner’s lawsuit”);

Gandy v, Bryson, 799 F. App’x 790, 792 (llth Cir. 2020)

(concluding district court correctly denied Daker’s mo­

tion to intervene because Daker was required under

the PLRA to pay a separate filing fee).

Daker has not limited himself to the federal

courts. Recently, the Georgia Supreme Court de­

scribed Daker as “an extraordinarily litigious defend­

ant whose shenanigans can be frustrating for courts

533 S.E.2d 393 (Ga. Ct. App. 2000). During this period

of incarceration, Daker filed numerous actions in fed­

eral court, at least one of which involved similar chal­

lenges under the First Amendment and the Religious '

Land Use and Institutionalized Persons Act to the

GDC’s then-existing grooming policy. See Daker v.

Wetherington, No. L01-cv-3257 (N.D. Ga. filed Nov.

28, 2001).

App. 4

to deal with.” Allen v. Daker,

, 2021 WL

Ga.

1950985, at *15 (Ga. filed May 17, 2021). In so doing,

the Georgia Supreme Court noted its own 2016 order

“explaining that because Daker had filed over 100

cases in this Court, virtually all lacking in merit and

often showing a willingness to ignore or attempt to

evade this Court’s rules, he would henceforth be re­

quired to request leave to file any document here and

to state that the document and arguments therein

were prepared in good faith and not for vexatious pur­

poses.” IdDaker’s abusive filing behavior has caused

some federal courts to place filing restrictions on him

as well. For example, in 2017, the U.S. Supreme Court

directed its Clerk not to accept further noncriminal

petitions from Daker unless the docketing fee is paid

because Daker had “repeatedly abused this Court’s

process.” Daker v. Toole.

U.S.

, 138 S. Ct. 234

(2017) (mem.). More recently, in August 2020, Daker

was permanently enjoined from filing new lawsuits or

petitions in the federal district court in the Northern

District of Georgia without first posting a $1,500 con­

tempt bond in addition to paying the full filing fee.2

See Daker v. Deal. No. D18-cv-5243 (N.D. Ga. filed

March 3, 2020).

B. Daker’s Current § 1983 Complaint

On January 16, 2017, Daker filed this pro se

complaint in the Middle District of Georgia seeking

2 Daker’s appeal of that permanent injunction

is currently pending in this Court. See Daker v. Gov­

ernor of Ga.. No. 20-13602 (llth Cir. filed Sept. 21,

2020).

App. 5

money damages and declaratory and injunctive relief

under § 1983. Along with his 35-page handwritten

complaint, Daker filed a motion to proceed in forma

pauperis (“IFP”) under § 1915.

Daker, who is a practicing Muslim, asserted nu­

merous violations of his rights under the First, Eighth,

and Fourteenth Amendments and the Religious Land

Use and Institutionalized Persons Act (“RLUIPA”), 42

U.S.C. § 2000cc-l et seq. Daker’s complaint centered

primarily on the GDC’s enforcement of its grooming

policy, which limits a prisoner’s beard length to onehalf inch. Daker’s Islamic faith requires him to wear a

fist-length beard of approximately three inches.3

More specifically, Daker’s complaint claimed

the GDC had a custom ofi (l) enforcing its grooming

policy with disciplinary actions, threats of force, and

uses of force! (2) forced shaving with unsanitized and

damaged clippers, which increased the risk of trans­

mitting infectious diseases; and (3) disregarding the

GDC’s own standard operating procedures and the

clipper manufacturer’s instructions that required

proper sanitation of clippers.

Daker’s complaint also alleged he was housed

at the Georgia Diagnostic and Classification Prison

(“GDCP”) in Jackson, Georgia and then at the Georgia

State Prison (“GSP”) in Reidsville, Georgia. Daker

3 We note that the issue of whether the GDC’s

half-inch beard restriction in its grooming policy vio­

lates RLUIPA is currently pending before this Court

in Ward v. Smith. No. 19-13520 (llth Cir. filed Sept.

6, 2019). Nothing herein expresses any opinion on that

substantive issue.

App. 6

contends that at these prisons, he was “repeatedly for­

cibly shaved” with clippers that were unsanitized and

damaged, in violation of GDC’s own standard operat­

ing procedures and the clipper manufacturer’s in­

structions.4 Daker alleged specific incidents of forced

shaving at GDCP “including but not limited to* on

11/21/2012, 12/11/2012, 11/22/2013, and other occa­

sions.” As to GSP, Daker alleged forced shaving “on

numerous occasions” and described, in particular, an

incident on January 10, 2017, during which prison

guards used force to carry him to the barbershop in

handcuffs, where he was shaved with unsanitized clip­

pers. Daker claimed that a guard was instructed to

tase him on his arm, but when he moved his arms to

avoid being tased, he was sprayed with MK-9, a chem­

ical agent, and suffered chemical burns on his hand

and irritation to his eyes and throat. Daker alleged be­

ing taken to the barbershop while handcuffed behind

his back caused injuries to his shoulder and wrist and

loss of feeling in his fingers.

Daker’s complaint also alleged that in Novem­

ber 2016, before he was forcibly shaved in January

2017, he was denied a fair disciplinary hearing for his

refusal to shave and then arbitrarily and without no­

tice placed in Tier II disciplinary segregation. Daker

alleged that in Tier II he was denied outside exercise

and access to religious services and materials, was not

taken to orthopedist appointments for his injured

shoulder, was housed in a dorm with prisoners who

threw feces, was placed in a cell with feces on the toilet

4 Daker was housed at GDCP from October 3,

2012 to April 7, 2014 and then transferred to GSP,

where he was housed when he filed this complaint in

2019.

App. 7

and the floor and walls around the toilet, and was not

given sanitation materials to clean the cell. As a result

of his exposure to feces in Tier II, Daker was diag­

nosed with a sinus infection and treated with antibi­

otics.

C. District Court’s Dismissal Order Without Prejudice

On July 18, 2017, the district court dismissed

Daker’s complaint without prejudice on two separate

grounds^ (l) as barred by the three-strikes provision

of the PLRA, 28 U.S.C. § 1915(g), and alternatively (2)

as malicious under 28 U.S.C. § 1915A(b)(l).

As to the three-strikes provision, the district

court found that a review of court records on the

PACER database revealed that Daker had at least

three prior complaints or appeals that were dismissed

and counted as “strikes under § 1915(g).” The district

court already had confirmed Daker’s status as a

“three-striker in another case just last month,”

namely Daker v. Owens. No. 5U2-cv-459-CAR-MSH

(M.D. Ga. filed May 8, 2017) (hereinafter referred to

as “Daker I”).5 The district court further noted that

5 We refer to this case as Daker I because it ap­

pears to be the first of many complaints Daker has

filed in the district courts in Georgia since being rein­

carcerated in 2012 that alleged, inter alia, claims aris­

ing out of forced shaving to enforce GDC’s grooming

policy. Indeed, by our count, Daker filed at least five

other civil complaints asserting forced shaving claims

after Daker I. but before the complaint at issue in this

appeal, including-

App. 8

Daker had “repeatedly been barred from filing law­

suits within this Circuit under § 1915(g)” and that an­

other district court in the Southern District of Georgia

also had recently confirmed Daker’s three-striker sta­

tus in Daker v. Bryson. No. 6'16-cv-57-JRH-RSB (S.D.

(1) Daker v. Head. No. 5'14-cv-138-MTT-CHW

(M.D. Ga. filed Apr. 4, 2014);

(2) Daker v. Head. No. 6G4-cv-47-RSB-BWC

(S.D. Ga. filed May 19, 2014);

(3) Daker v. Bryson. No. 5G5-cv-88-TES-CHW

(M.D. Ga. filed Mar. 16, 2015);

(4) Daker v. Bryson. No. 6-16-cv-57-JRH-RSB

(S.D. Ga. filed May 23, 2016); and

(5) Daker v. Bryson. No. 5G6-cv-538-TES-MSH

(M.D. Ga. filed Dec. 7, 2016) and partly transferred as

Daker v. Bryson. No. 6*17-cv-79-JRH-RSB (S.D. Ga.

June 8, 2017).

After Daker filed the instant complaint in Jan­

uary 2017, he went on to file at least an additional six

civil complaints, including(6) Daker v. Dozier. No. 5-17-cv-188-MTT-CHW

(M.D. Ga. filed May 15, 2017);

(7) Daker v. Dozier. No. 6'17-cvllO-JRH-RSB

(S.D. Ga. filed Aug. 11, 2017);

(8) Daker v. Dozier. No. 6-18-cv-32-JRH-BWC

(S.D. Ga. filed March 26, 2018);

(9) Daker v. Dozier. No. 6:i8-cv-73-RSB-BWC

(S.D. Ga. filed July 2, 2018);

(10) Daker v. Dozier. No. 5G8-cv-245-TESCHW (M.D. Ga. filed July 9, 2018); and

(11) Daker v. Ward. No. 5:19-cvl26-MTT-CHW

(M.D. Ga. filed Apr. 8, 2019).

In other words, Daker has filed at least 13 com­

plaints asserting forced shaving claims in federal

court over the last ten years.

App. 9

Ga. filed Mar. 20, 2017). Thus, the district court con­

cluded § 1915(g)’s three-strikes bar to proceeding IFP

applied to Daker’s current complaint. The next ques­

tion became whether Daker could avoid the threestrikes bar by satisfying § 1915(g)’s “imminent danger”

exception.

However, before considering the “imminent

danger” question, the district court considered

whether Daker’s claims were due to be dismissed un­

der § 1915A(b)(l) as duplicative and as malicious and

abusive. We thus discuss that issue first.

D. Dismissal Without Prejudice Under § 1915A(b)(l)

The district court concluded that Daker’s cur­

rent complaint was knowingly duplicative and there­

fore an abuse of the judicial process and malicious.

The district court found that Daker had “previously

made the same (or substantially similar) claims

against various GDC and GSP defendants” and cited

in particular Daker I and Daker v. Bryson. No. 5-16cv-538-CAR-MSH (M.D. Ga. filed Dec. 7, 2016) (here­

inafter referred to as Daker II), as “two other active

cases in this Court against many of the same defend­

ants named as parties in this case.” The district court

stressed that Daker had made “nearly identical” alle­

gations in those two active cases, including “that: (l)

the GDC’s policies restricting inmates’ beard length

and access to religious services and/or materials vio­

late [d] the First Amendment and RULIPA [sic]; (2) the

policies and practices relevant to his assignment to

Tier II confinement and the general conditions thereof

violate [d] due process and the Eighth Amendment; (3)

the current customs and practices relevant to discipli-

App. 10

nary hearings violated due process; and (4) the prac­

tice [of] forcing prisoners to shave, or be forcibly

shaven, with unsanitary, broken clippers violated the

First and Eighth Amendments.” The district court

stressed that in Daker II. Daker had also previously

raised his constitutional claims as to his conditions of

confinement at GSP and the use of chemical agents to

forcibly shave him in January 2017.

