Waseem Daker v. Timothy Ward, et al.

Petitioner alleged that Georgia Department of Corrections (GDC) officers place him in imminent danger of contracting hepatitis or HIV by forcibly shaving him with a damaged, unsanitized razor on a semi-monthly basis in a prison system where both blood-borne diseases are endemic. The Eleventh Cir­ cuit panel held that those allegations were “too specu­ lative” to satisfy the exception because petitioner “has not contracted an infectious disease” or alleged the same of another prisoner despite the “longstanding custom.” No other circuit follows this rule. Judge Ros­ enbaum dissented, explaining that the correct test is whether the allegations “allow a court to draw reason­ able inferences” of future “danger.” Five circuits follow this rule. The panel also held that Petitioner’s lawsuit was duplicative of two prior, similar lawsuits that were based on different forcible shaving instances, and therefore, malicious. Although other circuits hold that duplicative lawsuits are subject to dismissal as malicious, the panel’s decision is a notable outlier. No other circuit would hold that petitioner’s challenge is malicious. All other circuits hold that duplicative means nearly identical. The questions presented are as follows I. Whether an incarcerated person must allege presently occurring or certain-to-occur serious physi­ cal injury in order to successfully invoke the “immi­ nent danger of serious physical injury” exception to the Prison Litigation Reform Act “three-strikes” provision, 28 U.S.C. § 1915(g)?