DAKER v. BRYSON et al

Filing 10

ORDER denying 2 Motion for Leave to Proceed in forma pauperis; denying as moot 3 Motion for Preliminary Injunction; denying as moot 4 Motion to Expedite; denying as moot 7 Motion to Certify a Constitutional Challenge ; denying as moot 8 Motion Showing that Plaintiff either does not have three strikes or that he is in imminent danger; and Dismissing Plaintiff's Complaint. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/20/15 (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WASEEM DAKER,
Plaintiff,
VS.
HOMER BRYSON et al.,
Defendant.
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CASE NO.: 5:15-CV-88-CAR-CHW

ORDER
Plaintiff Waseem Daker, a prisoner who is incarcerated at Georgia State Prison in
Reidsville, Georgia, filed a pro se complaint seeking relief under 42 U.S.C. § 1983 and a
motion seeking leave to proceed in forma pauperis. Plaintiff has also filed motions for a
preliminary injunction or temporary restraining order (ECF No. 3); a motion to expedite §
1915 review (ECF No. 4); a motion requesting that the Court certify to the U.S. Attorney
General a constitutional challenge to 28 U.S.C. § 1915(g) (ECF No. 7); and a motion
showing that Plaintiff either does not have three strikes or that he is in imminent danger
of serious physical injury, (ECF No. 8). As discussed below, Plaintiff has recently been
found by judges in the Northern District of Georgia and the Eleventh Circuit Court of
Appeals to have made false statements in his affidavits of poverty. After reviewing
Plaintiff’s submissions in this case, the Court agrees that Plaintiff’s motion to proceed in
forma pauperis (ECF No. 2) should be DENIED and his case should be DISMISSED
because his allegations of poverty are untruthful.
Plaintiff’s remaining motions are DENIED as moot.

See 28 U.S.C. § 1915(e)(2)(A).

ANALYSIS
Federal law bars a prisoner from bringing a civil action in federal court in forma
pauperis
if [he] 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). This is known as the “three strikes provision.” Under § 1915(g), a
prisoner incurs a “strike” any time he has a federal lawsuit or appeal dismissed on the
grounds that it is frivolous or malicious or fails to state a claim. See Medberry v. Butler,
185 F.3d 1189, 1192 (11th Cir. 1999). Once a prisoner incurs three strikes, his ability to
proceed in forma pauperis in federal court is greatly limited: Leave to proceed in forma
pauperis may not be granted unless the prisoner is under imminent danger of serious
physical injury. Id.
A review of court records on the Federal Judiciary’s Public Access to Court
Electronic Records (“PACER”) database reveals that Plaintiff has filed more than one
hundred federal civil actions and appeals since 1999. See www.pacer.gov (last visited June 22, 2015;
searched for “Daker, Waseem”). It appears that more than three of his complaints or appeals
have been dismissed as frivolous, malicious, or for failure to state a claim. See, e.g., In re
Daker, No. 11-11937-C (11th Cir. June 3, 2011) (petition for mandamus dismissed as
frivolous); In re Daker, No. 12-12072-F (11th Cir. Aug. 6, 2012) (dismissed for want of
prosecution following May 31, 2012 finding that case was frivolous); In re Daker, No. 1212073-C (11th Cir. July 12, 2012) (dismissed for want of prosecution following June 7,
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2012 determination that case was frivolous); In re Daker, No. 12-12519-C (11th Cir. Nov.
5, 2012) (dismissed for want of prosecution following October 9, 2012 finding that claims
were frivolous).1

Plaintiff’s allegations that prison officials’ use of damaged and

unsanitized razors and clippers expose Plaintiff to deadly diseases that are common in the
prison population, such as HIV and hepatitis, could arguably be sufficient to permit
Plaintiff to proceed under the imminent danger exception to § 1915(g).

See, e.g.,

Bingham v. Morales, No. CV 311-019, 2011 WL 5358594, at *1 n.2 (S.D. Ga. Nov. 4,
2011) (noting that the magistrate judge concluded that prisoner satisfied imminent danger
exception based on allegation that prisoner was forced to share razors with other inmates
under unsanitary conditions); see also Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th
Cir. 2007) (holding that the prisoner’s “allegation that he is at risk of contracting HIV or
hepatitis C, if true, more than plausibly raises the specter of serious physical injury”).
But the Court will not reach this issue because it concludes Plaintiff’s Complaint should
be dismissed because Plaintiff’s allegations of poverty are untruthful. See 28 U.S.C. §
1915(e)(2)(A) (“Notwithstanding any filing fee, or any portion thereof, that may have

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The Eleventh Circuit has held that dismissals for failure to prosecute may constitute
“strikes” for purposes of § 1915(g). Allen v. Clark, 266 F. App’x 815, 817 (11th Cir.
2008) (“A dismissal for failure to prosecute made in the light of a frivolous response to a
show cause order is a strike for purposes of section 1915(g).”). The Court also notes that
while Plaintiff is currently litigating his status as a “three-striker” in the Eleventh Circuit
Court of Appeals, the U.S. Supreme Court has recently held that “[a] prior dismissal on a
statutorily enumerated ground counts as a strike even if the dismissal is the subject of an
appeal.” Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015).

