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If a prisoner’s claim requires dismissal under the “three-strikes provision” but is also frivolous or unmeritorious, must the court dismiss the claim without prejudice or may it opt to dismiss the claim on the merits with prejudice instead? This question was presented to the Eleventh Circuit in White v. Lemma. The Eleventh Circuit concluded that “though a court must procedurally dismiss without prejudice the claim of a prisoner who has struck out under the three-strikes provision and failed to pay the filing fee, the court may also consider the merits to dismiss the case with prejudice instead.”
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In Daker v. Jackson, the Eleventh Circuit Court of Appeals affirmed the decision of the district court to dismiss Waseem Daker’s complaint, determining that Daker had at least three strikes under the Prison Litigation Reform Act (PLRA) and that Daker’s challenge to the constitutionality of § 1915(g) failed. In support of his first claim, Daker alleged that the seven dismissals used by the district court in determining his three strike status were errors. Second, Daker challenged the “three-strike” provision’s constitutionality, asserting that it violates the First Amendment’s “breathing space” principle because it does not provide a margin of error and punishes pro se litigants for honest mistakes. The court addressed both claims in turn.
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