NOLLEY v. NELSON et al
ORDER denying 109 Motion to Intervene. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 5/10/2017 (efw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CYNTHIA NELSON, et al.,
CASE NO. 5:15-CV-75-CAR-MSH
Presently pending before the Court is Waseem Daker’s motion to intervene (ECF
No. 109), filed on April 20, 2017. On April 27, 2017, Defendants Bobbitt, Bostick,
Giles, McLaughlin, and Ridley filed a joint response to Daker’s motion. (ECF No. 111.)
Daker filed a reply on May 8, 2017. (ECF No. 113.) Daker’s motion is ripe for review.
For the reasons discussed herein, Daker’s motion is denied.
Plaintiff Darnell Nolley filed this § 1983 action on March 1, 2015. Compl. 7, ECF
No. 1. Though the case was initially dismissed, Plaintiff was granted leave to file a postjudgment motion to amend his complaint—salvaging his claims. Plaintiff’s April 21,
2015 Amended Complaint (ECF No. 12) is the controlling complaint of this case. Order
3, June 1, 2015, ECF No. 11. Defendants filed a pre-answer motion to dismiss (ECF No.
21) on July 27, 2015. Pursuant to the ruling on that motion to dismiss, only Plaintiff’s
Fourteenth Amendment claims against Defendants in their individual capacities for
nominal damages were allowed to proceed. Order 4, March 29, 2016, ECF No. 54.
Defendants filed their Answer (ECF No. 57) on April 12, 2016. The discovery period
ended almost eight months ago, on September 21, 2016. Order 1, Aug. 22, 2016, ECF
No. 80. Defendants filed a motion for summary judgment (ECF No. 86) on October 21,
2016. On December 19, 2016, Plaintiff Nolley filed his response.
(ECF No. 93.)
Defendants filed a reply on January 26, 2017. (ECF No. 95.) Discovery is closed and the
pending dispositive motion is fully briefed and ripe for ruling, yet Daker filed the instant
motion to intervene on April 17, 2017—some two years after the initiation of this lawsuit.
Intervention of Right
Daker asserts that he is entitled of intervention of right. The Court disagrees.
Intervention of right occurs where an individual files a timely motion and
claims an interest relating to the property or transaction that is the subject
of the action, and is so situated that disposing of the action may as a
practical matter impair or impede the movant's ability to protect its interest,
unless existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2). Daker clearly does not meet this standard. Ignoring any
discussion of the timelineness of his motion—filed some two years after the action, after
the close of discovery and the time to file dispositive motions—Daker seeks wholly
different relief, for different claims, based on different facts and different legal issues
than Plaintiff. He can, in no way, claim an actual legal interest relating to the property or
transaction that is the subject of this action. Plaintiff’s claims arise from his allegation
that his due process rights were violated when he was purportedly denied a proper
hearing before being placed in Tier II confinement. Daker challenges a myriad of his
conditions of confinement. In fact, Daker has filed his own lawsuits asserting various
constitutional violations, and those are the proper vehicle for litigating his claims. Daker
has no intervention as a matter of right under the Federal Rules.
For the reasons discussed herein, permissive intervention is inappropriate and the
Court declines to exercise its discretion to grant the same. See Fed. R. Civ. P. 24(b).
Daker attempts to use permissive intervention to circumvent the PLRA three strike and
exhaustion requirements. Such requirements are part of Congress’s legitimate effort to
curtail abusive litigation and this Court will not permit Daker to usurp Congress’s
authority to do so.
The “three strikes” provision of the Prison Litigation Reform Act (“PLRA”)
prohibits a prisoner from bringing a civil action in forma pauperis
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).
Daker has filed more than three actions or appeals that were dismissed on the
statutorily-enumerated grounds prior to his filing of a motion to intervene in this case:
Daker v. Mokwa, Order Denying Leave to Proceed IFP, ECF No. 2 in Case No. 2:14-cv00395-UA-MRW (C.D. Cal. Feb. 4, 2014) (denying leave to proceed in forma pauperis
and dismissing case after conducting screening under 28 U.S.C. § 1915(e)(2)(B) and
finding claims were frivolous and failed to state a claim upon which relief may be
granted); Daker v. Warren, Order Dismissing Appeal, Case No. 13-11630 (11th Cir. Mar.
