DAKER v. HEAD
ORDER GRANTING 17 Motion for Leave to Appeal in forma pauperis. In accordance with the PLRA, the Warden of the institution wherein Plaintiff is incarcerated, or the Sheriff of any county where he is held in custody, and any successor custodians, shall each month cause to be remitted to the Clerk of this court twenty percent (20%) of the preceding month's income credited to Plaintiff's account at said institution until the $505.00 app ellate filing fee has been paid in full. Plaintiff's custodian is authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. Collection of monthly payments from Plaintiff's trust fund account shall continue until the entire $505.00 has been collected, notwithstanding the results of this case. The Clerk of Court is DIRECTED to send a copy of this Order to the business manager at Plaintiff's place of incarceration. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/28/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
PATRICK H. HEAD, et al.,
CIVIL No: 5:14-CV-138-MTT-CHW
Plaintiff Waseem Daker has filed a motion to proceed in forma pauperis on appeal.
For the following reasons, the Court finds that Plaintiff has a good faith basis to take this
appeal and that he is not barred by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C.
§ 1915(g), from proceeding with this appeal in forma pauperis. Plaintiff’s motion to
proceed in forma pauperis on appeal (ECF No. 17) is therefore GRANTED.
Section 1915(g), often referred to as the “three strikes” provision of the PLRA,
prevents a prisoner from
Bring[ing] a civil action . . . under this section 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.
In an Order dated May 6, 2014 (ECF No. 5), the Court determined Plaintiff had amassed
three strikes for purposes of § 1915(g), denied Plaintiff leave to file his Complaint in forma
pauperis, and dismissed Plaintiff’s Complaint without prejudice to his submitting a new
complaint form and the full filing fee. Plaintiff filed a notice of appeal of the Court’s May
6, 2014 Order on July 21, 2014 (ECF No. 9), after the Court denied Plaintiff’s motion to
vacate that Order. At the time he filed his notice of appeal, Plaintiff did not move in this
Court to proceed on appeal in forma pauperis. See Fed. R. App. Proc. 24(a) (“[A] party to
a district-court action who desires to appeal in forma pauperis must file a motion in the
district court.”); see also 28 U.S.C. § 1915(a)(3). On August 19, 2014, the Eleventh
Circuit Court of Appeals dismissed Plaintiff’s appeal in Case Number 14-13257 for want
of prosecution because Plaintiff never paid the filing and docketing fees to this Court.1
On May 4, 2016, the Eleventh Circuit issued an opinion in another of Plaintiff’s
appeals in which it concluded that six of Plaintiff’s prior dismissals for lack of jurisdiction
and want of prosecution could not be classified as § 1915(g) strikes. Daker v. Comm’r,
Ga. Dep’t Corr., 820 F.3d 1278, 1286 (11th Cir. 2016). The court “express[ed] no view”
Although Plaintiff filed a motion to proceed in forma pauperis on appeal in the Eleventh
Circuit, that motion was returned to Plaintiff unfiled with the notation that “filing fee must
be paid in order for appeal to proceed, appellant is three strikes.” Plaintiff filed several
additional motions in the Eleventh Circuit, but each was returned unfiled because the case
had been closed. On November 28, 2014, Plaintiff also filed a motion for leave to proceed
with his appeal on grounds that he was in “imminent danger.” The Eleventh Circuit
denied this motion on April 2, 2015, and further denied Plaintiff’s motion to reconsider this
order on June 25, 2015. Plaintiff also filed a petition for writ of certiorari in the United
States Supreme Court; the petition was denied on May 26, 2015. In addition, the Eleventh
Circuit entered an order on February 26, 2015, in another of Plaintiff’s appeals, Case No.
14-15150, staying all proceedings “in all . . . open civil appeals in [the Eleventh Circuit] in
which the district court has designated Appellant a ‘three striker’ and he has been denied
leave to proceed in forma pauperis on appeal on that basis.” While it does not appear the
stay order would have applied to the appeal in this case, it is clear that the appeal was
reinstated as noted infra.
on whether any other dismissals of Plaintiff’s prolific pro se filings could qualify as strikes.
