Daker v. Dozier et al

Filing 14

ORDER Overruling Plaintiff's Objections and ADOPTING 4 Report and Recommendations. Additionally, Plaintiff's remaining motions are denied, the Plaintiff is denied leave to proceed ifp on appeal, and this case stands CLOSED. Signed by Chief Judge J. Randal Hall on 1/29/2018. (pts)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

WASEEM DAKER,
CIVIL ACTION NO.: 6:17-cv-l 10

Plaintiff,
v.

COMMISSIONER GREGORY DOZIER, et
al.,
Defendants.

ORDER

Presently before the Court are Plaintiffs Objections to the Magistrate Judge's Report and
Recommendation dated October 5, 2017, (doc. 4), and six (6) other pleadings Plaintiff has filed

since the Magistrate Judge issued his Report and Recommendation. (Docs. 5-7, 9, 10, 12.)
Plaintiff initiated this action on August 11, 2017, when he filed his Complaint and Motion to

Proceed in Forma Pauperis. (Docs. 1, 2.) The Honorable R. Stan Baker recommended the
Court dismiss Plaintiffs Complaint on three grounds: (1) Plaintiff has filed at least three

previously dismissed cases or appeals which qualify as strikes under 28 U.S.C. § 1915(g) of the
Prison Litigation Reform Act ("PLRA"); (2) Plaintiff abused the judicial process through his
lack of candor regarding his extensive litigation history in his Complaint; and (3) Plaintiff failed
to exhaust his available administrativeremedies, as required by 42 U.S.C. § 1997e(a). (Doc. 4.)

After an independent and de novo review of the entire record, the undersigned concurs

with the Magistrate Judge's Report and Recommendation. Accordingly, for the reasons set forth

below, the Court OVERRULES Plaintiffs Objections, (docs. 8, 11), and ADOPTS the

Magistrate Judge's Report and Recommendation, (doc. 4), as the opinion of the Court. The

Court DISMISSES without prejudice Plaintiffs Complaint, DENIES Plaintiff leave to proceed

informa pauperis on appeal, and DIRECTS the Clerk of Court to CLOSE this case and enter
the appropriate judgment of dismissal.

Additionally, the Court: DENIES Plaintiffs Motion to Stay Time to Object to the

October 5, 2017 Report and Recommendation or to Extend Time, (doc. 5); DENIES Plaintiffs
Motion to Appoint Counsel, (doc. 6); DENIES Plaintiffs Motion for Access to Case
Authorities, (doc. 7); DENIES Plaintiffs Motion for Reconsideration, (doc. 9); DENIES
Plaintiffs Motion to Exceed the Ten-Page Limit on Amended Complaint, (doc. 10); and
DISMISSES as moot Plaintiffs Motion for Subpoena and Preservation of Evidence, (doc. 12).
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-l, et seq., ("RLUIPA"). In his Complaint,

Plaintiff presented a number of claims against dozens of Defendants regarding the conditions of
his imprisonment at Georgia State Prison. Plaintiff generally alleged that Defendants violated
his constitutional rights and the RLUIPA. (Doc. 1-1, p. 13.) Plaintiff asserted he is an adherent

of the Islamic religion and contends that all Defendants maintain a policy of limiting the length
of a male prisoner's facial hair. (Doc. 1-1, pp. 8-9.) He contended that the Georgia Department
of Corrections' written policy requires shaving clippers to be sanitized after every use so as to

avoid the spread of HIV, hepatitis, and other infectious diseases. (Id.) Plaintiff asserted,
however, that Defendants disregard this written policy by using clippers that have not been
sanitized or that are broken. (Id.)

Plaintiff also levied allegations against Defendants Hutcheson and Shuemake,

correctional officers at Georgia State Prison, regarding an incident that occurred on July 6, 2017.

(Id. at pp. 10-12.) Plaintiff claimed that these officers escorted him to the prison's barbershop
where Plaintiff refused to allow another inmate to cut his hair and demanded that he be allowed

to cut his own hair. (Id.) Plaintiff told Defendants Hutcheson and Shuemake he needed to shave

his own hair to ensure that he was shaved according to his religious beliefs. (Id.) When Plaintiff

persisted in his refusal to allow another inmate cut his hair, Plaintiff claimed the officers
slammed him to the ground, forcibly restrained him, and shaved him with clippers that had not
been sanitized. (Id) He contended that the officers then placed him on strip cell status and

stripped him down to his undergarments in front of female staff members, in contravention of
Plaintiffs religious beliefs. (Id.) Plaintiffalso made allegations regarding the confiscation of his

personal property following this incident, as well as claims that his due process rights were
violated at a July 28, 2017 disciplinary hearing. (Id. at pp. 11-12.)

