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Eleventh Circuit: Procedural Dismissals do Not Count as Strikes Under the PLRA

by David Reutter

The Eleventh Circuit held last year that a district court erred in finding the dismissals of a prisoner’s prior civil rights actions due to “lack of jurisdiction” and for “want of prosecution” counted as strikes under the Prison Litigation Reform Act (PLRA). The Court of Appeals further held the district court abused its discretion in denying the prisoner in forma pauperis status.

That ruling came in an appeal brought by Georgia prisoner Waseem Daker, who alleged that prison officials were violating his civil rights by denying him the use of a law library and time for Muslim religious practices. The district court agreed with the Georgia Department of Corrections that six previous filings by Daker were frivolous and counted as strikes under the PLRA; on that basis, and after finding he was not indigent, his case was dismissed.

On appeal, the Eleventh Circuit acknowledged that Daker was “a serial litigator” serving a life sentence who “has submitted over a thousand pro se filings in over a hundred actions and appeals in at least nine different federal courts.” To determine whether “Daker’s six dismissals for lack of jurisdiction and want of prosecution qualify as strikes under the [PLRA],” the appellate court said it had to apply a “three-part test: ‘(1) Read the statute; (2) read the statute; (3) read the statute.’”

The PLRA considers the dismissal of a lawsuit or appeal a strike if it is “frivolous,” “malicious” or “fails to state a claim upon which relief may be granted.” The Court of Appeals found that “[n]either ‘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.”

Both of those reasons for dismissal “mean [ ] only that the appellant failed to comply with our internal rules.” Neither addressed the merits of Daker’s claims, only procedural deficiencies.

Frivolous means the action “lacks an arguable basis either in law or fact.” While a “dismissing court does not need to invoke any magic words or even use the word ‘frivolous,’ ... [it] must give some signal in its order that the action or appeal was frivolous.”

The Eleventh Circuit found the dismissal orders in the six cases counted as strikes under the PLRA “gave no such signal.” Three had been dismissed by a single appellate judge for want of prosecution. Separating itself from the D.C. and Tenth Circuits, which held a strike could be assessed where an appeal would have been found frivolous “but for” the dismissal, the Court of Appeals determined the PLRA precludes such an interpretation.

The appellate court acknowledged its interpretation of the statute “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 pauparis are denied.”

The plain text of the PLRA, however requires such an outcome.

Finally, the Eleventh Circuit held the district court had abused its discretion by not considering Daker’s “arguments about his indigence” contained in his objections to a magistrate’s report and recommendation, as his objections were timely filed under the “prison mailbox rule.” The district court’s order was therefore vacated. See: Daker v. Commissioner, Georgia Dept. of Corrections, 820 F.3d 1278 (11th Cir. 2016), cert. denied.

Previously, the Georgia Supreme Court had held that a trial court errored in denying Daker’s petition for mandamus seeking access to the prison law library. [See: PLN, Jan. 2015, p.53]. 

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Related legal case

Daker v. Commissioner, Georgia Dept. of Corrections