Daker v. Head et al
Filing
272
ORDER denying without prejudice Movants' 140 Motion to Vacate Plaintiff's In Forma Pauperis Status; denying without prejudice Movants' 208 Motion to Supplement. The Court ORDERS Plaintiff to furnish the Updated Prisoner Trust Account Statement (attached as Exhibit A) and submit the attached AO 240 form (attached as Exhibit B) to the Clerk within 30 days of this Order. Signed by Magistrate Judge Benjamin W. Cheesbro on 2/26/2021. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WASEEM DAKER,
Plaintiff,
CIVIL ACTION NO.: 6:14-cv-47
v.
BRIAN OWENS, et al.,
Defendants.
ORDER
Before the Court is the Motion to Vacate Plaintiff’s In Forma Pauperis Status (“Motion
to Vacate”), doc. 140, filed by Defendants Brian Owens, Timothy Ward, Robert Toole, Shirley
Kilgore, Linton DeLoach, Milton Smith, Benjamin Warren, Miguel Salgado, Ronnie Shuemake,
Taral Todman, Freddie Davis, and Betty Bailey-Dean (“Movants”), Plaintiff’s Response,
doc. 154, and Movants’ Reply, doc. 159. Movants also filed a Motion to Supplement the Record
on Their Motion (“Motion to Supplement”), in which they argue the Court should find Plaintiff
has made material misrepresentations regarding his indigency status and the consequences of
such misrepresentations should be dismissal of all claims with prejudice. Doc. 208. Plaintiff
also responded in opposition to the Motion to Supplement. Doc. 240. In their Motion to Vacate,
Movants make essentially two arguments: (1) Plaintiff misrepresented his financial
circumstances in his 2014 affidavit in support of his request to proceed in forma pauperis, and
(2) Plaintiff is no longer indigent and his claims of indigency should be reevaluated. Doc. 140.
Regarding the first argument, Movants argue Plaintiff had his in forma pauperis (“IFP”)
request denied in a case in the Northern District of Georgia around the same time and the denial
of IFP status there demonstrates Plaintiff made misrepresentations in his motion in this case in
2014. Id. at 3–4 (citing Daker v. Humphrey, 1:13-cv-01554 (N.D. Ga. 2013)). The parties
dispute what transpired in that Northern District of Georgia case after Plaintiff was denied IFP
status and how it should impact the Court’s analysis here. Docs. 157, 159.
Based on the record in this case and a review of the docket and appellate history of the
Northern District of Georgia case in question, the Court cannot conclude, at this point, Plaintiff
made misrepresentations about his financial position in this case in his 2014 motion. This is not
to say Plaintiff was fully truthful in his affidavit, only that the Court cannot resolve this issue
based on the current record. 1 The passage of time—nearly seven years—complicates this
inquiry. To the extent Movants’ Motion to Vacate and Motion to Supplement are based on a
purported material misrepresentation in Plaintiff’s 2014 affidavit submitted in this matter, this
portion of the Motions is DENIED without prejudice. However, the Court considers Movant’s
secondary argument as well.
In their second argument, Movants assert Plaintiff is not indigent now, and the Court
should reevaluate Plaintiff’s IFP status. Doc. 140. Movants assert Plaintiff owned a home at the
outset of this case, in 2014, but on August 27, 2018, he sold the home for $464,900. Doc. 140 at
3–4. Movants also point out Plaintiff paid the filing fees in a number of cases in 2019 and 2020
and has been found not indigent by at least one court. Id. In their Motion to Supplement,
Movants point to a case Plaintiff filed in the Middle District of Georgia. Doc. 208 (citing Daker
In his June 4, 2014 application to proceed without prepayment of fees, Plaintiff did disclose he
had a “house worth $285,000–$330,000,” noting it had a mortgage of about $345,000 and was listed for
sale. Doc. 4 at 2.
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v. Head, 5:14-CV-138 (M.D. Ga. Apr. 4, 2014)). In that case, the court reevaluated Plaintiff’s
initial assertion of indigency based on changes in Plaintiff’s financial status and Plaintiff’s
pattern of misrepresentations about his financial status, and, in 2019, ordered Plaintiff to submit
an updated motion to proceed in forma pauperis. The Court reviewed Plaintiff’s updated motion
and concluded, among other things, Plaintiff has a history of intentionally misleading courts and
engaging in vexatious and bad faith litigation and had engaged in “calculated efforts to conceal
sources of funds” from which he could have paid filing fees. That court dismissed Plaintiff’s
case with prejudice as a result. Movants in this case argue the record in the Middle District of
Georgia case supports this Court reevaluating Plaintiff’s indigency status.
