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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 18-13800; 18-14984
Non-Argument Calendar
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D.C. Docket No. 5:18-cv-00171-MTT-CHW
WASEEM DAKER,
Plaintiff-Appellant.
versus
WARDEN,
Defendant-Appellee.
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Appeals from the United States District Court
for the Middle District of Georgia
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(February 14, 2020)
Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Waseem Daker, a Georgia prisoner proceeding pro se, appeals the district
court’s dismissal without prejudice of his petition for writ of habeas corpus,
28
U.S.C. § 2254. In the petition, Daker raised claims concerning his placement in
disciplinary segregation. The district court construed the petition as a
42 U.S.C.
§ 1983 complaint and dismissed it pursuant to
28 U.S.C. § 1915(g). On appeal,
Daker argues that the district court erred by concluding that his claims were not
cognizable under § 2254 and did not demonstrate that he was in imminent danger
of serious physical injury, as required by § 1915(g). He also argues that the district
court abused its discretion in dismissing his action without giving him notice or an
opportunity to amend his complaint.
I.
We review the denial of a § 2254 petition de novo. McNair v. Campbell,
416
F.3d 1291, 1297 (11th Cir. 2005). Under our prior-panel-precedent rule, “a prior
panel’s holding is binding on all subsequent panels unless and until it is overruled
or undermined to the point of abrogation by the Supreme Court or by this court
sitting en banc.” United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008).
Under this rule, “a later panel may depart from an earlier panel’s decision only
when the intervening Supreme Court decision is ‘clearly on point.’” Atl. Sounding
Co., Inc. v. Townsend,
496 F.3d 1282, 1284 (11th Cir. 2007).
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State prisoners have two main avenues of relief on complaints related to
their imprisonment under federal law: habeas corpus petitions under § 2254 and
complaints under § 1983. Muhammad v. Close,
540 U.S. 749, 750 (2004). We
have stated that “[t]hese avenues are mutually exclusive: if a claim can be raised in
a federal habeas petition, that same claim cannot be raised in a separate § 1983
civil rights action.” Hutcherson v. Riley,
468 F.3d 750, 754 (11th Cir. 2006).
Claims challenging the fact or duration of a sentence fall within the “core”
of habeas corpus, while claims challenging the conditions of confinement “fall
outside of that core and may be brought pursuant to § 1983.” Nelson v. Campbell,
541 U.S. 637, 643 (2004). Stated another way, if a claim “would not necessarily
spell speedier release, that claim does not lie at the core of habeas corpus, and may
be brought, if at all, under § 1983.” Skinner v. Switzer,
562 U.S. 521, 535 n.13
(2011) (internal quotation marks omitted).
The Supreme Court previously speculated that a habeas corpus claim might
be actionable where a prisoner is “put under additional and unconstitutional
restraints during his lawful custody.” Preiser v. Rodriguez,
411 U.S. 475, 499
(1973). However, the Court has never followed that speculation. Muhammad,
540
U.S. at 751 n.1. Further, the Court has allowed a claim that a prisoner was denied
procedural due process when being placed in disciplinary segregation to proceed
under § 1983, although it did not address the cognizability of such claims in those
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proceedings. See Sandin v. Conner,
515 U.S. 472, 477–87 (1995). Nevertheless,
we have specifically held that such claims may proceed in a habeas petition,
concluding that “release from administrative segregation . . . . falls into the
category of fact or duration of . . . physical imprisonment.” Krist v. Rickets,
504
F.2d 887, 887–88 (5th Cir. 1974) (internal quotation mark omitted).
Claims that a prison has violated the Eighth Amendment are cognizable
under § 1983. See Thomas v. Bryant,
614 F.3d 1288, 1303–04 (11th Cir. 2010).
Release from custody is generally not an available remedy for a violation of the
Eighth Amendment. Gomez v. United States,
899 F.2d 1124, 1126 (11th Cir. 1990).
However, in Sheley, we remanded, in a habeas proceeding, for an evidentiary
hearing on an Eighth Amendment claim that the length of an inmate’s
administrative segregation constituted cruel and unusual punishment. Sheley v.
Dugger,
833 F.2d 1420, 1428–30 (11th Cir. 1987) (per curiam).
First Amendment claims are also cognizable under § 1983. See, e.g., Hakim
v. Hicks,
223 F.3d 1244, 1246 (11th Cir. 2000) (addressing a free-exercise claim);
Chapell v. Rich,
340 F.3d 1279, 1282 (11th Cir. 2003) (per curiam) (addressing an
access-to-the-courts claim); Beard v. Banks,
548 U.S. 521, 527 (2006) (addressing
a challenge to restrictions on incoming mail).
Here, the district court erred in concluding that Daker could not challenge
his disciplinary segregation in a § 2254 proceeding. Although the Supreme Court
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has suggested that such claims might not be cognizable in a habeas proceeding, it
has not done so in an opinion that is “clearly on point,” so as to overrule our
precedent, which says that such claims are cognizable. However, Daker’s First and
Eighth Amendment claims were cognizable under § 1983 and, therefore, not
cognizable under the mutually exclusive remedy of § 2254. Although we allowed
an Eighth Amendment claim to proceed under § 2254 in Sheley, that inmate was
challenging the duration of his segregation as unconstitutional, so that claim was
within the “core” of habeas. In contrast, Daker claims only that he was denied
adequate food and medical care and was exposed to unsanitary conditions.
