Daker v. Allen et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court CONSOLIDATE Daker's 1 Petitions for Writ of Habeas Corpus, DIRECT the Clerk to file all pleadings docketed in Case No. 6:17-cv-90 upon the docket and record of Case No. 6:17-c v-23, and CLOSE Case No. 6:17-cv-90. 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. (Objections to R&R due by 3/16/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/2/2018. (ca)

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

WASEEM DAKER,
Petitioner,

CIVIL ACTION NO.: 6:17-cv-90

v.
MARTY ALLEN, Warden,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Waseem Daker (“Daker”), an inmate at Georgia State Prison in Reidsville,
Georgia, filed an action pursuant to 28 U.S.C. § 2254 challenging his confinement in
administrative segregation. (Doc. 1.) Daker has an additional habeas corpus petition pending
before this Court: Civil Action No. 6:17-cv-23. For the reasons and in the manner set forth
below, I RECOMMEND that the Court CONSOLIDATE Daker’s Petitions. Further, the Court
DISMISSES Daker’s Motion for Leave to Proceed in Forma Pauperis, (doc. 2), DISMISSES as
moot Daker’s Motion to Expedite Proceedings, (doc. 4), and DENIES Daker’s Motion for Law
Library Access, (doc. 5), Motion for Subpoena and Preservation of Evidence, (doc. 6), and
Motion to Appoint Counsel, (doc. 7).
BACKGROUND
On July 3, 2017, Daker filed this Petition for a Writ of Habeas Corpus alleging that he
was unlawfully placed in Tier II administrative segregation. (Doc. 1.) Daker seeks release from
administrative segregation. (Doc. 1, pp. 1, 2, 4.) Daker contends his placement in Tier II
segregation violates the First Amendment, the Religious Land Use and Institutionalized Persons

Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., substantive due process, and procedural due
process. (Id. at pp. 5–9.)
Specifically, Daker argues the disciplinary reports on which his Tier II status was
premised violate the First Amendment and RLUIPA because they concern his refusal to comply
with the prison’s policy limiting beard length, and he contends this policy violates the law, as it
infringes his religious beliefs as a Muslim. (Id. at pp. 5, 6.) Daker also argues this policy
violates his substantive due process right to bodily privacy through forced shaving. (Id. at p. 5.)
Further, Daker argues he was denied a fair and impartial hearing and an adequate opportunity to
be heard when he was found guilty of these disciplinary reports. (Id. at pp. 5, 8.) Finally, Daker
argues his retention in Tier II segregation on June 26, 2017, violated his right to procedural due
process because it was done without notice and an opportunity to be heard and was otherwise
premised on unlawful disciplinary reports. (Id. at pp. 8–9.)
Prior to this case, Daker filed a presently pending habeas corpus action on February 3,
2017. In that earlier Petition, Daker set forth legally identical and factually similar claims related
to his placement in Tier II administrative segregation. See Daker v. Allen, 6:17-cv-23 (S.D. Ga.
Feb. 3, 2017), ECF No. 1 (alleging his placement in administrative segregation violated
substantive due process, procedural due process, the First Amendment, and RLUIPA). Like his
claim here, Daker complains he was unlawfully found guilty of certain disciplinary reports
concerning his beard and insubordination, among other transgressions, and was committed to
segregation without due process. Id. A review of Respondent’s Answer and Daker’s Petition in
that case shows Daker’s application for habeas release emanates from a single uninterrupted stay
in Tier II segregation that is continuous to his Petition presently before the Court. Id. at pp. 5–9;
ECF No. 30-1, pp. 57–58.

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DISCUSSION
I.

Consolidation of Daker’s Habeas Cases
A district court has authority to consolidate multiple actions if they “involve a common

question of law or fact.” Fed. R. Civ. P. 42(a). Consolidation under Rule 42(a) “is permissive
and vests a purely discretionary power in the district court.” Young v. City of Augusta, 59 F.3d
1160, 1168 (11th Cir. 1995) (internal quotes omitted). “District courts in this circuit have been
urged to make good use of Rule 42(a) . . . in order to expedite the trial and eliminate unnecessary
repetition and confusion.” Young, 59 F.3d at 1169 (internal quotes omitted). The decision of
whether to consolidate “is entirely within the discretion of the district court as it seeks to promote
the administration of justice.” Gentry v. Smith, 487 F.2d 571, 581 (5th Cir. 1973); 1 see also
Devlin v. Transp. Communs. Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999) (courts can sua
sponte consolidate cases under Rule 42(a)).
In exercising that discretion, district courts must weigh the risk of prejudice and
confusion wrought by consolidation against the risk of inconsistent rulings on common factual
and legal questions; the burden on the parties and the Court posed by multiple lawsuits as
opposed to one; the length of time required to conclude multiple lawsuits as opposed to one; and
the relative expense of proceeding with separate lawsuits if they are not consolidated. Hendrix v.
Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985).
In the Petitions at hand, both actions involve similar facts, the same Respondent, and
plead identical legal claims. At their core, Daker’s Petitions seek his release from administrative
segregation for the same reasons—allegedly unlawful disciplinary reports and segregated
confinements. Moreover, Daker seeks release from the same, uninterrupted stay in Tier II
1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
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administrative segregation. Given this congruence, and in light of Daker’s well-documented
litigiousness, the benefits of consolidation far outweigh any prejudice to the parties.
Accordingly, the Court should CONSOLIDATE Daker’s habeas Petitions and DIRECT
the Clerk of Court to file all pleadings docketed in Case No. 6:17-cv-90 upon the docket and
record of Case No. 6:17-cv-23; CONSOLIDATE Case No. 6:17-cv-90 with Case No. 6:17-cv23; and CLOSE Case No. 6:17-cv-90. For this reason, the Court DISMISSES Daker’s Motion
for Leave to Proceed in Forma Pauperis, (doc. 2).
II.

