Daker v. United States Of America et al

Filing 37

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)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION WASEEM DAKER, Plaintiff, v. CV416-158 SCOTT L. POFF and UNITED STATES OF AMERICA, Defendants. 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 2 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. 3 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, 2017. UNITED STATES MAGISTRATE JIJDGE SOUTHERN DISTRICT OF GEORGIA 4

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