DAKER v. BRYSON et al

Filing 17

ORDER denying as moot 13 Motion for Partial Summary Judgment; denying as moot 13 Motion for Permanent Injunction; denying as moot 13 Motion for Preliminary Injunction; denying as moot 14 Motion for Pa rtial Summary Judgment; denying as moot 14 Motion for Permanent Injunction; denying as moot 14 Motion for Preliminary Injunction; denying as moot 15 Motion ; denying 16 Motion for Leave to Proceed in forma pauperis; denying 2 Motion fo r Leave to Proceed in forma pauperis; denying as moot 3 Motion ; denying as moot 4 Motion for Preliminary Injunction; denying as moot 4 Motion for TRO; denying as moot 5 Motion for Preliminary Injunction; denying as moot 5 Motion for TRO; denying as moot 6 Motion for Preliminary Injunction; denying 6 Motion for TRO. Plaintiffs Complaint is DISMISSED without prejudice. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 7/18/2017 (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WASEEM DAKER,
Plaintiff,
VS.
GREGORY DOZIER, et al.,

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CIVIL NO. 5:17-CV-0025-CAR

Defendants.
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ORDER
Plaintiff Waseem Daker, an inmate confined at Georgia State Prison in Reidsville,
Georgia, has filed a pro se complaint in this Court seeking damages and injunctive relief
under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) § 2 et seq., 42 U.S.C.A. § 2000cc et seq. Currently before the Court is
Plaintiff’s motion to proceed in forma pauperis (“IFP) under 28 U.S.C. § 1915 (Doc. 2).
Plaintiff has also filed a motion to “expedite proceedings” (Doc. 3), several motions for
preliminary injunction (Docs. 4, 5, 6); two motions for partial summary judgment (Docs.
13, 14); a motion for subpoena and/or preservation of evidence (Doc. 15); and a second
motion to proceed in forma pauperis (Doc. 16).
I.

Plaintiff’s Motion to Proceed in forma pauperis
Plaintiff’s motion to proceed IFP is made pursuant to 28 U.S.C. § 1915, which

allows the district courts to authorize the commencement of a civil action without

prepayment of the normally-required fees upon a showing that the plaintiff is indigent and
financially unable to pay the filing fee. Because Plaintiff is presently confined in a state
prison, however, his ability to proceed IFP in federal court is also subject to the restrictions
imposed by Prison Litigation Reform Act (“PLRA”). See 28 U.S.C. § 1915(g); see also 28
U.S.C. § 1915A. The PLRA specifically prohibits 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.
§ 1915(g). This is known as the “three strikes provision.” Rivera v. Allin, 144 F.3d 719,
723 (11th Cir. 1998). Under § 1915(g), a prisoner incurs a “strike” any time he has a
federal complaint or appeal dismissed on the grounds that it is frivolous or malicious or
fails to state a claim. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). Once a
prisoner incurs “three strikes” under this provision, he is no longer allowed to proceed in
forma pauperis, and must prepay the entire filing fee before a federal court may consider
his complaint or appeal, unless the prisoner demonstrates that he is in “imminent danger of
serious physical injury.” Id.
II.

Applicability of the Three-Strikes Bar
In his Complaint, Plaintiff states that the three-strikes bar cannot be applied in this

