DAKER v. HEAD
Filing
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ORDER DENYING as moot 25 and 31 Motions to Expedite 28:1915A Review and Other Proceedings; DENYING 27 and 29 Motions for Preliminary Injunction or Temporary Restraining Order; and DENYING 28 Motion f or Recusal of Magistrate Charles H. Weigle. Plaintiff is ORDERED to (1) either pay the Courts $400.00 filing fee or submit a motion for leave to proceed in forma pauperis explaining his present inability to pay such fee and (2) amend his Compla int as directed above within TWENTY-ONE (21) DAYS of the date of this Order. The Clerk is DIRECTED to mail Plaintiff a copy of the appropriate forms. The Clerk is also DIRECTED to forward a copy of the Court's standard § 1983 form marked with the case number of the above-captioned action to the Plaintiff. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 2/22/2019. (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WASEEM DAKER,
Plaintiff,
VS.
PATRICK H. HEAD, et al.,
Defendants.
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CASE NO.: 5:14-CV-138-MTT-CHW
ORDER
On October 9, 2018, the Eleventh Circuit confirmed that Plaintiff Waseem Daker,
an inmate presently housed at the Valdosta State Prison in Valdosta, Georgia, did not have
three strikes at the time he filed the Complaint in this case. The Eleventh Circuit
accordingly reversed the Court’s previous judgment and remanded the case for further
proceedings (ECF No. 24). The Eleventh Circuit’s mandate issued on November 7, 2018
(ECF No. 26).
Plaintiff has filed the following motions that are presently pending before the Court:
(1) two motions to expedite the preliminary screening of this case pursuant to 28 U.S.C. §
1915A (ECF Nos. 25, 31); (2) an emergency motion for preliminary injunction (ECF No.
27); (3) a motion to recuse United States Magistrate Judge Weigle (ECF No. 28); and (4)
a motion for preliminary injunction or temporary restraining order (ECF No. 29). For the
following reasons, the Court DENIES each of these pending motions. In addition, the
Court ORDERS Plaintiff to (1) file a motion for leave to proceed in forma pauperis in this
case; and (2) recast his Complaint in accordance with the instructions below.
I.
Motion for Recusal
Plaintiff has filed a motion seeking recusal of Magistrate Judge Weigle (ECF No.
28). This motion is duplicative of a motion filed in Case Number 5:18-cv-00245-TESCHW.
In this motion, Plaintiff contends that Magistrate Judge Weigle should recuse
himself because he is “ghost-writing” orders for district judges rather than entering
recommendations to which Plaintiff would have an opportunity to object. See Mot. Recusal
2-4, Dec. 10, 2018, ECF No. 28. Plaintiff alleges that Magistrate Judge Weigle has
“demonstrate[ed] bias, prejudice, hostility, and antagonism” towards Plaintiff in this case
and that he has “discriminat[ed] against Plaintiff in comparison with other similarly
situated prisoners.” Id. at 9.
Plaintiff bases his motions on 28 U.S.C. § 455. The statute generally provides that
a judge “shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a). The statute also enumerates certain other
circumstances requiring a judge to disqualify himself. Id. at § 455(b)(1)-(5). Plaintiff’s
primary complaint is that the Court is biased towards him. Plaintiff may thus be relying
on either subsection (a) or subsection (b)(1).
The standard under subsection (a) is objective and requires the Court to ask
“whether an objective, disinterested lay observer fully informed of the facts underlying the
grounds on which recusal was sought would entertain significant doubt about the judge’s
impartiality.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (internal
quotation marks omitted). In the Eleventh Circuit, “it is well settled that the allegation of
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bias must show that the bias is personal as distinguished from judicial in nature.” Bolin v.
Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (internal quotation marks and citation omitted)
(per curiam). As a result, “a judge’s rulings in the same or a related case are not a sufficient
basis for recusal,” except in rare circumstances where the previous proceedings
demonstrate pervasive bias and prejudice. Id.; see also Liteky v. United States, 510 U.S.
