FILED
United States Court of Appeals
Tenth Circuit
December 28, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
SHAABAN SHAABAN HAFED,
Plaintiff-Appellant,
v. Nos. 09-1090 & 09-1365
(D.C. No. 1:07-CV-01499-ZLW-KMT)
FEDERAL BUREAU OF PRISONS; (D. Colo.)
MICHAEL MUKASEY; HARLEY
LAPPIN; RON WILEY; ROD
BAUER, sued in their official
capacities,
Defendants-Appellees.
ORDER
Before BRISCOE, Chief Judge, BALDOCK and TACHA, Circuit Judges.
BRISCOE, Chief Judge.
Appellant Shaaban Shaaban Hafed 1 is a federal prisoner appearing in this
1
Appellant was convicted under the name “Shaaban Hafiz Ahmad Ali
Shaaban” of acquiring American citizenship by fraud, using the name Shaaban
Shaaban Hafed. See Aplee. Br. at 1, n.1; United States v. Shaaban, 252 F. App’x
744, 745 (7th Cir. 2007), cert. denied sub nom. Hafed v. United States, 129 S. Ct.
584 (Nov. 10, 2008), reh’g denied, 129 S. Ct. 1408 (Feb. 23, 2009). We note that
appellees do not concede that “Shaaban Shaaban Hafed” is appellant’s real name.
See Aplee. Br. at 1, n.1.
court pro se, and seeking to proceed in forma pauperis (ifp). These appeals
present us with the opportunity to clarify what counts as a “strike” under the
Prison Litigation Reform Act (PLRA) for purposes of future ifp eligibility, and
when, in the sequence of litigation, that the strike can be counted. In Jennings,
we addressed dismissals under 28 U.S.C. § 1915(e)(2)(B), but did not decide
whether a district court’s dismissal subsequent to screening under 28 U.S.C.
§ 1915A should count as a strike. See generally Jennings v. Natrona Cnty. Det.
Ctr. Med. Facility, 175 F.3d 775 (10th Cir. 1999). We now hold that a dismissal
under 28 U.S.C. § 1915A counts as a strike when the action was dismissed as
frivolous, malicious, or for failure to state a claim, the same grounds listed in
28 U.S.C. § 1915(g). As regards when a strike ripens and can be counted, a strike
counts against a prisoner from the date of the Supreme Court’s denial or dismissal
of a petition for writ of certiorari, if the prisoner filed one, or from the date when
the time to file a petition for writ of certiorari expired, if he did not. And if the
prisoner did not file a direct appeal in a circuit court, a district court’s dismissal
counts as a strike from the date when his time to file a direct appeal expired.
In No. 09-1365, Hafed appeals from the district court’s August 5, 2009,
final order dismissing his first amended civil rights complaint with prejudice as a
sanction for his noncompliance with the magistrate judge’s order to provide his
deposition. In No. 09-1090, he appeals from the district court’s February 11,
2009, interlocutory order overruling his objections to the magistrate judge’s
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orders striking three of his motions for preliminary injunctive relief and denying a
motion for reconsideration.
Having reviewed appellant’s numerous dismissals from this court and other
courts, we conclude that he had three strikes countable in this court at the time he
filed No. 09-1365. 2 Therefore, appellant is barred by the “three strikes rule,”
which requires prepayment of the entire filing fee in No. 09-1365 before we
would consider it, unless he had made credible allegations that he was in
“imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g). We
conclude that appellant has not met this condition precedent, and that he must
prepay the filing fee before we will address the merits of his appeal in
No. 09-1365. See Dubuc v. Johnson, 314 F.3d 1205, 1207-10 (10th Cir. 2003). If
he does not pay the fee and we do not reach the merits of his challenge to the
dismissal with prejudice of his first amended complaint, then No. 09-1090,
challenging an interlocutory order, will become moot.
I. “Strikes” under 28 U.S.C. § 1915(g)
A. Evaluation of Countable Strikes
Under the PLRA, prisoners obtain a “strike” against them for purposes of
future ifp eligibility when their “action or appeal in a court of the United States
2
At the time appellant filed No. 09-1090, he had one strike in this court. We
note in the discussion that follows, however, that prior to the filing of his appeal
in No. 09-1365, appellant accrued two additional strikes, thereby qualifying
appellant for the “three strikes” rule.
