Fadeel Shuhaiber v. Illinois Department of Corrections

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3244
FADEEL SHUHAIBER ,
Plaintiff-Appellant,
v.
ILLINOIS D EPARTMENT OF C ORRECTIONS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-03289 — Edmond E. Chang, Judge.
____________________
SUBMITTED SEPTEMBER 17, 2020* —
D ECIDED N OVEMBER 19, 2020
____________________
Before HAMILTON, BRENNAN, and S CUDDER , Circuit Judges.
SCUDDER , Circuit Judge. Fadeel Shuhaiber is confined to a
wheelchair. Following the district court’s dismissal of claims
* We have agreed to decide the case without oral argument because the
briefs and record adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. FED . R. A PP. P.
34(a)(2)(C).

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2 No. 19-3244
he brought against the Illinois Department of Corrections un-
der the Americans with Disabilities Act and Rehabilitation
Act, Shuhaiber appealed and, based on his impoverished sta-
tus, sought permission to proceed on appeal without prepay-
ing the requisite filing fee. By the time he filed the appeal,
Shuhaiber, a native of the United Arab Emirates, had been
transferred to the custody of the Department of Homeland Se-
curity for removal from the United States. The change in cus-
tody matters because Shuhaiber, as a frequent filer of federal
lawsuits, had accumulated more than three strikes under the
Prison Litigation Reform Act for filing frivolous lawsuits, and
therefore would have had to prepay the filing fee to appeal
the district court’s dismissal of his claims. Doubting that
Shuhaiber was still a “prisoner,” the district court granted his
motion to proceed in forma pauperis.
We agree and hold, in alignment with all other circuits to
have addressed the question, that the appellate filing-fee bar
does not apply where, as here, the appellant is being held by
immigration authorities and thus no longer is a “prisoner”
within the meaning of the PLRA. That conclusion does not
lead very far for Shuhaiber, however, as the district court was
also right to dismiss his claims, leaving us to affirm.
I
Shuhaiber’s complaint focused on events during his stay
at the Stateville Northern Reception and Classification Center
in Joliet, Illinois. He alleged that the institution failed to ac-
commodate his disability by confining him to a cell unsuited
to an inmate confined to a wheelchair. Not only was the cell
too small to maneuver easily within, but, as Shuhaiber con-
tended, he struggled to get into his lower bunk and use the
table. He likewise complained of being transported to

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No. 19-3244 3
physical therapy appointments in vans that were not ADA-
compliant, leaving him to depend on an officer to lift him into
the vehicles.
Invoking Federal Rule of Civil Procedure 12(b)(6), the De-
partment of Corrections moved to dismiss Shuhaiber’s com-
plaint. The district court granted the motion and dismissed
the complaint without prejudice, determining that Shuhaiber
failed to allege that he was deprived of access to facilities or
services or that anything about the Department’s vans caused
him to miss medical appointments. In so ruling, the district
court gave Shuhaiber a month within which to file an
amended complaint clarifying and more fully advancing his
allegations.
During the ensuing 30 days, Shuhaiber finished serving
his sentence and was transferred to the custody of the Depart-
ment of Homeland Security pending ongoing removal pro-
ceedings. This changed circumstance resulted in the district
court giving Shuhaiber another month within which to file an
amended complaint. After that new deadline passed, Shuhai-
ber sought another extension of time while simultaneously in-
dicating he wanted to appeal the court’s prior dismissal order.
We dismissed Shuhaiber’s appeal for non-payment of
fees. Order, Shuhaiber v. Ill. Dep’t of Corr., No. 19-2344 (7th Cir.
Oct. 4, 2019). The district court reacted by then entering a final
order dismissing Shuhaiber’s case with prejudice on the basis
that he had failed to respond to the prior order allowing an
amended complaint. Shuhaiber appealed from that final or-
der. Recognizing that Shuhaiber was no longer a prisoner
serving a criminal sentence, the district court granted his re-
quest to proceed in forma pauperis.

