DAKER v. BRYSON et al

Filing 31

ORDER denying 16 Motion for Leave to Proceed in forma pauperis; denying 23 Motion for Leave to Proceed in forma pauperis; denying 27 Motion for Extension of Time to File Response/Reply; denying 28 Motion for Extension of Time to File Response/Reply; denying 29 Motion for Reconsideration; and denying 2 Motion for Leave to Proceed in forma pauperis. Signed by Magistrate Judge R. Stan Baker on 9/18/2017. (csr)

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

WASEEM DAKER,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-79

v.
MARTY ALLEN, et al., individually and in
their official capacities,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is incarcerated at Georgia State Prison in Reidsville, Georgia, filed a
Complaint pursuant to 42 U.S.C. § 1983 in the Middle District of Georgia on December 7, 2016.
(Doc. 1.) Plaintiff also filed Motions to Proceed in Forma Pauperis. (Docs. 2, 16.) Moreover,
Plaintiff filed: two Emergency Motions for Partial Summary Judgment, Preliminary Injunction,
and Temporary Restraining Order, (docs. 7, 8); three Emergency Motions for Preliminary
Injunction and Temporary Restraining Order, (docs. 13, 14, 15); two additional Motions for
Partial Summary Judgment, Permanent Injunction, and Preliminary Injunction, (docs. 10, 11);
and a Motion for Subpoena and/or Preservation of Evidence, (doc. 12). The District Court for
the Middle District of Georgia transferred Plaintiff’s case to this Court after conducting a review
of Plaintiff’s Complaint and dismissing Plaintiff’s claims against any Defendant residing within
the Middle District of Georgia. (Doc. 17.)
This Court deferred ruling on Plaintiff’s Motions to Proceed in Forma Pauperis and the
numerous other Motions Plaintiff filed by Order dated July 20, 2017. (Doc. 21.) In that same
Order, the Court deferred its requisite frivolity review of Plaintiff’s Complaint. The Court

directed Plaintiff to amend his Complaint and to submit the appropriate form on which to move
to proceed in forma pauperis within fourteen (14) days of that Order. (Id. at p. 2.) The Court
advised Plaintiff his claims were not related to each other and that he must set forth allegations in
his Amended Complaint indicating that his constitutional and/or statutory rights had been
violated and by whom those rights had been violated. (Id. at p. 6.) In this regard, the Court
provided Plaintiff with specific instructions as to how he should amend his Complaint. (Id. at
pp. 6–7.) Plaintiff was cautioned that his failure to file an appropriate Amended Complaint
“could result in the dismissal of his cause of action for failure to follow this Court’s Order.”
(Id. at p. 7 (emphasis in original).)
While Plaintiff did file a proper and timely third Motion to Proceed in Forma Pauperis,
(doc. 23), he also filed a Motion for Extension of Time to Comply, Object, or Move to
Reconsider this Court’s Order. (Doc. 24.) Plaintiff sought an extension of time until September
6, 2017, to comply with this Court’s directive to file an appropriate Amended Complaint.
According to Plaintiff, he intended to file an Amended Complaint, but he could not access the
law library to research the claims, the proper Defendants, and the facts he needed to assert in his
Amended Complaint. (Id. at p. 2.) This Court granted Plaintiff’s Motion in part and allowed
Plaintiff up to and including August 28, 2017, to file any desired response to the Court’s July 20,
2017, Order. (Doc. 26.) Plaintiff was forewarned “that the Court will not grant any additional
motions for extension of time to respond he may file.” (Id. at p. 1.)
Nevertheless, Plaintiff filed a Second Motion for Extension of Time to Comply, Object,
or Move to Reconsider on August 30, 2017. (Doc. 27.) Plaintiff asserts he had surgery on his
wrist on August 8, 2017, and is unable to “do any lengthy writing/typing” until he recovers from
his surgery. Plaintiff estimates this will take four to eight (4–8) weeks’ time. (Id. at p. 1.)

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Plaintiff requests an extension of time until October 6, 2017, to respond to the Court’s July 20,
2017, Order. (Id. at pp. 1–2.) Plaintiff has also filed a Motion for Extension of Time to File
Objections to the August 14, 2017, Order and a Motion for Reconsideration of this same Order.
(Docs. 28, 29.)
For the reasons which follow, the Court DENIES Plaintiff’s Second Motion for
Extensions of Time and his Motion for Reconsideration, (docs. 27, 28, 29), and Plaintiff’s
Motions for Leave to Proceed in Forma Pauperis, (docs. 2, 16, 23). For these same reasons, I
RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint, DISMISS as
moot all other pending Motions, (docs. 7, 8, 10, 11–15), and DIRECT the Clerk of Court to
CLOSE this case for failure to follow this Court’s Order. Additionally, I RECOMMEND the
Court DENY Plaintiff leave to appeal in forma pauperis.
Further, given that the Court denies Plaintiff’s in Forma Pauperis Motions and Plaintiff
has failed to comply with this Court’s Orders, the Court hereby STAYS this case. The Court
DIRECTS the Clerk of Court to note the stay of this case on the Court’s docket. This stay does
not relieve Plaintiff of his obligation to file Objections to this Report and Recommendation
within fourteen (14) days of the date of this Order.
BACKGROUND
Plaintiff brings his Complaint pursuant to 42 U.S.C. § 1983 and the Religious Land Use
and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1, et seq., (“RLUIPA”). In his Complaint,
Plaintiff generally alleges that the remaining Defendants have violated his constitutional rights
and the RLUIPA while he has been housed at Georgia State Prison. Specifically, Plaintiff asserts
he is an adherent to the Islamic religion, and “Defendants’ policies and customs” are leading to
the denial of Plaintiff’s participation in religious celebrations and feasts, prayer oils, religious