Plaintiff argued Defendants used excessive force to shave him and did so with unsanitary

clippers, in violation of his Eighth Amendment rights. (Id at p. 13.) Plaintiff also argued that
Defendants violated his rights to religious exercise under the First Amendment to the United
States Constitution and RLUIPA by stripping him to his underwear in front of females and by

confiscating his property. (Id) Further, Plaintiff made claims of retaliation and due process
violations attendant to the confiscation of his property and his disciplinary hearing. (Id)

Finally, Plaintiff asserted thathe was notbarred from proceeding informa pauperis under
the PLRA's "three strikes" provision because he meets the imminent danger exception,

28 U.S.C. 1915(g). (Id at pp. 13-14.) Plaintiff argued he qualifies for this exception and should
be allowed to proceed without paying the requisite filing fee, because Defendants maintain a

policy and custom of "using force to enforce their grooming policy" and utilize non-sanitized

clippers in forcing inmates to shave. (Id.) He contended this policy poses an imminent threat
because it will be adhered to in the future. (Id.)

After reviewing these claims and Plaintiffs Motion to Proceed in Forma Pauperis, the

Magistrate Judge denied Plaintiffs Motion and issued a Report recommending the Court dismiss
Plaintiffs Complaint.

(Docs. 3, 4.)

Rather than filing objections to the Report and

Recommendation, on October 25, 2017, Plaintiff filed an untimely Motion to Stay Time to

Object to Magistrate's October 5, 2017 Report and Recommendation or to ExtendTime, wherein

he argues for more time to conduct case research in opposition to the Report and
Recommendation, (doc. 5). In addition to the Motion for Extension of Time, Plaintiff also filed a

Motion to Appoint Counsel, (doc. 6), and a Motion for Access to Case Authorities, (doc. 7), on

the same day.

On November 2, 2017, Plaintiff filed Objections to the Report and

Recommendation, as well as a Motion for Reconsideration of the October 5, 2017 Order,

(doc. 9), and a Motion for Permission to Exceed the Ten-Page Limit on Amended Complaint,
(doc. 10); Plaintiff attached a typewritten, 119-page proposed Amended Complaint to that
Motion, (doc. 10-1).

Plaintiff then filed a Supplemental Objection to the Report and

Recommendation, (doc. 11). Finally, Plaintiff filed a Motion for Subpoena and Preservation of
Evidence, (doc. 12). The Court first addresses Plaintiffs Objections and then his other filings in
turn, combining his pleadings as necessary due to their repetitive nature.

I.

Plaintiffs Objections and Supplemental Objections to the Magistrate Judge's
Report and Recommendation (Docs. 8,11)

In his Objections, Plaintiff opposes each of the three grounds on which the Magistrate

Judge recommended dismissal of his Complaint. Initially, it must be clarified that each of the

three grounds advanced by the Magistrate Judge in recommending the dismissal of Plaintiffs

Complaint—for having three "strikes" under 28 U.S.C. § 1915(g), for abusing the judicial

process, and for failing to exhaust available administrative remedies—is sufficient in and of itself
to dismiss Plaintiffs Complaint in its entirety. Thus, Plaintiff must show error on all three
grounds for relief. This Plaintiff cannot do.

First, Plaintiff objects to the Magistrate Judge's finding that Plaintiff does not satisfy the
"imminent danger of serious physical injury" exception to the PLRA's "three strikes" provision,

which bars prisoner litigants who have three or more cases dismissed as frivolous, malicious, or

failing to state a claim from proceeding in forma pauperis. (Doc. 8, pp. 1-3.) He asserts the
Magistrate Judge incorrectly focused on the past harm Plaintiff faced rather than Defendants'

ongoing custom or policy of forced shaving with "unsanitized" clippers. (Id.) Plaintiff also

argues that the allegations in his Amended Complaint, discussed below, further show the

imminent danger posed by Defendants' alleged policy and also show he faces an imminent
danger of serious physical injury because of untreated toothaches, inadequate food, threats from
prison officials, and unsanitary prison conditions. (Id) Contrary to Plaintiffs Objections, the

Magistrate Judge directly addressed Plaintiffs contention regarding Defendants' alleged policy,
correctly finding that allegation conclusory and factually unconnected to any specific Defendant.