In his Responses, Plaintiff argues Movants’ characterizations of his finances are incorrect
because his debts and liabilities far outweigh any proceeds he received as a result of selling his
home. Doc. 154 at 7. Plaintiff also attempts to provide the Court with a partial accounting of his
expenditures since his 2019 affidavit. 2 Doc. 240. Regarding the Middle District of Georgia
case, Plaintiff argues that court’s disposition in that matter does not warrant dismissal of
Plaintiff’s claims in this action because the factual circumstances are different. Most
importantly, Plaintiff argues that in the Middle District of Georgia case, he was ordered to
submit an updated motion to proceed IFP, which formed the basis for the dismissal, but he has
not been ordered to file an updated motion in this case. Doc. 216 at 3.
The Court does not have sufficient information to determine whether Plaintiff is currently
indigent. Unlike the Middle District of Georgia case described above, Plaintiff has not been
ordered to submit an updated motion to proceed IFP in this case. Although Plaintiff made some
Movants note Plaintiff testified to having substantially more assets in the 2019 affidavit he
submitted in the Middle District of Georgia case than he did in his 2020 Response to their Motion to
Vacate and question whether the discrepancy is the result of Plaintiff’s misrepresentations. Doc. 208 at 4.
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representations about his more recent financial circumstances in his Responses to Movants’
Motion to Vacate and Motion to Supplement, those representations were not made in support of
Plaintiff’s affirmative request to continue proceeding IFP. For these reasons, the Court DENIES
without prejudice Movants’ Motion to Vacate and Movants’ Motion to Supplement. Docs. 140,
208.
However, Movants have presented legitimate concerns about Plaintiff’s ongoing
indigency status and about whether Plaintiff’s financial circumstances have significantly changed
since this case was filed, in large part due to the sale of his home in 2018. Doc. 140 at 4;
Doc. 154 at 3–4. Additionally, Plaintiff’s sworn testimony in his Response to Movants’ Motion
to Vacate indicates he had sufficient funds in several accounts at that time (April 2020) to pay
the Court’s filing fee. Doc. 154 at 7 (listing approximately $3,647.44 in checking accounts and
$11,085.55 in a savings account). Plaintiff does not dispute Movants’ evidence he has
repeatedly paid filing fees in other cases over the years. Id. at 9. In fact, Plaintiff estimates he
paid over $20,000.00 in filing fees over the past few years. Doc. 240 at 2–3. Plaintiff also paid a
$402.00 filing fee earlier this month in another case in this District, indicating Plaintiff currently
has the ability to pay filing fees. Daker v. Ward, No. 6:21-cv-3 (S.D. Ga. Feb. 4. 2021).
Plaintiff, however, contends he should still be considered indigent based on his current assets,
debts, and liabilities.
Additionally, the Court has concerns about Plaintiff’s actions related to his prisoner trust
account. When initially granting in forma pauperis status to Plaintiff in 2014, and again when
reinstating his in forma pauperis status in 2019, the Court notified Plaintiff he would be
obligated to pay the entire filing fee. Doc. 5 at 1; Doc. 97 at 1 (stating “all prisoners, even those
who are allowed to proceed in forma pauperis” must pay the full filing fee). The Court also
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informed Plaintiff he would be put on a payment schedule, as outlined in § 1915(b), according to
the funds available in his prisoner trust fund account. Id. In 2019, when reconsidering
Plaintiff’s request for in forma pauperis status, the Court directed Plaintiff to submit an updated
form containing his prisoner trust fund account statement. Doc. 97 at 3. Over a year has passed,
and the Court has not yet received this form. Plaintiff has admitted to intentionally not putting
funds in his prisoner account for years, maintaining a zero balance despite his apparent access to
funds outside of prison, see Pl.’s Partial Objs. to Magistrate’s 4/22/19 Order & R. & R., Daker v.
