Hafed v. Lappin, et al

Filing 920101228

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

D e c e m b e r 28, 2010
PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT
E l i s a b e t h A. Shumaker C l e r k of Court

S H A A B A N SHAABAN HAFED, Plaintiff-Appellant, v. F E D E R A L BUREAU OF PRISONS; M I C H A E L MUKASEY; HARLEY L A P P I N ; RON WILEY; ROD B A U E R , sued in their official capacities, Defendants-Appellees. N o s . 09-1090 & 09-1365 ( D . C . No. 1:07-CV-01499-ZLW-KMT) ( D . Colo.)

ORDER B e f o r e BRISCOE, Chief Judge, BALDOCK and TACHA, Circuit Judges. B R I S C O E , Chief Judge. A p p e l l a n t Shaaban Shaaban Hafed 1 is a federal prisoner appearing in this

A p p e l l a n t was convicted under the name "Shaaban Hafiz Ahmad Ali S h a a b a n " of acquiring American citizenship by fraud, using the name Shaaban S h a a b a n Hafed. See Aplee. Br. at 1, n.1; United States v. Shaaban, 252 F. App'x 7 4 4 , 745 (7th Cir. 2007), cert. denied sub nom. Hafed v. United States, 129 S. Ct. 5 8 4 (Nov. 10, 2008), reh'g denied, 129 S. Ct. 1408 (Feb. 23, 2009). We note that a p p e l l e e s do not concede that "Shaaban Shaaban Hafed" is appellant's real name. See Aplee. Br. at 1, n.1.

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c o u r t pro se, and seeking to proceed in forma pauperis (ifp). These appeals p r e s e n t us with the opportunity to clarify what counts as a "strike" under the P r i s o n Litigation Reform Act (PLRA) for purposes of future ifp eligibility, and w h e n , in the sequence of litigation, that the strike can be counted. In Jennings, w e addressed dismissals under 28 U.S.C. § 1915(e)(2)(B), but did not decide w h e t h e r 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. C t r . Med. Facility, 175 F.3d 775 (10th Cir. 1999). We now hold that a dismissal u n d e r 28 U.S.C. § 1915A counts as a strike when the action was dismissed as f r i v o l o u s , malicious, or for failure to state a claim, the same grounds listed in 2 8 U.S.C. § 1915(g). As regards when a strike ripens and can be counted, a strike c o u n t s against a prisoner from the date of the Supreme Court's denial or dismissal o f a petition for writ of certiorari, if the prisoner filed one, or from the date when t h e time to file a petition for writ of certiorari expired, if he did not. And if the p r i s o n e r did not file a direct appeal in a circuit court, a district court's dismissal c o u n t s as a strike from the date when his time to file a direct appeal expired. I n No. 09-1365, Hafed appeals from the district court's August 5, 2009, f i n a l order dismissing his first amended civil rights complaint with prejudice as a s a n c t i o n for his noncompliance with the magistrate judge's order to provide his d e p o s i t i o n . In No. 09-1090, he appeals from the district court's February 11, 2 0 0 9 , interlocutory order overruling his objections to the magistrate judge's -2-

o r d e r s striking three of his motions for preliminary injunctive relief and denying a mo t i o n for reconsideration. Having reviewed appellant's numerous dismissals from this court and other c o u r t s , we conclude that he had three strikes countable in this court at the time he f i l e d No. 09-1365. 2 Therefore, appellant is barred by the "three strikes rule," w h i c h requires prepayment of the entire filing fee in No. 09-1365 before we w o u l d consider it, unless he had made credible allegations that he was in " i mmi n e n t danger of serious physical injury." See 28 U.S.C. § 1915(g). We c o n c l u d e that appellant has not met this condition precedent, and that he must p r e p a y the filing fee before we will address the merits of his appeal in N o . 09-1365. See Dubuc v. Johnson, 314 F.3d 1205, 1207-10 (10th Cir. 2003). If h e does not pay the fee and we do not reach the merits of his challenge to the d i s mi s s a l with prejudice of his first amended complaint, then No. 09-1090, c h a l l e n g i n g an interlocutory order, will become moot. I. "Strikes" under 28 U.S.C. § 1915(g) A . Evaluation of Countable Strikes U n d e r the PLRA, prisoners obtain a "strike" against them for purposes of f u t u r e ifp eligibility when their "action or appeal in a court of the United States