4, 2014) (three-judge panel dismissal of appeal on grounds that appeal was frivolous);
Order Dismissing Appeal, Daker v. Warden, Case No. 15-13148 (11th Cir. May 26,
2016) (three-judge panel dismissing appeal as frivolous); Order Dismissing Appeal,
Daker v. Commissioner, Case No. 15-11266 (11th Cir. Oct. 7, 2016) (three-judge panel
dismissing appeal as frivolous); Order Dismissing Appeal, Daker v. Ferrero, Case No.
15-13176 (11th Cir. Nov. 3, 2016) (three-judge panel dismissing appeal as frivolous);
Order Dismissing Appeal, Daker v. Governor, Case No. 15-13179 (11th Cir. Dec. 19,
2016) (three-judge panel dismissing appeal as frivolous). Daker has therefore accrued
more than three “strikes” for purposes of § 1915(g).
“The purpose of the PLRA is to curtail abusive litigation.” Dupree v. Palmer, 284
F.3d 1234, 1236 (11th Cir. 2002). “Section 1915 only allows a prisoner to file three
meritless suits at the reduced rate[.]” Vanderberg v. Donaldson, 259 F.3d 1321, 1324
(11th Cir. 2001). “After the third meritless suit, the prisoner must pay the full filing fee
at the time he initiates suit.” Id. Daker has filed numerous meritless suits and is, in fact,
a frequent filer. He has not prepaid a filing fee in the instant action and the Court will not
allow him to proceed without doing so. Daker will not be permitted to utilize a motion to
intervene to avoid prepaying the filing fee such that he can engage in abusive litigation.
Title 42, United States Code section 1997e(a) provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title . . . by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” “[A] n intervenor is treated as if he were an
original party and has equal standing with the original parties.” Marcaida v. Rascoe, 569
F.2d 828, 831 (5th Cir. 1978).1 The exhaustion requirement thus applies to intervenors
such as Daker because “to waive the exhaustion requirement . . . would be to circumvent
Congress’ intent in enacting the PLRA.” Daker v. Wetherington, Civil Action No. 1:01CV-3257-RWS at 11 (N.D. Ga. March 25, 2004).
“[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a
two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the
court looks to the factual allegations in the defendant’s motion to dismiss and those in the
plaintiff’s response, and if they conflict, takes the plaintiff’s versions of the facts as true.”
Id. If, taking plaintiff’s facts as being true, the defendant is entitled to dismissal for
failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not
subject to dismissal at the first step . . . , the court then proceeds to make specific findings
in order to resolve the disputed factual issues related to exhaustion.” Id. The defendant
bears the burden of proof during this second step. Id. Since dismissal for failure to
exhaust is not an adjudication on the merits, the Court can resolve factual disputes using
evidence from outside the pleadings. Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered
prior to October 1, 1981.
Defendants assert that Daker’s motion to intervene is subject to dismissal because
he failed to allege exhaustion. Defs.’ Resp. 4-5, ECF No. 111. Daker replies that he is
not required to exhaust under the PLRA, but even if he is, he has in fact exhausted.
Daker’s Reply 2-4, ECF No. 113.
Daker offers no facts supporting his alleged
exhaustion, asserting only that “[a]t this juncture, Mr. Daker’s sworn declaration below
sufficies to lay this issue to rest.”
The Court disagrees.
Defendants and Daker’s
assertions conflict, thus the Court examines this case at the second step of the exhaustion
Turner, 541 F.3d at 1082.
The Court, evaluating all the information as
presented by Defendants and Daker, concludes that there is no evidence at all to support a
finding that Daker exhausted any administrative remedy regarding Plaintiff Nolley’s
Fourteenth Amendment claims. Bryant, 530 F.3d at 1376. This Court will not allow
Daker to circumvent the PLRA requirements, as doing so would be out of line with
Congressional intent to prevent opening the floodgates of abusive litigation.
For the reasons stated above, the Daker’s motion to intervene (ECF No. 109) is
SO ORDERED, this 10th day of May, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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