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been paid, the court shall dismiss the case at any time if the court determines that . . . the
allegation of poverty is untrue[.]”).
Plaintiff’s affidavit of poverty states that he “own[s] a house with a mortgage, but
the mortgage is more than the house’s value.” (Aff. 2, Mar. 16, 2015, ECF No. 2.)
Plaintiff estimates his mortgage was approximately $345,000 and states that the home is
worth between $285,000 and $330,000. He further states that he is unable to make
mortgage payments on the home and that it “is currently listed for sale as a short sale, so
as to avoid foreclosure.” Id.2 Plaintiff also contends that he has additional outstanding
debt totaling $61,500. Id.
Plaintiff has made similar (and in some cases, virtually identical) allegations of
poverty in other cases, and those courts have found them to be untrue. See Order, Daker
v. Warren, Case No. 14-13042-C (11th Cir. Apr. 30, 2014); Order, Daker v. Warren, ECF
No. 50 in Case No. 1:12-CV-2605-RWS (N.D. Ga. Mar. 4, 2015); Order, Daker v.
Warren, ECF No. 38 in Case No. 1:12-CV-2605-RWS (N.D. Ga. June 5, 2014) (“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).

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The Court observes that Plaintiff has been contending that he has been unable to make
his mortgage payments for a number of years, but apparently his home has not yet been
foreclosed upon. See Ex. A to Pl.’s Supp. Mot. for Recons. at 1, 5, in Case No. 1:12-CV119-RWS, ECF No. 8-1 (N.D. Ga. Feb. 12, 2012).
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The value of Plaintiff’s assets is clearly at issue. At least one judge has observed
that Plaintiff’s Gwinnett County home actually has a fair market value of over $398,000
and that Plaintiff has remained current on tax payments totaling more than $12,000 paid
in 2013 and 2014. (Mar. 4, 2015 Order at 3, ECF No. 50 (information taken from
Gwinnett County tax assessor’s website)). Further, “other substantial assets that Daker
has disclosed in past IFP affidavits, including, for example, ‘a car that is paid off in full,’
have vanished without explanation from Daker’s subsequent disclosures of assets, even
as he continues to claim that he has ‘had no income’ since January 10, 2010.” (June 5,
2014 Order at 7, ECF No. 38 (internal citation omitted)). Plaintiff has also stated that a
relative has a power of attorney to handle Plaintiff’s financial affairs while Plaintiff is in
prison, but Plaintiff has never disclosed “the nature of and value of the assets that he is
permitting others to manage on his behalf.” Id. Plaintiff’s claims of additional debt also
appear questionable. See, e.g., Order, Daker v. Humphrey, ECF No. 2 in Case No. 1:13CV-1554-RWS (N.D. Ga. Oct. 31, 2013) (noting that latest IFP affidavit listed debts not
previously disclosed and further observing that claim of $36,000 debt for attorney fees
was “all the more dubious because Daker represented himself at his murder trial, and the
court-appointed backup counsel were court-paid”).
It is also notable that Plaintiff has been able to pay docketing fees in other filings,
including other recent cases. See, e.g., Daker v. Mokwa, ECF No. 12 in Case No. 1455653 (9th Cir. Aug. 6, 2014) (docket entry reflecting payment of $505 filing fee on July
31, 2014); see also Daker v. Warren, Case No. 1:14-CV-3180 (N.D. Ga. Nov. 7, 2014)
(docket entry reflecting payment of $5 filing fee); Daker v. Warren, ECF No. 1 in Case
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No. 1:12-CV-1141 (N.D. Ga. Apr. 2, 2012) (docket entry reflecting payment of $5 filing
fee); Daker v. Warren, ECF No. 1 in Case No. 1:11-CV-1711 (N.D. Ga. May 24, 2011)
(docket entry reflecting payment of $5 filing fee).
Nothing Plaintiff has filed in this case suggests that his financial status has
changed materially. The Court therefore concludes that Plaintiff’s assertions of poverty
remain untrue and Plaintiff’s complaint should be DISMISSED.
CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff’s motion to proceed in forma
pauperis (ECF No. 2) and DISMISSES Plaintiff’s complaint pursuant to 28 U.S.C. §
1915(e)(2)(A). Plaintiff’s remaining pending motions (ECF Nos. 3, 4, 7, and 8) are also
DENIED as moot.
SO ORDERED, this 20th day of August, 2015.

S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE

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