See id. at 1281, 1286 (noting that Plaintiff is a “serial litigator” who “has submitted over a
thousand pro se filings in over a hundred actions and appeals in at least nine different
federal courts”). Based on the Eleventh Circuit’s ruling in Daker, Plaintiff moved to
reinstate the appeal in this case because the Court’s May 6, 2014, Order designated
Plaintiff as a “three-striker,” denied his motion to proceed in forma pauperis, and
dismissed his Complaint on those grounds. The Eleventh Circuit granted Plaintiff’s
motion to reinstate his appeal on August 18, 2016, but Plaintiff did not file for leave to
proceed in forma pauperis on appeal in this Court until January 19, 2017. The issue of
whether Plaintiff may proceed with his reinstated appeal in forma pauperis is now properly
before the Court.
Pursuant to 28 U.S.C. § 1915(a)(1), a court may authorize an appeal of a civil action
or proceeding without prepayment of fees or security therefor if the putative appellant has
filed “an affidavit that includes a statement of all assets” and “state[s] the nature of the . . .
appeal and [the] affiant’s belief that the person is entitled to redress.”2 If the trial court
certifies in writing that the appeal is not taken in good faith, however, such appeal may not
be taken in forma pauperis; in addition, the PLRA prohibits a prisoner from “appeal[ing] a
judgment in a civil action or proceeding” in forma pauperis if he has three strikes. 28
Federal Rule of Appellate Procedure 24 similarly requires a party seeking leave to appeal
in forma pauperis to file a motion and affidavit that establishes the party’s inability to pay
fees and costs, the party’s belief that he is entitled to redress, and a statement of the issues
which the party intends to present on appeal. Fed. R. App. P. 24(a).
U.S.C. § 1915(a)(3), (g); see also Fed. R. App. P. 24(a)(3).
“Good faith” means that an issue exists on appeal that is not frivolous under an
objective standard. See Coppedge v. United States, 369 U.S. 438, 445 (1962). “An issue
is frivolous when it appears that ‘the legal theories are indisputably meritless.’” Ghee v.
Retailers Nat’l Bank, 271 F. App’x 858, 859 (11th Cir. 2008) (per curiam) (quoting Carroll
v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)). The Court’s May 6, 2014, Order counted as
strikes various cases or appeals that the Eleventh Circuit has since concluded do not qualify
as strikes for purposes of § 1915(g). Accordingly, the Court cannot say that Plaintiff does
not have a good faith basis for appealing in this case.
In addition to determining that Plaintiff has a good faith basis for appealing this
case, the Court is also obligated to ensure that Plaintiff is not a three-striker for purposes of
the PLRA before it grants a motion to permit Plaintiff to appeal in forma pauperis. See 28
U.S.C. § 1915(g) (“[i]n no event shall a prisoner . . . appeal a judgment in a civil action or
proceeding” in forma pauperis if he has accumulated three strikes (emphasis added)).
After reviewing PACER records, the Court cannot determine with absolute certainty that
Plaintiff is a “three-striker” for purposes of § 1915(g) without considering the cases relied
upon in the Court’s May 6, 2014, Order.
As noted above, Plaintiff filed his notice of appeal in this case on July 21, 2014, but
he did not signify his intent to proceed under § 1915 by moving in this Court to proceed
with that appeal in forma pauperis until January 19, 2017, nearly five months after the
Eleventh Circuit granted his motion to reinstate his appeal. In the interim, Plaintiff filed
dozens of additional cases or appeals, and he also accrued additional strikes as courts
dismissed various of his filings as frivolous, malicious, or for failure to state a claim.
