Daker v. United States Of America et al
REPORT AND RECOMMENDATIONS dismissing 1 Complaint filed by Waseem Daker. Objections to R&R due by 6/9/2017. The court VACATES its prior Order (doc. 30) and recommends that Daker's request to proceed IFP be denied. Signed by Magistrate Judge G. R. Smith on 5/26/17. (jlm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SCOTT L. POFF and UNITED
STATES OF AMERICA,
REPORT AND RECOMMENDATION
Pro se plaintiff Waseem Daker brings this suit, under various
theories, because he objects to the handling of several of his numerous
previous complaints by Scott L. Poff, the Clerk of this Court. See doc. 1
(Complaint); see also Daker v. Comm’r, Ga. Dept. of Corrs. , 820 F.3d
1278, 1281 (11th Cir. 2016) (noting “Daker is a serial litigant who has
clogged the federal court with frivolous litigation,” by “submit[ing] over
a thousand pro se filings in over a hundred actions and appeals in at least
nine different federal courts.”). After the Eleventh Circuit directed
reconsideration of his supplemental application to proceed in forma
pauperis (IFP), the Court granted him leave to proceed without paying
the required filing fee. Doc. 30. Daker returned the required forms.
Docs. 35 & 36.
Ordinarily, then, the Court would proceed to screen his Complaint
pursuant to 28 U.S.C. § 1915A. But Daker’s litigation history includes
more than three cases that count as “strikes” under 28 U.S.C. § 1915(g)
and which are not affected by the Eleventh Circuit’s analysis of his other
dismissed cases. See Daker , 820 F.3d at 1286 (cases dismissed for lack of
jurisdiction and want of prosecution did not count as § 1915(g) strikes);
Daker v. Bryson, et al. , CV616-057, doc. 10 at 9-10 (S.D. Ga. Jan. 19,
2017) (listing at least six previously dismissed lawsuits constituting
Daker- qualified, § 1915(g) strikes), adopted doc. 17 (S.D. Ga. Mar. 20,
2017). Accordingly, the Court VACATES its prior Order (doc. 30), and
recommends that Daker’s request to proceed IFP be DENIED .
Daker’s current Complaint does not include any allegation that
could bring him within § 1915(g)’s “imminent danger” exception. See,
generally , doc. 1; see also 28 U.S.C. § 1915(g) (allowing an exception to
IFP-bar when “the prisoner is under imminent danger of serious physical
injury.”). His allegations focus on whether defendant Poff failed to
adequately discharge his ministerial duty to file several of Daker’s
previous § 1983 complaints and 28 U.S.C. § 2254 petitions, see doc. 1, ¶¶
10-16, 19, and whether he exceeded his authority by implicitly finding
venue was not proper in this Court, id. at ¶ 20. Those claims do not
plausibly implicate Daker’s physical safety. See, e.g., Skillern v. Jackson,
2006 WL 1687752 at * 2 (S.D. Ga. June 14, 2006) (citing Brown v.
Johnson , 387 F.3d 1344, 1349 (11th Cir. 2004)) (imminent danger
exception “require[s] specific allegations of present imminent danger
that may result in serious physical harm.”). Daker’s Complaint should,
therefore, be DISMISSED . If he wishes to pursue these claims, he must
bring a separate action and pay the full filing fee.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court’s Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the Court
and serve a copy on all parties. The document should be captioned
“Objections to Magistrate Judge’s Report and Recommendations.” Any
request for additional time to file objections should be filed with the
Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp. ,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S. , 612 F. App’x
542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED , this 26th day of May,
UNITED STATES MAGISTRATE JIJDGE
SOUTHERN DISTRICT OF GEORGIA
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