Based on a review of the pleadings in these two

active cases (Daker I and Daker II). the district court

found that “when [Daker] filed the present action in

January of 2017, he knowingly brought claims that

were essentially the same as those he was already ac­

tively litigating in, not one, but two other cases before

this Court.” In addition, the district court found that

“in light of [Daker’s] well-known history of filing friv­

olous and duplicative claims,” his current complaint

was “both malicious and an abuse of the judicial pro­

cess.”

E. Imminent Danger and Dismissal Under § 1915(g)

Alternatively, the district court considered

whether Daker could avoid § 1915(g)’s three-strikes

bar to proceeding IFP and found that Daker’s “asser­

tions of ‘imminent danger’ are unwarranted.” With re­

spect to Daker’s assertions that GSP guards used

damaged and unsanitary clippers, the district court

noted that Daker had made this claim in other actions

and, “according to the Complaint, [Daker] ha[d] faced

this same ‘danger’ since 2012,” but Daker did not

“identify any presently occurring circumstance to sug­

gest that this possible or potential danger [was] any

more imminent now than it was in 2012.” Therefore,

the district court concluded Daker’s complaint failed

App. 11

“to show that the danger posed by the use of these clip­

pers warrants an exception to the three-strikes bar.”

As for Daker’s allegations of a policy of forced

shaving of inmates who refuse to shave voluntarily,

the district court observed that Daker had not alleged

any injury when he was forcibly shaved at GDCP in

2012 and 2013 and had alleged only that he was cut

on some occasions while being forcibly shaved at GSP

“numerous” times. Daker had alleged that guards had

used a chemical agent to subdue him for his January

10, 2017 forced shave, but he had not alleged “a wide­

spread practice or custom” of using chemical agents or

any other extreme use of force during forced shaves.

Thus, the district court concluded that Daker’s chem­

ical agent allegation did not “suggest that another

similar use of force [was] imminent.”

The district court also noted that Daker’s alle­

gations suggested that his injuries were caused by his

own repeated failure to follow instructions, not by

GDC’s policies. At most, Daker’s January 10 allega­

tions “may have stated an Eight[h] Amendment exces­

sive force claim against the individual GSP [defend­

ants personally involved in the incident,” but they did

not “allow [Daker] to escape the three-strikes bar.”

Finally, as to Daker’s allegations about his cur­

rent conditions of confinement at GSP, including be­

ing housed in unsanitary conditions and with inmates

who threw feces, the district court determined these

allegations might support a § 1983 claim, but they did

not “demonstrate that [Daker was] presently in dan­

ger of serious physical injury . . . .” The district court

explained that nothing in Daker’s allegations sug-

App. 12

gested he would soon suffer a serious injury if, for ex­

ample, he was not promptly moved to another dorm or

given cleaning supplies.6

Accordingly, the district court denied Daker’s

motion to proceed IFP and dismissed his complaint

without prejudice.

F. Appellate Proceedings

6 Alternatively, the district court concluded that,

even if Daker’s allegations as to his confinement con­

ditions at GSP supported a finding of imminent dan­

ger, they were “unrelated to [Daker’s] claims against

the GDC Defendants.” The district court pointed out

that Daker was advised in Daker I and Daker II “that

any claims arising from the conditions of his confine­

ment at GSP should be brought in a separate suit and

filed in the Southern District of Georgia, i.e:, the ap­

propriate venue for these claims.” Thus, “in the alter­

native,” the district court concluded Daker’s claims re­

garding confinement conditions at GSP were due to be

dismissed “not only because they are presently mis­

joined, and the Middle District is not the proper

venue, . . . but also because it [was] apparent that

[Daker] knowingly, and in bad faith, mis-joined these

claims for the sole purpose of attempting to avoid [the]

three-strikes bar in a malicious abuse of the judicial

process.” The district court emphasized that Daker

“still [had] active claims against the GSP defendants,

which are the same or similar to those identified here”

in Daker II. which had been transferred to the South­

ern District of Georgia. See Daker v. Brvson. No. 6T7cv79-JRHRSB (S.D. Ga. June 12, 2017).

App. 13

Daker appealed the district court’s dismissal

order and filed two motions for leave to proceed IFP

on appeal. Daker’s IFP motions were based on his al­

legations about the conditions of his confinement at

GSP, including, inter alia, forced shavings of his beard

with unsanitized clippers and the use of force to shave

him, which he contended showed he was in imminent

danger of serious physical injury. This Court, in a sin­

gle judge order, concluded that Daker’s imminent dan­

ger allegations as to GSP were moot because Daker

had since been transferred first to Macon State Prison

and then to Valdosta State Prison. Therefore, the GSP

allegations “no longer [were] relevant to whether he is

in imminent danger of serious physical injury.” Ac­

cordingly, Daker was required to, and ultimately did,

pay the appellate filing fee.

After designating Daker’s appeal for oral argu­

ment, this Court appointed Daker counsel, who filed a

new opening brief. At the Court’s direction, the State

of Georgia entered a limited appearance, the parties

filed supplemental letter briefs, and the State of Geor­

gia participated in oral argument.

II. STANDARD OF REVIEW

We review de novo a district court’s dismissal of

a complaint under the PLRA’s three-strikes provision.

Mitchell v. Nobles. 873 F.3d 869, 873 (llth Cir. 2017).

We review the dismissal of a complaint as frivolous or

malicious under 28 U.S.C. § 1915A for an abuse of dis­

cretion. See Bingham v. Thomas. 654 F.3d 1171, 1175

(llth Cir. 2011). “Discretion means the district court

has a range of choice, and that its decision will not be

disturbed as long as it stays within that range and is

App. 14

not influenced by any mistake of law.” Zocaras v. Cas­

tro. 465 F.3d 479, 483 (llth Cir. 2006) (quotation

marks omitted).

As noted above, the district court dismissed

Daker’s complaint on alternative grounds, which we

address in turn.

III. SECTION 1915A(b)(l) DISMISSAL AS MALI­

CIOUS

A district court must promptly screen a pris­

oner’s civil complaint if, as here, it seeks redress from

a governmental entity or one of its officers or employ­

ees. 28 U.S.C. § 1915A(a). Specifically, § 1915A re­

quires that the district court “identify cognizable

claims” in the complaint and dismiss the complaint or

any part of it that “is frivolous, malicious, or fails to

state a claim upon which relief may be granted.” Id. §

1915A(b)(l). This preliminary screening is sometimes

referred to as a frivolity review.

District courts are vested with broad discretion

in determining whether to dismiss an action as frivo­

lous or malicious under the PLRA’s provisions. See

Camp v, Oliver. 798 F.2d 434, 437 (llth Cir. 1986) (ad­

dressing frivolity review in IFP proceedings). In con­

ducting a § 1915A frivolity review, a district court ac­

cepts the complaint’s factual allegations as true and

construes a pro se complaint liberally. Bingham. 654

F.3d at 1175.

This Court has not yet addressed the meaning

of “malicious” in § 1915A(b)(l) or its corollary, §

1915(e)(2)(B). Other circuits, however, have concluded

that duplicative actions are properly dismissed as friv­

olous or malicious. See, e.g.. McWilliams v, Colorado.

App. 15

121 F.3d 573, 574 (10th Cir. 1997) (“[R]epetitious liti­

gation of virtually identical causes of action may be

dismissed under § 1915 as frivolous or malicious.”

(quotation marks omitted, first alteration in original));

Bailey v. Johnson. 846 F.2d 1019, 1021 (5th Cir. 1988)

(same); Aziz v. Burrows. 976 F.2d 1158, 1158-59 (8th

Cir. 1992) (confirming rule under former § 1915(d)

that a district court may dismiss duplicative com­

plaints as malicious); see also Pittman v. Moore. 980

F.2d 994, 995 (5th Cir. 1993) (concluding “it is ‘mali­

cious’ for a pauper to file a lawsuit that duplicates al­

legations of another pending federal lawsuit” filed by

the same plaintiff); Crisafi v. Holland. 655 F.2d 1305,

1309 (D.C. Cir. 1981) (explaining that a complaint

“that merely repeats pending or previously litigated

claims” is abusive and “[a] complaint plainly abusive

of the judicial process is properly typed malicious”);

Van Meter v. Morgan. 518 F.2d 366, 367 (8th Cir. 1975)

(affirming the dismissal of a complaint as frivolous

where the plaintiff proceeding IFP already had filed

similar complaints, one of which was currently pend­

ing and “deal[t] with issues directly related, if not

identical, to these herein”). We agree with our sister

Circuits that a plaintiffs duplicative complaint is an

abuse of the judicial process and is properly dismissed

without prejudice as malicious under the PLRA.7

7 Like § 1915A(b)(l), another PLRA provision, §

1915(e)(2), also requires a district court to dismiss a

complaint that is “frivolous or malicious.” See 28

U.S.C. § 1915(e)(2)(B)(i) (applying to complaints filed

in IFP proceedings). Similarly, § 1915(e)(2)’s predeces­

sor statute, former § 1915(d), provided that a district

App. 16

Here, the district court dismissed Daker’s com­

plaint without prejudice as “duplicative,” “malicious,”

and “an abuse of the judicial process.” The district

court cited two pending § 1983 actions Daker had al­

ready filed in the Middle District of Georgia, Daker I

and Daker II. as well as Daker’s “well-known history

of filing frivolous and duplicative claims.” In the al­

ready-pending cases, Daker I and Daker II. Daker had

asserted violations of his constitutional rights and

RLUIPA arising out of- (l) forced shavings under the

GDC’s grooming policy with damaged and unsanitized

clippers, and (2) his placement in Tier II disciplinary

segregation and the conditions of confinement in Tier

II. His Daker I & II complaints named many of the

same defendants at the GDC and GSP as the com­

plaint filed in this case. Daker filed all three com­

plaints wifhin a five-month period, while housed at

GSP.