540, 555 (1994) (“[J]udicial rulings alone almost never constitute [a] valid basis for a bias
or partiality recusal motion.”); McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th
Cir. 1990) (“[The bias] must derive from something other than that which the judge learned
by participating in the case.”). In this case, Plaintiff has not pointed to any specific facts
showing that any sort of extrajudicial bias existed, nor has Plaintiff demonstrated that the
Court’s rulings exhibit “such a high degree of . . . antagonism as to make fair judgment
impossible.” See Liteky, 510 U.S. at 555. Plaintiff has not demonstrated that Magistrate
Judge Weigle has a bias towards Plaintiff “so extreme as to display clear inability to render
fair judgment.” See id. at 551. It is clear that “[r]epeated rulings against a litigant, no
matter how erroneous and how vigorously and consistently expressed, are not a basis for
disqualification of a judge on the grounds of bias and prejudice.” See Maret v. United
States, 332 F. Supp. 324, 326 (E.D. Mo. 1971). Plaintiff’s contention that any judge who
rules against him exhibits pervasive bias and prejudice is simply incorrect, and his theory
that Judge Weigle is treating him differently than other pro se inmates making similar
claims is undercut by Plaintiff’s failure to differentiate between the procedural postures
and the overall circumstances of the cases and litigants he is comparing.
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28 U.S.C. § 455(b)(1) requires disqualification where the judge “has a personal bias
or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding[.]” “Recusal under this subsection is mandatory, because ‘the
potential for conflicts of interest are readily apparent.’” Patti, 337 F.3d at 1321 (quoting
Murray v. Scott, 253 F.3d 1308, 1312 (11th Cir. 2001)). Again, Plaintiff has failed to
establish any personal or pervasive bias on the part of Judge Weigle, and Plaintiff also fails
to identify any specific “disputed evidentiary facts” of which the Court might have
knowledge. Any knowledge gained through the course of a judicial proceeding is not a
“disputed evidentiary fact” that requires recusal. United States v. Bailey, 175 F.3d 966,
969 (11th Cir. 1999) (per curiam). Instead, knowledge of disputed evidentiary facts must
be gained through an extrajudicial source to warrant recusal. See id. Plaintiff has not
asserted that such knowledge exists here.
In sum, Plaintiff’s contentions that Judge Weigle has not ruled in his favor are not
alone sufficient to merit recusal, and Plaintiff has also failed to show that Judge Weigle
harbors the type of pervasive bias or prejudice against Plaintiff that would otherwise
require recusal. Plaintiff’s motion for recusal (ECF No. 28) is therefore DENIED.
II.
Motions for Preliminary Injunction
Plaintiff has also filed an “emergency” motion for a preliminary injunction or
temporary restraining order “enjoining Defendants from physically forcibly shaving
Plaintiff pending final disposition of this case.” Mot. Prelim. Inj. 1, ECF No. 27. Plaintiff
additionally filed a motion for preliminary injunction or temporary restraining order
requiring Defendants to provide Plaintiff with adequate access to either a lockdown
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satellite law library or the general population library, or to “otherwise make arrangements
to provide Plaintiff adequate law library access.” Mot. Prelim. Inj. 1, ECF No. 29. 1
A temporary restraining order (“TRO”) or preliminary injunction is a drastic remedy
used primarily to preserve the status quo rather than grant most or all of the substantive
relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.
1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). 2 Factors a movant
must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success
on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened
injury outweighs the harm the TRO would inflict on the non-movant; and (4) the TRO
would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (per
curiam).
Since Plaintiff filed his motions for injunctive relief, he has been transferred from
the Macon State Prison to the Valdosta State Prison. “The general rule is that a prisoner’s
transfer or release from a jail moots his individual claim for declaratory and injunctive
relief.” See, e.g., McKinnon v. Talladega Cnty., 745 F.2d 1360, 1363 (11th Cir. 1984)).
This general rule may not apply, however, where a reason to except the claims exists. See,
e.g., Smith v. Artus, 522 F. App’x 82, 84 (2d Cir. 2013) (unpublished opinion) (finding that
transferred prisoner’s claims for injunctive relief were not moot where defendants
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This motion was also filed in two of Plaintiff’s other pending cases.
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The standard for obtaining a TRO is the same as the standard for obtaining a preliminary
injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th
Cir. 2001) (per curiam); Windsor v. United States, 379 F. App’x 912, 916-17 (11th Cir.
