Case: 14-12139 Date Filed: 05/04/2016 Page: 1 of 15
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12139
________________________
D.C. Docket No. 5:12-cv-00459-CAR
WASEEM DAKER,
Plaintiff-Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 4, 2016)
Before WILLIAM PRYOR, ANDERSON, and PARKER,∗ Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
∗
Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit, sitting
by designation.
Case: 14-12139 Date Filed: 05/04/2016 Page: 2 of 15
This appeal presents a question of first impression about the “three strikes”
provision of the Prison Litigation Reform Act, which ordinarily denies in forma
pauperis status to a prisoner who “on 3 or more prior occasions” brought a federal
action or appeal that “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).
Waseem Daker is a state prisoner and a serial litigator in federal courts. Daker has
submitted over a thousand pro se filings in over a hundred actions and appeals in at
least nine different federal courts. In this lawsuit, the district court denied Daker’s
petition to proceed in forma pauperis because it concluded that he had six strikes
under the Act. Two of Daker’s earlier filings were dismissed for lack of
jurisdiction, and the other four were dismissed for want of prosecution. In three of
the four dismissals for want of prosecution, a judge of this Court determined that
Daker could not proceed in forma pauperis because his filings were frivolous. But
a single circuit judge cannot dismiss an action or appeal, Fed. R. App. P. 27(c);
instead, panels of this Court dismissed Daker’s filings because he failed to pay the
filing fee, 11th Cir. R. 42-1(b). Although Daker is a serial litigant who has clogged
the federal courts with frivolous litigation, we must follow the text of the Act,
which does not classify his six prior dismissals for lack of jurisdiction and want of
prosecution as strikes. We vacate the dismissal of Daker’s complaint and remand
for further proceedings.
2
Case: 14-12139 Date Filed: 05/04/2016 Page: 3 of 15
I. BACKGROUND
Waseem Daker is a Georgia prisoner serving a life sentence for murder. He
was convicted in October 2012 after unsuccessfully representing himself at trial.
Daker was in jail awaiting trial from 2010 to 2012, and he was in prison for
aggravated stalking from 1996 to 2005.
In November 2012, Daker filed his current lawsuit against the Commissioner
of the Department of Corrections and other officials for various violations of his
civil rights. Along with his complaint, Daker filed a petition to proceed in forma
pauperis. He also asked for a preliminary injunction requiring the prison to give
him access to a law library.
In his petition to proceed in forma pauperis, Daker attested that he is
indigent and cannot afford the filing fee. He swore that he has been unemployed
since 2010, earned no income in the last year except for a $50 loan from his
brother that the prison seized immediately, and has $0 in his checking, savings, and
prison accounts. In terms of his assets, Daker disclosed that he owns a house that
he purchased for $395,000 in 2005. Although his family still lives there, Daker
attested that the house has “lost value” and that he is “unable to make [the]
mortgage payments.” As for his debts, Daker alleged that he owes $345,000 on his
mortgage, $25,000 in student loans, $36,000 in attorney’s fees, and $2,000 to the
prison.
3
Case: 14-12139 Date Filed: 05/04/2016 Page: 4 of 15
The Commissioner filed a motion to dismiss the complaint. The
Commissioner argued that Daker is ineligible to proceed in forma pauperis for two
reasons: he had at least three strikes under the Act when he filed his complaint and
he is not indigent.