A t the time appellant filed No. 09-1090, he had one strike in this court. We n o t e in the discussion that follows, however, that prior to the filing of his appeal i n No. 09-1365, appellant accrued two additional strikes, thereby qualifying a p p e l l a n t for the "three strikes" rule. -3-

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. . . was dismissed on the grounds that it is frivolous, malicious, or fails to state a c l a i m upon which relief may be granted. . . ." 28 U.S.C. § 1915(g). "[T]he `three s t r i k e s ' provision of the ifp statute applicable to indigent prisoners[] requires s o - c a l l e d `frequent filer' prisoners to prepay the entire filing fee before federal c o u r t s may consider their civil actions and appeals." Kinnell v. Graves, 265 F.3d 1 1 2 5 , 1127 (10th Cir. 2001) (quotation omitted). To meet the only exception to t h e prepayment requirement, a prisoner who has accrued three strikes must make " s p e c i f i c , credible allegations of `imminent danger[.]'" Id. at 1127-28 (quoting § 1915(g)). Appellant has filed numerous civil rights cases in several district c o u r t s , numerous civil appeals in several circuit courts, and nine petitions for writ o f certiorari (at this counting) in civil cases in the Supreme Court. Many of these f i l i n g s resulted in dismissals, and we have reviewed them for strikes under Tenth C i r c u i t law. We conclude that appellant had three clear strikes when he filed N o . 09-1365 in this court in August 2009. 3

T h r e e courts outside this circuit have denied appellant leave to proceed ifp i n civil cases on the basis that he had three strikes. See Shaaban v. Morrison, N o . 10-2096, Doc. 7 (7th Cir. June 23, 2010) (caption on district court docket s h e e t is Hafed v. Morrison, No. 1:10-cv-191-WTL-DML); Hafed v. United States, N o . 1:10-cv-191-WTL-DML, 2010 WL 1265892, at *1 n.1 (S.D. Ind. Mar. 25, 2 0 1 0 ) (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. N o v . 13, 2008). Their orders are summary, however, and we cannot conclude w i t h o u t further inquiry that the listed dismissals constitute strikes that count a g a i n s t No. 09-1365 under Tenth Circuit law. We also note that, on March 1, 2 0 1 0 , the Supreme Court imposed filing restrictions against appellant, requiring (continued...) -4-

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W e 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 s t a t e 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 e x h a u s t e d or waived his appeals." Jennings, 175 F.3d at 780. We now clarify t h a t a strike counts against a prisoner from the date of the Supreme Court's denial o r dismissal of a petition for writ of certiorari, if the prisoner filed one, or from t h e date when the time to file a petition for writ of certiorari expired, if he did n o t . 4 Cf. United States v. Burch, 202 F.3d 1274, 1276-77 (10th Cir. 2000) ( r e j e c t i n g Seventh Circuit's approach to use circuit's mandate date as date from w h i c h period of limitations for filing motion under 28 U.S.C. § 2255 runs to a v o i d possibility--even the unlikely possibility--of ruling on a habeas petition w h i l e the underlying conviction was on direct review in the Supreme Court). And i f the prisoner did not file a direct appeal in a circuit court, a district court's d i s mi s s a l counts as a strike from the date when his time to file a direct appeal expired. (...continued) h i m to prepay the filing fee in future noncriminal cases. See Hafed v. State of I s r a e l , 130 S. Ct. 1692 (2010) (Mem.) (No. 09-8128). W e do not address whether or not the Supreme Court's dismissal of a p e t i t i o n for writ of certiorari as frivolous or malicious under S. Ct. R. 39.8 counts a s a strike. -54 3

