DAKER v. MCLAUGHLIN

Filing 3

ORDER DISMISSING without prejudice Plaintiff's complaint. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/18/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WASEEM DAKER,
Petitioner,
v.
WARDEN GREGORY
MCLAUGHLIN,
Respondent.

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Case No. 5:18-cv-00171-MTT-CHW

ORDER
Petitioner Waseem Daker, an inmate currently confined at Macon State Prison, has
filed a pleading using the Court’s standard form petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Pet., ECF No. 1. In the body of his pleading, Petitioner states that he
brings civil rights claims under 42 U.S.C. § 1983 and is entitled to proceed under 28 U.S.C.
§ 2241. Pet. 1, ECF No. 1-1.

Petitioner seeks to challenge the conditions of his

confinement and raises a Fourteenth Amendment due process claim, First Amendment free
speech claims, First Amendment access to courts claims, First Amendment religious
exercise claims, a claim arising under the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”), and Eighth Amendment deliberate indifference to serious medical needs
claims.
As discussed below, these claims are not cognizable in a habeas action, and to the
extent that Petitioner’s pleading can be construed as arising under § 1983, he is barred from
proceeding in forma pauperis as he has accumulated three strikes for purposes of 1915(g).

Accordingly, the instant action is DISMISSED WITHOUT PREJUDICE.
I.

Petitioner Cannot Proceed Under 28 U.S.C. § 2254 or § 2241

Although Petitioner primarily styles this case as a habeas action brought under §
2254 or § 2241, the substance of his filing challenges the conditions of his confinement.
“Federal law opens two main avenues to relief on complaints related to imprisonment: a
petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act
of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983.” Hill v. McDonough, 547 U.S.
573, 578 (2006).

“These avenues are mutually exclusive: if a claim can be raised in a

federal habeas petition, that same claim cannot be raised in a separate § 1983 civil rights
action.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (citing Nelson v.
Campbell, 541 U.S. 637, 643 (2004)). “The line of demarcation between a § 1983 civil
rights action and a § 2254 habeas claim is based on the effect of the claim on the inmate’s
conviction and/or sentence.” Id. “Challenges to the validity of any confinement or to the
particulars affecting its duration are the province of habeas corpus.” Muhammad v. Close,
540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). “Such
claims fall within the ‘core’ of habeas . . . [b]y contrast, constitutional claims that merely
challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary
or injunctive relief, fall outside of that core and may be brought pursuant to § 1983 in the
first instance.” Nelson, 541 U.S. at 643 (citing Muhammad, 540 U.S. at 750 and Preiser,
411 U.S. at 498-99).
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In this case, Petitioner seeks to challenge the conditions of confinement he
experiences in Tier II administrative segregation at Macon State Prison and primarily seeks
return to general population. Petitioner does not seek speedier or immediate release, does
not challenge his sentence and conviction, and his claims for relief implicate neither.
Therefore, the appropriate cause of action for Petitioner’s claims is a civil rights complaint
under § 1983.
In three separate locations on the Petition, Petitioner has handwritten “does not
challenge [his] conviction or sentence but [his] segregation/solitary confinement,
Medberry v. Crosby, 351 F.3d 1049, 1053 (11th Cir. 2003).” Pet. 1, 4-5, ECF No. 1. To
the extent that Petitioner has cited Medberry for the proposition that he may challenge his
placement in administrative segregation through a petition for writ of habeas corpus, his
reliance is misplaced.

