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Shaaban Shaaban Hafed v. Federal Bureau of Prisons

December 28, 2010

SHAABAN SHAABAN HAFED, PLAINTIFF-APPELLANT,
v.
FEDERAL BUREAU OF PRISONS;
MICHAEL MUKASEY; HARLEY LAPPIN;
RON WILEY; ROD BAUER,
SUED IN THEIR OFFICIAL CAPACITIES, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Briscoe, Chief Judge.

PUBLISH

FILED

United States Court of Appeals Tenth Circuit

Elisabeth A. Shumaker Clerk of Court

(D. Colo.)

ORDER

Before BRISCOE, Chief Judge, BALDOCK and TACHA, Circuit Judges.

Appellant Shaaban Shaaban Hafed*fn1 is a federal prisoner appearing in this court pro se, and seeking to proceed in forma pauperis (ifp). These appeals present us with the opportunity to clarify what counts as a "strike" under the Prison Litigation Reform Act (PLRA) for purposes of future ifp eligibility, and when, in the sequence of litigation, that the strike can be counted. In Jennings, we addressed dismissals under 28 U.S.C. § 1915(e)(2)(B), but did not decide whether 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. Ctr. Med. Facility, 175 F.3d 775 (10th Cir. 1999). We now hold that a dismissal under 28 U.S.C. § 1915A counts as a strike when the action was dismissed as frivolous, malicious, or for failure to state a claim, the same grounds listed in 28 U.S.C. § 1915(g). As regards when a strike ripens and can be counted, a strike counts against a prisoner from the date of the Supreme Court's denial or dismissal of a petition for writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ of certiorari expired, if he did not. And if the prisoner did not file a direct appeal in a circuit court, a district court's dismissal counts as a strike from the date when his time to file a direct appeal expired.

In No. 09-1365, Hafed appeals from the district court's August 5, 2009, final order dismissing his first amended civil rights complaint with prejudice as a sanction for his noncompliance with the magistrate judge's order to provide his deposition. In No. 09-1090, he appeals from the district court's February 11, 2009, interlocutory order overruling his objections to the magistrate judge's orders striking three of his motions for preliminary injunctive relief and denying a motion for reconsideration.

Having reviewed appellant's numerous dismissals from this court and other courts, we conclude that he had three strikes countable in this court at the time he filed No. 09-1365.*fn2 Therefore, appellant is barred by the "three strikes rule," which requires prepayment of the entire filing fee in No. 09-1365 before we would consider it, unless he had made credible allegations that he was in "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g). We conclude that appellant has not met this condition precedent, and that he must prepay the filing fee before we will address the merits of his appeal in No. 09-1365. See Dubuc v. Johnson, 314 F.3d 1205, 1207-10 (10th Cir. 2003). If he does not pay the fee and we do not reach the merits of his challenge to the dismissal with prejudice of his first amended complaint, then No. 09-1090, challenging an interlocutory order, will become moot.

I. "Strikes" under 28 U.S.C. § 1915(g)

A. Evaluation of Countable Strikes Under the PLRA, prisoners obtain a "strike" against them for purposes of future ifp eligibility when their "action or appeal in a court of the United States . . . 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). "[T]he 'three strikes' provision of the ifp statute applicable to indigent prisoners[] requires so-called 'frequent filer' prisoners to prepay the entire filing fee before federal courts may consider their civil actions and appeals." Kinnell v. Graves, 265 F.3d 1125, 1127 (10th Cir. 2001) (quotation omitted). To meet the only exception to the prepayment requirement, a prisoner who has accrued three strikes must make "specific, credible allegations of 'imminent danger[.]'" Id. at 1127-28 (quoting § 1915(g)). Appellant has filed numerous civil rights cases in several district courts, numerous civil appeals in several circuit courts, and nine petitions for writ of certiorari (at this counting) in civil cases in the Supreme Court. Many of these filings resulted in dismissals, and we have reviewed them for strikes under Tenth Circuit law. We conclude that appellant had three clear strikes when he filed No. 09-1365 in this court in August 2009.*fn3

We 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 state 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 exhausted or waived his appeals." Jennings, 175 F.3d at 780. We now clarify that a strike counts against a prisoner from the date of the Supreme Court's denial or dismissal of a petition for writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ of certiorari expired, if he did not.*fn4 Cf. United States v. Burch, 202 F.3d 1274, 1276-77 (10th Cir. 2000) (rejecting Seventh Circuit's approach to use circuit's mandate date as date from which period of limitations for filing motion under 28 U.S.C. § 2255 runs to avoid possibility-even the unlikely possibility-of ruling on a habeas petition while the underlying conviction was on direct review in the Supreme Court). And if the prisoner did not file a direct appeal in a circuit court, a district court's dismissal counts as a strike from the date when his time to file a direct appeal expired.

Having thus clarified the parameters of ยง 1915(g), we have examined appellant's filings which have been dismissed in order to determine whether these dismissals qualify as "strikes" for the purposes of the PLRA. We have identified three ...


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