2010) (per curiam).
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acknowledged claims were based on a statewide policy). With respect to Plaintiff’s motion
regarding law library access, the Court finds Plaintiff has failed to allege facts sufficient to
show that an exception to the general rule should apply. Plaintiff has not alleged any facts
suggesting that his alleged lack of law library access is the result of a statewide policy or
otherwise exists at his new prison. Plaintiff’s motion is based on his contention that
lockdown prisoners are not afforded sufficient law library access. It is unclear whether
Plaintiff is even on “lockdown” at VSP or whether he is now housed in general population.
The Court therefore cannot determine whether Plaintiff actually requires a “lockdown
satellite law library” or the other accommodations he requests. See Mot. Prelim. Inj. 1,
ECF No. 29. Furthermore, Plaintiff acknowledges in his motion that some Georgia state
prisons do maintain satellite law libraries in their lockdown units. Id. at 2. It therefore
appears that no uniform statewide policy exists, and Plaintiff has failed to file any
supplemental briefing or pleadings in this case indicating that his access to legal materials
at VSP is limited. Plaintiff’s motion for injunctive relief regarding law library access (ECF
No. 29) is therefore DENIED as moot.
As to Plaintiff’s motion seeking an order enjoining Defendants from forcibly
shaving Plaintiff, the Court finds that at this juncture the facts have not been sufficiently
developed to conclude that there is a substantial likelihood that Plaintiff will ultimately
prevail on the merits. This Court has previously observed that Plaintiff can avoid being
forcibly shaven by simply complying with the GDC’s grooming policy. See Daker v.
Dozier, No. 5:17-CV-0025-CAR, 2017 WL 3037420, at *6 (M.D. Ga. July 18, 2017)
(noting that Plaintiff’s “allegations . . . suggest that it was Plaintiff’s repeated failure to
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follow instructions, not the GDC’s policies, that created the dangerous situation that led to
his injuries”). Plaintiff does not allege that the GDC’s current grooming policy has been
found unconstitutional or otherwise unlawful, and the Eleventh Circuit has indicated that
some use of force is permissible to enforce prison regulations. Muhammad v. Sapp, 494 F.
App’x 953, 957 (11th Cir. 2012) (per curiam) (holding that prison official “was authorized
to use force to enforce the prison’s shaving policy”); cf. also, e.g., Robinson v. Lambert,
No. 18-11033, 2018 WL 5255238, at *3 (11th Cir. Oct. 22, 2018) (per curiam) (holding
that officer “was warranted in using force given [plaintiff’s] repeated refusal to obey
commands to attend his first appearance”). While Defendants clearly are not permitted to
use excessive force to enforce their regulations, this Court cannot issue an injunction that
simply requires Defendants to follow the law. See Elend v. Basham, 471 F.3d 1199, 1209
(11th Cir. 2006) (“It is well-established in this circuit that an injunction demanding that a
party do nothing more specific than ‘obey the law’ is impermissible.”). Furthermore, the
Defendants have not been served or had a meaningful opportunity to respond to Plaintiff’s
allegations. See Fed. R. Civ. P. 65. Defendants should be afforded an opportunity to
respond to Plaintiff’s allegations, and any claims for injunctive relief can be addressed as
this case proceeds. For these reasons, Plaintiff’s motion for an emergency injunction (ECF
No. 27) is DENIED.
III.
Leave to Proceed in Forma Pauperis
On May 6, 2014, this Court denied leave to proceed in forma pauperis on grounds
that Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) and had
not demonstrated that he was in imminent danger of serious physical injury. Order, May
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6, 2014, ECF No. 5. Based on its intervening decision in Daker v. Commissioner, Georgia
Department of Corrections, 820 F.3d 1278 (11th Cir. 2016), the Eleventh Circuit
concluded that the Court miscounted Plaintiff’s strikes and therefore erred in denying
Plaintiff’s in forma pauperis motion and dismissing his Complaint. Order 4, Oct. 9, 2018,
ECF No. 24. Thus, while the question of whether Plaintiff had three strikes at the time he
filed his Complaint is now settled, this Court has not yet had the opportunity to address
whether Plaintiff is actually indigent and therefore entitled to proceed without prepaying
the Court’s filing fees. See 28 U.S.C. § 1915(a)(1). This is particularly important in light
of the facts that (1) Plaintiff has recently been able to pay hundreds of dollars in filing fees
in various courts; (2) Plaintiff’s name is listed as an account holder on at least one of the
checks used to pay those fees; and (3) other courts have found that Plaintiff has not been
truthful concerning his allegations of poverty. See, e.g., Nolley v. McLaughlin, Case No.