In Medberry, the Eleventh Circuit held that “‘it is proper for a

district court to treat a petition for release from administrative segregation as a petition for
a writ of habeas corpus’ because ‘[s]uch release falls into the category of “fact or duration
of. . . physical imprisonment’ delineated in Preiser v. Rodriguez.”’” Medberry, 351 F.3d
at 1053 (ellipsis in original) (quoting Krist v. Ricketts, 504 F.2d 887, 887-88 (5th Cir.
1974)). Medberry, however, concerned a challenge to a Florida inmate’s loss of gain time
credits resulting from prison disciplinary proceedings. Tedesco v. Sec’y for Dep’t of Corr.,
190 F. App’x 752, 755 (11th Cir. 2006) (“In Medberry, we held that a state prisoner may
file a habeas corpus petition to challenge the loss of gain time as a result of state prison
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disciplinary proceeding that allegedly violates his due process right under 28 U.S.C. §
2241.”). Because gain time credits implicate the duration of an inmate’s confinement, a
due process claim based on a deprivation of gain time credits is “a proper subject for a
federal habeas corpus proceeding.” Wolff v. McDonnell, 418 U.S. 539, 557 (1974).
Petitioner is not incarcerated in Florida; he is in the custody of the Georgia
Department of Corrections. The Georgia Department of Corrections does not award gain
time credits for good behavior, and Petitioner does not allege that he has lost gain time
credits as a result of disciplinary proceedings. Therefore, Petitioner’s civil rights claims
do not affect the duration of his confinement. Instead, even if Petitioner prevailed on all
of his claims and received all the relief demanded, “the duration of his sentence will not be
shortened by one moment.” McKinnis v. Mosely, 693 F.2d 1054, 1057 (11th Cir. 1982).
Accordingly, Petitioner’s claims do not fall within the core of habeas, and are properly
brought in a Section 1983 action. See id. (determining that challenge to administrative
segregation which did not implicate duration of confinement should have been reviewed
under Section 1983)1; Jaske v. Hanks, 27 F. App’x 622, 623 (7th Cir. 2001) (affirming
dismissal of habeas petition challenging sentence to disciplinary segregation because

1

Petitioner argues that while he is confined in Tier II he is deprived of the ability to
participate in programs and activities that would be considered by the parole board.
Petitioner does not have a liberty interest in parole, or in participating in programs which
the parole board may view positively. See Beister v. Lanier, 249 F. App’x 782, 783 (11th
Cir. 2007); Miller v. Nix, 346 F. App’x 422 (11th Cir. 2009); Kramer v. Donald, 286 F.
App’x 674 (11th Cir. 2008); Moody v. Daggett, 429 U.S. 78 (1976).
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“disciplinary segregation affects the severity rather than the duration of custody”); Davis
v. U.S. Dep’t of Justice, 180 F. App’x 404, 405 (3d Cir. 2006) (“A sanction of disciplinary
segregation [] does not implicate the fact or length of confinement.”).
II.

Three Strikes

Petitioner’s claims are not cognizable in a habeas action and are properly raised in
a civil rights complaint under § 1983. “When a pro se habeas corpus petition may be fairly
read to state a claim under the Civil Rights Act, it should be so construed.” McDonald v.
Bates, 23 F. App’x 828, 828 (9th Cir. 2001); Carson v. Johnson, 112 F.3d 818, 820-21 (5th
Cir. 1997) (affirming district court’s treatment of purported habeas petition as a claim
brought under § 1983); United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990)
(“Federal Courts have long recognized that they have an obligation to look behind the label
of a motion filed by a pro se inmate and determine whether the motion is, in effect,
cognizable under a different remedial statutory framework.”). Therefore, the Court will
analyze Petitioner’s claims under 42 U.S.C. § 1983. So construed, Petitioner is barred from
proceeding in forma pauperis as he has accumulated three strikes under 1915(g), and he
failed to pay the entire filing fee upon initiating this suit. Therefore, his Complaint must
be dismissed.
Federal law 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
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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. Medberry, 185 F.3d at
1193. If a prisoner incurs three strikes, his ability to proceed in forma pauperis in federal
court is greatly limited and leave may not be granted unless the prisoner shows an
“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 Petitioner has filed at least three
federal lawsuits that have been dismissed as frivolous, malicious, or for failure to state a
claim. Daker v. Mokwa, No. 2:14-cv-00395 (C.D. Cal. 2014) (dismissing case 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)2; Daker v. Warren, Case No. 13-11630 (11th Cir. Order dated
Mar. 4, 2014) (three-judge panel dismissing appeal as frivolous); Daker v. Warden, Case
No. 15-13148 (11th Cir. Order dated May 26, 2016) (three-judge panel dismissing appeal
as frivolous); Daker v. Commissioner, Case No. 15-11266 (11th Cir. Order dated Oct. 7,
2016) (three-judge panel dismissing appeal as frivolous); Daker v. Ferrero, Case No. 15-

2

“The district court did not err, however, in concluding that . . . Daker v. Mokwa, No.
2:14-cv-395 (C.D. Cal. filed Jan. 16, 2014), counted as a strike.” Daker v. Head, 2018
WL 1684310, at *2 (11th Cir. 2018).
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13176 (11th Cir. Order dated Nov. 3, 2016) (three-judge panel dismissing appeal as
frivolous); Daker v. Governor, Case No. 15-13179 (11th Cir. Order dated Dec. 19, 2016)
(three-judge panel dismissing appeal as frivolous).

