Daker v. Head et al

Filing 12

ORDER VACATING 5 Order on Motion for Leave to Proceed in forma pauperis. Plaintiff's Motion to Proceed In Forma Pauperis is DENIED. Signed by Magistrate Judge James E. Graham on 9/8/2014. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WASEEM DAKER,
Plaintiff,
V.

PATRICK HEAD; JESSE D. EVANS;
MARY E. STALEY; BRIAN OWENS;
TIMOTHY WARD; RANDY TILLMAN;
RICK JACOBS; ROBERT E. JONES;
CARL HUMPHREY; DR. SHARON
LEWIS; SHEVONDAH FIELDS; LISA
FOUNTAIN; TORIS MCLESSIA ROZIER;
JAMES DEMETRIUS SMITH; GEORGIA
DEPARTMENT OF CORRECTIONS;
ROBERT TOOLE; WENDELL FOWLER;
JOHN PAUL; Ms. KILGORE;
Mr. DELOACH; MILTON SMITH;
MURIEL JACKSON; JOHN DOE; JANE
DOE; DR. JOHN DOE; DR. JANE DOE;
Ms. KING; P. MURPHY; Off. HENRY;
Ms. BROWN; THREE JOHN DOES;
BRUCE CHATMAN; JUNE BISHOP;
DR. DEAN BROOME; Mr. CARAVELLO;
WILLIAM McNUNN; STEPHEN NICOLOV;
SHARON BROWN; Ms. LIGHTSEY;
Ms. CROWDER; Ms. STRICKLAND;
Ms. DOBBS; Ms. SICVERS; Ms.
COWART; Ms. BRADY; TIFFANY
WOOTEN; Mr. THURMOND; DEBBIE
KING; Major SMITH; Sgt. SALGADO;
RONNIE SHUEMAKE; TARAL TODMAN;
BENJAMIN WARREN; ASWON CAULEY;
FREDDIE DAVIS; JAMES McMILLAN;
MICHAEL NUPEN; TORJKA NASH;
LESLEY MEDLOCK; and SARAH BARBER,
Defendants.

AO 72A
(Rev. 8/82)

CIVIL ACTION NO.: CV614-047

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Georgia State Prison in Reidsville,
Georgia, filed an action, as amended, pursuant to 42 U.S.C. § 1983 contesting certain
conditions of his confinement. A prisoner proceeding in a civil action against officers or
employees of government entities must comply with the mandates of the Prison
Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915. 28 U.S.C. § 1915(g) of the PLRA
provides:
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). This provision of the PLRA "requires frequent filer prisoners to
prepay the entire filing fee before federal courts may consider their lawsuits and
appeals." Rivera v. AIIm, 144 F.3d 719, 723 (11th Cir. 1998).
A review of Plaintiff's history of filings reveals that he has brought at least three
civil actions or appeals which were dismissed and count as strikes under § 1915(g): 1)
In re: Waseem Daker, No. 11-11937 (11th Cir. June 3, 2011) (finding appeal frivolous)
2) State of Georgia v. Daker, No. 12-12519 (11th Cir. Nov. 5, 2012) (motion to proceed
in forma pauperis denied after finding appeal frivolous and appeal dismissed for want of

prosecution after Plaintiff failed to pay the filing fee); 3) In re: Waseem Daker, No. 1212073 (11th Cir. July 12, 2012) (same); and 4) Daker v. Mokwa, 2:14cv395 (C.D. Cal.

AO 72A
(Rev. 8/82)