case because (1) it is unconstitutional and (2) he has not accumulated “three strikes.”
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A. Constitutional Challenge
Though often challenged, the PLRA’s three-strikes bar has repeatedly been found to
pass constitutional muster; and thus, despite Plaintiff’s objection and present claim that the
rule is unconstitutional, see Compl. at 28, the Court finds it both valid and properly
considered in this case. Medberry, 185 F.3d at 1193. “Having to prepay his filing fee
before the Court addresses the relative merits of his claims, unless he shows he is in
imminent danger of serious physical injury, does not violate Plaintiff's rights.” Daker v.
Bryson, 6:16-CV-57, 2017 WL 1053082, at *6 (S.D. Ga. Mar. 20, 2017) (finding same
arguments by Daker meritless). Plaintiff’s objections to the constitutionality of § 1915(g)
are thus found to be without merit. Id.
B. Plaintiff’s Strikes
Plaintiff next contends that he does not have three strikes under § 1915(g). See
Comp. at 28. A review of court records on the Federal Judiciary’s Public Access to Court
Electronic Records (“PACER”) database nonetheless reveals that Plaintiff has filed
multiple lawsuits in federal court and that at least three of his complaints or appeals have
been dismissed and count as strikes under § 1915(g). Plaintiff has, in fact, repeatedly been
barred from filing lawsuits within this Circuit under § 1915(g), and his status as a
three-striker was recently confirmed by both this Court and the United States District Court
for the Southern District of Georgia. See Daker v. Owens, 5:12-cv-459-CAR-MSH, ECF
No. 388 (M.D. Ga. May 8, 2017); Daker v. Bryson, 6:16-CV-57, 2017 WL 242615, at *5
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(S.D. Ga. Jan. 19, 2017), adopted by 6:16-CV-57, 2017 WL 1053082 (Mar. 20, 2017).
In Daker v. Bryson, supra, the Southern District explained its application of the
three-strikes provision to Mr. Daker in detail, and it is worth repeating here in light of
Plaintiff’s misplaced reliance on the Eleventh Circuit’s findings in Daker v. Comm’r, Ga.
Dep’t. of Corr., 820 F.3d 1278 (2016)1 for the argument that he is not subject to the
three-strikes provision:
To be sure, a review of Plaintiff’s history of filings reveals that he indeed has
brought more than three civil actions or appeals which count as strikes under
Section 1915(g). In reaching this conclusion, this Court has not utilized the
same six (6) cases … counted as strikes [in Daker v. Comm’r]. Instead, the
following cases, which do not include any of the cases the Eleventh Circuit
found are not strikes, constitute strikes under Section 1915(g): 1) Daker v.
NBC, et al., No. 15-330 (2d Cir. May 22, 2015), ECF No. 35 (noting
Plaintiff’s appeal “lacks an arguable basis either in law or in fact” and
quoting Nietzke, 490 U.S. at 325 (“[A] complaint, containing as it does both
factual allegations and legal conclusions, is frivolous where it lacks an
arguable basis either in law or in fact.”); 2) Daker v. Warren, No.
13-11630-B (11th Cir. Mar. 4, 2014) (appeal dismissed after finding it
frivolous; 3) Daker v. Mokwa, 2:14cv395-UA-MRW (C.D. Cal. Feb. 4,
2014), ECF No. 2 (complaint dismissed as being frivolous, malicious, or
failing to state a claim; 3) Daker v. Robinson, 1:12-cv-00118-RWS (N.D.
Ga. Sept. 12, 2013) (Plaintiff’s complaint dismissed based on his failure to
follow a court order); and 4.) Daker v. Dawes, 1:12-cv-00119-RWS (N.D.
Ga. Sept. 12, 2013) (same).
The causes of action and appeals this Court cites to as being “strikes” were
dismissed for being frivolous, malicious, or failing to state a claim for relief,
and these causes of action and appeals were not dismissed on any other
ground which failed to address the merits of Plaintiff’s claims. This same
review also reveals scores of other civil actions and appeals which were
dismissed and/or count as strikes under Section 1915(g). In re Daker, No.
1

In its order, “the Eleventh Circuit did not determine that Plaintiff is not a three-striker. Rather, it
only determined that the … particular cases used by the Middle District of Georgia did not
constitute strikes ….” Bryson, 2017 WL 242615, at * 5 (citing Daker, 820 F.3d at 1286).