H a v i n g thus clarified the parameters of § 1915(g), we have examined a p p e l l a n t ' s filings which have been dismissed in order to determine whether these d i s mi s s a l s qualify as "strikes" for the purposes of the PLRA. We have identified t h r e e dismissals that constitute strikes incurred before No. 09-1365 was filed: (1) the Southern District of Indiana's dismissal of appellant's complaint in H a f e d v. Brooks, No. 06-cv-00005-RLY-TAB (S.D. Ind. Jan. 11, 2006); (2) the S o u t h e r n District of Indiana's dismissal of appellant's complaint in Hafed v. G o v e r n m e n t of the State of Israel, No. 08-cv-00773-SEB-TAB (S.D. Ind. June 20, 2 0 0 8 ) ; and (3) the Seventh Circuit's dismissal of appellant's appeal in Hafed v. G o v e r n m e n t of the State of Israel, No. 08-2744 (7th Cir. Jul. 11, 2008). i. First Strike H a f e d v. Brooks was a civil rights suit appellant filed against three federal p r o s e c u t o r s and an FBI agent in the Southern District of Indiana on January 3, 2 0 0 6 . See D.C. No. 06-cv-00005-RLY-TAB, Doc. 1. On January 11, the district c o u r t granted ifp and dismissed the case without prejudice under § 1915A(b) b e c a u s e appellant alleged facts showing that he had no claim, that is, because the c o mp l a i n t failed to state a claim. See Brooks, D.C. No. 06-cv-00005-RLY-TAB, D o c . 4, at 2. The court held that appellant could not use a civil rights action to c h a l l e n g e his criminal detention, that he failed to allege the defendants' personal p a r t i c i p a t i o n in an alleged assault in prison, and that his claims alleging that the d e f e n d a n t s violated his constitutional rights by causing him to be charged with a -6-

c r i me were premature under Heck v. Humphrey, 512 U.S. 477 (1994), because his c r i mi n a l convictions had not been nullified. Brooks, D.C. No. 06-cv-00005, D o c . 4, at 2. In Jennings, we addressed whether dismissals under § 1915(e)(2)(B) s h o u l d count as strikes, but we did not decide whether a district court's dismissal s u b s e q u e n t to screening under § 1915A should count as a strike. See Jennings, 1 7 5 F.3d at 778-79. We now hold that a dismissal under § 1915A counts as a s t r i k e when the action was dismissed as frivolous, malicious, or for failure to s t a t e a claim, the same grounds listed in § 1915(g). The Southern District of Indiana's dismissal in Brooks satisfies the standard f o r a strike under § 1915A(b)(1) and § 1915(g). To the extent that the district c o u r t left it unclear that it considered all of the stated grounds for the dismissal to b e for appellant's failure to state a claim, we have previously upheld a dismissal o f a prisoner's claims for damages on the basis that they were premature under H e c k and failed to state a claim. See Davis v. Kan. Dep't of Corr., 507 F.3d 1 2 4 6 , 1248, 1249 (10th Cir. 2007). Thus, in Brooks, the action was dismissed for f a i l u r e to state a claim and was a strike. Because appellant did not appeal, the d i s mi s s a l counts from March 13, 2006, when appellant's sixty days to appeal to t h e 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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H a f e d v. Government of the State of Israel was a civil rights action filed by a p p e l l a n t 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 d i s mi s s e d it, ambiguously, under "§ 1915A(b)." Government of the State of I s r a e l , D.C. No. 1:08-cv-00773, Doc. 5, at 3. The district court was not entirely c l e a r as to the ground on which its dismissal was ultimately based, however. The c o u r t set out all the standards that could apply--frivolousness under § 1915A(b)(1), suing an immune defendant under § 1915A(b)(2), and failure to s t a t e 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 s t r i k e presents some complexity because that ground is not explicitly included in § 1915(g). We have previously observed, however, that a complaint could p r o p e r l y be dismissed by a district court sua sponte as frivolous, if it was clear f r o m the face of the complaint that the defendant was absolutely immune from s u i t and no further factual development was required. Yellen v. Cooper, 828 F.2d 1 4 7 1 , 1476 (10th Cir. 1987). Our determination that a particular dismissal c o n s t i t u t e s a strike is not formalistic or mechanical; rather, we must consider the n a t u r e of the dismissal and, if the district court did not make it clear, whether the d i s mi s s a l fits within the language of § 1915(g). -8-

