DAKER v. UNITED STATES OF AMERICA et al
Filing
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ORDER re 6 Order on Motion for Leave to Proceed in forma pauperis, the Court VACATES its prior Order and DENIES Plaintiff's Motion to Proceed in Forma Pauperis. Signed by Magistrate Judge R. Stan Baker on 12/28/2015. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WASEEM DAKER,
Plaintiff,
CIVIL ACTION NO.: 6:15-cv-49
v.
UNITED STATES OF AMERICA; BRIAN
CHRISTOPHER JOHNSON; and BUREAU
OF ALCOHOL, TOBACCO, FIREARMS,
AND EXPLOSIVES,
Defendants.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Coffee Correctional Facility in Reidsville, Georgia, filed this action
against pursuant to the Federal Tort Claims Act and Bivens v. Six Unkown Federal Agents in the
United States District Court for the District of Columbia. (Doc. 1.) Along with his Complaint,
Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 2.) The case was transferred to this
Court. (Doc. 4.) On May 6, 2015, the Court granted Plaintiff’s Motion to Proceed in Forma
Pauperis.
(Doc. 6.)
However, 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. After further review, and for the reasons set forth
below, the Court VACATES its prior Order, (doc. 6), and DENIES Plaintiff’s Motion to
Proceed In Forma Pauperis, (doc. 2).
Moreover, it is my RECOMMENDATION that
Plaintiff’s Complaint, be DISMISSED, without prejudice, pursuant to 28 U.S.C. § 1915(g), and
that Plaintiff be DENIED in forma pauperis status on appeal. 1
PLAINTIFF’S ALLEGATIONS
Plaintiff contends that on February 16, 2010, Defendant Brian Christopher Johnson
unlawfully obtained a warrant for Plaintiff’s arrest for being a felon in possession of a firearm.
(Doc. 1, p. 8.) Plaintiff alleges that Johnson obtained the warrant in order to assist the Cobb
County District Attorney’s Office in opposing Plaintiff’s Motion for Bail in a then pending state
prosecution. Id. He further alleges that he was assaulted by other inmates while he was housed
in the Cobb County Jail. Id.
DISCUSSION
I.
Dismissal of Plaintiff’s Complaint Pursuant to Section 1915(g)
A prisoner such as Plaintiff attempting to proceed in forma pauperis in a civil action in
federal court must comply with the mandates of the PLRA. Pertinently, 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
1
A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. Of Elec. Workers
Local Union, 349, 262 Fed. Appx. 121, 125, 127 (11th Cir. Jan. 8, 2008) (indicating that a party has
notice of a district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a
report recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc.,
678 F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is
barred and due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his
objections to this finding, and the District Court will review de novo properly submitted objections.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWTJFK, 2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and
recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a
reasonable opportunity to respond).
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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.
The Eleventh Circuit explained that “[t]his provision of the PLRA, ‘commonly known as
the ‘three strikes’ provision,’ requires frequent filer prisoners to prepay the entire filing fee
before federal courts may consider their lawsuits and appeals.” Rivera v. Allin, 144 F.3d 719,
723 (11th Cir. 1998) (quoting Lyon v. Krol, 127 F.3d 763, 764 (8th Cir.1997)). 2 Dismissals for
providing false filing-history information and failing to comply with court orders both fall under
the category of “abuse of the judicial process”, which the Eleventh Circuit has held to be a
“strike-worthy” form of dismissal under Section 1915(g). See Rivera, 144 F.3d at 723 (dismissal
for failure to disclose prior litigation is “precisely the type of strike that Congress envisioned
when drafting section 1915(g)”); Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1544 (11th
Cir. 1993) (characterizing failure to comply with court orders as “abuse of the judicial process”).
The Eleventh Circuit has held that a prisoner barred from proceeding IFP due to the
“three strikes” provision in § 1915(g) must pay the complete $350 filing fee when he initiates
suit. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Therefore, the proper
procedure for a district court faced with a prisoner who seeks IFP status but is barred by the
“three strikes” provision is to dismiss the complaint without prejudice. Dupree v. Palmer, 284
F.3d 1234, 1236 (11th Cir. 2002).
A review of Plaintiff’s history of filings reveals that he has brought volumes of civil
actions and appeals which were dismissed and count as strikes under Section 1915(g). In re
Daker, No. 1:11-CV-1711-RWS, 2014 WL 2548135, at *2 (N.D. Ga. June 5, 2014)
2
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.
3
(summarizing Plaintiff’s litigation history). This Court and other courts have noted that Plaintiff
is a serial litigant with a significant history of filing frivolous lawsuits. See e.g., Daker v.