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1:11-CV-1711-RWS, 2014 WL 2548135, at *2 (N.D. Ga. June 5, 2014)
(summarizing Plaintiff’s litigation history). This Court and other courts have
noted that Plaintiff is a serial litigant with a significant history of filing
frivolous lawsuits. See e.g., Daker v. Bryson, No. 5:15-CV-88-CAR-CHW,
2015 WL 4973548, at *1 (M.D. Ga. Aug. 20, 2015) (“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.”); Daker v. Head, et al.,
6:14-cv-47 (S.D. Ga. Sept. 8, 2014), ECF Nos. 13, 14 (R&R and Order
denying Plaintiff leave to proceed in forma pauperis due to three striker
status); Daker v. Warren, No. 1:11-CV-1711-RWS, 2014 WL 806858, at *1
(N.D. Ga. Feb. 28, 2014) (“Waseem Daker is an extremely litigious state
prisoner[.]”).
Bryson, 2017 WL 242615 at *5.
This Court similarly confirmed Mr. Daker’s status as a three-striker in another case
just last month:
Plaintiff has filed more than three actions or appeals that were dismissed on
the statutorily-enumerated grounds prior to his seeking leave to appeal in
forma pauperis in this case: Daker v. Mokwa, Order Denying Leave to
Proceed IFP, ECF No. 2 in Case No. 2:14-cv-00395-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) ….
Daker, 5:12-cv-459-CAR-MSH at ECF No. 388.
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The Court thus finds that there is no doubt as to whether the three-strikes bar is
applicable to Plaintiff in this case. See also Daker v. Comm’r, App. No. 17–12184-J, ECF
No. 398 (11th Cir. May 24, 2017) (recent letter to Daker stating, “the ‘three strikes
provision’ … is applicable to you”). Because the three strikes provision is applicable to
Plaintiff, he may not proceed in this case in forma pauperis unless he is in “imminent
danger of serious physical injury.” See § 1915(g); Medberry, 185 F.3d at 1193.
III.

Applicability of the Imminent Danger Exception

When a Plaintiff seeks to proceed in forma pauperis under the imminent danger
exception, the district court must review the facts alleged in the complaint to determine
whether an imminent danger, as contemplated by § 1915(g), potentially exists. See also
28 U.S.C. § 1915A(a).
A. Standard of Review
When reviewing a pro se complaint for this purpose, all factual allegations in the
complaint must be accepted as true and all inferences must be made in the plaintiff’s favor.
See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004); Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998). Pro se pleadings are also “held to a less
stringent standard than pleadings drafted by attorneys,” and a pro se compliant is thus
“liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998) (per curiam). The district court, however, cannot allow a plaintiff proceed with
claim based on frivolous, conclusory, or speculative allegations and may find that the
6