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publications and educational materials, and the ability to correspond with religious leaders.
(Doc. 1, p. 11.) Plaintiff contends “Defendants” placed him in the Tier II program in April 2016
without providing advanced notice or an opportunity to present testimony or evidence against his
placement, in violation of due process. (Id. at pp. 14–15.) Plaintiff also contends the Tier II
program consists of three (3) different phases, he was placed in these different phases as recently
as November 29, 2016, and he was denied due process protections each time. (Id. at pp. 14–16.)
In addition, Plaintiff maintains that “Defendants” have a custom of enforcing grooming
regulations through disciplinary action, threats of the use of force, and actual uses of force.
(Id. at p. 17.) Plaintiff avers he was forcibly shaven with clippers that were not sanitized on
several occasions, including one occasion on November 9, 2016. Plaintiff states Defendants
Hutcheson, Moye, and Anderson told him to shave his beard, but Plaintiff declined to follow this
directive for religious reasons. As a result, Plaintiff alleges Defendants Williams, Nobilio, and
Jones forcibly dragged and carried Plaintiff by his arms to the barbershop while Defendants
Worthen, Kelley, and Hester watched this occur and did nothing to intervene on Plaintiff’s
behalf. Plaintiff contends he had injuries to his back, right shoulder blade, and wrists as a result
of this incident. (Id. at pp. 17–18.) Plaintiff also alleges Defendant Allen, later this same day,
directed Defendants Hutcheson, Ford, Littles, Mendez, Nobilio, Williams, and Wright to forcibly
shave Plaintiff, at which time Plaintiff was sprayed with MK-9, a chemical agent, and was
dragged to the barbershop without being de-contaminated, causing his eyes and throat to burn for
more than thirty (30) minutes’ time. (Id. at p. 18.)
Moreover, Plaintiff maintains he has been diagnosed with allergy and sinus problems and
is on medication for these problems.

Plaintiff states he has been suffering with ongoing

toothaches and pains. (Id. at p. 20.) However, Plaintiff asserts “Defendants” deny Sensodyne

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toothpaste, which Defendant Geiger instructed Plaintiff to use, to inmates in the Tier II program
and to those inmates who are indigent.
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets, shows an inability to pay the
filing fee, and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a Complaint on an application to proceed in forma pauperis. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

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Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).

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DISCUSSION
I.

Dismissal for Failure to Follow this Court’s Orders
As noted above, the Court directed Plaintiff to amend his Complaint within fourteen (14)

days of its July 20, 2017, Order. (Doc. 21, p. 2.) Plaintiff was cautioned that his failure to file an
appropriate Amended Complaint “could result in the dismissal of his cause of action for failure
to follow this Court’s Order.” (Id. at p. 7 (emphasis in original).) In response to that Order,
Plaintiff filed a Motion for Extension of Time to Comply, Object, or Move to Reconsider this
Court’s Order. (Doc. 24.) This Court granted Plaintiff’s Motion in part and allowed Plaintiff up
to and including August 28, 2017, to file any desired response to the Court’s July 20, 2017,
Order. (Doc. 26.) The Court forewarned Plaintiff “that the Court will not grant any additional
motions for extension of time to respond he may file.” (Id. at p. 1.)
A district court may dismiss a plaintiff’s claims sua sponte pursuant to either Federal
Rule of Civil Procedure 41(b) (“Rule 41(b)”) or the court’s inherent authority to manage its
docket. Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Coleman v. St. Lucie Cty. Jail, 433 F.
App’x 716, 718 (11th Cir. 2011) (citing Fed. R. Civ. P. 41(b) and Betty K Agencies, Ltd. v. M/V
MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule 41(b) allows for the
involuntary dismissal of a plaintiff’s claims where he has failed to prosecute those claims,
comply with the Federal Rules of Civil Procedure or local rules, or follow a court order. Fed. R.
Civ. P. 41(b); see also Coleman, 433 F. App’x at 718; Sanders v. Barrett, No. 05-12660, 2005
WL 2640979, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir.
1993)); cf. Local R. 41.1(b) (“[T]he assigned Judge may, after notice to counsel of record, sua
sponte . . . dismiss any action for want of prosecution, with or without prejudice[,] . . . [based on]
willful disobedience or neglect of any order of the Court.” (emphasis omitted)). Additionally, a