Bryson, No. 5:15-CV-88-CAR-CHW, 2015 WL 4973548, at *1 (M.D. Ga. Aug. 20, 2015) (“A
review of court records on the Federal Judiciary’s Public Access to Court Electronic Records
(“PACER”) database reveals that Plaintiff has filed more than one hundred federal civil actions
and appeals since 1999.”) Daker v. Head, et al., 6:14-cv-47 ECF Nos. 13, 14 (S.D. Ga.
September 8, 2014) (Report and Recommendation and Order denying Plaintiff leave to proceed
in forma pauperis due to three striker status); Daker v. Warren, No. 1:11-CV-1711-RWS, 2014
WL 806858, at *1 (N.D. Ga. Feb. 28, 2014) (“Waseem Daker is an extremely litigious state
prisoner . . . .”). In light of Plaintiff’s litigation history, the Eleventh Circuit “has determined
that the ‘three strikes’ provision of the Prison Litigation Reform Act of 1995 is applicable to”
him. See, e.g., Letter dated May 29, 2014, in Daker v. Comm’r, No. 14–12139 (11th Cir.2014);
Letter dated April 18, 2014, in Daker’ v. Comm’r, No. 14–11571 (11th Cir.2014) (same). 3
Because Plaintiff has filed at least 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 Section 1915(g). “In order to come within the imminent danger exception, the
Eleventh Circuit requires ‘specific allegations of present imminent danger that may result in
serious physical harm.’”
Odum v. Bryan Cty. Judicial Circuit, No. CV407-181, 2008
WL 766661, at *1 (S.D. Ga. Mar. 20, 2008) (quoting Skillern v. Jackson, No. CV606-49, 2006
WL 1687752, at *2 (S.D. Ga. June 14, 2006) (citing Brown v. Johnson, 387 F.3d 1344, 1349
3
Courts have also recognized that Plaintiff has “repeatedly abused the judicial process by filing IFP
affidavits that conceal and/or misstate his true assets and income.” In re Daker, No. 1:11-CV-1711RWS, 2014 WL 2548135, at *2. The Court need not reach this issue in this case because Plaintiff’s
action is due to be dismissed under the three strikes provision.
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(11th Cir. 2004))). General and conclusory allegations not grounded in specific facts indicating
that injury is imminent cannot invoke the Section 1915(g) exception. Margiotti v. Nichols, No.
CV306-113, 2006 WL 1174350, at *2 (N.D. Fla. May 2, 2006). “Additionally, ‘it is clear that a
prisoner cannot create the imminent danger so as to escape the three strikes provision of the
PLRA.’” Ball v. Allen, No. 06-0496, 2007 WL 484547, at *2 (S.D. Ala. Feb. 8, 2007) (citing
Muhammad v. McDonough, No. CV306-527-J-32, 2006 WL 1640128, at *1 (M.D. Fla. June 9,
2006)). Moreover, a harm that has already occurred or danger that has now passed cannot justify
skirting the three strike bar.
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.1999)
(“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.”); see also Abdul–Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (“By using the
term ‘imminent,’ Congress indicated that it wanted to include a safety valve for the ‘three
strikes’ rule to prevent impending harms, not those harms that had already occurred.”).
Plaintiff should not be excused from prepaying the filing fee because of the imminent
danger of serious physical injury. His Complaint makes no allegation that Defendants’ alleged
actions pose a risk of future physical danger. Therefore, Section 1915(g) bars Plaintiff from
proceeding in forma pauperis in this case. Should Plaintiff choose to prosecute these claims
while incarcerated, he must bring a separate action and pay the full filing fee.
II.
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 4
Though
Plaintiff 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 take in good faith “before or after the notice of appeal is filed”).
4
A certificate of appealablity is not required in this Section 1983 action.
5
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). Or, 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).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Moreover, as a “three striker”
Plaintiff is not only barred from filing a civil action in forma pauperis, he is also barred from
filing an appeal in forma pauperis while he is a prisoner. 28 U.S.C. § 1915(g). Thus, the Court
should deny him in forma pauperis status on appeal.
CONCLUSION
For the reasons set forth above, the Court VACATES its prior Order and DENIES
Plaintiff’s Motion to Proceed In Forma Pauperis. I RECOMMEND Plaintiff’s Complaint be
DISMISSED, without prejudice. I further RECOMMEND that the Court DENY Plaintiff leave
to appeal in forma pauperis.
Any party seeking to object to this Report and Recommendation is ORDERED to file
specific written objections within fourteen (14) days of the date on which this Report and
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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 Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 28th day of December,
2015.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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