The Eleventh Circuit has also

previously determined that “[w]hile confined, Daker has filed at least three appeals that
[the Eleventh Circuit] dismissed as frivolous.” Daker v. Robinson, Case No. 17-11940
(11th Cir. Order dated Oct. 4, 2017) (“[T]his Court’s Clerk is directed to list Daker as a
‘three-striker’ under the Prison Litigation Reform Act in this Court for purposes of future
matters.”).
Because of this, Petitioner may not proceed in forma pauperis unless he can show
that he qualifies for the “imminent danger” exception in § 1915(g). Medberry, 185 F.3d at
1193. The Court is therefore now required to review the facts alleged in the Petition to
determine whether an imminent danger exists and warrants an exception to the three strikes
rule. When reviewing a pro se complaint for this purpose, the district court must accept all
factual allegations in the complaint as true and view all allegations of imminent danger in
the movant’s favor. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004); Tannenbaum
v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
The imminent danger exception applies only in “genuine emergencies” when (1)
“time is pressing,” (2) the “threat or prison condition is real and proximate,” and (3) the
“potential consequence is serious physical injury.” Lewis v. Sullivan, 279 F.3d 526, 531
(7th Cir. 2002). Thus, to satisfy this provision, a prisoner must allege specific facts that
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describe “an ongoing serious physical injury, or of a pattern of misconduct evidencing the
likelihood of imminent serious physical injury.” Sutton v. Dist. Attorney's Office, 334 F.
App’x 278, 279 (11th Cir. 2009) (quoting Brown, 387 F.3d at 1350). Vague, factually
unsupported, and general allegations do not suffice, nor do allegations of past injuries. See
Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).
Petitioner does not allege that he is under an imminent danger of serious physical
injury. The majority of his claims also do not implicate a risk of physical danger, much
less one that is serious and imminent. Petitioner’s claims regarding the processes which
keep him confined in Tier II, restrictions on freedom of speech and access to books and
newspapers, restrictions on his access to the law library and legal materials, restrictions on
his ability to attend prayer service and religious holidays, and restrictions on his visitation
and privileges do not arguably demonstrate an imminent danger of serious physical injury
as they do not implicate a risk to Petitioner’s health or safety. Petitioner’s remaining claims
concerning exposure to human waste, denial of adequate food, and deficiencies in his
medical care arguably concern his health and safety. The Petition taken as a whole and
construed in his favor, however, does not show that he is in an imminent danger of serious
physical injury.
Petitioner’s allegations concerning inadequate nutrition are that a lunchtime milk, a
“Vitamin C Beverage,” and late-night fruit are often missing from Petitioner’s 2800 calorie
diet. Pet. 15-17, ECF No. 1-1. Petitioner does not allege that missing 330 calories a week,
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by his estimation, from his “2800 calorie diet and HS Snack” somehow results in an
imminent danger to Petitioner. Rather, he alleges that he was underweight in the past.
Moreover, Petitioner’s allegations are generalized and primarily concern what occurs in
the Georgia Department of Corrections and “Tier II/III” generally. The factual allegations
concerning what has actually occurred to Petitioner, rather than what “often happens” in
Georgia prisons, largely concerns past events at Georgia State Prison.

Id. at 15.3

Concerning Macon State Prison, where Petitioner is currently confined and was confined
at the time he filed this action, Petitioner states that “At GDCP, GSP, and MSP, the Food
Service department that prepares lockdown trays often does not send the Vitamin C
Beverage to the lockdown units.” Id.