A. Daker I Amended Complaint filed September 5,

2016

In particular, Daker filed the amended com­

plaint in Daker I on September 5, 2016. In it Daker

alleged, inter alia, that the GDC and GDCP had a cus­

tom of forcibly shaving prisoners with unsanitized and

damaged clippers in disregard of the GDC’s own

court “may” dismiss a complaint if the court was “sat­

isfied that the action was frivolous or malicious.” See

28 U.S.C. § 1915(d) (1996). This Court has reviewed

all of these frivolity determinations for an abuse of dis­

cretion. As such, we find precedent applying any of

these three provisions instructive on the issue of

whether a district court has properly dismissed a com­

plaint as frivolous or malicious under § 1915A(b)(l).

App. 17

standard operating procedures and the clipper manu­

facturer’s instructions for proper sanitation of clippers,

which increased the risk of transmitting infectious

diseases. The amended complaint further alleged that

the GDC and GDCP had a custom of enforcing the

grooming policy with disciplinary actions, threats of

force, and uses of force. These are the same custom al­

legations found in Daker’s complaint filed in this case

on January 16, 2017, less than five months later.

The Daker I amended complaint alleged that

Daker, while at GDCP, was required to be clean­

shaven in contravention of his Islamic faith and spe­

cifically alleged incidents of forced shaving with un­

sanitized clippers on November 21, 2012, December 11,

2012, and November 22, 2013. These three forced

shaving incidents are also alleged in Daker’s com­

plaint in this case.

The Daker I amended complaint included

claims that- (l) Daker’s April 11, 2016 assignment in

Tier II housing without notice or a hearing violated

his substantive and procedural due process rights, the

Eighth Amendment, and RLUIPA; (2) various condi­

tions of his confinement in Tier II violated his rights

under the First Amendment and RLUIPA,8 (3) the

8 Among other things, the Daker I amended

complaint alleged Daker was denied these items: (l)

religious books and publications, (2) a Jpay tablet

computer used to email spiritual advisors, (3) religious

observances such as Jumu’ah, Talim, and the Eid hol­

iday salat and feast, (4) religious materials such as Is­

lamic prayer oils, a miswak toothbrush, and a digital

Quran. Daker’s complaint in this case alleged the de­

nial of these same items.

App. 18

GDC’s beard restriction violated his rights under the

First Amendment and RLUIPA; (4) the custom of us­

ing damaged and unsanitized clippers during forced

shaving increased the risk of infection with human im­

munodeficiency virus (“HIV”), hepatitis, or other in­

fectious diseases and violated the Eighth Amendment;

and (5) the custom of using force and threats of force

to shave prisoners violated the Eighth Amendment.

B. Daker II Complaint Filed December 4, 2016

Daker filed the complaint in Daker II on De­

cember 4, 2016, just two months after his complaint in

Daker I. The Daker II complaint contained the same

allegations of a custom of using force and of using un­

sanitized and damaged clippers to shave prisoners.

The Daker II complaint alleged that Daker was re­

peatedly forcibly shaved with unsanitized and dam­

aged clippers while at GDCP, “including but not lim­

ited to” November 21, 2012, December 11, 2012, and

November 22, 2013,” the same dates alleged in both

Daker I and in this case. In addition, the Daker II com­

plaint alleged that Daker was repeatedly forcibly

shaved while at GSP, including but not limited to,

twelve occasions between April 10, 2014 and March 20,

2015. The Daker II complaint also described a specific

incident of forced shaving on November 10, 2016, dur­

ing which guards used physical force and a chemical

agent, MK>9, injuring Daker’s shoulder and causing

cuts, bruises, and burns, and that afterward Daker

was placed in Tier II segregation without notice or a

hearing. This November 10, 2016 incident was also

mentioned in Daker’s complaint filed in this case.

Like the complaints in Daker I and in this case,

the Daker II complaint alleged that: (l) Daker’s April

App. 19

11, 2016 placement in Tier II housing violated his due

process rights and the First and Eighth Amendments;

(2) the custom of using damaged and unsanitized clip­

pers to forcibly shave prisoners violated the Eighth

Amendment; (3) the custom of using force, including

the chemical agent MK-9, to shave prisoners violated

the Eighth Amendment]; and (4) the beard restriction

in the GDC’s grooming policy violated Daker’s First,

Eighth, and Fourteenth Amendment rights and

RLUIPA.

C. Daker’s Current Complaint Was Knowingly Dupli­

cative

Less than five months after DakerTs amended

complaint and less than seven weeks after Daker II’s

complaint, Daker filed the complaint at issue here on

January 16, 2017. After reviewing the complaints in

Daker I and Daker II. we agree with the district court

that, when Daker filed his complaint in this case, he

had already raised “essentially the same” allegations

and claims in either Daker I or Daker II. or both, and

that his other two actions were still pending before the

same district court judge.9

Moreover, we find no error in the district court’s

finding that Daker brought his duplicative complaint

in this case knowingly. Daker is an experienced pro se

litigator and filed all three complaints in the Middle

District of Georgia over a period of five months. Given

9 Notably, this Court recently affirmed the dis­

trict court’s dismissal of the Daker II complaint as du­

plicative of the Daker I complaint and malicious under

§ 1915(e)(2)(B). See Daker v. Bryson. 841 F. App’x 115,

120-21 (11th Cir. 2020).

App. 20

that Daker knowingly filed this complaint containing

claims duplicative of claims he had already asserted

in two other pending civil actions, and in light of his

history as a prolific serial filer, the district court did

not abuse its discretion by dismissing this third com­

plaint without prejudice as “malicious” under §

1915A(b)(l).

IV. SECTION 1915(g)’S THREE-STRIKER BAR

An indigent prisoner, like Daker, seeking to

bring a civil action ordinarily may proceed without

prepayment of the filing fee and instead may proceed

IFP, paying the fee in installments. 28 U.S.C. §

1915(a)(2), (b). However, under § 1915(g), commonly

known as the PLRA’s “three strikes” provision, a pris­

oner is prohibited from proceeding IFP if the prisoner

has brought three or more federal lawsuits or appeals

that were dismissed as frivolous, malicious, or for fail­

ure to state a claim, as followsIn no event shall a prisoner

bring a civil action or ap­

peal 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

App. 21

relief may be granted, un­

less the prisoner is under

imminent danger of serious

physical injury.

28 U.S.C. § 1915(g); see also Mitchell. 873 F.3d at 872.

When a prisoner with three strikes is denied IFP sta­

tus under § 1915(g), the proper course is to dismiss the

prisoner’s complaint without prejudice. Mitchell. 873

F.3d at 872.

On appeal, Daker does not dispute the district

court’s determination that he is a three-striker. Thus,

the issue became whether the allegations in Daker’s

complaint satisfy § 1915(g)’s imminent danger except

tion.

V. IMMINENT DANGER EXCEPTION

A prisoner with three strikes can avoid §

1915(g)’s bar to proceeding IFP only by showing that

he is “under imminent danger of serious physical in­

jury.” Id. (quotation marks omitted). To satisfy this ex­

ception, the prisoner must show he is in imminent

danger “at the time that he seeks to file his suit in dis­

trict court . . . .” Medberrv v. Butler. 185 F.3d 1189,

1192-93 (llth Cir. 1999) (quotation marks omitted).

“Allegations that the prisoner has faced imminent

danger in the past are insufficient to trigger this ex­

ception to § 1915(g).” IcL; see also Brown v. Johnson.

387 F.3d 1344,1349 (llth Cir. 2004) (stating the “pris­

oner must allege a present imminent danger, as op­

posed to a past danger, to proceed under section

1915(g)”).

In determining whether a prisoner has proved

“imminent danger of serious physical injury,” this

App. 22

Court looks to the complaint, construing it liberally

and accepting its allegations as true. Brown. 387 F.3d

at 1350. In so doing, the Court considers “whether [the

prisoner’s] complaint, as a whole, alleges imminent

danger of serious physical injury,” not whether each

specific physical condition or affliction alleged alone

would be sufficient. Id,; Mitchell. 873 F.3d at 874.

General assertions, however, are “insufficient to in­

voke the exception to § 1915(g) absent specific fact al­

legations of ongoing serious physical injury, or of a

pattern of misconduct evidencing the likelihood of im­

minent serious physical injury.” Brown. 387 F.3d at

1350 (quotation marks omitted).

A. Daker’s Prior Imminent Danger Appeals

As for Daker’s allegations that the use of unsan­

itized and damaged clippers increased the risk of

transmitting infectious diseases, we note that this

Court has repeatedly concluded in unpublished deci­

sions that these allegations are too speculative to con­

stitute imminent danger. See Daker v. Robinson. 802

F. App’x at 5151 Daker v. United States. 787 F. App’x

678, 681 (llth Cir. 2019); Daker v. Bryson. 784 F.

App’x 690, 693 (llth Cir. 2019).

For example, in Daker v. Brvson. our Court con­

cluded that Daker did not “facet ] anything near the

imminent danger of suffering serious or continuing

harm” based on his allegations of being forced to shave

with unsanitized clippers. 784 F. App’x at 693. The

Court stressed that “nothing suggested] that he [was]

suffering from any current consequences,” and the

mere allegation that “being forced to use unsanitized

clippers could expose him to diseases” was “simply too

speculative to establish that he [was] under imminent

App. 23

danger of serious physical injury.” Id. Likewise, in

Daker v. United States, this Court concluded that

Daker’s allegation that “using unsanitary and dam­

aged clippers on his beard might increase his risk of

contracting an infectious disease was too speculative

to constitute imminent harm.” 787 F. App’x at 681.

Most recently, in Daker v. Robinson. Daker

claimed “he met the imminent danger requirement be­

cause [GDC] officials ‘forcibly shaved Plaintiff with

unsanitized clippers on several occasions,’ ‘cutting

him’ and burning him in the process, on another occa­

sion ‘twice banged his head against the wall’ and ‘as a

result, Plaintiff is still at risk of use of force and infec­

tion with HIV, Hepatitis, and other infectious dis­

eases.’” 802 F. App’x at 515. This Court concluded that

Daker’s claims of past harm were insufficient and his

“allegations of future harm arising from the use of un­

sanitized clippers [were] too speculative to meet the

imminent danger standard . ...” Id. Although not

bound by this precedent, we agree with it.