It generally appears that a prisoner’s three-strikes status must be determined at the
time the prisoner files his or her notice of appeal. Cf. Dollar v. Coweta Cnty. Sheriff
Office, 510 F. App’x 897, 900 (11th Cir. 2013) (per curiam) (“Our published decisions
have consistently looked at the time of filing when considering whether § 1915(g) prevents
a prisoner from proceeding in forma pauperis.”); cf. also Williams v. Paramo, 775 F.3d
1182, 1187, 1192-93 (9th Cir. 2015) (holding that “a court of appeals may require a
three-strike prisoner seeking forma pauperis status to show an imminent danger at the time
the notice of appeal is filed” and noting that the three other circuit courts have reached
similar conclusions); Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per curiam)
(holding that three-strikes litigant must allege imminent danger existed at the time he
“seeks to file his complaint or notice of appeal IFP” because § 1915(g) “clearly refers to the
time when the action or appeal is filed or the motion for IFP status is made”); Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (quoting Banos for the proposition that the
use of the present tense in § 1915(g) “clearly refers to the time when the action or appeal is
filed or the motion for IFP status is made”).
Therefore, even though Plaintiff accrued more than three strikes before he filed his
IFP motion in the above-captioned case,3 the Court finds those strikes cannot be counted
See Order Dismissing Appeal, Daker v. Warden, Case No. 15-13148 (11th Cir. May 26,
2016) (three-judge panel dismissing appeal as frivolous); Order Dismissing Appeal, Daker
v. Commissioner, Case No. 15-11266 (11th Cir. Oct. 7, 2016) (three-judge panel
dismissing appeal as frivolous); Order Dismissing Appeal, Daker v. Ferrero, Case No.
15-13176 (11th Cir. Nov. 3, 2016) (three-judge panel dismissing appeal as frivolous);
Order Dismissing Appeal, Daker v. Governor, Case No. 15-13179 (11th Cir. Dec. 19,
for purposes of determining whether Plaintiff was a three-striker on the date he “appeal[ed]
a judgment” in this case. See 28 U.S.C. § 1915(g). After eliminating those strikes from
consideration, it appears Plaintiff accrued only two strikes prior to filing his notice of
appeal in this case. See Daker v. Mokwa, Order Denying Leave to Proceed IFP, ECF No.
2 in Case No. 2:14-cv-00395-UA-MRW (C.D. Cal. Feb. 4, 2014) (denying leave to
proceed in forma pauperis and dismissing case after conducting screening under 28 U.S.C.
§ 1915(e)(2)(B) and finding claims were frivolous and failed to state a claim upon which
relief may be granted); Daker v. Warren, Order Dismissing Appeal, Case No. 13-11630
(11th Cir. Mar. 4, 2014) (three-judge panel dismissal of appeal on grounds that appeal was
frivolous). Plaintiff is therefore not barred by the “three-strikes” rule from appealing this
case in forma pauperis.
Based on the foregoing, the Court must conclude that Plaintiff has a good faith basis
for appealing this case and that the PLRA does not prohibit him from appealing in forma
pauperis. The Court accordingly GRANTS Plaintiff’s motion for leave to proceed in
forma pauperis (ECF No. 17).
In accordance with the PLRA, the Warden of the
institution wherein Plaintiff is incarcerated, or the Sheriff of any county where he is held in
custody, and any successor custodians, shall each month cause to be remitted to the Clerk
of this court twenty percent (20%) of the preceding month’s income credited to Plaintiff’s
account at said institution until the $505.00 appellate filing fee has been paid in full.
2016) (three-judge panel dismissing appeal as frivolous).
Plaintiff’s custodian is authorized to forward payments from the prisoner’s account to the
Clerk of Court each month until the filing fee is paid in full, provided the amount in the
account exceeds $10.00. Collection of monthly payments from Plaintiff’s trust fund
account shall continue until the entire $505.00 has been collected, notwithstanding the
results of this case. The Clerk of Court is DIRECTED to send a copy of this Order to the
business manager at Plaintiff’s place of incarceration.
SO ORDERED this 28th day of March, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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