5:15-cv-00149-TES-CHW (M.D. Ga. Apr. 27, 2015) ($505.00 appeal fee paid on Feb. 7,
2019 regarding Plaintiff’s motion to intervene); Daker v. Owens, Case No. 5:12-cv-00459CAR-MSH (M.D. Ga. Nov. 20, 2012) ($4.00 appeal fee paid on Jan. 4, 2019); Daker v.
USA, Appeal No. 18-11383 (11th Cir. Apr. 3, 2018) ($505.00 appeal fee paid on November
30, 2018); Daker v. McLaughlin, Case No. 5:18-cv-00171-MTT-CHW (M.D. Ga. May 17,
2018) ($5.00 filing fee paid May 17, 2018); Smith v. Owens, Case No. 5:12-cv-00026WLS-CHW (M.D. Ga. Jan. 24, 2012) ($505.00 appeal fee paid on Sept. 4, 2018 with check
listing Plaintiff as account holder, see ECF No. 215); Daker v. Warren, Appeal No. 1617459 (11th Cir. Dec. 8, 2016) ($505.00 appeal fee paid May 22, 2018); see also Order,
Daker v. Warren, ECF No. 38 in Case No. 1:12-CV-2605-RWS (N.D. Ga. June 5, 2014)
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(“Daker has repeatedly abused the judicial process by filing IFP affidavits that conceal
and/or misstate his true assets and income.”); Order, Daker v. Dawes, ECF No. 3 in Case
No. 1:12-CV-119-RWS (N.D. Ga. Feb. 2, 2012) (magistrate judge finding that earlier-filed
IFP affidavit had concealed Plaintiff’s true, substantial net worth).
Plaintiff is therefore ORDERED to submit a new motion for leave to proceed in
forma pauperis in this action within TWENTY-ONE (21) DAYS of the date of this Order.
The Clerk is DIRECTED to mail Plaintiff a copy of the appropriate forms.
IV.
Order to Recast
The Federal Rules of Civil Procedure require (1) that a complaint set out “a short
and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ.
P. 8(a)(2), (2) that “[a] party must state its claims . . . in numbered paragraphs, each limited
as far as practicable to a single set of circumstances,” and (3) that “[i]f doing so would
promote clarity, each claim founded on a separate transaction or occurrence . . . must be
stated in a separate count[,]” Fed. R. Civ. P. 10(b). The Court has the “inherent authority
to control its docket and ensure the prompt resolution of lawsuits, which in some
circumstances includes the power to dismiss a complaint for failure to comply with Rule
8(a)(2) and Rule 10(b).” Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313,
1320 (11th Cir. 2015). A complaint that violates Rule 8(a)(2) or Rule 10(b)—and might
therefore be subject to dismissal on that ground—is often called “a shotgun pleading.” Id.
The Eleventh Circuit has identified several different species of “shotgun pleadings,” but
their “unifying characteristic” is their failure “to give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests.” See id. at 1321-22.
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Plaintiff’s Complaint primarily consists of two distinct sections: a “statement of
facts” and a “statement of claims.” See Compl. 10-34, 35-37, ECF No. 1. The “statement
of claims” portion of Plaintiff’s Complaint asserts “multiple claims against multiple
defendants without specifying which of the defendants are responsible for which acts or
omissions, or which of the defendants the claim is brought against.” Weiland, 792 F.3d at
1323. It is also “replete with allegations that ‘the defendants’ engaged in certain conduct,
making no distinction among the [30] defendants charged, though geographic and temporal
realities make plain that all of the defendants could not have participated in every act
complained of.” Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (per curiam).