Daker’s allegations do not sufficiently allege

that he was under imminent danger of serious physi­

cal injury when he filed his complaint in 2017. Accept­

ing Daker’s allegations as true, pursuant to GDC’s

policy at the time he filed his complaint, Daker would

be forcibly shaved whenever his beard was longer than

one-half inch and he refused to shave it himself. More­

over, the prison official doing the forced shaving might

use damaged and unsanitized clippers, which in the

past had sometimes caused cuts. However, Daker’s

claim that being forcibly shaved with damaged and

unsanitary clippers could expose him to an infectious

disease like HIV or hepatitis is too speculative to es^

tablish he was under imminent danger.

App. 24

To be sure, actually contracting HIV or hepati­

tis would constitute a serious injury. But Daker does

not allege that any inmate at GSP or any other GDC

prison (or any prison anywhere) has contracted an in­

fectious disease like HIV or hepatitis through forced

shaving of a beard or even such forced shaving with

unsanitary clippers. And, as his own allegations es­

tablish, Daker has been subjected to forced shavings

since 2012, and yet he has not contracted an infectious

disease as a result.

If GDC’s practice of forcibly shaving Daker

truly posed an imminent danger to him, he arguably

would have contracted an infectious disease at some

point in the last eight years. We need not, however, go

that far. It suffices to say that Daker’s own allegations

indicate that the risk of transmission is very low, es­

pecially given that he also alleges it is GDC’s

longstanding custom to use damaged and unsanitary

clippers on its prisoners. Daker’s allegations certainly

do not indicate the risk of transmission is high or im­

minent. Even construing Daker’s allegations liberally,

Daker’s complaint establishes only that it is possible

he could contract an infectious disease but says noth­

ing about whether it is probable or likely.10

10 “To determine the ordinary meaning of an un­

defined statutory term, we often look to dictionary def­

initions for guidance.” Spencer v. Specialty Foundry

Prods. Inc.. 953 F.3d 735, 740 (l 1th Cir. 2020) (inter­

nal quotation marks omitted). The word “imminent” is

generally understood to mean “ready to take place” or

“happening or likely to happen very soon.” Imminent,

Merriam-Webster’s Unabridged Online Dictionary.

App. 25

We do not suggest Daker needed to allege he

had already contracted an infectious disease through

the use of damaged and unsanitized clippers in order

to meet the imminent danger standard. Rather, we

conclude Daker’s mere allegation that he could con­

tract an infectious disease, without any other allega­

tions to establish the likelihood of this happening soon,

is not sufficient to show contracting an infectious dis­

ease was “imminent” for purposes of § 1915(g). Simply

put, the fact that something, even something very se­

rious like contracting HIV or hepatitis, could happen

does not mean it is about to happen and is therefore

imminent.

B. Other Imminent Danger Claims

The force used to effectuate GDC’s grooming

policy also does not present imminent danger of seri­

ous physical injury. First, as for the force allegedly

httpsV/unabridged.merriamwebster.com/una­

bridged/imminent (last visited June 2, 2021). In legal

parlance as well, imminent means something that is

“dangerously impending,” “threatening to occur im­

mediately” or “[a]bout to take place.” Imminent,

Black’s Law Dictionary, (llth ed. 2019).

In other words, for a danger to be “imminent”

for purposes of § 1915(g), it must be about to happen

or likely to happen very soon. Yet, if the risk of trans­

mitting an infectious disease is low, it is difficult to see

how contracting one could be “imminent.” Since Daker

did not allege any facts to suggest he was about to or

likely to contract an infectious disease very soon, he

did not establish an “imminent danger” of contracting

an infectious disease from the use of damaged and un­

sanitary clippers.

App. 26

used during the January 10, 2017 forced shaving, al­

legations of past danger cannot establish a present im­

minent danger. See Medberrv, 185 F.3d at 1192-93;

Brown. 387 F.3d at 1349.

Second, to the extent force would be used in fu­

ture, the kinds of minor injuries Daker 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. See Brown. 387 F.3d at 1350; Mitchell. 873

F.3d at 874. For example, in Brown, this Court deter­

mined that the prisoner had sufficiently alleged immi­

nent danger where his complaint averred a “total

withdrawal of treatment for serious diseases [of HIV

and hepatitis], as a result of which he suffered] from

severe ongoing complications, [was] more susceptible

to various illnesses, and his condition [would] rapidly

deteriorate.” 387 F.3d at 1350. Similarly, in Mitchell.

we held that the prisoner had sufficiently alleged im­

minent danger where he claimed the defendants had

completely withdrawn treatment for hepatitis, and

cirrhosis had begun. 873 F.3d at 873-75. On the other

hand, in Medberrv; we concluded that a complaint

failed to sufficiently allege imminent danger where

the prisoner was placed in protective confinement af­

ter an assault, and he merely feared being returned to

the prison’s general population. 185 F.3d at 1192-93

(explaining the threat had ceased and the complaint

had not alleged the prisoner was in jeopardy of any

ongoing danger of physical assault).

In contrast to the prisoners in Brown and

Mitchell, who had life-threatening diseases for which

prison officials were withholding necessary treat-

App. 27

ments, Daker does not allege that prison officials’ con­

duct in forcibly shaving him would likely cause long­

term or severe damage to his health. Similarly,

Daker’s allegations of being placed in Tier II discipli­

nary confinement, being assigned to a dorm with in­

mates who threw feces, being placed in an unsanitized

cell, missing several orthopedist appointments, and

being deprived of outside exercise also do not rise to

the level of imminent danger of serious physical injury.

In sum, Daker’s complaint, as a whole, does not

sufficiently allege that he was under imminent danger

of serious physical injury. Therefore, the district court

did not err in alternatively dismissing Daker’s com­

plaint as barred by the PLRA’s three-strikes provision.

VI. CONCLUSION

For the foregoing reasons, we affirm the dismis­

sal of Daker’s complaint without prejudice.

AFFIRMED.

App. 28

ROSENBAUM, Circuit Judge, concurring in part and

dissenting in partI agree with much of the panel’s opinion. I write

separately only because I disagree that alleging an un­

official policy and practice of shaving prisoners with

unsanitized and damaged clippers on a recurring

monthly basis cannot satisfy the imminent-danger

standard.1

1 The panel notes that in Daker v. Robinson,

802 F. App’x 513, 515 (llth Cir. 2020), we “concluded

that Daker’s ‘allegations of future harm arising from

the use of unsanitized clippers [were] too speculative

to meet the imminent danger standard . .. Maj. Op.

at 24. Because I was a part of that panel, I pause to

note that in that case, unlike here, the subject matter

of Daker’s complaint did not relate to his imminentdanger allegations of being shaved with damaged, un­

sanitized clippers. See id. For the fuller context, we

actually stated that “Daker’s allegations of future

harm arising from the use of unsanitized clippers are

both too speculative to meet the imminent danger

standard and too far attenuated from the crux of the

complaint—that state actors mishandled his state

cases.” Id. (emphasis added). I agreed that Daker’s

claims of imminent danger could not propel him past

the three-strikes rule since they did not relate to the

substantive claims in his complaint, and that fact re­

quired dismissal regardless of whether Daker’s un­

sanitized clippers claims satisfied the imminent-dan­

ger standard. The opinion was also unpublished and

therefore not binding on any court. For those reasons,

I joined it. And for those same reasons, to the extent

App. 29

Here, Waseem Daker alleged that “CON­

TRARY TO THEIR OWN [standard operating proce­

dures], ALL DEFENDANTS MAINTAIN A CUSTOM

IN [Georgia Department of Corrections] PRISONS OF

DISREGARDING THE MANUFACTURER’S IN­

STRUCTIONS AND [Georgia Department of Correc­

tions standard operating procedures] AND OF RE­

FUSING TO PROPERLY SANITIZE CLIPPERS AND

OF USING CLIPPERS WITH BROKEN GUARDS OR

OTHER DAMAGE THAT EXPOSES THE SKIN TO

SHARP EDGES AND OF INCREASED RISK OF BE­

ING CUT, WHICH CUSTOM EXPOSES PRISON­

ERS TO INCREASED RISK OF INFECTION WITH

HIV, HEPATITIS, AND OTHER INFECTIOUS DIS­

EASES, WHICH ARE ALREADY COMMON IN THE

PRISON POPULATION.” And he asserted that “DE­

FENDANTS . . . MAINTAIN A CUSTOM OF NOT

TRAINING EMPLOYEES TO SANITIZE CLIPPERS

OR TO NOT USE DAMAGED CLIPPERS.”

Yet Daker also claimed that the clippers manu­

facturer’s instructions direct that the clippers

“SHOULD BE PROPERLY CLEANED AND SANI­

TIZED AFTER EVERY USE TO PREVENT SPREAD

OF HIV, HEPATITIS, AND OTHER INFECTIOUS

DISEASES.”

No wonder. The American Barber Institute

(“ABI”) notes that “[a]mong the diseases that have the

potential to be transmitted at a hair or nail salon, hep­

atitis B and C pose the biggest threat to public health.”

that the Majority Opinion here may be construed to

suggest that my position in the instant case is incon­

sistent with my position in Robinson, I respectfully

disagree.

App. 30

“State of the Appearance Enhancement Industry,

American

Barber

Institute,

https://www.abi.edu/about/stateof-the-industrv (last

visited June 7, 2021). According to the ABI, “[h]epatitis B can be infectious for at least a week on . . . tools

and instruments [,] . . . [and] hepatitis C . . . can be

transmitted by razors . . . [and] clippers . . . Id.

The medical evidence confirms what the ABI

says. The Centers for Disease Control and Prevention

(“CDC”) warns that hepatitis can spread “from shar­

ing . . . razors . . . and other items that may have come

into contact with infected blood, even in amounts too

small

to

see.”

https://www.cdc.gov/hepatitis/H CV/PD Fs/Hep CGeneralFactSheet.pdf. And according to the South African Medical Journal

(“SAMJ”), “there is significant contamination of bar­

ber hair clippers with blood and blood-borne viruses.”

Z. Spengane, et al., “Blood and Virus Detection on Bar­

ber Clippers,” S. Afr. Med. J., Vol. 108, No. 4, at 278

(2018). In the SAMJ project, researchers collected a

total of 50 clippers after barbers both used them on

patrons and then cleaned the instruments. Id. at 279,

280. Despite cleaning, 42% of the gathered clippers

still tested positive for the presence of blood, and re­

searchers specifically identified hepatitis B on 8% of

the clippers. Id. at 280. Not only that, but they con­

cluded that the quantities of hepatitis B virus were

high enough “to pose a risk of infection.” Id. at 282.