The Commissioner identified six previous filings by Daker. Two were
dismissed for lack of jurisdiction: Daker v. Head, No. 01-14624 (11th Cir. Jan. 25,
2002), an interlocutory appeal from a civil lawsuit that this Court dismissed “for
lack of jurisdiction”; and Aziyz v. Tremble, No. 05-11696 (11th Cir. May 9, 2005),
an interlocutory appeal from a civil lawsuit that this Court dismissed “for lack of
jurisdiction.” Four were dismissed for want of prosecution: Daker v. Barrett,
No. 03-15771 (11th Cir. July 26, 2004), an appeal from a civil lawsuit that this
Court dismissed “for want of prosecution because [Daker] has failed to file [an]
appellant brief within the time fixed by the rules”; In re Daker, No. 12-12073 (11th
Cir. July 12, 2012), a petition for a writ of mandamus that this Court dismissed
“for want of prosecution” under Eleventh Circuit Rule 42-1(b) “because . . . Daker
failed to pay the $450 docket fee . . . within the time fixed by the rules”; In re
Daker, No. 12-12072 (11th Cir. Aug. 6, 2012), a petition for a writ of mandamus
and habeas corpus that this Court dismissed “for want of prosecution” under Rule
42-1(b) “because . . . Daker failed to pay the $450 docket fee . . . within the time
fixed by the rules”; and Georgia v. Daker, No. 12-12519 (11th Cir. Nov. 5, 2012),
4
Case: 14-12139 Date Filed: 05/04/2016 Page: 5 of 15
an appeal from a remand order that this Court dismissed “for want of prosecution”
under Rule 42-1(b) “because . . . Daker has failed to pay the filing and docketing
fees . . . within the time fixed by the rules.” In the last three dismissals, a single
judge of this Court denied Daker’s petitions to proceed in forma pauperis because
his filings were “frivolous.”
The Commissioner also submitted material to prove that Daker could not
proceed in forma pauperis because he is not indigent. The Commissioner
submitted a “Zestimate” from Zillow.com, which valued Daker’s house at
$489,217—contradicting his assertion that his house has “lost value.” The
Commissioner also submitted a report and recommendation from Magistrate Judge
Scofield in a separate case. Judge Scofield stated that Daker owns a house “worth
substantially more than its mortgage.” Judge Scofield also doubted that Daker’s
other debts were real because Daker never disclosed them in his previous petitions
to proceed in forma pauperis. Daker’s alleged debt for attorney’s fees was “all the
more dubious,” according to Judge Scofield, “because Daker represented himself
at his murder trial, and the court-appointed backup counsel were court-paid.”
On February 25, 2014, a magistrate judge agreed with both of the
Commissioner’s arguments and recommended denying Daker’s petition to proceed
in forma pauperis. The district court adopted the report and recommendation of the
magistrate judge on March 24, 2014. The district court stated that Daker “ha[d] not
5
Case: 14-12139 Date Filed: 05/04/2016 Page: 6 of 15
filed an objection” to the report of the magistrate judge. Because Daker could not
proceed in forma pauperis and had not paid the filing fee, the district court
dismissed his complaint without prejudice. It also denied his request for a
preliminary injunction because Daker provided “no facts regarding his current
access to legal materials” and no explanation of how he suffered an injury.
Although the district court concluded that Daker had not objected to the
report and recommendation of the magistrate judge, Daker had objected in a filing
dated March 13, 2014. The district court missed this filing because it did not arrive
until April 4, 2014—11 days after the district court dismissed Daker’s complaint.
In the March 13 filing, Daker objected to the report and recommendation of the
magistrate judge on several grounds. With respect to his indigence, Daker argued
that the magistrate judge should not have relied on the report from Judge Scofield
because it was an “extrajudicial” source. He also disagreed with the suggestion by
Judge Scofield that he did not owe attorney’s fees; Daker alleged that the state
court required him to “reimburse the county for court-appointed counsel” as part of
his sentence. Daker further objected to the Zestimate from Zillow.com because it
was unreliable and “inflated.” Contrary to the Zestimate, Daker argued that
comparable houses in his neighborhood had recently sold for $330,000, $320,000,
$285,900, $310,000, $285,000, and $290,000—all less than the $345,000 he owes
6
Case: 14-12139 Date Filed: 05/04/2016 Page: 7 of 15
on his mortgage. Finally, Daker cited several orders in which other courts found
that he was indigent on “the same facts” he alleged in his current petition.
