DAKER v. BRYSON et al
ORDER granting in part and denying in part 20 Motion for Reconsideration; denying 22 Motion for Leave to Appeal in forma pauperis. The Clerk of Court is DIRECTED to AMEND the Judgment in accordance with this Order. The Clerk of Court is further DIRECTED to send a copy of this Order to the custodian of the prison in which Plaintiff is incarcerated. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/17/2017 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
BRYSON et al.,
CASE NO.: 5:16-CV-538-CAR-MSH
Presently pending before the Court is pro se Plaintiff Waseem Daker’s motion for
leave to appeal in forma pauperis (ECF No. 22) from the Court’s June 8, 2017 Order
dismissing the majority of Plaintiff’s claims as frivolous and/or malicious or for failing to
state a claim upon which relief may be granted and transferring Plaintiff’s remaining
claims to the Southern District of Georgia.
Plaintiff has also filed a motion for
reconsideration of that order (ECF No. 20) pursuant to Federal Rule of Civil Procedure
59(e). For the following reasons, the Court DENIES Plaintiff’s motion to appeal in
forma pauperis and DENIES in part and GRANTS in PART Plaintiff’s motion for
Motion for Reconsideration
The Court recognizes three circumstances that warrant reconsideration of a prior
order under Rule 59(e): “(1) an intervening change in controlling law; (2) the availability
of new evidence; and (3) the need to correct clear error or manifest injustice.” Daker v.
Humphrey, Civil Action No. 5:12-CV-461 (CAR), 2013 WL 1296501, at *2 n.1 (M.D.
Ga. Mar. 27, 2013) (quoting Fla. College of Osteopathic Med., Inc. v. Dean Witter, 12 F.
Supp. 2d 1306, 1308 (M.D. Fla. 1998)). Plaintiff alleges that there is a need for the Court
to correct clear errors or manifest injustice in this case. ECF No. 20 at 1. Specifically,
Plaintiff contends that the actions complained about in the Complaint in the abovecaptioned action occurred in November of 2016, several months after he filed the
amended complaint in Daker v. Owens, No. 5:12-cv-459-CAR-MSH (M.D. Ga. Nov. 20,
2012) (“Daker I”). Id. Thus, Plaintiff argues, the claims in this Complaint cannot be
duplicative of the claims in Daker I. Id. Plaintiff also alleges that the Court erred in
dismissing Plaintiff’s “other claims,” but provides no basis for this error other than his
belief that “such claims plainly state a valid claim upon which relief may be granted.” Id.
As Plaintiff has been previously advised, “‘motions for reconsideration are
disfavored’” and “‘relief under Rule 59(e) is an extraordinary remedy to be employed
sparingly.’” Mercer v. Perdue Farms, Inc., No. 5:10-cv-324 (CAR), 2012 WL 1414321,
at *1 (M.D. Ga. Apr. 20, 2012) (quoting Krstic v. Princess Cruise Lines, Ltd., 706 F.
Supp. 2d 1271, 1282 (S.D. Fla. 2010)).
The Court clearly considered Plaintiff’s
allegations that various Reidsville Defendants violated Plaintiff’s constitutional rights in
November of 2016 and transferred those claims to the Southern District of Georgia. See,
e.g., ECF No. 17 at 9, 11. It was only Plaintiff’s remaining claims that were found to be
duplicative and were consequently dismissed as frivolous and/or malicious pursuant to 28
U.S.C. § 1915.
The Court thus finds that Plaintiff has failed to demonstrate that the
Court clearly erred in rendering its decision or that Plaintiff has suffered a manifest
injustice because the Court failed to consider actions that occurred in November 2016.
The Court observes, however, that its order of dismissal stated that Plaintiff would have
the opportunity to fully litigate his duplicative claims in Daker I. See ECF No. 17 at 9.
The Court thus intended that Plaintiff’s duplicative claims be dismissed without prejudice
to his prosecution of those duplicative claims in Daker I. In an abundance of caution, the
Court accordingly MODIFIES its order and judgment in this case so that the dismissal of
the duplicative claims is WITHOUT PREJUDICE to Plaintiff’s prosecution of his
claims in Daker I. See Lewis v. Sec’y of Pub. Safety & Corr., 508 F. App’x 341, 344 (5th
Cir. 2013) (per curiam). Plaintiff’s motion (ECF No. 20) is therefore DENIED in part
and GRANTED in part. The Clerk of Court is DIRECTED to AMEND the Judgment
in accordance with this Order.