plaintiff is not in imminent danger after a review of the complaint. The court may also
dismiss the complaint, or any part thereof, if it determines that the plaintiff’s allegations
fail to state a viable claim for relief. See § 1915A(b).
Therefore, to avoid the three-strikes bar, a prisoner must do more than merely state
that he is in imminent danger. According to the Eleventh Circuit, the district court must
determine “whether [the] complaint, as a whole, alleges imminent danger of serious
physical injury.” Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir.2004). “General
allegations that are not grounded in specific facts [showing] that serious physical injury is
imminent” are, however, “not sufficient to invoke the exception to § 1915(g).” DuBois v.
Buss, 1:11-CV-220-MP-GRJ, 2011 WL 5593088, at *1 (N.D. Fla. Oct. 14, 2011), adopted
by 1:11CV220-MP-GRJ, 2011 WL 5593076 (Nov. 17, 2011). Vague and unsupported
claims of possible dangers likewise do not suffice. See White v. State of Colorado, 157
F.3d 1226, 1231 (10th Cir. 1998); Taylor v. Allen, No. 07–0794,2009 WL 1758801, at * 2
(S.D. Ala. June 16, 2009).
To satisfy the requirements of § 1915(g), the complaint must allege facts that
describe “an ongoing serious physical injury, or of a pattern of misconduct evidencing the
likelihood of imminent serious physical injury.” Sutton v. Dist. Attny's Ofc., 334 F. App’x
278, 279 (11th Cir. Aug. 22, 2009). Allegations showing that the plaintiff was previously
in imminent danger, standing alone, are not sufficient; the danger feared must be both real
and likely to occur (or reoccur) in the near future. See id. The exception to § 1915(g) is to
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be applied only in “genuine emergencies,” when “time is pressing,” the “threat or prison
condition is real and proximate,” and the “potential consequence is serious physical
injury.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
B. Plaintiff’s Claims
In this case, Plaintiff’s pro se complaint includes multiple claims (against more than
forty-two named defendants) based on events occurring at both Georgia State Prison
(“GSP”) and the Georgia Diagnostic and Classification Prison (“GDCP”). The Complaint
does not name any individuals employed at GDCP as defendants. Plaintiff does, however,
bring claims against the Georgia Department of Corrections and various “GDC” officials
or employees. Plaintiff contends that the GDC’s policy of restricting inmates’ beard
length and access to religious services and materials are unconstitutional and violate
RLUIPA. The Complaint also includes claims against individuals employed at GSP.
Plaintiff claims that he was denied a fair hearing during a disciplinary hearing in November
of 2016; placed arbitrarily in Phase I of the Tier II program in December of 2016; and
injured by GSP officers on January 10, 2017. Plaintiff further claims, presumably for the
purpose of satisfying § 1915(g), that he is currently being denied medical care due to
understaffing at GSP, is being required to shave (or be forcibly shaved) with broken and
unsanitary clippers, is now housed with inmates who throw feces, and is being denied
adequate sanitation and cleaning supplies.
Plaintiff has previously made the same (or substantially similar) claims against
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various GDC and GSP defendants. In fact, at the time filing (on or about January 16,
2017), Plaintiff had two other active cases in this Court against many of the same
defendants named as parties in this case: Daker v. Owens, 5:12-cv-459-CAR-MSH, ECF
No. 258 (M.D.Ga. Sept. 14, 2016) (“Daker I”); Daker v. Bryson, 5:16-cv-0538-CAR-MSH
(M.D. Ga. Dec. 7, 2016) (“Daker II”). In both of those cases, Plaintiff made allegations
nearly identical to those alleged in this Complaint and claimed, as he does here, that: (1) the
GDC’s policies restricting inmates’ beard length and access to religious services and/or
materials violate First Amendment and RULIPA; (2) the policies and practices relevant to
his assignment to Tier II confinement and the general conditions thereof violate due
process and the Eighth Amendment; (3) the current customs and practices relevant to
disciplinary hearings violate due process; and (4) the practice forcing prisoners to shave, or
be forcibly shaven, with unsanitary, broken clippers violates the First and Eighth
Amendments. Id. at ECF No. 538. In Daker II, Plaintiff additionally complained, as he
does in this case, that the conditions of his confinement at GSP were unconstitutional and
that GSP officers used chemical agents to forcibly shave him in January of 2017. See id.
Upon review of these pleadings, it is apparent that, when Plaintiff filed the present
action in January of 2017, he knowingly brought claims that were essentially the same as
those he was already actively litigating in, not one, but two other cases before this Court.
These claims are thus properly DISMISSED, without prejudice, as duplicative. Curtis v.
Citibank, 226 F.3d 133, 138 (2d Cir. 2000). See Curtis v. Citibank, 226 F.3d 133, 138 (2d
9

Cir. 2000) (“a district court may … dismiss a suit that is duplicative”); Durbin, Inc. v.
Jefferson Nat'l Bank, 793 F.2d 1541, 1551 (11th Cir. 1986).
Furthermore, and in light of Plaintiff’s well-known history of filing frivolous and
duplicative claims, the Court further finds this Complaint both malicious and an abuse of
the judicial process. See Caballero v. Robinson, 95 F.3d 49 (5th Cir. 1996) (unpublished)
(“plainly duplicative” lawsuit was “subject to dismissal as malicious and abusive” even
though plaintiff named additional defendants in later-filed case). His claims are thus also
due to be DISMISSED as malicious and abusive pursuant 28 U.S.C. § 1915A(b)(1).
C. Allegations of Imminent Danger
As to any remaining claims, and for the purposes of § 1915(g), the Court further
finds that Plaintiff’s assertions of “imminent danger” are unwarranted.
1. Damaged and Unsanitary Clippers
Plaintiff first alleges that he is in imminent danger due to the GDC’s custom of
supplying prisoners with damaged, unsanitary clippers to enforce its shaving policy.
Plaintiff argues that this could, hypothetically, cause Plaintiff to become infected with a
disease such as HIV or Hepatitis. Compl. at 25. This claim is, again, one that Plaintiff
has made before. 2 In fact, according to the Complaint, Plaintiff has faced this same

2 See, e.g., Daker v. Bryson, 5:16-cv-0538-CAR-MSH, ECF No. 17 (M.D.Ga. June 8, 2017);
Daker v. Owens, No.5:12-cv-459-CAR-MSH (M.D.Ga. Nov. 20, 2012); Daker v. Dozier, No.
5:17-cv-00025-CAR-MSH (M.D. Ga. Jan. 19, 2017). Similar claims have also been filed in at
least one other federal district court in the State of Georgia. See e.g. Daker v. Bryson, 6:16-CV-57,
2017 WL 242615 (May 23, 2017).

