Daker v. Head et al

Filing 279

ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS 247 , as the opinion of the Court and DENIES Plaintiff's Motion for Partial Summary Judgment and Permanent Injunction on Cellphone-Related Claims: Motion for Preliminary Injunction 176 . Signed by District Judge R. Stan Baker on 3/17/2021. (ca)

Case 6:14-cv-00047-RSB-BWC Document 279 Filed 03/17/21 Page 1 of 4

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
Presently before the Court are Plaintiff’s Partial 1 Objections to Magistrate’s February 2,
2021 Report and Recommendation. (Doc. 270.) After an independent and de novo review of the
record, the Court OVERRULES Plaintiff’s Objections to the Magistrate Judge’s Report and
Recommendation, ADOPTS the Magistrate Judge’s Report and Recommendation, (doc. 247), and
DENIES Plaintiff’s Motion for Partial Summary Judgment and Permanent Injunction on
Cellphone-Related Claims: Motion for Preliminary Injunction. (Doc. 176.)
In his Report, the Magistrate Judge recommended the Court deny Plaintiff’s Motion for
Partial Summary Judgment and Permanent Injunction on Cellphone-Related Claims: Motion for
Preliminary Injunction. (Doc. 247.) Plaintiff, through his Motion, asked the Court to grant
summary judgment on his due process, takings clause, and court-access claims pertaining to the
seizure of his cellphone-related paraphernalia and to issue a preliminary injunction compelling
Defendants to make arrangements to allow him to send any cellphone-related paraphernalia to a
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While Plaintiff styles his Objections as “Partial Objections,” the time for filing any additional objections
has passed. Further, Plaintiff has not provided the Court with any reason why his “Partial Objections”
should not be treated as his full Objections. Accordingly, the Court treats these Objections as his complete
and final Objections.

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person outside of prison. (Doc. 176, p. 1.) In the alternative, Plaintiff requested a preliminary
injunction compelling Defendants to make arrangements to allow him to send any cellphonerelated paraphernalia to someone outside of prison while this case is pending, in order to preserve
evidence thereon. (Id.) The Magistrate Judge recommended the Court deny the Motion for Partial
Summary Judgment, as the cellphone claims Plaintiff sought summary judgment on are not
pending in this action. (Id., p. 2.) The Magistrate Judge also recommended the Court deny
Plaintiff’s request for injunctive relief, finding the requested relief to be “clearly outside the issues
in this suit.” (Id., p. 3.)
Plaintiff, in his Objections, contends the issue of the seizure of his cellphones and related
paraphernalia is properly before the Court because he seeks to add these claims in his latest motion
to amend and supplement complaint. (Doc. 270, p. 2.) The Court, however, has denied Plaintiff’s
motion to amend and supplement complaint with his proposed third amended and supplemental
complaint, in which he sought to add numerous defendants and claims, including claims
concerning the seizures of his cellphones and related paraphernalia.

(Doc. 275 (denying

Doc. 246).) Moreover, Plaintiff previously tried and failed to bring a similar pleading adding such
claims. (Doc. 234 (denying Plaintiff’s motion to amend and supplement complaint with additional
claims, including cellphone seizure claims, (Doc. 174).)
Based on the above, the Magistrate Judge correctly determined the issue of the cellphone
seizures is not before this Court, and as a result, Plaintiff’s attempt to obtain summary judgment
on these non-pending claims must be denied. Plaintiff likewise cannot pursue injunctive relief on
this issue. See Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997), opinion amended on other
grounds on reh’g, 131 F.3d 950 (11th Cir. 1997) (“A district court should not issue an injunction

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when the injunction in question is not of the same character, and deals with a matter lying wholly
outside the issues in the suit.”). 2
Plaintiff also contends the seized cellphones contain evidence relevant to his case and “the
magistrate does not address Plaintiff’s concern that a stay will give Defendants time and an
opportunity to destroy evidence Plaintiff seeks.” (Doc. 270, p. 2.) This Court recently addressed
an almost identical objection by Plaintiff, which raised the possibility of destruction of evidence,
and concluded Plaintiff has offered nothing more than vague and conclusory allegations about the
threat of such conduct. (Doc. 258, pp. 3–4.) As this litigation has been pending for almost seven
years, Defendants are undoubtedly aware of their preservation duties in this matter. Should
Plaintiff have specific concerns about spoliation of evidence, he may file a procedurally proper
and factually based motion concerning any destruction of evidence after discovery begins.
Also, as noted by the Magistrate Judge, to the extent Plaintiff contends there is relevant
evidence contained in the seized cellphones, he may seek such information through traditional
discovery means once discovery commences in this action. The fact that discovery is stayed right
now, pending the resolution of Defendants’ motion to dismiss, (doc. 233), does not mean that
Plaintiff will not be able to pursue relevant discovery once the stay is lifted.
For the foregoing reasons, Plaintiff’s Objections are OVERRULED. This Court adopts
the Magistrate Judge’s Report and Recommendation, (doc. 247), as the opinion of the Court and

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Plaintiff argues he would have been allowed to bring the cellphone seizure claims if the Court had not
initially dismissed his case in 2014, resulting in this case going up on appeal for several years. (Doc. 270
at 3–4.) This argument is completely speculative and without merit. Plaintiff’s cellphone claims did not
arise until many months, and in some cases years, after he filed his Supplemental Complaint. (Doc. 246 at
201–204). Additionally, Plaintiff’s recent attempts to supplement this action with new claims failed for
reasons other than his delay in bringing them. (Doc. 234 (finding proposed pleading violated Rule 8, Rule
20, and would result in a “completely unmanageable case”); Doc. 275 (same).)
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DENIES Plaintiff’s Motion for Partial Summary Judgment and Permanent Injunction on
Cellphone-Related Claims: Motion for Preliminary Injunction. (Doc. 176.)
SO ORDERED, this 17th day of March, 2021.

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

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