And that’s when the clippers were actually

cleaned. Here, Daker asserts that the clippers are not

disinfected in any way, they are damaged, and they

are used on a population statistically known to include

App. 31

those with bloodborne diseases at significantly greater

rates than in the general population.2

On top of that, certain Georgia prison practices

only compound this risk of contracting blood-transmit­

ted diseases. For example, Georgia’s state prisons do

2 In 2015, the Bureau of Justice Statistics iden­

tified the rate of the presence of hepatitis as 10.9% of

the state and federal prisoner population (and the rate

of HIV/AIDS as 1.3%). Laura Maruschak, et al., “Med­

ical Problems of State and Federal Prisoners and Jail

Inmates, 2011-2012,” Bureau of Justice Statistics

(BJS) (Feb. 2015), at 3, httpsV/bis.oip.gov/content/pub/pdf/mpsfpiilll2.pdf. And the Bureau found

that, in comparison to the rest of the population, nine

times as many prisoners have suffered from hepatitis

at some point during their time in prison than individ­

uals in the general United States population (and

about four times as many have HIV/AIDS). See id. at

4. Another study printed in the Annals of Internal

Medicine concluded that hepatitis C is about 17 times

more prevalent in the United States prison population

than in the general population. Tianhua He, M.D., et

al., “Prevention of Hepatitis C by Screening and Treat­

ment in U.S. Prisons,” Annals ofInternal Medicine, 84

(2016). Whatever the actual frequency, all agree that

the hepatitis infection rate in the prison population “is

much higher” than among the general population.

Andy Miller, “The High Cost—and Treatment Gap—

in Curing Inmates with Hepatitis C,” Georgia Health

News (July 20, 2018),

www.georgiahealthnews.com/2018/07/highcost-treatment-gap-curing-inmates-heoatitis/

(last

visited June 7, 2021).

App. 32

not track the number of prisoners with hepatitis C.3

Georgia is also one of four states that lacks clear writ­

ten rules for testing and treating hepatitis C. See Mil­

ler, supra n.2. So prison barbers may not know when

they have used clippers on an infected person.

These facts show that, contrary to what our un­

published (and therefore nonbinding) opinions con­

clude, the science demonstrates a significant risk that

hepatitis can be transmitted through unsanitized,

damaged clippers. And monthly shavings with those

instruments necessarily augments the chances of that

occurring. Indeed, accepting Daker’s allegations as

true, as we must, we know that the Georgia Depart­

ment of Corrections also must recognize this real risk

because its standard operating procedures require

Georgia officials to clean and sanitize clippers after

each use. And those same standard operating proce­

dures instruct that damaged clippers “shall not be

used.” Similarly, the clippers manufacturer directs

that clippers be sterilized with virucide after each use.

3 The Georgia Health News, which reported

that Georgia’s state prisons do not track the number

of prisoners with hepatitis C, does not appear to have

inquired whether Georgia’s state prisons keep a tab on

the number of prisoners with hepatitis B. Miller, su­

pra n.2. But both hepatitis B and hepatitis C are

transmitted through contact with infected blood. See

https 7/ www.cdc.gov/hepatitis/resources/professionals/pdfs/abctable.pdf. So if Georgia prisons track one,

it would make sense for them to track the other. And

if they do not track one, it seems a reasonable infer­

ence that they do not track the other, either.

App. 33

The panel recognizes that “actually contracting

HIV or hepatitis would constitute a serious injury.”

Maj. Op. at 25. The problem, it says, is that “Daker

does not allege that any inmate at GSP or any other

GDC prison (or any prison anywhere) has contracted

an infectious disease like HIV or hepatitis through . . .

shaving with unsanitary clippers.” Id.

But that is an impossible hurdle to clear for two

reasons. First, hepatitis may be transmitted in a vari­

ety of ways, including by having sexual contact with

an infected person; sharing an infected person’s nee­

dles, razors, or toothbrush; or by otherwise experienc­

ing an exchange of blood or other bodily fluids with an

infected person. A Visual Guide to Hepatitis, WebMD,

httpsV/www. webmd.com/hepatitis/ss/slideshow-hepatitis-overview (last visited June 7, 2021). As a result,

identifying the specific origin of a hepatitis infection

in a given prisoner can be difficult, if not impossible,

to do in a prison setting—if the prison is even inclined

to try. Cf. “State of the Appearance Enhancement In­

dustry,” supra 2 (“According to Dr. Harold Oster, a

San Diego Infectious Disease Specialist, ‘The risk of

(HIV) infection at a barbershop is not zero . . . and

there are many cases where the means of transmis­

sion is not known for certain.’”). And second, even if a

prison successfully engaged in this unlikely data col­

lection, privacy laws would preclude it from identify­

ing any specific prisoner who had contracted hepatitis

or publicly reporting such findings— regardless of

how the prisoner had developed his illness.

So as a practical matter, the question before us

cannot be whether Daker has shown that other pris­

oners have contracted hepatitis as a result of the Geor­

gia Department of Corrections’s allegedly routine use

App. 34

of unsanitized, damaged clippers. Rather, it must be

whether, as a matter of scientific knowledge, the alle­

gations allow a court to draw reasonable inferences

that there is a danger that a prisoner repeatedly

shaved with unsanitized, damaged clippers used pre­

viously on other prisoners at the Georgia Department

of Corrections will contract hepatitis. See Vandiver v.

Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir.

2013) (explaining that the prisoner’s allegations “must

be sufficient to allow a court to draw reasonable infer­

ences that the [alleged] danger exists”). The evidence

shows that Daker’s allegations satisfy this standard.

For starters, this is not a case where the pris­

oner’s claims of imminent danger “are conclusory or

ridiculous, or are clearly baseless (i.e. are fantastic or

delusional and rise to the level of irrational or wholly

incredible).” Vandiver, 727 F.3d at 585 (citation and

internal quotation marks omitted); see also Ciarpaglini v. Saini, 352 F.3d 328, 330-31 (7th Cir. 2003);

Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010);

Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998).

To the contrary, the CDC expressly warns

against the risk of hepatitis transmission through un­

sanitized razors, which are necessarily a part of un­

sanitized clippers. I do not think we should secondguess the CDC, which is the medical expert on these

things.

Plus, as I have explained, a study appearing in

the South African Medical Journal involving cleaned

clippers that were not damaged revealed that 42% of

used and cleaned clippers collected from barbers in the

general population in South Africa during that study

bore blood on them, and 8% carried hepatitis B. Not

App. 35

only that, but researchers found the virus present in

large enough quantities to cause infection in another

person. Obviously, when, as Daker alleges here, clip­

pers are not sanitized and are damaged, thereby in­

creasing the likelihood of nicks and cuts, the risk of

transmission is only exacerbated.

As if that’s not enough, the Georgia Depart­

ment of Corrections has itself recognized the risk that

unsanitized and broken clippers represent by adopt­

ing regulations requiring clippers to be sanitized and

damaged clippers not to be used. In short, there is no

question that diseases like hepatitis can be transmit­

ted through the use of damaged, unsanitized clippers

previously used on a person with a bloodborne illness.

And that is enough to establish imminent danger of

serious injury. See Andrews v. Cervantes, 493 F.3d

1047, 1055, 1057 (9th Cir. 2007) (the allegation that a

prisoner is at risk of contracting hepatitis “more than

plausibly raises the specter of serious physical injury.

Th[is] disease D quite obviously cause [s] serious health

problems, and can result in death.”); see also id. at

1057 n.12 (recognizing that the Centers for Disease

Control and Prevention have “specifically warnted]

against sharing razors or toothbrushes in order to pre­

vent the spread of. . . hepatitis C”).

For these reasons, I would conclude that Daker

alleged sufficient facts to establish imminent danger

of serious bodily injury.

App. 36

Case 5*17-cv00025-CAR*MSH Document 17

Filed 07/18/17

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

WASEEM DAKER,

Plaintiff,

v.

CIVIL NO. 5:i7-CV-0025-CAR

GREGORY DOZIER, et al,:

Defendants. :

ORDER

Plaintiff Waseem Daker, an inmate confined at

Georgia State Prison in Reidsville, Georgia, has filed

a pro se complaint in this Court seeking damages and

injunctive relief under 42 U.S.C. § 1983 and the Reli­

gious Land Use and Institutionalized Persons Act

(“RLUIPA”) § 2 et seq., 42 U.S.C.A. § 2000cc et seq.

Currently before the Court is Plaintiff s motion to pro­

ceed in forma pauperis (“IFP) under 28 U.S.C. § 1915

(Doc. 2). Plaintiff has also filed a motion to “expedite

proceedings” (Doc. 3), several motions for preliminary

injunction (Docs. 4, 5, 6); two motions for partial sum­

mary judgment (Docs. 13, 14); a motion for subpoena

and/or preservation of evidence (Doc. 15); and a second

motion to proceed in forma pauperis (Doc. 16).

I. Plaintiffs Motion to Proceed in forma pau­

peris

App. 37

Plaintiffs motion to proceed IFP is made pur­

suant to 28 U.S.C. § 1915, which allows the district

courts to authorize the commencement of a civil action

without prepayment of the normally-required fees

upon a showing that the plaintiff is indigent and fi­

nancially unable to pay the filing fee. Because Plain­

tiff is presently confined in a state prison, however, his

ability to proceed IFP in federal court is also subject

to the restrictions imposed by Prison Litigation Re­

form Act (“PLRA”). See 28 U.S.C. § 1915(g); see also

28 U.S.C. § 1915A. The PLRA specifically prohibits a

prisoner from bringing a civil action in federal court in

forma pauperis

if [he] has, on 3 or more

prior occasions, while incar­

cerated or detained in any

facility, brought an action

or appeal in a court of the

United States that was dis­

missed on the grounds that

it is frivolous, malicious, or

fails to state a claim upon

which relief may be granted,

unless the prisoner is under

' imminent danger of serious

physical injury.

§ 1915(g). This is known as the “three strikes provi­

sion.” Rivera v. Allin, 144 F.3d 719, 723 (llth Cir.

1998). Under § 1915(g), a prisoner incurs a “strike”

any time he has a federal complaint or appeal dis­

missed on the grounds that it is frivolous or malicious

or fails to state a claim. Medberry v. Butler, 185 F.3d

1189, 1193 (llth Cir. 1999). Once a prisoner incurs

App. 38

“three strikes” under this provision, he is no longer al­

lowed to proceed in forma pauperis, and must prepay

the entire filing fee before a federal court may consider

his complaint or appeal, unless the prisoner demon­

strates that he is in “imminent danger of serious phys­

ical injury.” Id.