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“danger” since 2012,3 and he does not now identify any presently occurring circumstance
to suggest that this possible or potential danger is any more imminent now than it was in
2012. The Complaint thus fails to show that the danger posed by the use of these clippers
warrants an exception to the three-strikes bar.
2. Policy of Forced Shaving
Plaintiff next maintains that he is in imminent danger of serious physical injury due
to the practice of forcibly shaving inmates who refuse to do so voluntarily. See Comp. at
7, 24. In support of this claim, Plaintiff alleges that he was forcibly shaved at GDCP in
2012 and 2013. Compl. at 7. He does not allege to have suffered any injury on those
occasions, however; and any discrete claims based on these events are time-barred by the
relevant two-year statute of limitations as they occurred before April of 2014. See Owens
v. Okure, 488 U.S. 235, 236 (1989); O.C.G.A. § 9-3-33 (1982).
More relevant here are Plaintiff allegations that he was “cut on some” occasions
when forced to shave at GSP and was also in danger of suffering a serious physical injury
when officers used a chemical agent to subdue him for a forced shave on January 10, 2017.
The Court accepts these allegations as true. Nothing in the Complaint, however, suggests
that the use of chemical agents (or any other extreme use of force) is a wide-spread practice
or custom within the GDC - or even GSP; nor do the allegations suggest that another
similar use of force is imminent. Just the opposite: As, stated above, Plaintiff alleges that
3

See Comp. at 5-7; see also Bryson, 2017 WL 242615, at *5 (finding the same allegations by
Daker insufficient to satisfy the imminent danger exception).

11

he has been forcibly shaved “numerous” times at GSP and only suffered minor injuries, a
cut, “on some.” There is no allegation of officers using chemical agents or excessive
force in any of these prior forced shaves or of any wide-spread practice or pattern thereof.
The Complaint, furthermore, fails to show that the GDC’s shaving policy and/or the
practice of forced shave was the proximate cause of Plaintiff’s injuries. His allegations
instead suggest that it was Plaintiff’s repeated failure to follow instructions, not the GDC’s
policies, that created the dangerous situation which led to his injuries. Thus, at most,
Plaintiff’s Complaint may have stated an Eight Amendment excessive force claim against
the individual GSP Defendants personally involved in the incident. This, however, will
not allow Plaintiff to escape the three-strikes bar. See Brown v. City of Philadelphia, CIV.
05-4160, 2009 WL 1011966, at *12 (E.D. Pa. Apr. 14, 2009) (prisoner cannot avoid the
three-strikes bar if he is responsible for placing himself in danger); Muhammad v.
McDonough, 3:06CV527-J-32TEM, 2006 WL 1640128, at *1 (M.D. Fla. June 9, 2006) (prisoner

cannot create imminent danger to escape the three-strikes rule).
3. Current Conditions of Confinement
Finally, Plaintiff contends that he is now in imminent danger of serious physical
injury at GSP because: (1) the understaffing and unavailability of an officer to escort
Plaintiff to the orthopedist caused him to miss multiple appointments in 2016; (2) he was
placed on “yard restriction” (for at least 90-days) in November of 2016 and thus denied