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. . . was dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted. . . .” 28 U.S.C. § 1915(g). “[T]he ‘three
strikes’ provision of the ifp statute applicable to indigent prisoners[] requires
so-called ‘frequent filer’ prisoners to prepay the entire filing fee before federal
courts may consider their civil actions and appeals.” Kinnell v. Graves, 265 F.3d
1125, 1127 (10th Cir. 2001) (quotation omitted). To meet the only exception to
the prepayment requirement, a prisoner who has accrued three strikes must make
“specific, credible allegations of ‘imminent danger[.]’” Id. at 1127-28 (quoting
§ 1915(g)). Appellant has filed numerous civil rights cases in several district
courts, numerous civil appeals in several circuit courts, and nine petitions for writ
of certiorari (at this counting) in civil cases in the Supreme Court. Many of these
filings resulted in dismissals, and we have reviewed them for strikes under Tenth
Circuit law. We conclude that appellant had three clear strikes when he filed
No. 09-1365 in this court in August 2009. 3
3
Three courts outside this circuit have denied appellant leave to proceed ifp
in civil cases on the basis that he had three strikes. See Shaaban v. Morrison,
No. 10-2096, Doc. 7 (7th Cir. June 23, 2010) (caption on district court docket
sheet is Hafed v. Morrison, No. 1:10-cv-191-WTL-DML); Hafed v. United States,
No. 1:10-cv-191-WTL-DML, 2010 WL 1265892, at *1 n.1 (S.D. Ind. Mar. 25,
2010) (caption on district court docket sheet is Hafed v. Morrison); Hafed v.
U.S. Court of Appeals, for the 7th Circuit, 1:08-cv-06042, Doc. 6 (N.D. Ill.
Nov. 13, 2008). Their orders are summary, however, and we cannot conclude
without further inquiry that the listed dismissals constitute strikes that count
against No. 09-1365 under Tenth Circuit law. We also note that, on March 1,
2010, the Supreme Court imposed filing restrictions against appellant, requiring
(continued...)
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We set out some basic rules about strikes in Jennings, 175 F.3d at 780-81.
When an action or appeal is dismissed as frivolous, as malicious, or for failure to
state a claim under 28 U.S.C. § 1915(e)(2)(B), the dismissal counts as a strike.
See Jennings, 175 F.3d at 777-78, 780-81. In addition, we stated that “a
§ 1915(e)(2)(B) dismissal should not count against a litigant until he has
exhausted or waived his appeals.” Jennings, 175 F.3d at 780. We now clarify
that a strike counts against a prisoner from the date of the Supreme Court’s denial
or dismissal of a petition for writ of certiorari, if the prisoner filed one, or from
the date when the time to file a petition for writ of certiorari expired, if he did
not. 4 Cf. United States v. Burch, 202 F.3d 1274, 1276-77 (10th Cir. 2000)
(rejecting Seventh Circuit’s approach to use circuit’s mandate date as date from
which period of limitations for filing motion under 28 U.S.C. § 2255 runs to
avoid possibility—even the unlikely possibility—of ruling on a habeas petition
while the underlying conviction was on direct review in the Supreme Court). And
if the prisoner did not file a direct appeal in a circuit court, a district court’s
dismissal counts as a strike from the date when his time to file a direct appeal
expired.
3
(...continued)
him to prepay the filing fee in future noncriminal cases. See Hafed v. State of
Israel, 130 S. Ct. 1692 (2010) (Mem.) (No. 09-8128).
4
We do not address whether or not the Supreme Court’s dismissal of a
petition for writ of certiorari as frivolous or malicious under S. Ct. R. 39.8 counts
as a strike.
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Having thus clarified the parameters of § 1915(g), we have examined
appellant’s filings which have been dismissed in order to determine whether these
dismissals qualify as “strikes” for the purposes of the PLRA. We have identified
three dismissals that constitute strikes incurred before No. 09-1365 was filed:
(1) the Southern District of Indiana’s dismissal of appellant’s complaint in
Hafed v. Brooks, No. 06-cv-00005-RLY-TAB (S.D. Ind. Jan. 11, 2006); (2) the
Southern District of Indiana’s dismissal of appellant’s complaint in Hafed v.