II. STANDARDS OF REVIEW
We review the denial of a petition to proceed in forma pauperis for abuse of
discretion, Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 (11th Cir. 2004),
but we review interpretations of the Act de novo, Brown v. Johnson, 387 F.3d
1344, 1347 (11th Cir. 2004). We review the denial of a preliminary injunction for
abuse of discretion. Forsyth Cty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032,
1039 (11th Cir. 2011).
III. DISCUSSION
We divide our discussion in two parts. First, we explain why the district
court erred when it concluded that Daker had three or more strikes under the Act.
Second, we explain why the district court abused its discretion when it found that
Daker is not indigent. Although Daker also complains about the denial of his
motion for a preliminary injunction, we see no abuse of discretion and do not
discuss the issue further.
A. The District Court Erred When It Concluded that Daker Had Six Strikes.
The Commissioner contends that Daker’s six dismissals for lack of
jurisdiction and want of prosecution qualify as strikes under the Act. For this and
any other question of statutory interpretation, our predecessor court endorsed
7
Case: 14-12139 Date Filed: 05/04/2016 Page: 8 of 15
Justice Frankfurter’s three-part test: “(1) Read the statute; (2) read the statute;
(3) read the statute!” Dobbs v. Costle, 559 F.2d 946, 948 n.5 (5th Cir. 1977)
(quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in
Benchmarks 196, 202 (1967)). Applying that test resolves this appeal.
The three-strikes provision of the Act bars a prisoner who is not in danger of
physical injury and has had three frivolous, malicious, or meritless filings from
proceeding in forma pauperis:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding [in forma pauperis] if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Three specific grounds render a dismissal a strike:
“frivolous,” “malicious,” and “fails to state a claim upon which relief may be
granted.” Under the negative-implication canon, these three grounds are the only
grounds that can render a dismissal a strike. See Antonin Scalia & Bryan A.
Garner, Reading Law 107–11 (2012). Neither “lack of jurisdiction” nor “want of
prosecution” are enumerated grounds, so a dismissal on either of those bases,
without more, cannot serve as a strike. Other circuits agree. See Haury v. Lemmon,
656 F.3d 521, 523 (7th Cir. 2011); Thompson v. DEA, 492 F.3d 428, 437 (D.C. Cir.
2007); Butler v. DOJ, 492 F.3d 440, 443–44 (D.C. Cir. 2007); Tafari v. Hues, 473
8
Case: 14-12139 Date Filed: 05/04/2016 Page: 9 of 15
F.3d 440, 442–44 (2d Cir. 2007); Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.
2005).
The Commissioner argues that Daker’s filings were frivolous, but we cannot
conclude that an action or appeal “was dismissed on the grounds that it is
frivolous” unless the dismissing court made some express statement to that effect.
By using the phrase “was dismissed” in the past tense and the phrase “on the
grounds that,” the Act instructs us to consult the prior order that dismissed the
action or appeal and to identify the reasons that the court gave for dismissing it.
We cannot conclude that an action or appeal “was dismissed on the grounds that it
is frivolous” based on our present-day determination that the action or appeal was
frivolous or based on our conclusion that the dismissing court could have
dismissed it as frivolous. We must interpret the order of dismissal and figure out
what the dismissing court actually did.
Daker’s appeals were not dismissed as frivolous. Our prior orders instead
dismissed his filings for “lack of jurisdiction” and “want of prosecution.” A
dismissal for want of prosecution says nothing about the underlying merits of the
appeal, see Butler, 492 F.3d at 443–44; it means only that the appellant failed to
comply with our internal rules, see 11th Cir. R. 42-1(b). Similarly, a dismissal for
lack of jurisdiction ordinarily does not—indeed, cannot—express any view on the
merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). And
9
Case: 14-12139 Date Filed: 05/04/2016 Page: 10 of 15
a dismissal for lack of jurisdiction, without more, does not prove that the
appellant’s assertion of jurisdiction was itself frivolous. The Supreme Court has
explained the difference between an assertion that is frivolous and an assertion that
is wrong. See Neitzke v. Williams, 490 U.S. 319, 326–29 (1989). An assertion is
not “frivolous” unless it “lacks an arguable basis either in law or in fact.” Id. at
325. All we can deduce from a mere dismissal for lack of jurisdiction is that the
prisoner’s assertion of jurisdiction was wrong; we cannot know whether the
dismissing court concluded that the higher standard for frivolousness was satisfied
unless the court expressly says so. Of course, the dismissing court does not need to
invoke any magic words or even use the word “frivolous,” see Rivera v. Allin, 144
F.3d 719, 731 (11th Cir. 1998), abrogated in part on other grounds by Jones v.
