DAKER v. OWENS et al
Filing
134
ORDER adopting 122 Report and Recommendations; denying 28 Motion for Preliminary Injunction; denying 28 Motion for TRO; denying 29 Motion for Preliminary Injunction; denying 29 Motion for TRO; granting 42 Motion for Leave to File Exc ess Pages; denying 46 Motion to Amend/Correct; denying 47 Motion for Preliminary Injunction; denying 48 Motion; granting 49 Motion to Dismiss; denying 50 Motion to Stay; denying 56 Motion for Preliminary Injunction; denying 57 M otion; denying 59 Motion to Stay; denying 61 Motion for Leave to File; denying 68 Motion for Protective Order; denying 73 Motion for Extension of Time to File Response/Reply; denying 74 Motion for Extension of Time to File Response/Re ply; denying 87 Amended Motion; denying 88 Motion to Amend/Correct; denying 89 Motion for Preliminary Injunction; denying 100 Motion for Preliminary Injunction; denying 101 Motion; denying 102 Amended Motion; denying 109 Motion f or Sanctions; denying 117 Motion for Partial Summary Judgment; denying 118 Motion for Partial Summary Judgment; denying 119 Motion for Partial Summary Judgment; denying 128 Motion for Reconsideration; denying 129 Motion to Stay; denyi ng 131 Motion to Vacate; denying 131 Motion; denying 131 Motion for Preliminary Injunction; denying 131 Motion for Extension of Time to File Response/Reply; denying 132 Motion to Stay; denying 24 Motion to Amend/Correct; denying 25 Motion for Preliminary Injunction; denying 25 Motion for TRO. Ordered by U.S. District Judge C ASHLEY ROYAL on 3/21/14 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WASEEM DAKER,
Plaintiff,
v.
BRIAN OWENS, et al.,
Defendants
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Civil Action
No. 5:12‐cv‐459 (CAR)
ORDER ON THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Currently before the Court is the Report and Recommendation of the United
States Magistrate Judge to dismiss this case without prejudice based on Plaintiff’s
accrual of three strikes under the Prison Litigation Reform Act (PLRA), 28 U.S.C. §
1915(g). Plaintiff has not filed an objection. Instead, Plaintiff asserts that he cannot file
an objection because Defendants have deprived him of access to the jail’s law library
and legal research materials. 1 Accordingly, Plaintiff requests that this Court issue a
preliminary injunction compelling Defendants to provide him with access to legal
resources and to extend the time to object to the Recommendation.
Plaintiff also re‐filed exact copies of a Motion for Reconsideration [Doc. 123] and a Motion to Stay [Doc.
124] that he previously filed that this Court denied in its Order on March 6, 2014 [Doc. 127]. These
duplicate Motions [Docs. 128 & 129] are DENIED for the reasons set forth in the Court’s previous Order
[Doc. 127].
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Having thoroughly considered Plaintiff’s requests, the Court finds Plaintiff has
failed to establish the requirements necessary to issue a preliminary injunction. Thus,
his request to extend time to object to the Recommendation is moot. Moreover, the
Court finds Plaintiff has had ample opportunity to address the substance of the
Magistrate Judge’s Recommendation. Additionally, any extension is unnecessary
because this Court has conducted a de novo review of the Report and Recommendation
and agrees with the findings and conclusions of the Magistrate Judge. Thus, as
explained in detail below, Plaintiff’s Motions are DENIED [Docs. 131 & 132]. The
Report and Recommendation [Doc. 122] is ADOPTED and MADE THE ORDER OF
THE COURT, and this case must be dismissed without prejudice because Plaintiff has
accrued three strikes under the PLRA.