Government of the State of Israel, No. 08-cv-00773-SEB-TAB (S.D. Ind. June 20,
2008); and (3) the Seventh Circuit’s dismissal of appellant’s appeal in Hafed v.
Government of the State of Israel, No. 08-2744 (7th Cir. Jul. 11, 2008).
i. First Strike
Hafed v. Brooks was a civil rights suit appellant filed against three federal
prosecutors and an FBI agent in the Southern District of Indiana on January 3,
2006. See D.C. No. 06-cv-00005-RLY-TAB, Doc. 1. On January 11, the district
court granted ifp and dismissed the case without prejudice under § 1915A(b)
because appellant alleged facts showing that he had no claim, that is, because the
complaint failed to state a claim. See Brooks, D.C. No. 06-cv-00005-RLY-TAB,
Doc. 4, at 2. The court held that appellant could not use a civil rights action to
challenge his criminal detention, that he failed to allege the defendants’ personal
participation in an alleged assault in prison, and that his claims alleging that the
defendants violated his constitutional rights by causing him to be charged with a
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crime were premature under Heck v. Humphrey, 512 U.S. 477 (1994), because his
criminal convictions had not been nullified. Brooks, D.C. No. 06-cv-00005,
Doc. 4, at 2. In Jennings, we addressed whether dismissals under § 1915(e)(2)(B)
should count as strikes, but we did not decide whether a district court’s dismissal
subsequent to screening under § 1915A should count as a strike. See Jennings,
175 F.3d at 778-79. We now hold that a dismissal under § 1915A counts as a
strike when the action was dismissed as frivolous, malicious, or for failure to
state a claim, the same grounds listed in § 1915(g).
The Southern District of Indiana’s dismissal in Brooks satisfies the standard
for a strike under § 1915A(b)(1) and § 1915(g). To the extent that the district
court left it unclear that it considered all of the stated grounds for the dismissal to
be for appellant’s failure to state a claim, we have previously upheld a dismissal
of a prisoner’s claims for damages on the basis that they were premature under
Heck and failed to state a claim. See Davis v. Kan. Dep’t of Corr., 507 F.3d
1246, 1248, 1249 (10th Cir. 2007). Thus, in Brooks, the action was dismissed for
failure to state a claim and was a strike. Because appellant did not appeal, the
dismissal counts from March 13, 2006, when appellant’s sixty days to appeal to
the Seventh Circuit expired. See Jennings, 175 F.3d at 780; Fed. R. App. P.
4(a)(1)(B).
ii. Second Strike
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Hafed v. Government of the State of Israel was a civil rights action filed by
appellant in the Southern District of Indiana in June 2008. See
D.C. No. 1:08-cv-00773, Doc. 1. The district court screened the complaint and
dismissed it, ambiguously, under “§ 1915A(b).” Government of the State of
Israel, D.C. No. 1:08-cv-00773, Doc. 5, at 3. The district court was not entirely
clear as to the ground on which its dismissal was ultimately based, however. The
court set out all the standards that could apply—frivolousness under
§ 1915A(b)(1), suing an immune defendant under § 1915A(b)(2), and failure to
state a claim under § 1915A(b)(1). Government of the State of Israel,
D.C. No. 1:08-cv-00773, Doc. 5, at 1.
The consideration of whether a dismissal based in part on 28 U.S.C.
§ 1915A(b)(2) because the defendant was immune from suit should count as a
strike presents some complexity because that ground is not explicitly included in
§ 1915(g). We have previously observed, however, that a complaint could
properly be dismissed by a district court sua sponte as frivolous, if it was clear
from the face of the complaint that the defendant was absolutely immune from
suit and no further factual development was required. Yellen v. Cooper, 828 F.2d
1471, 1476 (10th Cir. 1987). Our determination that a particular dismissal
constitutes a strike is not formalistic or mechanical; rather, we must consider the
nature of the dismissal and, if the district court did not make it clear, whether the
dismissal fits within the language of § 1915(g).