II. Applicability of the Three-Strikes Bar

In his Complaint, Plaintiff states that the

three-strikes bar cannot be applied in this case be­

cause (l) it is unconstitutional and (2) he has not ac­

cumulated “three strikes.”

A. Constitutional Challenge

Though often challenged, the PLRA’s threestrikes bar has repeatedly been found to pass consti­

tutional muster; and thus, despite Plaintiffs objection

and present claim that the rule is unconstitutional,

see Compl. at 28, the Court finds it both valid and

properly considered in this case. Medberry, 185 F.3d

at 1193. “Having to prepay his filing fee before the

Court addresses the relative merits of his claims, un­

less he shows he is in imminent danger of serious

physical injury, does not violate Plaintiffs rights.”

Daker v. Bryson, 6H6-CV-57, 2017 WL 1053082, at *6

(S.D. Ga. Mar. 20, 2017) (finding same arguments by

Daker meritless). Plaintiffs objections to the constitu­

tionality of § 1915(g) are thus found to be without

merit. Id.

B. Plaintiffs Strikes

Plaintiff next contends that he does not have

three strikes under § 1915(g). See Comp, at 28. A re­

view of court records on the Federal Judiciary’s Public

App. 39

Access to Court Electronic Records (“PACER”) data*

base nonetheless reveals that Plaintiff has filed mul­

tiple lawsuits in federal court and that at least three

of his complaints or appeals have been dismissed and

count as strikes under § 1915(g). Plaintiff has, in fact,

repeatedly been barred from filing lawsuits within

this Circuit under § 1915(g), and his status as a threestriker was recently confirmed by both this Court and

the United States District Court for the Southern Dis­

trict of Georgia. See Daker v. Owens, 5‘12-cv-459CAR-MSH, ECF No. 388 (M.D. Ga. May 8, 2017);

Daker v. Bryson, 6-16-CV-57, 2017 WL 242615, at *5

(S.D. Ga. Jan. 19, 2017), adopted by 6U6-CV-57, 2017

WL 1053082 (Mar. 20, 2017).

In Daker v. Bryson, supra, the Southern Dis­

trict explained its application of the three-strikes pro­

vision to Mr. Daker in detail, and it is worth repeating

here in light of Plaintiffs misplaced reliance on the

Eleventh Circuit’s findings in Daker v. Comm’r, Ga.

Dep’t. of Corr., 820 F.3d 1278 (2016)1 for the argu­

ment that he is not subject to the three-strikes provi­

sion:

To be sure, a review of

Plaintiffs history of filings

reveals that he indeed has

brought more than three

civil actions or appeals

which count as strikes un­

der Section 1915(g). In

reaching this conclusion,

this Court has not utilized

the same six (6) cases ...

counted as strikes [in Daker

App. 40

v. Commi], Instead, the fol­

lowing cases, which do not

include any of the cases the

Eleventh Circuit found are

not

strikes,

constitute

strikes

under

Section

1915(g): l) Daker v. NBC, et

al., No. 15-330 (2d Cir. May

22, 2015), ECF No. 35 (not­

ing Plaintiffs appeal “lacks

an arguable basis either in

law or in fact” and quoting

Nietzke, 490 U.S. at 325

(“[A] complaint, containing

as it does both factual alle­

gations and legal conclu­

sions, is frivolous where it

lacks an arguable basis ei­

ther in law or in fact.”); 2)

Daker v. Warren, No. 1311630-B (llth Cir. Mar. 4,

2014) (appeal dismissed af­

ter finding it frivolous; 3)

Daker

v.

Mokwa,

2:i4cv395-UA-MRW (C.D.

Cal. Feb. 4, 2014), ECF No.

2 (complaint dismissed as

being frivolous, malicious,

or failing to state a claim; 3)

Daker v. Robinson, B12-cv00118-RWS (N.D. Ga. Sept.

12, 2013) (Plaintiffs complaint dismissed based on

his failure to follow a court

order); and 4.) Daker v.

Dawes, B12-CV-00119-RWS

App. 41

(N.D. Ga. Sept. 12, 2013)

(same).

The causes of action and ap­

peals this Court cites to as

being “strikes” were dis­

missed for being frivolous,

malicious, or failing to state

a claim for relief, and these

causes of action and ap­

peals were not dismissed on

any other ground which

failed to address the merits

of Plaintiffs claims. This

same review also reveals

scores of other civil actions

and appeals which were dis­

missed and/or count as

strikes

under

Section

1915(g). In re Daker, No.

i:il-CV-1711-RWS, 2014

WL 2548135, at *2 (N.D. Ga.

June 5, 2014) (summarizing

Plaintiffs litigation history).

This Court and other courts

have noted that Plaintiff is

a serial litigant with a sig­

nificant history of filing

frivolous lawsuits. See e.g.,

Daker v. Bryson, No. 5:15CV-88-CAR-CHW,

2015

WL 4973548, at *1 (M.D.

Ga. Aug. 20, 2015) (“A review of court records on the

Federal Judiciary’s Public

Access to Court Electronic

App. 42

Records (“PACER”) data­

base reveals that Plaintiff

has filed more than one

hundred federal civil ac­

tions and appeals since

1999.”)! Daker v. Head' et

al., 6-14-cv-47 (S.D. Ga.

Sept. 8, 2014), ECF Nos. 13,

14 (R&R and Order denying

Plaintiff leave to proceed in

forma pauperis due to three

striker status); Daker v.

Warren, No. Pll-CV-1711RWS, 2014 WL 806858, at

*1 (N.D. Ga. Feb. 28, 2014)

(“Waseem Daker is an ex­

tremely litigious state pris­

oner [.]”).

Brvson. 2017 WL 242615 at *5.

This Court similarly confirmed Mr. Daker’s sta­

tus as a three-striker in another case just last month:

Plaintiff has filed more

than three actions or ap­

peals that were dismissed

on the statutorily-enumer­

ated grounds prior to his

seeking leave to appeal in

forma pauperis in this case:

Daker v. Mokwa, Order

Denying Leave to Proceed

IFP, ECF No. 2 in Case No.

2:i4-cv-00395-UA-MRW

(C.D. Cal. Feb. 4, 2014)

App. 43

(denying leave to proceed in

forma pauperis and dis­

missing case after conduct­

ing screening under 28

U.S.C. § 1915(e)(2)(B) and

finding claims were frivo­

lous and failed to state a

claim upon which relief

may be granted); Daker v.

Warren, Order Dismissing

Appeal, Case No. 13-11630

(llth Cir. Mar. 4, 2014)

(three-judge panel dismis­

sal of appeal on grounds

that appeal was frivolous);

Order Dismissing Appeal,

Daker v. Warden, Case No.

15-13148 (llth Cir. May 26,

2016) (three-judge panel

dismissing appeal as frivo­

lous); Order Dismissing Ap­

peal, Daker v. Commis­

sioner, Case No. 15-11266

(llth Cir. Oct. 7, 2016)

(three-judge panel dismiss­

ing appeal as frivolous); Or­

der Dismissing Appeal,

Daker v. Ferrero, Case No.

15-13176 (llth Cir. Nov. 3,

2016) (three-judge panel

dismissing appeal as frivo­

lous); Order Dismissing Ap­

peal, Daker v. Governor,

Case No. 15-13179 (llth

Cir. Dec. 19, 2016) (three-

App. 44

judge panel dismissing ap­

peal as frivolous). Plaintiff

has therefore accrued more

than three “strikes” for pur­

poses of § 1915(g) ....

Daker, 5:i2-cv-459-CAR-MSH at ECF No. 388.

The Court thus finds that there is no doubt as

to whether the three-strikes bar is applicable to Plain­

tiff in this case. See also Daker v. Comm’r, App. No.

17-12184-J, ECF No. 398 (llth Cir. May 24, 2017) (re­

cent letter to Daker stating, “the ‘three strikes provi­

sion’ ... is applicable to you”). Because the three

strikes provision is applicable to Plaintiff, he may not

proceed in this case in forma pauperis unless he is in

“imminent danger of serious physical injury.” See §

1915(g); Medberry, 185 F.3d at 1193.

III. Applicability of the Imminent Danger Ex­

ception

When a Plaintiff seeks to proceed in forma pau­

peris under the imminent danger exception, the dis­

trict court must review the facts alleged in the com­

plaint to determine whether an imminent danger, as

contemplated by § 1915(g), potentially exists. See also

28 U.S.C. § 1915A(a).

A. Standard of Review

When reviewing a pro se complaint for this pur­

pose, all factual allegations in the complaint must be

accepted as true and all inferences must be made in

the plaintiffs favor. See Brown v. Johnson, 387 F.3d

1344, 1347 (llth Cir. 2004); Tannenbaum v. United

States, 148 F.3d 1262, 1263 (llth Cir. 1998). Pro se

App. 45

pleadings are also “held to a less stringent standard

than pleadings drafted by attorneys,” and a pro se

compliant is thus “liberally construed.” Tannenbaum

v. United States, 148 F.3d 1262, 1263 (llth Cir. 1998)

(per curiam). The district court, however, cannot allow

a plaintiff proceed with claim based on frivolous, conclusory, or speculative allegations and may find that

the plaintiff is not in imminent danger after a review

of the complaint. The court may also dismiss the com­

plaint, or any part thereof, if it determines that the

plaintiffs allegations fail to state a viable claim for re­

lief. See § 1915A(b).

Therefore, to avoid the three-strikes bar, a pris­

oner must do more than merely state that he is in im­

minent danger. According to the Eleventh Circuit, the

district court must determine “whether [the] com­

plaint, as a whole, alleges imminent danger of serious

physical injury.” Brown v. Johnson, 387 F.3d 1344,

1350 (llth Cir.2004). “General allegations that are

not grounded in specific facts [showing] that serious

physical injury is imminent” are, however, “not suffi­

cient to invoke the exception to § 1915(g).” DuBois v.

Buss, i:il-CV-220-MP-GRJ, 2011 WL 5593088, at *1

(N.D. Fla. Oct. 14, 2011), adopted by 1-11CV220-MPGRJ, 2011 WL 5593076 (Nov. 17, 2011). Vague and

unsupported claims of possible dangers likewise do

not suffice. See White v. State of Colorado, 157 F.3d

1226, 1231 (10th Cir. 1998); Taylor v. Allen, No. 070794, 2009 WL 1758801, at * 2 (S.D. Ala. June 16,

2009).