According to Plaintiff, the diet has “likely

contributed” to six sinus infection he has suffered since being placed in Tier II.4 Pet. 17,
ECF No. 1-1.
Petitioner’s allegations concerning inadequate medical care are equally general and
broadly describe what “often” occurs at Tier II/III dorms throughout the Georgia prison
system. Id. at 17-18. Concerning medical care Petitioner himself has received or failed to
receive, Petitioner merely states that he had surgery on his right wrist in August 2017 and
was not permitted to attend one follow-up appointment two days later. Id. at 17. Petitioner

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“. . . maintain a custom in the GDC and at GSP.” Id. “At GSP, the Food Service
department that prepares . . . .“ Id.
4
According to Plaintiff, he was placed in the SMU while incarcerated at Georgia
Diagnostic and Classification Prison beginning in October 2012. Pet. 2, ECF No. 1-1.
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does not allege that he suffered an injury as a result. In the “denial of adequate dental care
on Tier II/II” portion of his pleading, Petitioner also alleges that in December 2016, a
dentist’s note recognized that Petitioner complained that his teeth were sensitive to
temperature, and she recommended Sensodyne to Petitioner. Pet. 18, ECF No. 1-1. There
is absolutely no indication that absent Sensodyne, Petitioner is at risk of serious injury.
Indeed, Petitioner does not even allege that his teeth hurt, except as reflected in the
purported dentist records from 2016.
Finally, Petitioner alleges that he is exposed to feces because other inmates, who
Petitioner refers to as projectors, throw their bodily fluids out of their cells. Id. at 18-20.
Petitioner states that he often has to endure the stench of feces and the “concomitant health
risks.” Id. at 19. Petitioner, however, also alleges that the feces cleaned up orderlies,
although it may take hours or overnight for them to do so.5 Id. Petitioner does not allege
that he himself has been projected on or is prevented from cleaning it up should a projector
project onto Petitioner or into his cell. Indeed, it appears Petitioner alleges projectors
primarily target each other and then the smell wafts over to Petitioner. See id. at 19. This
does not demonstrate an imminent danger to his safety. Moreover, Petitioner has been
alleging since at least January 2017 that other inmates confined in administrative
segregation throw their feces in the dorm. See Daker v. Dozier, 2017 WL 3037420, at *4

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In this section of his Petition, he also alleges that “[o]ften the pill call nurses will not
enter a dorm with a projection.” Id. at 19. Petitioner does not allege that he specifically
has missed a medication as a result.
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(M.D. Ga. 2017).

In that time, Petitioner has been confined in at least three separate

prison facilities. Pet. 2, ECF No. 1-1. He does not allege that this has occurred at Macon
State Prison in the one-month period since he was transferred from Georgia State Prison.
Taking the Petition as a whole, as the Court is required to do, Petitioner has failed
to satisfy the imminent danger standard. Most of Petitioner’s allegations are generalized
and appear to primarily concern what occurs in general throughout the Georgia Department
of Corrections.

Courts have repeatedly held that such generalized allegations are

insufficient to satisfy the imminent danger standard. See Daker v. Dozier, 2017 WL
3037420 (M.D. Ga. 2017); Daker v. Dozier, 2018 WL 582581 (S.D. Ga. 2018); Daker v.
Dozier, 2017 WL 3037420 (M.D. Ga. 2017).

Where Petitioner has presented specific

examples of events personal to him, they largely concern past events and risks that occurred
sometime in the past. A past threat of serious physical injury is insufficient to plead
imminent danger. O’Connor v. Suwannee Corr. Inst., 649 F. App’x 802, 804 (11th Cir.
2016). Finally, allegations of sensitive teeth and occasional sinus infections, of “often”
missing a fruit or drink with a meal or snack, and of confinement in the same dorm with
inmates that throw their feces are insufficient to show that Petitioner is in an imminent
danger of serious physical injury. Accordingly, Petitioner does not qualify under the
imminent danger exception.

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III.

Conclusion

As discussed above, Petitioner seeks to proceed in this action under 28 U.S.C. §
2241, 28 U.S.C. § 2254, and 42 U.S.C. § 1983. Petitioner, however, does not challenge
his conviction or contest the duration of his confinement. Instead, Petitioner seeks to raise
multiple civil rights claims based on the conditions of his confinement. Therefore, to the
extent that Petitioner seeks to proceed under § 2241 or §2254, his claims are not cognizable.
Petitioner cannot proceed under § 1983 either, as he has failed to pay the $400.00 filing
fee6 and has accumulated three strikes for purposes of 1915(g) in the event that he wishes
to proceed in forma pauperis. Accordingly, this action is DISMISSED WITHOUT
PREJUDICE.
SO ORDERED, this 18th day of July, 2018.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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Petitioner cannot circumvent the provisions of 1915(g) by styling his Section 1983 civil
rights complaint as an action brought under § 2254. This includes the filing fee
applicable to civil rights cases. “He must pay the filing fee at the time he initiates suit.”
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
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