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We construe the Southern District of Indiana’s order to mean that the
immunity ground for dismissal was subsumed in frivolousness or appellant’s
failure to state a claim, because appellant affirmatively asserted facts showing
that he could not meet the expropriation exception to Israel’s immunity, so he had
no “legally viable claim[.]” See Government of the State of Israel,
D.C. No. 1:08-cv-00773, Doc. 5, at 3. We conclude that the district court’s
dismissal in Government of the State of Israel is based on grounds listed in both
§ 1915A(b)(1) and § 1915(g), and it therefore counts as a strike. This strike
counts from May 26, 2009, when the Supreme Court dismissed appellant’s
petition for writ of certiorari. See Hafed v. State of Israel, 129 S. Ct. 2439 (2009)
(Mem.) (No. 08-9403).
iii. Third Strike
In addition, the Seventh Circuit dismissed appellant’s appeal in Hafed v.
Government of the State of Israel, No. 08-2744. That court first denied
appellant’s motion for leave to proceed ifp under Lee v. Clinton, 209 F.3d 1025,
1026-27 (7th Cir. 2000), that is, as frivolous. See Government of the State of
Israel, No. 08-2744, Doc. 17. When appellant did not pay the filing fee, the
Seventh Circuit dismissed the appeal for nonpayment. See id., Doc. 19.
A circuit court’s dismissal of an appeal on the ground of frivolousness
would fall under § 1915(e)(2)(B)(i) and would count as a strike. See Jennings,
175 F.3d at 780-81. In Government of the State of Israel, however, the Seventh
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Circuit did not actually dismiss the appeal as frivolous, but for nonpayment of the
filing fee, that is, for failing to prosecute the appeal. A dismissal for failure to
prosecute would not necessarily be a strike because “[e]ach of the three categories
of strikes in [§ 1915(g)] involves dispositions that look to the merits of the suit[,
but] a dismissal for failure to prosecute is made without regard to the merits of
the claim[.]” Butler v. Dep’t of Justice, 492 F.3d 440, 442-44 (D.C. Cir. 2007)
(holding, where there was no indication in the procedural history that the court
had held that the five prior appeals dismissed for failure to prosecute were
frivolous, that the dismissals did not count as strikes under § 1915(g)). However,
in Thompson v. Drug Enforcement Administration, 492 F.3d 428, 433 (D.C. Cir.
2007), the D.C. Circuit held that a dismissal for failure to prosecute was a strike
where the circuit court had previously declared the appeal frivolous when it
denied the prisoner’s motion to proceed ifp. The D.C. Circuit rejected as
“hypertechnical” the prisoner’s argument that the appeal was “formally dismissed
. . . for failure to prosecute, rather than for frivolousness[, because b]ut for the
judge declaring it frivolous, [the prisoner’s] appeal would have gone forward.”
Id.
In our view, the Seventh Circuit’s determination that the appeal in
Government of the State of Israel was frivolous when it denied appellant’s motion
for ifp can properly be termed the “but for” cause of that court’s subsequent
dismissal, and we agree with the D.C. Circuit’s conclusion that it would be
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“hypertechnical” to hold that the resulting dismissal for nonpayment was not a
strike. See Thompson, 492 F.3d at 433; see also O’Neal v. Price, 531 F.3d 1146,
1152 (9th Cir. 2008) (holding that a “district court has ‘dismissed’ the prisoner’s
case for purposes of § 1915(g) when the court denies the prisoner’s application to
file the action without prepayment of the filing fee on the ground that the
complaint is frivolous, malicious or fails to state a claim, and thereupon
terminates the complaint” (quoting § 1915(g)). This strike also counts from
May 26, 2009, when the Supreme Court dismissed appellant’s petition for writ of
certiorari. See Hafed v. State of Israel, 129 S. Ct. 2439 (2009) (Mem.)
(No. 08-9403).
Having concluded that appellant had three clear strikes as of May 26, 2009,
before he filed No. 09-1365 on August 17, 2009, we do not address his arguments
in that appeal on their merits. See Dubuc, 314 F.3d at 1208-10.
