Waseem Daker v. Timothy C. Ward, Commissioner, Georgia Department of Corrections

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 district court held that these allegations did not satisfy the “immi­ nent danger of serious physical injury” exception to the Prison Litigation Reform Act “three-strikes” pro­ vision, 28 U.S.C. § 1915(g). The Eleventh Circuit af­ firmed, citing its prior precedent in Daker v. Ward, 999 F3d 1300 (llth.Cir. June 7, 2021), which held that those allegations were “too speculative” to satisfy the exception because petitioner “has not contracted an infectious disease” or alleged the same of another pris­ oner despite the “longstanding custom.” No other cir­ cuit follows this rule. Judge Rosenbaum dissented in Daker v. Ward, 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 question presented is 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” pro­ vision, 28 U.S.C. § 1915(g)?