Bock, 549 U.S. 199 (2007), although such language certainly aids our review, see
Martinez, 364 F.3d at 1308. But the dismissing court must give some signal in its
order that the action or appeal was frivolous. See Byrd v. Shannon, 715 F.3d 117,
126 (3d Cir. 2013). Our prior orders gave no such signal.
True, three of the dismissals for want of prosecution—In re Daker, No. 12-
12073; In re Daker, No. 12-12072; and Georgia v. Daker, No. 12-12519—were
dismissed after a single judge of this Court denied Daker’s petitions to proceed in
forma pauperis because his arguments were “frivolous.” Two of our sister circuits
have held that this sequence of events results in a strike. See Hafed v. Fed. Bureau
10
Case: 14-12139 Date Filed: 05/04/2016 Page: 11 of 15
of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011); Thompson, 492 F.3d at 433. The
D.C. and Tenth Circuits reason that the judge’s “determination that the appeal . . .
was frivolous when [he] denied appellant’s motion for [in forma pauperis] can
properly be termed the ‘but for’ cause of [the] court’s subsequent dismissal.”
Hafed, 635 F.3d at 1179 (quoting Thompson, 492 F.3d at 433). Any other reading
of the Act would be “hypertechnical,” according to our sister circuits. Id. (quoting
Thompson, 492 F.3d at 433). We respectfully disagree.
A dismissal for want of prosecution, even after the denial of a petition to
proceed in forma pauperis on the grounds of frivolousness, cannot be a strike
under the Act. Petitions for permission to proceed in forma pauperis are typically
decided by a single judge. See 11th Cir. R. 27-1(d)(3). When a single judge
concludes that a prisoner is ineligible to proceed in forma pauperis, the judge
enters an order “denying” the prisoner’s petition, not an order “dismissing” the
action or appeal. That distinction is important because, under the Federal Rules of
Appellate Procedure, a single judge “may not dismiss or otherwise determine an
appeal or other proceeding.” Fed. R. App. 27(c). Only a panel of this Court can
dismiss a petition or appeal. With respect to Daker, panels of this Court dismissed
his filings for “want of prosecution” under Eleventh Circuit Rule 42-1(b) because
he failed to pay the filing fee. Nothing in those orders suggested that the panels
agreed with the single judges that Daker’s arguments were frivolous. On the
11
Case: 14-12139 Date Filed: 05/04/2016 Page: 12 of 15
contrary, both our internal rules and the Act allow a panel to dismiss an action or
appeal as “frivolous,” 11th Cir. R. 42-4; 28 U.S.C. § 1915(e)(2)(B)(i), but the
orders dismissing Daker’s filings invoked neither provision.
We find the contrary reasoning of our sister circuits regarding single-judge
orders unpersuasive. The D.C. and Tenth Circuits reason that the single judge’s
denial of the petition to proceed in forma pauperis on the grounds of frivolousness
is the “but for” cause of the panel’s dismissal of the appeal for want of prosecution.
Hafed, 635 F.3d at 1179; Thompson, 492 F.3d at 433. But the concept of but-for
causation appears nowhere in the text of the Act. As explained, the Act uses the
phrase “was dismissed on the grounds that,” which instructs us to find the order of
dismissal and identify the grounds for that order. The Act is concerned with the
grounds articulated in the order, not the sequence of events that may have “caused”
the dismissal. This reading is not “hypertechnical,” Hafed, 635 F.3d at 1179
(quoting Thompson, 492 F.3d at 433); it is the natural one.