Furthermore, Plaintiff does not even mention nearly a third of the named Defendants in his
statement of facts, including Defendants Fields, Fountain, Lewis, Eutsey, Caldwell,
Malone, Ayeni, and Medlock. Plaintiff’s Complaint is therefore a “shotgun complaint” as
defined by the Eleventh Circuit. See, e.g., Chudasama v. Mazda Motor Corp., 123 F.3d
1353, 1359 n.9 (11th Cir. 1997) (noting that the complaint was “an all-too-typical shotgun
pleading” where the “reader of the complaint must speculate as to which factual allegations
pertain to which count”); see also Douglas v. Yates, 535 F.3d 1316, 1321-22 (11th Cir.
2008) (dismissal of defendants appropriate where plaintiff failed to allege facts associating
defendants with a particular constitutional violation). The proper remedy for a “shotgun”
pleading is generally to permit the party to amend his complaint to conform to the Federal
Rules of Civil Procedure or to dismiss the pleading without prejudice. See Washington v.
Dep’t of Children & Families, 256 F. App’x 326, 328 (11th Cir. 2007) (per curiam)
(vacating and remanding district court’s dismissal of complaint with prejudice with
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instructions to order plaintiff to either “comply with the rules or to dismiss the complaint
without prejudice”). The Court will give Plaintiff an opportunity to amend his Complaint
to address this deficiency.
Plaintiff’s amended complaint must contain a caption that clearly identifies, by
name, each individual that Plaintiff has a claim against and wishes to include as a defendant
in the present lawsuit. Plaintiff is to name only the individuals associated with the claim
or related claims that he is pursuing in this action. Plaintiff must then list each defendant
again in the body of his complaint and tell the Court exactly how that individual violated
his constitutional rights. Plaintiff should state his claims as simply as possible and need
not attempt to include legal citations or legalese. If, in his amended complaint, Plaintiff
fails to link a named defendant to a claim, the claim will be dismissed. Likewise, if Plaintiff
makes no allegations in the body of his complaint against a named defendant, that
defendant will be dismissed.
Plaintiff’s amended complaint should be limited to the claims raised in his initial
Complaint in this case. In addition, Plaintiff’s amended complaint should not contain any
claims that have been fully and finally resolved against him as a sanction in Daker v.
Owens, No. 5:12-cv-00459-CAR-MSH (M.D. Ga. Nov. 20, 2012) (“Daker I”). See Order
17, ECF No. 388 in Daker I (M.D. Ga. May 8, 2017) (dismissing amended complaint as a
sanction under Federal Rule of Civil Procedure 41(b) due to Plaintiff’s “blatant disregard
for the Court’s Orders, procedures, and resources”). Plaintiff’s amended complaint also
should not contain any claims that are presently pending in any of Plaintiff’s current
actions. The recast complaint will supersede (take the place of) the original complaint
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filed in this case (ECF No. 1). The Clerk is DIRECTED to forward a copy of the Court’s
standard § 1983 form marked with the case number of the above-captioned action to the
Plaintiff. Once Plaintiff has amended his Complaint in accordance with the Court’s
instructions, the Court will conduct preliminary screening pursuant to 28 U.S.C. § 1915A
and/or any other appropriate proceedings within a reasonable time. Plaintiff’s motions to
expedite the § 1915A screening (ECF Nos. 25, 31) are therefore DENIED as moot.
V.
Conclusion
For the foregoing reasons, the Court DENIES Plaintiff’s motion for recusal of
Magistrate Judge Weigle (ECF No. 28); DENIES Plaintiff’s motions for preliminary
injunctions or temporary restraining orders (ECF Nos. 27, 29); and DENIES Plaintiff’s
motions to expedite the 28 U.S.C. § 1915A and other proceedings (ECF Nos. 25, 31).
Plaintiff is ORDERED to (1) either pay the Court’s $400.00 filing fee or submit a motion
for leave to proceed in forma pauperis explaining his present inability to pay such fee and
(2) amend his Complaint as directed above within TWENTY-ONE (21) DAYS of the date
of this Order. Plaintiff is also instructed to notify the Court in writing of any change in his
mailing address. The failure to fully and timely comply with this Order will result in
the dismissal of his Complaint.
SO ORDERED, this 22nd day of February, 2019.
S/Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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