Motion for Leave to Appeal in forma pauperis
Pursuant to 28 U.S.C. § 1915(a)(1), a court may authorize an appeal of a civil
action or proceeding without prepayment of fees or security therefor if the putative
appellant has filed “an affidavit that includes a statement of all assets” and “state[s] the
nature of the . . . appeal and [the] affiant’s belief that the person is entitled to redress.”1 If
the trial court certifies in writing that the appeal is not taken in good faith, however, such
Federal Rule of Appellate Procedure 24 similarly requires a party seeking leave to
appeal in forma pauperis to file a motion and affidavit that establishes the party’s
inability to pay fees and costs, the party’s belief that he is entitled to redress, and a
statement of the issues which the party intends to present on appeal. Fed. R. App. P.
appeal may not be taken in forma pauperis. 28 U.S.C. § 1915(a)(3).2 “‘[G]ood faith’ . . .
must be judged by an objective standard.” Coppedge v. United States, 369 U.S. 438, 445
(1962). The plaintiff demonstrates good faith when he seeks review of a non-frivolous
issue. Id.; see also Morris v. Ross, 663 F.2d 1032, 1033 (11th Cir. 1981). An issue “is
frivolous if it is ‘without arguable merit either in law or fact.’” Napier v. Preslicka, 314
F.3d 528, 531 (11th Cir. 2002). “Arguable means being capable of being convincingly
The Court notes that the “three strikes” provision of the Prison Litigation Reform Act
(“PLRA”) also prohibits a prisoner from “appeal[ing] a judgment in a civil action or
proceeding” 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). Plaintiff has had more than three of his cases or appeals dismissed
on the statutorily-enumerated grounds prior to filing his notice of appeal 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). Plaintiff has therefore accrued
more than three “strikes” for purposes of § 1915(g), and he is thus precluded from
proceeding in forma pauperis on appeal unless he is presently in imminent danger of
serious physical injury. In light of the Court’s finding that Plaintiff’s appeal is not taken
in good faith, however, the Court finds it unnecessary to address whether Plaintiff has
demonstrated that he falls within § 1915(g)’s imminent danger exception.
argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (per curiam) (quotation
marks and citations omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (per
curiam) (“[A] case is frivolous . . . when it appears the plaintiff ‘has little or no chance of
success.’”) (citations omitted). “In deciding whether an [in forma pauperis] appeal is
frivolous, a district court determines whether there is ‘a factual and legal basis, of
constitutional dimension, for the asserted wrong, however inartfully pleaded.’” Sun, 939
F.2d at 925 (citations omitted).
Although Plaintiff has not submitted a statement of the issues he intends to appeal
in his motion to proceed in forma pauperis, as is required under Fed. R. App. P.
24(a)(1)(C), this Court’s independent review of the issues addressed in the Court’s June
8, 2017 Order demonstrates that Plaintiff’s appeal is frivolous. See Hyche v. Christensen,
170 F.3d 769, 771 (7th Cir. 1999), overruled on other grounds by Lee v. Clinton, 209
F.3d 1025 (7th Cir. 2000) (explaining that the arguments to be advanced on appeal are
often obvious and decisions regarding good faith can be made by looking at the
“reasoning in the ruling sought to be appealed” instead of requiring a statement from the
plaintiff). The appeal, therefore, is not brought in good faith. Plaintiff has raised no
issues with arguable merit.
Consequently, Plaintiff’s application to appeal in forma pauperis (ECF No. 22) is
DENIED. If Plaintiff wishes to proceed with his appeal, he must pay the entire $505
appellate filing fee. Because Plaintiff has stated that he cannot pay the fee immediately,
he must pay using the partial payment plan described under 28 U.S.C. § 1915(b).
Pursuant to section 1915(b), the prison account custodian where Plaintiff is confined shall
cause to be remitted to the Clerk of this Court monthly payments of 20% of the preceding
month’s income credited to Plaintiff’s account (to the extent the account balance exceeds
$10) until the $505 appellate filing fee has been paid in full. Checks should be made
payable to “Clerk, U.S. District Court.” The Clerk of Court is DIRECTED to send a
copy of this Order to the custodian of the prison in which Plaintiff is incarcerated.
SO ORDERED, this 17th day of August, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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