Head, No. 5:14-cv-138 (M.D. Ga. May 2, 2019), ECF No. 41 at 13–14, n.4 (acknowledging he is
not placing funds in his prison account because he is disputing debts of around $25,000). Thus,
it appears Plaintiff is intentionally diverting funds away from his prisoner trust account to avoid
paying his debts and filing fees. Courts have determined dismissal with prejudice is appropriate
in cases involving a “chronic litigant who manipulates the amount of funds in his prison
account.” Camp v. Oliver, 798 F.2d 434, 437–38 (11th Cir. 1986) (recognizing dismissal with
prejudice may be appropriate where a prisoner misrepresents his financial circumstances and has
a “history of fraudulent manipulation of his bank account”).
In light of this record, the Court will reevaluate Plaintiff’s indigency status, his actions
related to his prisoner trust account, and his failure to make partial payments toward the
outstanding filing fee in this case. “There is no question that proceeding in forma pauperis is a
privilege, not a right, and permission to so proceed is committed to the sound discretion of the
court.” Id. at 437. Further, district courts “retai[n] the authority to . . . revoke IFP status when
new evidence bearing on the IFP determination comes to light.” McLeod v. Sec’y, Fla. Dep’t of
Corr., 778 F. App’x 663, 665 (11th Cir. 2019) (affirming district court’s revocation of IFP status
after it revisited imminent danger determination). As one court noted:
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Because in forma pauperis status is a privilege, it follows that the privilege
may be revoked when the goals of § 1915 are not being furthered. If an
indigent litigant’s financial condition improves to the point that his economic
situation does not prohibit him from maintaining his action, then assistance
under § 1915 is no longer justified . . . . [T]he Court may revoke plaintiff’s in
forma pauperis status if there is sufficient evidence that plaintiff’s financial
condition has improved to the point that plaintiff’s economic situation is no
longer a significant barrier to maintaining the action.
Murphy v. Jones, 801 F. Supp. 283, 288–89 (E.D. Mo. 1992); see also In re Kauffman, 354 B.R.
682 (Bankr. D. Vt. 2006) (holding bankruptcy court may vacate an order granting a waiver of the
filing fee, intended to be issued at the outset of a case, based upon information that comes to the
court’s attention later in the case).
In order to properly evaluate these matters, the Court ORDERS Plaintiff to comply with
the following instructions:
(1)
Plaintiff must furnish the Updated Prisoner Trust Fund Account
Statement (attached as Exhibit A to this Order) to the trust (financial)
officer of each prison where he has been confined for the past six months.
The trust officer will complete and sign the form and return the form and
supporting documents to Plaintiff for submission to the Court. Two copies
of the form are enclosed for this purpose. Plaintiff must submit the
completed form to the Clerk within 30 days of this Order.
(2)
Plaintiff must complete and submit the attached AO 240 form (attached as
Exhibit B to this Order) describing his current financial status. If Plaintiff
does not claim to be a pauper, he should not swear to that portion of the
form, as such improper swearing will almost certainly result in dismissal
of this action. See 28 U.S.C. § 1915(e)(2)(A) (providing the Court with
authority to “dismiss the case at any time if the court determines that the
allegation of poverty is untrue.”). Plaintiff must sign and submit the form
to the Clerk within 30 days of this Order.
If Plaintiff does swear to be a pauper, the Court will determine, based on the information
it has received, the amount of the initial partial filing fee Plaintiff will be required to pay, as well
as a payment plan for any remaining balance. The Court, upon review of information concerning
Plaintiff’s financial situation, may also conclude it is appropriate to vacate Plaintiff’s in forma
pauperis status. Regardless, Plaintiff “shall be required to pay the full amount of [the] filing
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fee,” 28 U.S.C. § 1915(b)(1), and he cannot avoid this duty merely by keeping his assets out of
his prisoner account.
Additionally, Plaintiff cannot avoid his duty to pay the filing fee simply by alleging the
existence of unsubstantiated debts. For any debts Plaintiff alleges he currently owes, Plaintiff
shall provide documentation supporting the amount of the debt (such as information contained in
a credit report, a collections notice, a lawsuit concerning the debt, billing statements, etc.). 3 If
Plaintiff fails to submit such documentation of his debts within 30 days of this Order, then the
Court will assume the alleged debts are not collectible and will not consider such debts when
reviewing Plaintiff’s financial circumstances.