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4 No. 19-3244
II
We begin by addressing whether Shuhaiber’s in forma pau-
peris status on appeal is proper. The Prison Litigation Reform
Act, which everyone calls the PLRA, places several re-
strictions on prisoners’ access to federal civil litigation. Rele-
vant here is the PLRA’s “three strikes” provision, which pre-
vents prisoners from appealing a judgment in a civil action
without the prepayment of the filing fee if they have accumu-
lated three or more strikes and do not allege circumstances in
which they face an imminent danger of physical harm.
28 U.S.C. § 1915(g); see Kalinowski v. Bond, 358 F.3d 978, 978
(7th Cir. 2004) (“[T]he … three-strikes rule[] appl[ies] to pris-
oners only.”).
The question is whether Shuhaiber, upon leaving the cus-
tody of the Department of Corrections and being detained by
DHS (by which time he had accumulated five “strikes”), re-
mained a “prisoner” within the meaning of the PLRA. Con-
gress has answered the question by defining a “prisoner” as
“any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated delin-
quent for, violations of criminal law or the terms and condi-
tions of parole, probation, pretrial release, or diversionary
program.” 28 U.S.C. § 1915(h) (emphasis added). The analysis
from here is straightforward, for once Shuhaiber entered
DHS’s custody on the immigration detainer he ceased being
confined for any violation of criminal law—indeed, he had
finished serving his Illinois sentence. What is more, “[immi-
gration] removal proceedings are civil, not criminal,” in na-
ture. Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir.
2010) (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1050–51
(1984)).

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No. 19-3244 5
Like the three other circuits to have considered the ques-
tion, we too now conclude that a person held only on an im-
migration detainer is not a “prisoner” within the meaning of
the PLRA and therefore is not subject to its filing fee require-
ments. See Agyeman v. INS, 296 F.3d 871, 885–86 (9th Cir. 2002)
(analyzing PLRA’s definition of prisoner and nature of depor-
tation proceedings and reaching the same conclusion); LaFon-
tant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998) (employing same
reasoning and reaching the same conclusion); Ojo v. INS,
106 F.3d 680, 682–83 (5th Cir. 1997) (same).
The upshot is that allowing Shuhaiber to proceed in forma
pauperis does not violate the PLRA.
III
On the merits, the district court was right to dismiss with
prejudice Shuhaiber’s claims under the ADA and Rehabilita-
tion Act. To state a claim under the ADA or Rehabilitation
Act, Shuhaiber had to allege facts plausibly suggesting that he
is a qualified person with a disability and “was denied the
benefits of the services, programs, or activities” of the Center
because of his disability. Wagoner v. Lemmon, 778 F.3d 586, 592
(7th Cir. 2015) (citation and quotation marks omitted). He
failed to do so. Although alleging difficulties with his cell, the
showers, and the vans, Shuhaiber did not say anything about
his particular circumstances or accommodations that kept
him from accessing the Center’s facilities or services on the
same basis as other inmates. See id. at 592–93; Jaros v. Ill. Dep’t
of Corr., 684 F.3d 667, 672 (7th Cir. 2012). And, while invited
by the district court to amend his complaint to add allegations
about missing medical appointments because of the inade-
quacy of the Center’s vans, Shuhaiber never did so. See Wag-
oner, 778 F.3d at 593 (concluding that the inconvenience of

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6 No. 19-3244
transport in a noncompliant van does not amount to denial of
services).
Further, Shuhaiber is mistaken with his contention that
the district court held him to a fact pleading requirement at
odds with Federal Rule of Civil Procedure 8(a). Nothing in the
district court’s orders even hints at a requirement that Shuhai-
ber plead facts corresponding to the elements of his ADA and
Rehabilitation Act claims and theory of proof. See Chapman v.
Yellow Cab Coop., 875 F.3d 846, 848 (7th Cir. 2017) (“To the ex-
tent the district court demanded that complaints plead facts—
not only facts that bear on the statutory elements of a claim,
but also facts that bear on judicially established standards—it
was mistaken.”).
To be sure, Federal Rule of Civil Procedure 12(e) allows
district courts to ask a plaintiff to provide “details that enable
the defendants to respond intelligently and the court to han-
dle the litigation effectively.” Id. at 849. If a plaintiff does not
comply with a reasonable order for such details, a district
court may dismiss the complaint with prejudice. Id. That is all
that happened here, and, in the end, the district court commit-
ted no error in dismissing Shuhaiber’s case with prejudice.
Finally, it is too late for Shuhaiber to use his appellate
briefs to submit documents purporting to demonstrate that he
missed three physical therapy appointments (out of thirty-
eight) due to the lack of an ADA-compliant van. See id. These
facts, if true, were known to Shuhaiber all along, and he
should have included them in an amended complaint. The
time has come and gone for him to do so, however.
For these reasons, we AFFIRM.

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