W e construe the Southern District of Indiana's order to mean that the i mmu n i t y ground for dismissal was subsumed in frivolousness or appellant's f a i l u r e to state a claim, because appellant affirmatively asserted facts showing t h a t he could not meet the expropriation exception to Israel's immunity, so he had n o "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 d i s mi s s a l 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 c o u n t s from May 26, 2009, when the Supreme Court dismissed appellant's p e t i t i o n for writ of certiorari. See Hafed v. State of Israel, 129 S. Ct. 2439 (2009) ( M e m. ) (No. 08-9403). i i i . Third Strike I n addition, the Seventh Circuit dismissed appellant's appeal in Hafed v. G o v e r n m e n t of the State of Israel, No. 08-2744. That court first denied a p p e l l a n t ' s motion for leave to proceed ifp under Lee v. Clinton, 209 F.3d 1025, 1 0 2 6 - 2 7 (7th Cir. 2000), that is, as frivolous. See Government of the State of I s r a e l , No. 08-2744, Doc. 17. When appellant did not pay the filing fee, the S e v e n t h Circuit dismissed the appeal for nonpayment. See id., Doc. 19. A circuit court's dismissal of an appeal on the ground of frivolousness w o u l d fall under § 1915(e)(2)(B)(i) and would count as a strike. See Jennings, 1 7 5 F.3d at 780-81. In Government of the State of Israel, however, the Seventh -9-

C i r c u i t did not actually dismiss the appeal as frivolous, but for nonpayment of the f i l i n g fee, that is, for failing to prosecute the appeal. A dismissal for failure to p r o s e c u t e would not necessarily be a strike because "[e]ach of the three categories o f strikes in [§ 1915(g)] involves dispositions that look to the merits of the suit[, b u t ] a dismissal for failure to prosecute is made without regard to the merits of t h e claim[.]" Butler v. Dep't of Justice, 492 F.3d 440, 442-44 (D.C. Cir. 2007) ( h o l d i n g , where there was no indication in the procedural history that the court h a d held that the five prior appeals dismissed for failure to prosecute were f r i v o l o u s , that the dismissals did not count as strikes under § 1915(g)). However, i n Thompson v. Drug Enforcement Administration, 492 F.3d 428, 433 (D.C. Cir. 2 0 0 7 ) , the D.C. Circuit held that a dismissal for failure to prosecute was a strike w h e r e the circuit court had previously declared the appeal frivolous when it d e n i e d the prisoner's motion to proceed ifp. The D.C. Circuit rejected as " h y p e r t e c h n i c a l " the prisoner's argument that the appeal was "formally dismissed . . . for failure to prosecute, rather than for frivolousness[, because b]ut for the j u d g e declaring it frivolous, [the prisoner's] appeal would have gone forward." Id. In our view, the Seventh Circuit's determination that the appeal in G o v e r n m e n t of the State of Israel was frivolous when it denied appellant's motion f o r ifp can properly be termed the "but for" cause of that court's subsequent d i s mi s s a l , and we agree with the D.C. Circuit's conclusion that it would be -10-