Even if but-for causation were somehow relevant under the Act, the denial
of Daker’s petitions to proceed in forma pauperis was not the but-for cause of his
dismissals. The but-for cause was his failure to pay the filing fee. When his
petitions to proceed in forma pauperis were denied on the grounds of
frivolousness, this Court notified Daker that he had 14 days to pay the filing fee or
else his filings would be dismissed by the clerk. See 11th Cir. R. 42-1(b). This
12
Case: 14-12139 Date Filed: 05/04/2016 Page: 13 of 15
waiting period was not a charade: if Daker had paid the filing fee on time, then a
three-judge panel would have had to determine anew whether his filing was
frivolous. Daker’s failure to pay the filing fee, not the frivolity determinations by
the judges who denied his petitions to proceed in forma pauperis, was the but-for
cause of his dismissals for want of prosecution.
We acknowledge that our interpretation does not further the “purpose” of
“deter[ring] frivolous suits,” Bruce v. Samuels, 136 S. Ct. 627, 632 (2016). Our
interpretation means that a prisoner can file unlimited frivolous appeals and avoid
getting strikes by declining to prosecute the appeals after his petitions to proceed in
forma pauperis are denied. See Butler, 492 F.3d at 444. But “even the most
formidable argument concerning the statute’s purposes could not overcome the
clarity we find in the statute’s text.” Nichols v. United States, 136 S. Ct. 1113,
1119 (2016) (quoting Kloeckner v. Solis, 133 S. Ct. 596, 607 n.4 (2012)). We must
interpret the statute that Congress enacted, not rewrite the text to match our
intuitions about unstated congressional purposes.
The district court erred when it concluded that Daker had three or more
strikes under the Act. The six dismissals identified by the Commissioner are not
strikes under the plain meaning of the text. We express no view on whether Daker
has any other strikes. We also express no opinion as to whether one or more of the
six dismissals might have failed to qualify as strikes for other reasons. We hold
13
Case: 14-12139 Date Filed: 05/04/2016 Page: 14 of 15
only that the district court erred when it relied on the two dismissals for lack of
jurisdiction and the four dismissals for want of prosecution to conclude that Daker
was ineligible to proceed in forma pauperis.
B. The District Court Abused Its Discretion When It Found that Daker Is
Not Indigent.
The second reason that Daker was ineligible to proceed in forma pauperis,
according to the district court, was that he is not indigent. The Commissioner
defends this alternative ruling on appeal, but the only argument he makes in his
brief is that Daker “failed to object” to the report of the magistrate judge. The
Commissioner is mistaken.
Daker objected to the report and recommendation of the magistrate judge in
his March 13 filing, and that filing was timely. “Under the ‘prison mailbox rule,’ a
pro se prisoner’s court filing is deemed filed on the date it is delivered to prison
authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.
2009). “Absent evidence to the contrary,” we “assume that [the prisoner’s filing]
was delivered to prison authorities the day he signed it.” Washington v. United
States, 243 F.3d 1299, 1301 (11th Cir. 2001). Daker signed his objections on
March 13, 2014—16 days after the magistrate judge issued the report and
recommendation. The deadline was 17 days, see Fed. R. Civ. P. 72(b)(2), 6(d), so
Daker’s objections were timely.
14
Case: 14-12139 Date Filed: 05/04/2016 Page: 15 of 15
Because the district court missed Daker’s objections, it never considered his
arguments about his indigence. Accordingly, it abused its discretion by denying his
petition to proceed in forma pauperis on that basis. See Thomas v. Evans, 880 F.2d
1235, 1242 (11th Cir. 1989). We remand so that the district court can consider
Daker’s arguments in the first instance. We express no view about his arguments
or whether he is indigent.
IV. CONCLUSION
We VACATE the dismissal of Daker’s complaint and REMAND for
further proceedings.
15