B. Imminent-Danger Exception
There is only one exception to the prepayment requirement in § 1915(g),
Kinnell, 265 F.3d at 1127-28, and it applies to a prisoner who “is under imminent
danger of serious physical injury[,]” § 1195(g). To meet that exception, appellant
was required to make “specific, credible allegations of imminent danger of
serious physical harm[.]” Kinnell, 265 F.3d at 1127-28 (quotations omitted).
Every circuit to have decided the issue so far has concluded that the statute’s use
of the present tense shows that a prisoner must have alleged an imminent danger
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at the time he filed his complaint. See Andrews v. Cervantes, 493 F.3d 1047,
1053-54 (9th Cir. 2007); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003);
Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002); Abdul-Akbar v.
McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (en banc); Medberry v. Butler,
185 F.3d 1189, 1193 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717
(8th Cir. 1998); Baños v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998) (per curiam).
In this case, however, the district court did not consider whether appellant had
struck out based on his past dismissals; rather, that issue became apparent when
he filed his motions for leave to proceed ifp on appeal. But we need not decide
whether appellant was required to allege imminent danger at the time he filed his
first amended complaint or when he filed the appeals now before us. Giving him
the benefit of the doubt on that question, appellant did not sufficiently allege that
he was in imminent danger of serious physical injury.
An appellant should make his allegations of imminent danger in his motion
for leave to proceed ifp. See White v. Colorado, 157 F.3d 1226, 1231 (10th Cir.
1998). But even if he points to other papers to establish his allegations of
imminent harm, he should make a “specific reference as to which of the
defendants may have denied him what medication or treatment for what ailment
on what occasion.” Id. at 1232. He should identify at least “the general nature of
the ‘serious physical injury’ he asserts is imminent.” Id. “[V]ague and utterly
conclusory assertions” are insufficient. Id. at 1231. “[C]redible, uncontroverted
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allegations of physical threats and attacks” would be sufficient, however. Id.
at 1232.
When appellant filed No. 09-1365 in August 2009, he had been on notice
for nearly a year from the Northern District of Illinois that he had “struck out.”
See Hafed v. U.S. Court of Appeals, for the 7th Circuit, 1:2008-cv-06042, Doc. 6
(N.D. Ill. Nov. 13, 2008). We have carefully reviewed appellant’s first amended
complaint, his motions for leave to proceed ifp on appeal in No. 09-1365, and his
several motions filed in this court asserting an urgent need for medical help. In
our view, his allegations of imminent harm are vague and conclusory, and they do
not satisfy the imminent-danger exception to the three-strikes rule, as established
by White.
II. No. 09-1090
In No. 09-1090, appellant seeks review of the district court’s order
upholding the magistrate judge’s interlocutory rulings entered prior to the
dismissal of his first amended complaint. Although this appeal is from a
non-final order; this appeal ripened once the district court entered its final ruling
which dismissed appellant’s first amended complaint. Jackson v. Volvo Trucks N.
Am., Inc., 462 F.3d 1234, 1238 (10th Cir. 2006). (“[W]here parties appeal
non-final orders, the court’s subsequent issuance of an order explicitly
adjudicating all remaining claims may cause a case to ripen for appellate review.”
(quotation omitted.)) If appellant does not pay the filing fee for No. 09-1365 to
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allow us to reach the merits of his arguments, however, No. 09-1090 will become
moot.
III. Conclusion
We grant appellant’s motion for leave to proceed ifp in No. 09-1090, but do
not proceed to the merits of that interlocutory appeal at this time. Appellant is
reminded that he must continue making partial payments until the entire filing fee
for that appeal is paid in full. We deny appellant’s motion for leave to proceed
ifp in No. 09-1365 and direct him to pay the full filing fee for that appeal within
thirty days. Appellant’s failure to pay the filing fee as directed will result in the
dismissal of No. 09-1365 for failure to prosecute, and the dismissal of
No. 09-1090 as moot. See Young v. Miller, 144 F.3d 1298 (10th Cir. 1998).
Appellant’s other outstanding motions are denied. Appellees’ motion to strike is
denied.
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