If Plaintiff, on reviewing his current financial situation, does not swear to be a pauper,
then he must submit the full filing fee to the Court within 30 days of this Order or face dismissal
of this action for non-payment. Additionally, Plaintiff is notified if he fails to timely comply
Given the Court’s concerns about Plaintiff’s truthfulness regarding his financial circumstances,
Plaintiff must provide more than self-serving sworn statements that alleged debts and liabilities exist. For
example, Plaintiff, in his Response to Movants’ Motion to Vacate, alleges he has over $50,000 in student
loan debt, $36,000 in costs for court-appointed counsel, and $25,000 in disputed prisoner account debt.
Doc. 154 at 7. Unless such debt is substantiated and unless Plaintiff can show the full amount of his debts
is currently due and collectible and he is making efforts to pay such debts, the Court will not consider
these alleged debts as significantly impacting his financial status. Moreover, the Court reminds Plaintiff
it has discretion to consider outside sources of funds, and that even if his liabilities exceed his assets, the
Court can still conclude paying the filing fee for this case would not be an undue hardship and,
accordingly, vacate his in forma pauperis status. See Sellers v. United States, 881 F.2d 1061, 1063 (11th
Cir. 1989) (“The fact that the petitioner’s funds are derived from family sources does not compel the
conclusion that the filing fee is due to be waived.”); Roberts v. Brennan, No. 4:19-cv-207, 2019 WL
4921107, at *1 (S.D. Ga. Aug. 29, 2019), adopted by 2019 WL 4923219 (S.D. Ga. Oct. 4, 2019) (denying
IFP status to litigant who disclosed “approximately $524,000 in debts, upon which he accrues obligations
in the amount of $2,630.80, to be discharged out of an income of $1,445.00.”); Fridman v. City of New
York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (“In assessing an application to proceed in forma
pauperis, a court may consider the resources that the applicant has or ‘can get’ from those who ordinarily
provide the applicant with the ‘necessities of life,’ such as ‘from a spouse, parent, adult sibling or other
next friend.’”).
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with this Order, the Court will dismiss Plaintiff’s case for failure to prosecute and follow this
Court’s Orders.
SO ORDERED, this 26th day of February, 2021.
___________________________________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WASEEM DAKER,
Plaintiff,
CIVIL ACTION NO.: 6:14-cv-47
v.
BRIAN OWENS, et al.,
Defendants.
UPDATED PRISONER TRUST FUND ACCOUNT STATEMENT
The Court, in the above-referenced case, is requesting a certified copy of Plaintiff
Waseem Daker’s trust account statement for the past six months. Plaintiff in this case has been
instructed by the Court to furnish this form to the trust officer of each institution where he has
been confined for the last six months
Please complete this form, attach the supporting ledger sheets, and return these
documents to the prisoner for mailing to the Court.
DATE OF REQUEST FOR UPDATED STATEMENT:
February 26, 2021
AVERAGE MONTHLY DEPOSITS during the
six months prior to February 26, 2021:
AVERAGE MONTHLY BALANCE during the
six months prior to February 26, 2021:
I certify that the above information accurately states the deposits and balances in the
Plaintiff’s trust account for the period shown and that the attached ledger sheets are true copies
of the account records maintained by this institution.
Signature of Authorized Officer of Institution
Print or Type Name
Date
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WASEEM DAKER,
Plaintiff,
CIVIL ACTION NO.: 6:14-cv-47
v.
BRIAN OWENS, et al.,
Defendants.
UPDATED PRISONER TRUST FUND ACCOUNT STATEMENT
The Court, in the above-referenced case, is requesting a certified copy of Plaintiff
Waseem Daker’s trust account statement for the past six months. Plaintiff in this case has been
instructed by the Court to furnish this form to the trust officer of each institution where he has
been confined for the last six months
Please complete this form, attach the supporting ledger sheets, and return these
documents to the prisoner for mailing to the Court.
DATE OF REQUEST FOR UPDATED STATEMENT:
February 26, 2021
AVERAGE MONTHLY DEPOSITS during the
six months prior to February 26, 2021:
AVERAGE MONTHLY BALANCE during the
six months prior to February 26, 2021:
I certify that the above information accurately states the deposits and balances in the
Plaintiff’s trust account for the period shown and that the attached ledger sheets are true copies
of the account records maintained by this institution.
Signature of Authorized Officer of Institution
Date
Print or Type Name
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EXHIBIT B
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