Gandy v. Bryson et al

Filing 59

REPORT AND RECOMMENDATIONS of the Magistrate Judge that Waseem Daker be denied leave to proceed in forma pauperis on appeal. Any party seeking to object is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 6/30/2017.) ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 6/16/17. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

FILED
Scott L. Poff, Clerk
United States District Court

By staylor at 2:13 pm, Jun 16, 2017

KASIM GANDY,
Plaintiff,

CIVIL ACTION NO.: 5:16-cv-44

v.
TOM GRAMIAK,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Presently before the Court is non-party Waseem Daker’s (“Daker”) Motion for
Reconsideration of the Court’s Order dated February 28, 2017. (Doc. 55.) For the reasons set
forth below, the Court DENIES Daker’s Motion for Reconsideration.

Additionally, I

RECOMMEND that the Court DENY Daker leave to proceed in forma pauperis on appeal.
The Court DIRECTS the Clerk of Court to serve a copy of this Order and Report and
Recommendation upon Plaintiff AND non-party Waseem Daker.
BACKGROUND
On February 3, 2017, Daker filed a Motion to Intervene in this case. (Doc. 36.) Daker
argued that he should be allowed to intervene as a matter of right under Federal Rules of Civil
Procedure Rule 24(a) and permissively under Rule 24(b). (Id. at p. 2.) Daker contended that
intervention was proper for his claims that his placement in the Tier II program at Georgia State
Prison violates his substantive and procedural due process rights.

As support, Daker

conclusively asserted that: his Motion was timely filed; he has a “direct, substantial, legally
protectable interest in the proceedings” by nature of his status as a prisoner in the Tier II

segregation program; the disposition of this case would impair his ability to protect his interest
due to stare decisis; and Plaintiff would not adequately represent his interests. (Id. at pp. 2–4.)
On February 28, 2017, the Court denied Daker’s Motion to Intervene. (Doc. 39). The
Court advised Daker that the Prison Litigation Reform Act (“PLRA”) disallows multipleprisoner/plaintiff lawsuits wherein the prisoners/plaintiffs seek to proceed in forma pauperis
together. (Id. at p. 2.) Specifically, the Court informed Daker that a prisoner wishing to bring a
civil action in forma pauperis must pay the full amount of the filing fee. 1 (Id.)
In his instant Motion, Daker restates the arguments from his Motion to Intervene and
further argues that intervention is allowed because neither the PLRA nor Hubbard v. Haley, 262
F.3d 1194 (11th Cir. 2001), applies to motions brought pursuant to Rule 24.
DISCUSSION
I.

Motion for Reconsideration (Doc. 55)
A motion for reconsideration, or a Federal Rule of Civil Procedure 59(e) motion, is “an

extraordinary remedy, to be employed sparingly.” Smith ex rel. Smith v. Augusta-Richmond
Cty., No. CV 110-126, 2012 WL 1355575, at *1 (S.D. Ga. Apr. 18, 2012) (internal citation
omitted). “A movant must set forth facts or law of a strongly convincing nature to induce the
court to reverse its prior decision.” Id. (internal citation omitted). “The only grounds for
granting a Rule 59 motion are newly-discovered evidence or manifest errors of law or fact.”
Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (internal punctuation omitted)). “A Rule 59(e)
motion cannot be used to relitigate old matters, raise argument or present evidence that could

1

The Court notes that this is not the first case in this District where Daker has sought and been denied
intervention. See Orders, Daniels v. Upton, et al., 6:16-cv-94-JRH-RSB (S.D. Ga. Feb. 17, 2017 &
Mar. 27, 2017) ECF Nos. 43, 46.
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have been raised prior to the entry of judgment.” Id. (quoting Michael Linet, Inc. v. Village of
Wellington, 408 F.3d 757, 763 (11th Cir. 2005) (alterations omitted)).
The Court discerns no reason to grant Daker’s Motion for Reconsideration. Here, Daker
does not present any newly- discovered evidence or manifest errors of law or fact. Daker simply
attempts to argue that Hubbard does not apply to Rule 24 motions, and that even if it did, the
United States Supreme Court’s decision in Jones v. Bock, 549 U.S. 199 (2007), overruled
Hubbard. However, both these arguments are without merit. 2
While it is true that the Eleventh Circuit Court of Appeals addressed joinder rather than
intervention in Hubbard, the reasoning and analysis behind Hubbard remain true for intervention
under Rule 24. That is, in order to curtail abusive prisoner tort, civil rights, and conditions of
confinement litigation, “[T]he PLRA clearly and unambiguously requires that ‘if a prisoner
brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the
full amount of a filing fee.’” Hubbard, 262 F.3d at 1197 (quoting 28 U.S.C. § 1915(b)(1)).
Additionally, “the Congressional purpose in promulgating the PLRA enforces an interpretation
that each prisoner pay the full filing fee.” Id. at 1197–98. In fact, the Court’s reasoning in
Hubbard is especially appropriate in this case. Daker, a known serial litigant in this district and
others, has been denied in forma pauperis status on multiple occasions pursuant to 28 U.S.C.
§ 1915(g), the PLRA’s three-strikes provision. 3 See Daker v. Bryson, et al., No. 6:16-cv-57JRH-RSB, 2017 WL 242615, at *3 (S.D. Ga. Jan. 19, 2017), report and recommendation
2

Jones addressed the administrative exhaustion requirement of the PLRA and is inapplicable to the
Court’s denial of Daker’s Motion to Intervene.
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“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding
under this section 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).

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adopted by No. 6:16-cv-57-JRH-RSB, 2017 WL 1053082 (S.D. Ga. Mar. 20, 2017). His Motion
to Intervene in this case is a blatant attempt to circumvent the requirements of the PLRA and is
precisely the type of behavior the PLRA sought to curtail.
The Court sees no error in its analysis denying Daker’s Motion to Intervene, much less
manifest error warranting reconsideration. Accordingly, the Court DENIES Daker’s Motion for
Reconsideration, (doc. 55).
II.

Leave to Appeal in Forma Pauperis
Additionally, the Court should DENY Daker in forma pauperis status on appeal. Though

Daker has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).

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Based on the above analysis of Daker’s Motion and the Court’s February 28, 2017,
Order, (doc. 39), there are no non-frivolous issues to raise on appeal, and an appeal would not be
taken in good faith. Thus, the Court should DENY Daker in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, the Court DENIES Daker’s Motion for Reconsideration.
(Doc. 55.) Additionally, I RECOMMEND that the Court DENY Daker leave to proceed in
forma pauperis on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of

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Court to serve a copy of this Report and Recommendation upon Plaintiff AND non-party
Waseem Daker.
SO ORDERED and REPORTED and RECOMMENDED, this 16th day of June,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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