Willie Davis v. City of Atlanta

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 22, 2021
• Docket: 20-12956
• Status: Unpublished

Opinion

USCA11 Case: 20-12956 Date Filed: 06/22/2021 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12956 Non-Argument Calendar ________________________

D.C. Docket No. 1:20-cv-02175-TWT

WILLIE DAVIS,

Plaintiff-Appellant,

versus

CITY OF ATLANTA, ATLANTA POLICE DEPARTMENT, OFFICER WOODLEY BAUCHCAULT, Atlanta Police Department, OFFICER COSTELLO, W/M; Atlanta Police Officer, PUBLIC DEFENDER OFFICE, Atlanta Judicial Circuit, et al.,

Defendants-Appellees. ________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________ (June 22, 2021) USCA11 Case: 20-12956 Date Filed: 06/22/2021 Page: 2 of 4

Before JORDAN, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

Willie Davis, a state prisoner, appeals pro se from the district court’s dismissal

without prejudice of his complaint for misrepresenting his previous federal filings,

under 28 U.S.C. § 1915(e)(2)(B), and because he had three “strikes” under 28 U.S.C.

§ 1915(g) and failed to pay the filing fee. Davis argues that his poor eyesight caused

him to unintentionally omit his previous filings from the complaint. He also argues

that he is under imminent danger, so Section 1915(g) should not apply, and the

district court erred in counting one of his prior cases as a strike under

Section 1915(g).

We review a district court’s sua sponte dismissal under Section

1915(e)(2)(B)(i) for abuse of discretion. Hughes v. Lott, 350 F.3d 1157, 1160 (11th

Cir. 2003). Under Section 1915(e)(2)(B)(i), a district court must dismiss an IFP

action if the court determines that the action is “frivolous or malicious.” 28 U.S.C.

§ 1915(e)(2)(B)(i). “A finding that the plaintiff engaged in bad faith litigiousness or

manipulative tactics warrants dismissal.” Attwood v. Singletary, 105 F.3d 610, 613

(11th Cir. 1997) (applying prior version of Section 1915(e)(2)(B)(i), then codified

as Section 1915(d)).

We review de novo a dismissal under Section 1915(g). Miller v. Donald, 541

F.3d 1091, 1100 (11th Cir. 2008). Section 1915(g), commonly known as the “three

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strikes” provision, provides that a prisoner may not file a civil lawsuit “if the prisoner

has, on 3 or more prior occasions, while incarcerated or detained in any facility,

brought an action or appeal in a court of the United States that was dismissed on the

grounds that it is frivolous, malicious, or fails to state a claim upon which relief may

be granted, unless the prisoner is under imminent danger of serious physical injury.”

28 U.S.C. § 1915(g). A prisoner with three strikes must show that he is in imminent

danger “at the time that he seeks to file his suit in district court or seeks to proceed

with his appeal or files a motion to proceed IFP.” Medberry v. Butler, 185 F.3d 1189,

1192-93 (11th Cir. 1999) (quotation marks omitted). Accordingly, “a prisoner’s

allegation that he faced imminent danger sometime in the past is . . . insufficient.”

Id. at 1193. When determining whether a plaintiff has met his burden of proving that

he is in imminent danger of serious physical injury, we look to the plaintiff’s

complaint, which must be construed liberally, and accept the allegations as true.

Brown, 387 F.3d at 1349-50. However, although courts accept the prisoner’s

allegations as true, they are “not required to credit conclusory allegations,

unwarranted deductions of facts or legal conclusions masquerading as facts.” See

Warren Tech., Inc. v. UL LLC, 962 F.3d 1324, 1328 (11th Cir. 2020) (quotation

marks omitted) (discussing the standard for reviewing whether a complaint states a

claim for relief). Further, our review is not whether each specific physical condition

or symptom complained of might constitute serious injury, but rather, “whether his

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complaint, as a whole, alleges imminent danger of serious physical injury.” Brown,

387 F.3d at 1350.

The district court did not abuse its discretion by dismissing Davis’s complaint

under 28 U.S.C. § 1915(e)(2)(B)(i) because Davis misrepresented his litigation

history. His explanation that this misrepresentation was due to poor eyesight is

insufficient because he stated multiple times in his complaint that he had not filed

previous federal lawsuits when prompted for further details.

Further, we agree with the district court that Davis has three strikes under

Section 1915(g) and failed to show that he was in imminent danger at the time of the

filing of his complaint. His allegations of threats at the time of his arrest are not

sufficient to show imminent danger because they occurred in the past and are no

longer imminent. The threats that he alleges from an Atlanta police officer and the

Fulton County District Attorney’s office are not imminent because he did not

explain, beyond conclusory allegations, how those who threatened him could have

access to the prison, and he conceded that the Warden was aware of the threats and

looking into them. Accordingly, we affirm.

AFFIRMED.