" h y p e r t e c h n i c a l " to hold that the resulting dismissal for nonpayment was not a s t r i k e . See Thompson, 492 F.3d at 433; see also O'Neal v. Price, 531 F.3d 1146, 1 1 5 2 (9th Cir. 2008) (holding that a "district court has `dismissed' the prisoner's c a s e for purposes of § 1915(g) when the court denies the prisoner's application to f i l e the action without prepayment of the filing fee on the ground that the c o mp l a i n t is frivolous, malicious or fails to state a claim, and thereupon t e r mi n a t e s the complaint" (quoting § 1915(g)). This strike also counts from M a y 26, 2009, when the Supreme Court dismissed appellant's petition for writ of c e r t i o r a r i . See Hafed v. State of Israel, 129 S. Ct. 2439 (2009) (Mem.) ( N o . 08-9403). H a v i n g concluded that appellant had three clear strikes as of May 26, 2009, b e f o r e he filed No. 09-1365 on August 17, 2009, we do not address his arguments i n that appeal on their merits. See Dubuc, 314 F.3d at 1208-10. B. Imminent-Danger Exception T h e r e is only one exception to the prepayment requirement in § 1915(g), K i n n e l l , 265 F.3d at 1127-28, and it applies to a prisoner who "is under imminent d a n g e r of serious physical injury[,]" § 1195(g). To meet that exception, appellant w a s required to make "specific, credible allegations of imminent danger of s e r i o u s 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 o f the present tense shows that a prisoner must have alleged an imminent danger -11-

a t the time he filed his complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1 0 5 3 - 5 4 (9th Cir. 2007); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003); M a l i k v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002); Abdul-Akbar v. M c K e l v i e , 239 F.3d 307, 313 (3d Cir. 2001) (en banc); Medberry v. Butler, 1 8 5 F.3d 1189, 1193 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 ( 8 t h Cir. 1998); Baņos 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 s t r u c k out based on his past dismissals; rather, that issue became apparent when h e filed his motions for leave to proceed ifp on appeal. But we need not decide w h e t h e r appellant was required to allege imminent danger at the time he filed his f i r s t amended complaint or when he filed the appeals now before us. Giving him t h e benefit of the doubt on that question, appellant did not sufficiently allege that h e was in imminent danger of serious physical injury. A n appellant should make his allegations of imminent danger in his motion f o r leave to proceed ifp. See White v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1 9 9 8 ) . But even if he points to other papers to establish his allegations of i mmi n e n t harm, he should make a "specific reference as to which of the d e f e n d a n t s may have denied him what medication or treatment for what ailment o n what occasion." Id. at 1232. He should identify at least "the general nature of t h e `serious physical injury' he asserts is imminent." Id. "[V]ague and utterly c o n c l u s o r y assertions" are insufficient. Id. at 1231. "[C]redible, uncontroverted -12-

a l l e g a t i o n s of physical threats and attacks" would be sufficient, however. Id. a t 1232. W h e n appellant filed No. 09-1365 in August 2009, he had been on notice f o r 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 c o mp l a i n t , his motions for leave to proceed ifp on appeal in No. 09-1365, and his s e v e r a l motions filed in this court asserting an urgent need for medical help. In o u r view, his allegations of imminent harm are vague and conclusory, and they do n o t satisfy the imminent-danger exception to the three-strikes rule, as established b y White. II. No. 09-1090 I n No. 09-1090, appellant seeks review of the district court's order u p h o l d i n g the magistrate judge's interlocutory rulings entered prior to the d i s mi s s a l of his first amended complaint. Although this appeal is from a n o n - f i n a l order; this appeal ripened once the district court entered its final ruling w h i c h dismissed appellant's first amended complaint. Jackson v. Volvo Trucks N. A m . , Inc., 462 F.3d 1234, 1238 (10th Cir. 2006). ("[W]here parties appeal n o n - f i n a l orders, the court's subsequent issuance of an order explicitly a d j u d i c a t i n g all remaining claims may cause a case to ripen for appellate review." ( q u o t a t i o n omitted.)) If appellant does not pay the filing fee for No. 09-1365 to -13-

a l l o w us to reach the merits of his arguments, however, No. 09-1090 will become mo o t . I I I . Conclusion W e grant appellant's motion for leave to proceed ifp in No. 09-1090, but do n o t proceed to the merits of that interlocutory appeal at this time. Appellant is r e mi n d e d that he must continue making partial payments until the entire filing fee f o r that appeal is paid in full. We deny appellant's motion for leave to proceed i f p in No. 09-1365 and direct him to pay the full filing fee for that appeal within t h i r t y days. Appellant's failure to pay the filing fee as directed will result in the d i s mi s s a l of No. 09-1365 for failure to prosecute, and the dismissal of N o . 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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