To satisfy the requirements of § 1915(g), the

complaint must allege facts that describe “an ongoing

serious physical injury, or of a pattern of misconduct

evidencing the likelihood of imminent serious physical

App. 46

injury.” Sutton v. Dist. Attny's Ofc., 334 F. App’x 278,

279 (llth Cir. Aug. 22, 2009). Allegations showing

that the plaintiff was previously in imminent danger,

standing alone, are not sufficient; the danger feared

must be both real and likely to occur (or reoccur) in the

near future. See id. The exception to § 1915(g) is to be

applied only in “genuine emergencies,” when “time is

pressing,” the “threat or prison condition is real and

proximate,” and the “potential consequence is serious

physical injury.” Lewis v. Sullivan, 279 F.3d 526, 531

(7th Cir. 2002).

B. Plaintiffs Claims

In this case, Plaintiffs pro se complaint in­

cludes multiple claims (against more than forty-two

named defendants) based on events occurring at both

Georgia State Prison (“GSP”) and the Georgia Diag­

nostic and Classification Prison (“GDCP”). The Com­

plaint does not name any individuals employed at

GDCP as defendants. Plaintiff does, however, bring

claims against the Georgia Department of Corrections

and various “GDC” officials or employees. Plaintiff

contends that the GDC’s policy of restricting inmates’

beard length and access to religious services and ma­

terials are unconstitutional and violate RLUIPA. The

Complaint also includes claims against individuals

employed at GSP. Plaintiff claims that he was denied

a fair hearing during a disciplinary hearing in Novem­

ber of 2016; placed arbitrarily in Phase I of the Tier II

program in December of 2016; and injured by GSP of­

ficers on January 10, 2017. Plaintiff further claims,

presumably for the purpose of satisfying § 1915(g),

that he is currently being denied medical care due to

understaffing at GSP, is being required to shave (or be

forcibly shaved) with broken and unsanitary clippers,

App. 47

is now housed with inmates who throw feces, and is

being denied adequate sanitation and cleaning sup­

plies.

Plaintiff has previously made the same (or sub­

stantially similar) claims against various GDC and

GSP defendants. In fact, at the time filing (on or about

January 16, 2017), Plaintiff had two other active cases

in this Court against many of the same defendants

named as parties in this case: Daker v. Owens, 5U2cv-459-CAR-MSH, ECF No. 258 (M.D.Ga. Sept. 14,

2016) (“Daker T)‘, Daker v. Bryson, 5:i6-cv0538-CARMSH (M.D. Ga. Dec. 7, 2016) (“Daker ID. In both of

those cases, Plaintiff made allegations nearly identi­

cal to those alleged in this Complaint and claimed, as

he does here, that-' (l) the GDC’s policies restricting

inmates’ beard length and access to religious services

and/or materials violate First Amendment and

RULIPA; (2) the policies and practices relevant to his

assignment to Tier II confinement and the general

conditions thereof violate due process and the Eighth

Amendment; (3) the current customs and practices

relevant to disciplinary hearings violate due process;

and (4) the practice forcing prisoners to shave, or be

forcibly shaven, with unsanitary, broken clippers vio­

lates the First and Eighth Amendments. Id. at ECF

No. 538. In Daker II, Plaintiff additionally complained,

as he does in this case, that the conditions of his con­

finement at GSP were unconstitutional and that GSP

officers used chemical agents to forcibly shave him in

January of 2017. See id.

Upon review of these pleadings, it is apparent

that, when Plaintiff filed the present action in Janu­

ary of 2017, he knowingly brought claims that were

essentially the same as those he was already actively

App. 48

litigating in, not one, but two other cases before this

Court. These claims are thus properly DISMISSED,

without prejudice, as duplicative. Curtis v. Citibank,

226 F.3d 133, 138 (2d Cir. 2000). See Curtis v. Citi­

bank, 226 F.3d 133, 138 (2d Cir. 2000) (“a district

court may ... dismiss a suit that is duplicative”); Dur­

bin, Inc. v. Jefferson Nat! Bank, 793 F.2d 1541, 1551

(11th Cir. 1986).

Furthermore, and in light of Plaintiffs wellknown history of filing frivolous and duplicative

claims, the Court further finds this Complaint both

malicious and an abuse of the judicial process. See Ca­

ballero v. Robinson, 95 F.3d 49 (5th Cir. 1996) (un­

published) (“plainly duplicative” lawsuit was “subject

to dismissal as malicious and abusive” even though

plaintiff named additional defendants in later-filed

case). His claims are thus also due to be DISMISSED

as malicious and abusive pursuant 28 U.S.C. §

1915A(b)(l).

C. Allegations of Imminent Danger

As to any remaining claims, and for the pur­

poses of § 1915(g), the Court further finds that Plain­

tiffs assertions of “imminent danger” are unwar­

ranted.

1. Damaged and Unsanitary Clippers

Plaintiff first alleges that he is in imminent

danger due to the GDC’s custom of supplying prison­

ers with damaged, unsanitary clippers to enforce its

shaving policy. Plaintiff argues that this could, hypo­

thetically, cause Plaintiff to become infected with a

disease such as HIV or Hepatitis. Compl. at 25. This

App. 49

claim is, again, one that Plaintiff has made before.1 In

fact, according to the Complaint, Plaintiff has faced

this same “danger” since 20122 and he does not now

identify any presently occurring circumstance to sug­

gest that this possible or potential danger is any more

imminent now than it was in 2012. The Complaint

thus fails to show that the danger posed by the use of

these clippers warrants an exception to the threestrikes bar.

2. Policy ofForced Sha ving

Plaintiff next maintains that he is in imminent

danger of serious physical injury due to the practice of

forcibly shaving inmates who refuse to do so voluntar­

ily. See Comp, at 7, 24. In support of this claim, Plain­

tiff alleges that he was forcibly shaved at GDCP in

2012 and 2013. Compl. at 7. He does not allege to have

suffered any injury on those occasions, however! and

any discrete claims based on these events are timebarred by the relevant two-year statute of limitations

as they occurred before April of 2014. See Owens v.

1 See, e.g., Daker v. Bryson, 5'16-cv-0538-CAR,MSH, ECF No. 17 (M.D.Ga. June 8, 2017)! Daker v.

Owens, No.5:i2-cv-459-CAR-MSH (M.D.Ga. Nov. 20,

2012); Baker v. Dozier, No. 5:i7-cv-00025-CAR-MSH

(M.D. Ga. Jan. 19, 2017). Similar claims have also

been filed in at least one other federal district court in

the State of Georgia. See e.g. Daker v. Bryson, 6H6*

CV-57, 2017 WL 242615 (May 23, 2017).

2 See Comp, at 5-7! see also Bryson, 2017 WL

242615, at *5 (finding the same allegations by Daker

insufficient to satisfy the imminent danger exception).

App. 50

Okure, 488 U.S. 235, 236 (1989); O.C.G.A. § 9-3-33

(1982).

More relevant here are Plaintiff allegations

that he was “cut on some” occasions when forced to

shave at GSP and was also in danger of suffering a

serious physical injury when officers used a chemical

agent to subdue him for a forced shave on January 10,

2017. The Court accepts these allegations as true.

Nothing in the Complaint, however, suggests that the

use of chemical agents (or any other extreme use of

force) is a wide-spread practice or custom within the

GDC - or even GSP; nor do the allegations suggest that

another similar use of force is imminent. Just the op­

posite- As, stated above, Plaintiff alleges that he has

been forcibly shaved “numerous” times at GSP and

only suffered minor injuries, a cut, “on some.” There is

no allegation of officers using chemical agents or ex­

cessive force in any of these prior forced shaves or of

any wide-spread practice or pattern thereof.

The Complaint, furthermore, fails to show that

the GDC’s shaving policy and/or the practice of forced

shave was the proximate cause of Plaintiffs injuries.

His allegations instead suggest that it was Plaintiffs

repeated failure to follow instructions, not the GDC’s

policies, that created the dangerous situation which

led to his injuries. Thus, at most, Plaintiffs Complaint

may have stated an Eight Amendment excessive force

claim against the individual GSP Defendants person­

ally involved in the incident. This, however, will not

allow Plaintiff to escape the three-strikes bar. See

Brown v. City ofPhiladelphia, CIV. 05*4160, 2009 WL

1011966, at *12 (E.D. Pa. Apr. 14, 2009) (prisoner can­

not avoid the three-strikes bar if he is responsible for

placing himself in danger); Muhammad v. McDonough,

App. 51

3-06CV527-J-32TEM, 2006 WL 1640128, at *1 (M.D.

Fla. June 9, 2006) (prisoner cannot create imminent

danger to escape the three-strikes rule).

3. Current Conditions of Confinement

Finally, Plaintiff contends that he is now in im­

minent danger of serious physical injury at GSP be­

cause' (l) the understaffing and unavailability of an

officer to escort Plaintiff to the orthopedist caused him

to miss multiple appointments in 2016; (2) he was

placed on “yard restriction” (for at least 90-days) in

November of 2016 and thus denied outdoor recreation

by multiple GSP officers3; and (3) he lives with in­

mates who throw feces, has to wait for hours before

the feces is cleaned, and GSP defendants4 have ig­

nored his complaints about the unsanitary conditions

and requests for cleaning supplies.

Plaintiffs allegations, when read in his favor,

may be sufficient to support a claim under § 1983.

They do not, however, demonstrate that Plaintiff is

presently in danger of serious physical injury, the ex­

istence of any genuine emergency, or that time is oth­

erwise pressing so as to warrant an exception to the

three-strikes rule. See Lewis, 279 F.3d at 531. There

is, for example, nothing in Plaintiffs allegations which

suggests that he will suffer serious physical injury if

he does not see an orthopedist as soon as possible. Nor

is there any suggestion that Plaintiff will soon suffer

3 As to this claim, Plaintiff specifically identifies

Defendants Mendel, Williams, Moye, Anderson, Jones,

Mikell, and Brooks.

4 Defendants Allen, Bobbit, Hutcheson, and An­

derson, Brooks, and Williams.

App. 52

a serious physical injury if he is not promptly allowed

yard privileges, moved to a unit where there are no

inmates who throw feces, and provided with cleaning

supplies. See Brown, v. City ofPhiladelphia, 2009 WL

1416709, at *2 (3rd Cir. May 21, 2009) (unpublished)

(allegation that prison guards “placed feces and urine

in his cell, ... [and] denied him medical treatment” did

not satisfy § 1915(g)); Pettus v. Oakes, 09-CV6263CJS, 2009 WL 2392025, at *2 (W.D.N.Y. Aug. 3,

2009) (“allegations regarding feces and urine having

been thrown at [plaintiff]” are insufficient to “impli­

cate an imminent danger of serious harm, such that

plaintiff would be allowed to bring them in an action

allowed under the exception to 28 U.S.C. § 1915(g).”).