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district court’s “power to dismiss is an inherent aspect of its authority to enforce its orders and
ensure prompt disposition of lawsuits.” Brown v. Tallahassee Police Dep’t, 205 F. App’x 802,
802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).
It is true that dismissal with prejudice for failure to prosecute is a “sanction . . . to be
utilized only in extreme situations” and requires that a court “(1) conclud[e] a clear record of
delay or willful contempt exists; and (2) mak[e] an implicit or explicit finding that lesser
sanctions would not suffice.” Thomas v. Montgomery Cty. Bd. of Educ., 170 F. App’x 623,
625–26 (11th Cir. 2006) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem.
Ass’n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v. Spaziano, 251 F. App’x
616, 619 (11th Cir. 2007) (citing Morewitz, 62 F.3d at 1366). By contrast, dismissal without
prejudice for failure to prosecute is not an adjudication on the merits, and, therefore, courts are
afforded greater discretion in dismissing claims in this manner. Taylor, 251 F. App’x at 619;
see also Coleman, 433 F. App’x at 719; Brown, 205 F. App’x at 802–03.
While the Court exercises its discretion to dismiss cases with caution, dismissal of this
action without prejudice is warranted. See Coleman, 433 F. App’x at 719 (upholding dismissal
without prejudice for failure to prosecute Section 1983 complaint, where plaintiff did not
respond to court order to supply defendant’s current address for purpose of service); Taylor, 251
F. App’x at 620–21 (upholding dismissal without prejudice for failure to prosecute, because
plaintiffs insisted on going forward with deficient amended complaint rather than complying, or
seeking an extension of time to comply, with court’s order to file second amended complaint);
Brown, 205 F. App’x at 802–03 (upholding dismissal without prejudice for failure to prosecute
Section 1983 claims, where plaintiff failed to follow court order to file amended complaint and
court had informed plaintiff that noncompliance could lead to dismissal).

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Plaintiff did not comply with this Court’s Order to file an appropriate Amended
Complaint, nor did he heed this Court’s warning that it would not grant any additional motion for
extension of time Plaintiff might file. Instead, Plaintiff filed a Second Motion for Extension of
Time to Comply, Object, or Move to Reconsider, despite this Court’s directive to file an
appropriate Amended Complaint and the Court’s admonition that it would not grant any
additional extensions to comply with the July 20, 2017, Order. (Docs. 21, 27.) Thus, Plaintiff
did not comply with this Court’s Orders.
Furthermore, the Court notes Plaintiff’s reason for requesting a second extension to
respond to its July 20, 2017, Order is because he had wrist surgery and cannot write any pleading
that will be lengthy. 1 (Id. at p. 1.) However, the Court’s instructions to Plaintiff for the filing of
an appropriate Amended Complaint only allow for Plaintiff to add no more than ten (10) pages to
the form Complaint. Such a pleading is hardly lengthy. In addition, the Court takes judicial
notice that, in at least one other cause of action Plaintiff initiated in this Court, he filed seven (7)
pleadings or documents on August 11, 2017, or later. Gresham v. Georgia, CV 316-084, 2016
WL 7638479, at *1 (S.D. Ga. Dec. 8, 2016) (noting a court has power to take judicial notice of
its own records). These documents combine for fifteen (15) pages of substantive content. Daker
v. Allen, 6:17-cv-23 (S.D. Ga. Aug. 11–30, 2017), ECF Nos. 33–39. Plaintiff’s proffered reason
for needing an additional extension of time to respond to this Court’s July 20, 2017, Order in this
case—that he cannot prepare anything lengthy until he heals from surgery—is less than
credible. 2

1

In his first Motion for Extension of Time, Plaintiff declared he could not comply with the Court’s July
20, 2017, Order because he could not access the law library to conduct research. (Doc. 24.)
2

Plaintiff advances the same reasoning in moving for an extension of time to file Objections to and for
reconsideration of the Court’s August 14, 2017, Order as he does in his Second Motion for Extension of
Time. The Court finds Plaintiff’s reasons for requesting an extension of time less than credible.
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Consequently, the Court should DISMISS without prejudice Plaintiff’s Complaint for
failure to follow this Court’s Order. See Brown, 205 F. App’x at 802 (upholding dismissal for
failure to prosecute Section 1983 claims where plaintiff failed to follow court order to file
amended complaint and court had informed plaintiff that noncompliance could lead to
dismissal).
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

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 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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A certificate of appealability is not required in this Section 1983 action.
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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. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motions for Leave to Proceed in
Forma Pauperis, his Second Motion for Extension of Time, Motion for Extension of Time to
File Objections, and Motion for Reconsideration. (Docs. 2, 16, 23, 27, 28, 29.) Further, the
Court STAYS this case. I RECOMMEND the Court DISMISS without prejudice Plaintiff’s
Complaint, DISMISS as moot all other pending Motions, and DIRECT the Clerk of Court to
CLOSE this case. Additionally, I RECOMMEND the Court DENY Plaintiff leave to appeal in
forma pauperis.
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

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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
Court to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 18th day of September,
2017.

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

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