2

Feb. 4, 2014) (complaint dismissed as being frivolous, malicious, or failing to state a
claim upon which relief may be granted).'
The Eleventh Circuit upheld the constitutionality of section 1915(g) in Rivera. In
so doing, the Court concluded that section 1915(g) does not violate an inmate's rights to
access to the courts, to due process of law, or to equal protection, or the doctrine of
separation of powers. Rivera, 144 F.3d at 721-27. Because Plaintiff has filed three
previously dismissed cases or appeals which qualify as strikes under section 1915(g),
Plaintiff may not proceed in forma pauperis in this action unless he can demonstrate
that he meets the "imminent danger of serious physical injury" exception to § 1915(g).
Plaintiff cannot claim that he should be excused from prepaying the filing fee
because of the "imminent danger of serious physical injury" exception to § 1915(g). In
order to come within the imminent danger exception, the inmate must be in imminent
danger at the time he files suit in district court, not at the time of the alleged incident that
serves as the basis for the complaint. Medberry v. Butler, 185 F.3d 1189, 1193 (11th
Cir. 1999). As noted by the Court, "a prisoner's allegation that he faced imminent
danger sometime in the past is an insufficient basis to allow him to proceed in forma
pauperis pursuant to the imminent danger exception to the statute." I d.
In this Complaint, Plaintiff names over thirty (30) individuals, including former
Cobb County prosecutors and a judge. Plaintiff contends that he was convicted in Cobb
County Superior Court, and upon his conviction, Defendants Head, Weathers, and
Staley asked the Georgia Department of Corrections to place Plaintiff in solitary
confinement in an effort to hinder his ability to challenge his conviction and sentence.

The Eleventh Circuit has found that a dismissal for want of prosecution after a finding of frivolity
constitutes a strike under § 1915(g). Allen v. Clark, 266 F. App'x 815 (11th Cir. 2008).
AO 72A
(Rev. 8/82)

3

Plaintiff contends that the Georgia Department of Corrections Defendants complied with
this request as retaliation for the litigation he pursued during his previous period of
incarceration. Plaintiff contends that he was transferred to the custody of the
Department of Corrections in October 2012 and was placed in a special management
unit without benefit of a hearing. Plaintiff contends that his assignment in this unit
placed an atypical and significant hardship on him in relation to the ordinary incidents of
prison life. Plaintiff contends that the conditions of his confinement since he has been
housed at Georgia State Prison have been deplorable. Plaintiff asserts that there is a
Standard Operating Procedure in place which requires the barbershops in prisons to not
use broken guards on the clippers, and Defendants have a de facto policy in place to
ignore that Standard Operating Procedure. Plaintiff alleges that he was forcibly shaven
with unsanitized clippers, and his requests for clean clippers were ignored. Plaintiff also
alleges that he has numerous medical conditions for which he was previously treated,
such as chest pains, back pain, knee pain, migraines, dizzy spells, carpal tunnel
syndrome, and indigestion, but he has not been seen by medical for these conditions
since his arrival at Georgia State Prison in April 2014. However, Plaintiff also alleges
that he was sent to Augusta Medical State Prison after he arrived at Georgia State
Prison. Plaintiff asserts that some of his teeth are sensitive and painful, and he has yet
to see a dental care provider, though he was informed he would see a provider when an
appointment is available. Plaintiff avers that he has been denied access to his preferred
religious services, his mail, the grievance procedure, and access to the courts.
Plaintiff has not shown that he was in imminent danger of serious physical injury
at the time he filed his Complaint on May 19, 2014, or at the time he filed his Amended

AO 72A
(Rev 8/82)

4

Complaint on August 19, 2014. Plaintiff should not be considered to meet the exception
to the three strikes rule. The undersigned's Order date June 10, 2014, (doc. no. 5), is
vacated. Plaintiff's Motion to Proceed In Forma Pauper/s is DENIED. Plaintiff's claims
should be DISMISSED, without prejudice. If Plaintiff wishes to proceed with this action,
he should be required to submit a complaint along with the full filing fee.
In addition, even if Plaintiff met the exception to § 1915(g), he cannot proceed
with this cause of action. A plaintiff may not join unrelated claims and various
defendants unless the claims "arise out of the same transaction, occurrence, or series
of transactions or occurrences and if any question of law or fact common to all
defendants will arise in the action.' FED. R. Civ. P. 20(a). Plaintiff has not shown how
his various claims against the various Defendants from several penal institutions are
related. Plaintiff's claims should be dismissed as a result.
Plaintiff has also filed Motions for a Preliminary Injunction or Temporary
Restraining Order. As Plaintiff cannot proceed with this cause of action under §
1915(g), his Motions for Preliminary Injunction or Temporary Restraining Order, (doc.
nos. 8, 10, and 11), should be DENIED.
SO ORDERED and REPORTED and RECOMMENDED, this ' day of
September, 2014.

'1ES E. GRAHM
ITED STATES MAGISTRATE JUDGE

AO 72A
(Rev. 8182)

5