Motion to Expedite Proceedings (Doc. 4)
Given the routine passage of time since Daker filed his habeas corpus action, his Motion

to Expedite Proceedings is not appropriately before the Court presently because there has been
no unreasonable delay. Cf. Johnson v. Rogers, 917 F.2d 1283, 1284 (10th Cir. 1990) (finding a
14-month delay in ruling on a habeas petition impermissible where no explanation other than
docket congestion was provided). The Court will address Daker’s Petition in the ordinary course
of business. Daker has not presented sufficient allegations to warrant giving his case priority
over the other cases on the Court’s docket. Particularly given Daker’s extensive history of
litigation in this and other courts, the Court discerns no reason to prioritize his case over other
litigants. As such, the Court DISMISSES as moot Daker’s Motion to Expedite Proceedings,
(doc. 4).
III.

Motion for Law Library Access (Doc. 5)
Daker’s Motion for Law Library Access masquerades as a 42 U.S.C. § 1983 claim within

this 28 U.S.C. § 2254 habeas action. Daker alleges, inter alia, that at Georgia State Prison,
“lockdown prisoners have no access to Federal case reporters, statutes, and materials, and also
lacks State case law reporters and research materials.” (Doc. 5, p. 3.) Daker then lists incidents

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dating from August 1, 2016, wherein Respondent failed to fulfill Daker’s requests to open a
satellite law library for the lockdown unit. (Id. at pp. 4–5.) Daker ultimately requests that this
Court direct Respondent to provide him with adequate law library access. (Id. at pp. 20–21.)
However, the injunctive relief Daker seeks through this Motion is not available in an
application for a writ of habeas corpus. See Nelson v. Campbell, 541 U.S. 637, 643 (2004)
(“[C]onstitutional claims that merely challenge the conditions of a prisoner’s confinement,
whether the inmate seeks monetary or injunctive relief, fall outside of [the habeas corpus] core
and may be brought pursuant to § 1983[.]”); Preiser v. Rodriguez, 411 U.S. 475, 498 (1973)
(providing list of cases “establish[ing] that a § 1983 action is a proper remedy for a state prison
who is making a constitutional challenge to the conditions of his prison life[.]”). Should Daker
choose to pursue his First Amendment court access claim, he must do so in a separate Section
1983 action. Accordingly, the Court DENIES Daker’s Motion for Law Library Access, (doc. 5).
IV.

Motion for Subpoena and Preservation of Evidence (Doc. 6)
Under Rule 6 of the Rules Governing Section 2254 Petitions, the parties may not conduct

discovery under the Federal Rules of Civil Procedure without leave of the Court. See also Bracy
v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas petitioner, unlike the usual civil litigant in
federal court, is not entitled to discovery as a matter of ordinary course.”). A judge may grant
leave for good cause. At this time and during this preliminary stage of the proceedings, the
Court does not find good cause to allow discovery. Accordingly, the Court DENIES Daker’s
Motion for Subpoena and Preservation of Evidence, (doc. 6).
V.

Motion to Appoint Counsel (Doc. 7)
Section 3006A(a)(2) of Title 18 of the United States Code provides that “[w]henever . . .

the court determines that the interests of justice so require, representation may be provided for

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any financially eligible person who . . . (B) is seeking relief under section 2241, 2254, or 2255 of
title 28.” Thus, the court may appoint counsel for an indigent federal habeas corpus petitioner
only if the interests of justice or due process so require. Schultz v. Wainwright, 701 F.2d 900
(11th Cir. 1983); Hooks v. Wainwright, 775 F.2d 1433 (11th Cir. 1985).
It does not appear that the interests of justice or due process require that Daker be
afforded counsel, and it does not appear that an evidentiary hearing will be required. Daker does
not lay out any such circumstances in either his Petition of this Motion. Moreover, the Court
notes that Daker is a notoriously frequent litigator before this Court and other courts in federal
jurisdictions. See Daker v. Comm’r, Ga. Dept. of Corrections, 820 F.3d 1278, 1281 (11th Cir.
2016) (“Daker has submitted over a thousand pro se filings in over a hundred actions and appeals
in at least nine different federal courts.”). Daker is all too familiar with the federal judicial
system and is proficient in presenting his position to the courts. Should it later become apparent
in these proceedings that an evidentiary hearing is required or that the interests of justice or due
process so require, then counsel shall be appointed for Daker. Accordingly, the Court DENIES
Daker’s Motion to Appoint Counsel, (doc. 7.)
CONCLUSION
For the reasons and in the manner stated above, I RECOMMEND that the Court
CONSOLIDATE Daker’s Petitions. Further, the Court DISMISSES Daker’s Motion for Leave
to Proceed in Forma Pauperis, (doc. 2), DISMISSES as moot Daker’s Motion to Expedite
Proceedings, (doc. 4), and DENIES Daker’s Motion for Law Library Access, (doc. 5), Motion
for Subpoena and Preservation of Evidence, (doc. 6), and Motion to Appoint Counsel, (doc. 7).
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

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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 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 2nd day of March,
2018.

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

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