Accordingly, we vacate the district court’s order to the extent that it concluded that
Daker’s procedural-due-process claim was not cognizable in a § 2254 proceeding,
and we remand for further proceedings as to that claim.
II.
We review the denial of leave to proceed in forma pauperis (IFP) for abuse
of discretion, but we review the interpretation of § 1915(g) de novo. Daker v.
Comm’r, Ga. Dep’t of Corr.,
820 F.3d 1278, 1283 (11th Cir. 2016). A district court
abuses its discretion if it applies an improper legal standard, fails to follow proper
procedures in making its determination, or makes clearly erroneous findings of
fact. Johnson v. Breeden,
280 F.3d 1308, 1326 (11th Cir. 2002).
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Where a prisoner has, on three or more previous occasions, brought an
action or appeal that was dismissed as frivolous, malicious, or failing to state a
claim, he is prohibited from bringing another civil action without paying the filing
fee unless he is under imminent danger of serious bodily injury.
28 U.S.C.
§ 1915(g). A prisoner with three such “strikes” against him is only entitled to
proceed without payment of court fees if he is in imminent danger of serious injury
at the time that he files his suit. Medberry v. Butler,
185 F.3d 1189, 1192–93 (11th
Cir. 1999). A prisoner’s allegation of past imminent danger is insufficient to
invoke the imminent-danger exception.
Id. at 1193. When determining whether a
plaintiff has met his burden of proving that he is in imminent danger of serious
physical injury, his complaint is construed liberally, and his allegations are
accepted as true. Brown v. Johnson,
387 F.3d 1344, 1349–50 (11th Cir. 2004). The
issue is not whether each specific physical condition or symptom complained of
might constitute serious injury, but “whether his complaint, as a whole, alleges
imminent danger of serious physical injury.”
Id. at 1350.
Daker’s allegations regarding his weight loss and the food provided to
inmates in disciplinary segregation, the presence of “fecal projections,” the
adequacy of dental and medical care, and the denial of outdoor exercise do not
establish that he was under imminent danger of serious injury at the time that he
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filed his suit. Accordingly, the district court did not abuse its discretion in
determining that Daker was not entitled to proceed IFP.
III.
When an inmate is barred from proceeding IFP under § 1915(g), the full
filing fee must be paid at the time that the prisoner initiates his suit. Vanderberg v.
Donaldson,
259 F.3d 1321, 1324 (11th Cir. 2001). Accordingly, when a district
court denies leave to proceed IFP pursuant to § 1915(g), it must dismiss the
complaint without prejudice, without giving the inmate an opportunity to arrange
payment of the fee. Dupree v. Palmer,
284 F.3d 1234, 1236 (11th Cir. 2002) (per
curiam).
“Due process does not always require notice and the opportunity to be heard
before dismissal.” Vanderberg,
259 F.3d at 1324. A dismissal without prejudice is
usually not an abuse of discretion, as the petitioner can simply re-file his action.
See, e.g., Dynes v. Army Air Force Exch. Serv.,
720 F.2d 1495, 1499 (11th Cir.
1983) (per curiam) (finding no abuse of discretion where dismissal for failure to
file a court-ordered brief was without prejudice). However, if an order has the
effect of precluding a plaintiff from refiling his claim due to the running of the
statute of limitations, then the dismissal is tantamount to a dismissal with
prejudice. Burden v. Yates,
644 F.2d 503, 505 (5th Cir. 1981).
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When “a more carefully drafted complaint” might state a claim, the plaintiff
must be given a chance to amend. Bryant v. Dupree,
252 F.3d 1161, 1163 (11th
Cir. 2001) (per curiam). However, a district court need not allow an amendment
where (1) “there has been undue delay, bad faith, dilatory motive, or repeated
failure to cure deficiencies” through prior amendments; (2) amending the
complaint would prejudice the opposing party; or (3) “amendment would be
futile.”
Id.
The district court did not abuse its discretion in dismissing Daker’s pleading
without giving him an opportunity to amend because district courts are required to
dismiss a three-striker’s suit once IFP is denied. In any event, amendment would
have been futile, as even Daker’s allegations on appeal are insufficient to
demonstrate imminent danger of serious physical injury. Furthermore, the district
court’s dismissal was without prejudice. Although Daker asserts that the dismissal
was effectively with prejudice, he did not elaborate on that assertion, and our
review of the record has not revealed any reason why he would be prevented from
bringing his claims in a new § 1983 proceeding.
Accordingly, we affirm the dismissal of Daker’s properly construed § 1983
claims, and we vacate and remand in part as to Daker’s procedural due-process
claim relating to his segregation for further proceedings that are consistent with
this opinion.
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AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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