Furthermore, even if Plaintiffs allegations

could support a finding of imminent danger, these fi­

nal claims arise only from Plaintiffs confinement at

GSP and are unrelated to Plaintiffs claims against

the GDC Defendants. Unrelated claims against differ­

ent defendants must be brought in sep’arate lawsuits.

See Fed. R. Civ. P. 20(a)(2)(A)-(B); Owens v. Hinsley,

635 F.3d 950, 952 (7th Cir. 2011). Plaintiff has, in fact,

been previously advised that any claims arising from

the conditions of his confinement at GSP should be

brought in a separate suit and filed in the Southern

District of Georgia, i.e., the appropriate venue for

these claims. See, e.g., Dakerl, ECF No. 234 at 17:1518:4 (advising Plaintiff that any claims regarding his

treatment at the GPS would have to be raised in a new

action in the Southern District, where venue would be

appropriate); Daker II, ECF No. 17 at 4, 11 (finding

that Daker had, despite prior warnings, again mis­

joined claims and transferring those claims to appro­

priate venue).

App. 53

The Court thus finds that these claims are, in

the alternative, due to be DISMISSED without preju­

dice, not only because they are presently mis-joined,

and the Middle District is not the proper venue,5 see

Fed. R. Civ. P. 21; DirecTV, Inc. v. Leto, 467 F.3d 842,

84445 (3d Cir. 2006), but also because it is apparent

that Plaintiff knowingly, and in bad faith, mis-joined

these claims for the sole purpose of attempting to

avoid three-strikes bar in a malicious abuse of the ju­

dicial process. What is more, Plaintiff still has active

claims against the GSP defendants, which are the

same or similar to those identified here, in the South­

ern District, Daker v. Bryson, 6-17*cv-0079-JRH-RSB

(S.D. Ga. June 12, 2017).

IV. Conclusion

i

Because his Complaint fails to demonstrate the

existence of an imminent danger of serious physical

injury, Plaintiffs motion for leave to proceed IFP (ECF

Nos. 2 & 16) is hereby DENIED; and, for all of those

reasons discussed above, Plaintiffs Complaint is now

DISMISSED without prejudice.6 Plaintiffs motions to

5 These claims arose from events occurring in

Reidsville, Georgia, and should thus be heard in the

Southern District of Georgia. See 28 U.S.C. § 1391(b).

6 When the district court denies a prisoner leave

to proceed in forma pauperis pursuant to § 1915(g),

the proper procedure is for the court to then dismiss

the complaint without prejudice. Dupree v. Palmer,

284 F.3d 1234, 1236 (llth Cir. 2002). See also Sim­

mons v. Zloch, 148 F. App’x 921, 922 (llth Cir. 2005)

(citing to Dupree in affirming denial of in forma pau­

peris motion and dismissing complaint under §

1915(g)).

App. 54

“expedite proceedings” (Doc. 3), for preliminary in­

junction (Docs. 4, 5, 6)l for partial summary judgment

(Docs. 13, 14); and for subpoena and preservation of

evidence (Doc. 15) are DENIED as MOOT.

SO ORDERED, this 18th day of June, 2017.

/s/ C. Ashley Roval

C. ASHLEY ROYAL, SENIOR JUDGE

UNITED STATES DISTRICT COURT

App. 55

Case 5’17-cv00025-CAR-MSH Document 28

Filed 10/24/17

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

WASEEM DAKER,

Plaintiff,

v.

CIVIL ACTION

NO. 5:i7-CV-25 (CAR)

GREGORY DOZIER, et al, :

Defendants. :

ORDER ON PLAINTIFFS MOTION TO VACATE

Before the Court is yet another of pro se Plain­

tiff Waseem Daker’s motions for this Court to recon­

sider its Order and vacate its Judgment dismissing his

case. Plaintiff is, to say the least, a promiscuous filer,

having filed well over 1,000 motions in more than 150

civil cases and appeals in the Middle District of Geor­

gia, Northern District of Georgia, Southern District of

Georgia, Central District of California, District of Co­

lumbia, the Eleventh Circuit Court of Appeals, the

Ninth Circuit Court of Appeals, and the Second Cir­

cuit Court of Appeals. In this district alone, Daker has

filed 10 civil cases,1 has moved to intervene in six civil

1 Daker v. Donald, Case No. 5^04-cv-337; Daker

v. Donald, Case No. 5;04-cv-392; Daker v. Georgia

Dep’t of Corr., Case No. 5-05-cv-205l Daker v. Owens,

Case No. 5’12-cv-459; Daker v. Humphrey, Case No.

App. 56

lawsuits,2 and has filed well over 250 motions. In

those cases filed in this district, Daker routinely

moves the Court to reconsider its Orders and vacate

its Judgments, having filed more than 20 such mo­

tions.

In the Motion to Vacate currently at bar, Daker

moves this Court pursuant to Federal Rule of Civil

Procedure 59(e) to reconsider its Order dismissing his

case and denying his various motions for injunctive re­

lief, and to vacate the Judgment. Yet again, however,

Daker fails to provide proper grounds for such relief.

Reconsideration of a previous order is an extraordi­

nary remedy and should be employed sparingly.3 Re­

consideration is justified when (l) there has been an

intervening change in the law! (2) new evidence has

been discovered that was not previously available to

the parties at the time the original order was entered;

5:i2-cv-46i; Daker v. Head, Case No. 5:i4-cv-138;

Daker v. Bryson, Case No. 5:i5-cv-88; Daker v. Bryson,

Case No. 5-16-cv-538; Daker v. Bryson, Case No. 5-17cv-251 Daker v. Dozier, Case No. 5:i7-cv-25.

2 Smith v. Owens, Case No. 5:i2-cv-26; Gumm v.

Jacobs, Case No. 5-15-cv-4l; Nolleyv. Nelson, Case No.

5:i5-cv-75l Nolley v. McLaughlin, Case No. 5-15-cv149; Upshaw v. McLaughlin, Case No. 5:i5-cv-395;

Sterling v. Sellers, Case No. 5-16-cv-13.

3 Region 8 Forest Servs. Timber Purchasers

Council v. Alcock, 993 F.2d 800, 805-06 (llth Cir.

1993).

App. 57

or (3) reconsideration is necessary to correct a clear

error of law or prevent manifest injustice.4

Although Daker’s pro se filings must be gener­

ously construed,5 his Rule 59(e) Motion cannot “serve

as a vehicle to relitigate old matters or present the

case under a new legal theory ... [or] to give the moving

party another ‘bite at the apple’ by permitting the ar­

guing of issues and procedures that could and should

have been raised prior to judgment.”6 Rather, a mo­

tion for reconsideration “must demonstrate why the

court should reconsider its prior decision and set forth

facts or law of a strongly convincing nature to induce

the court to reverse its prior decision.”7 In his Motion,

Daker merely re-asserts the same arguments and ev­

idence this Court previously considered in its original

ruling. His allegations of the need to correct clear er­

ror of law and the need to prevent manifest injustice

are merely conclusory statements. Daker’s Motion is

without merit, and reconsideration of the Court’s pre­

vious Order would be inappropriate.

Daker has abused the judicial process through

the repeated filings of these motions, blatantly disre­

garding this Court’s Local Rule providing that

“[m]otions for reconsideration shall not be filed as a

4 Richards v. United States, 67 F. Supp. 2d 1321,

1322 (M.D. Ala. 1999); McCoy v. Macon Water Auth.,

966 F. Supp. 1209, 1222-23 (M.D. Ga. 1997).

5 Erickson v. Pardus, 551 U.S. 89, 94 (2007).

6 Mincey v. Head, 206 F.3d 1106,1137 (llth Cir.

2000) (internal quotation and citations omitted).

7 Fla. Coll, of Osteopathic Med., Inc. v. Dean

Witter Reynolds, Inc„ 12 F. Supp. 2d 1306,1308 (M.D.

Fla. 1998).

App. 58

matter of routine practice.”8 These motions, like his

various other post-judgment motions, serve only to un­

necessarily prolong litigation in this Court, and the

Court will not allow Daker’s pattern of abuse of the

judicial process to continue. Although the Court must

give substantial weight to a prisoner’s right of access

to the Courts,9 that right “is neither absolute nor un­

conditional.” 10 Although courts may not construct

blanket orders that completely shut the courthouse

doors to the overly litigious, they may erect reasonable

barriers that protect their Article III duties.11

Once again, Daker is reminded that this Court’s

Local Rules prohibit the filing of motions for reconsid­

eration as a matter of routine practice. If Daker con­

tinues to seek reconsideration of the Court’s orders,

the Court will impose appropriate sanctions.

CONCLUSION

In accordance with the foregoing, Plaintiffs Mo­

tion to Vacate [Doc. 26] is hereby DENIED.

SO ORDERED, this 24th day of October, 2017.

/s/ C. Ashley Royal

C. ASHLEY ROYAL, SENIOR JUDGE

8 L.R. 7.6, MDGA.

9 Procup v. Strickland, 792 F.2d 1069, 1072

(llth Cir. 1986) (per curiam)', see also Miller v. Donald,

541 F.3d 1091, 1096 (llth Cir. 2008).

10 Cofield v. Ala. Pub. Serv. Comm’n, 936 F.2d

512, 517 (llth Cir. 1191) (internal quotation marks

and citation omitted).

11 Miller, 541 F.3d at 1096-97.

App. 59

4

UNITED STATES DISTRICT COURT

App. 60

USCAll Case: 17-13384 Date Filed: 08/30/2021

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-13384-HH

WASEEM DAKER,

Plaintiff-Appellant,

versus

TIMOTHY WARD,

Assistant Commissioner,

JACK KOON,

Facilities Director,

STEVE UPTON,

Deputy Facilities Director,

OTIS STANTON,

State Wide Tier Coordinator,

JENNIFER AMMONS,

General Counsel,

STATE OF GEORGIA, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Georgia

ON PETITION(S) FOR REHEARING AND PETI­

TION^) FOR REHEARING EN BANC

App. 61

BEFORE: WILSON, ROSENBAUM, and HULL, Cir­

cuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED,

no judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc. (FRAP 35) The Petition for Panel Rehearing is

also DENIED. (FRAP 40)

App. 62