DISCUSSION
Motion for Preliminary Injunction [Doc. 131]
Plaintiff asserts that Defendants continue to deprive him of access to legal
resources and moves this Court to enter a preliminary injunction requiring them to
provide him with such. For the Court to grant a preliminary injunction, Plaintiff must
demonstrate: (1) a substantial likelihood of success on the merits of his claim; (2)
substantial threat of irreparable injury if the injunction is not granted; (3) that the
threatened injury to Plaintiff outweighs the damage to the opposing party; and (4) that
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granting the injunction would not be adverse to the public interest.2 “[T]he preliminary
injunction is an extraordinary and drastic remedy not to be granted unless the movant
clearly carries the burden of persuasion as to the four prerequisites.”3 The decision to
grant or deny injunctive relief is within the sound discretion of the trial court.4
Here, Plaintiff has failed to carry his burden. The Court acknowledges that
prisoners have a constitutional right under the Fourteenth Amendment to meaningful
access to legal materials and to courts.5 Moreover, under certain circumstances, states
have an affirmative obligation to ensure that indigent prisoners have a fair opportunity
to present their legal claims by assisting inmates in the preparation of various legal
papers and providing them with adequate law libraries or other assistance.6 However,
in order to prevail, “prisoners’ contentions of deprivations of access to courts must
show actual injury as a ‘constitutional prerequisite.’”7 In order to show actual injury, a
prisoner must show that “prison officials’ actions that allegedly violate an inmate’s
right of access to the courts [] have impeded the inmate’s pursuit of a nonfrivolous,
post‐conviction claim or civil rights action. To prevail, a plaintiff must provide
evidence of such deterrence, such as a denial or dismissal of a direct appeal, habeas
Four Seasons Hotels & Resorts v. Consorcio Barr, 320 F.3d 1205, 1210 (11th Cir. 2003).
United States v. Jefferson Cnty., 720 F.2d 1511, 1518 (11th Cir. 1983) (internal quotation marks and citation
omitted).
4 Café 207 v. St. Johns Cnty., 989 F.2d 1136, 1137 (11th Cir. 1993).
5 Bounds v. Smith, 430 U.S. 817, 828 (1977).
6 Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006).
7 Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)).
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petition, or civil rights case that results from actions of prison officials.”8
Plaintiff fails to provide any evidence that the alleged deprivation of legal
resources has resulted in actual injury. He has shown no denial or dismissal of a direct
appeal, habeas petition, or civil rights case resulting from the alleged lack of legal
resources. Plaintiff simply states that he lacks access to legal research materials; he
provides no facts regarding his current access to legal materials, however limited it may
be. Thus, Plaintiff’s request for a preliminary injunction is denied.
Motion for Extension of Time to File Objections [Doc. 132]
As thoroughly explained in its previous Order [Doc. 127], Plaintiff had ample
notice of the alleged strikes and ample opportunity to respond. Plaintiff’s conclusory
assertion that he cannot file an objection because he lacks adequate access to legal
research is not a sufficient reason to warrant an extension of time and delay the
resolution of this case any further. Moreover, because this Court has conducted a de
novo review of the Report and Recommendation, an extension is unnecessary. Thus,
Plaintiff’s request for an extension of time to object is denied.
Report and Recommendation
The United States Magistrate Judge recommends this case be dismissed without
prejudice based on Plaintiff’s accrual of three strikes under the PLRA. The Court has
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Id. at 1290‐91.
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considered and analyzed each of the identified “strikes,” and agrees that Plaintiff has
exceeded the three strikes allowed by § 1915(g). Because there is no evidence that
Plaintiff is in imminent danger of any serious physical injury, his Complaint should be
dismissed without prejudice for failure to pay the filing fee.9
CONCLUSION
Based on the foregoing, the Report and Recommendation [Doc. 122] is
ADOPTED and MADE THE ORDER OF THE COURT. Plaintiff’s Motion for
Reconsideration [Doc. 128] and Motion to Stay [Doc. 129] are DENIED as duplicative
of previous motions this Court has ruled upon. Plaintiff’s Motions for Preliminary
Injunctions and Temporary Restraining Orders [Docs. 25, 28, 29, 47, 56, 89, 100, 131]
are DENIED. Plaintiff’s Motion to Extend Time to Object to the Recommendation
[Doc. 132] is DENIED AS MOOT. Defendant’s Motion to File Excess Pages [Doc. 42]
and Motion to Dismiss [Doc. 49] are GRANTED. Defendant’s Motions to Stay
Proceedings [Doc. 50] and for a Protective Order [Doc. 68] are DENIED AS MOOT.
Plaintiff’s remaining Motions [Docs. 24, 46, 48, 57, 59, 61, 73, 74, 87, 88, 101, 102, 109,
117, 118, 119] are DENIED AS MOOT. The instant action is hereby DISMISSED
without prejudice.
See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (explaining that a court must dismiss a
complaint without prejudice when it later becomes apparent a plaintiff is not entitled to IFP status).
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SO ORDERED, this 21st day of March, 2014.
SSH/bbp
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
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