12

outdoor recreation by multiple GSP officers4; and (3) he lives with inmates who throw
feces, has to wait for hours before the feces is cleaned, and GSP defendants5 have ignored
his complaints about the unsanitary conditions and requests for cleaning supplies.
Plaintiff’s allegations, when read in his favor, may be sufficient to support a claim
under § 1983. They do not, however, demonstrate that Plaintiff is presently in danger of
serious physical injury, the existence of any genuine emergency, or that time is otherwise
pressing so as to warrant an exception to the three-strikes rule. See Lewis, 279 F.3d at 531.
There is, for example, nothing in Plaintiff’s allegations which suggests that he will suffer
serious physical injury if he does not see an orthopedist as soon as possible. Nor is there
any suggestion that Plaintiff will soon suffer a serious physical injury if he is not promptly
allowed yard privileges, moved to a unit where there are no inmates who throw feces, and
provided with cleaning supplies. See Brown v. City of Philadelphia, 2009 WL 1416709, at
*2 (3rd Cir. May 21, 2009) (unpublished) (allegation that prison guards “placed feces and
urine in his cell, … [and] denied him medical treatment” did not satisfy § 1915(g)); Pettus
v. Oakes, 09-CV-6263CJS, 2009 WL 2392025, at *2 (W.D.N.Y. Aug. 3, 2009)
(“allegations regarding feces and urine having been thrown at [plaintiff]” are insufficient to
“implicate an imminent danger of serious harm, such that plaintiff would be allowed to
bring them in an action allowed under the exception to 28 U.S.C. § 1915(g).”).
Furthermore, even if Plaintiff’s allegations could support a finding of imminent
4

As to this claim, Plaintiff specifically identifies Defendants Mendel, Williams, Moye, Anderson,
Jones, Mikell, and Brooks.
5
Defendants Allen, Bobbit, Hutcheson, and Anderson, Brooks, and Williams.

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danger, these final claims arise only from Plaintiff’s confinement at GSP and are unrelated
to Plaintiff’s claims against the GDC Defendants. Unrelated claims against different
defendants must be brought in separate lawsuits. See Fed. R. Civ. P. 20(a)(2)(A)-(B);
Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011).

Plaintiff has, in fact, been

previously advised that any claims arising from the conditions of his confinement at GSP
should be brought in a separate suit and filed in the Southern District of Georgia, i.e., the
appropriate venue for these claims. See, e.g., Daker I, ECF No. 234 at 17:15-18:4
(advising Plaintiff that any claims regarding his treatment at the GPS would have to be
raised in a new action in the Southern District, where venue would be appropriate); Daker
II, ECF No. 17 at 4, 11 (finding that Daker had, despite prior warnings, again mis-joined
claims and transferring those claims to appropriate venue).
The Court thus finds that these claims are, in the alternative, due to be DISMISSED
without prejudice, not only because they are presently mis-joined, and the Middle District
is not the proper venue,6 see Fed. R. Civ. P. 21; DirecTV, Inc. v. Leto, 467 F.3d 842, 844–
45 (3d Cir. 2006), but also because it is apparent that Plaintiff knowingly, and in bad faith,
mis-joined these claims for the sole purpose of attempting to avoid three-strikes bar in a
malicious abuse of the judicial process. What is more, Plaintiff still has active claims
against the GSP defendants, which are the same or similar to those identified here, in the
Southern District, Daker v. Bryson, 6:17-cv-0079-JRH-RSB (S.D. Ga. June 12, 2017).
6

These claims arose from events occurring in Reidsville, Georgia, and should thus be heard in the
Southern District of Georgia. See 28 U.S.C. § 1391(b).

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IV.

Conclusion
Because his Complaint fails to demonstrate the existence of an imminent danger of

serious physical injury, Plaintiff’s motion for leave to proceed IFP (ECF Nos. 2 & 16) is
hereby DENIED; and, for all of those reasons discussed above, Plaintiff’s Complaint is
now DISMISSED without prejudice.7 Plaintiff’s motions to “expedite proceedings” (Doc.
3), for preliminary injunction (Docs. 4, 5, 6); for partial summary judgment (Docs. 13, 14);
and for subpoena and preservation of evidence (Doc. 15) are DENIED as MOOT.
SO ORDERED, this 18th day of June, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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When the district court denies a prisoner leave to proceed in forma pauperis pursuant to §
1915(g), the proper procedure is for the court to then dismiss the complaint without prejudice.
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). See also Simmons v. Zloch, 148 F.
App’x 921, 922 (11th Cir. 2005) (citing to Dupree in affirming denial of in forma pauperis motion
and dismissing complaint under § 1915(g)).

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