(Doc. 4, p. 12.) Further, as the Magistrate Judge found, Plaintiff failed to show a likelihood that
any particular Defendant would shave him again in the future. (Id.) Furthermore, even if
Defendants maintained such a policy, Plaintiffcannot show how being shaved, with or without

sanitary clippers, poses an "imminent danger of serious physical injury." 28 U.S.C. § 1915(g)

(emphasis added). Simply put, shaving does not pose the type of "life-threatening" serious
injury contemplated by Section 1915(g). See Brown v. Johnson, 387 F.3d 1344, 1349-50 (11th
Cir. 2004) (quoting Gibbs v. Cross, 160 F.3d 962, 965 (3d Cir. 1998)) (collecting cases,

discussing what risks satisfy Section 1915(g), and holding that a prisoner whose medical

treatment for HIV and hepatitis was terminated, causing infection and susceptibility to other
illnesses, satisfied the exception); cf Renoir v. Brown, No. CIV A 707CV00166, 2007 WL

1052477, at *1 (W.D. Va. Apr. 5, 2007) (denial of sharp razors does not involve future serious

physical injury). Unlike the plaintiff in Brown, Plaintiffs allegations here neither concern
terminated medical treatment nor actual infection and susceptibility to other illnesses.

Likewise, Plaintiffs allegations in his proposed Amended Complaint do not satisfy

Section 1915(g)'s imminent danger exception to the "three strikes rule" barring Plaintiff from

proceeding informapauperis. Even if the Court were to allow Plaintiff to amend his Complaint

as proposed, which it declines to do for the reasons discussed below, he would still fail to show
he faces an imminent danger of serious physical injury. A present toothache and unsanitary

prison conditions are not imminent, serious dangers. Cf., e.g., McAlphin v. Tonev, 281 F.3d
709, 710 (8th Cir. 2002) (finding plaintiffs allegations that he had severe gum infection

requiring five extractions, was initially denied dental extractions, and suffered decay during a
six-month delay between extractions sufficient to state a claim of imminent danger of serious

physical injury); Daker v. Dozier, No. 5:17-CV-0025-CAR, 2017 WL 3037420, at *6 (M.D. Ga.
July 18, 2017) (finding plaintiffs allegations that "he lives with inmates who throw feces, has to
wait for hours before the feces is cleaned, and [that] defendants have ignored his complaints

about the unsanitary conditions andrequests for cleaning supplies" insufficient to state a claim of
imminent danger of serious physical injury). While inadequate food provisions and threats from

prison officials could possibly meet the imminent danger exception, the Court does not find

Plaintiffs conclusory allegations in this respect credible or factually plausible.1 See Bilal v.
1 See also Ball v. Allen, No. CIV.A. 06-0496-CG-M, 2007 WL 484547, at *1 (S.D. Ala. Feb. 8, 2007)

(allegations of inadequate, unsanitary, and contaminated food and beverages, along with allegations of
unsanitary conditions and no cleaning supplies, are insufficient to overcome the bar of § 1915(g));
Bolongogo v. Horn, Civil No. 97-4378, 1997 WL 599160 (E.D. Pa. July 23, 1997) (allegations of food

Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (noting that the PLRA authorizes courts to dismiss

clearly baseless factual contentions) (citation omitted).

Furthermore, Plaintiffs Objections

stemming from his proposed Amended Complaint are unrelated to his forced shaving allegations,

and plaintiffs are not permitted to bring unrelated claims in a single cause of action. Fed. R. Civ.
P. 20(a)(2) (A plaintiff may not join claims and various defendants in one action unless the
claims arise "out of the same transaction, occurrence, or series of transactions or occurrences;

and any question of law or fact common to all defendants will arise in the action.").

Second, Plaintiff objects to the Magistrate Judge's finding that he mispresented his

litigation history such that he abused the judicial process. (Doc. 8, pp. 3-6; Doc 11, pp. 1-2.)
Specifically, Plaintiff asserts that he did not misrepresent his prison litigation history because he
lacked the necessary records to show his history and instructed the Court to "see PACER" for
cases additional to the one he disclosed. (Id) He also argues that he honestly answered "No" to

the question of whether he had any in forma pauperis cases dismissed as frivolous, malicious, or
for failing to state a claim, because in "none of Plaintiffs cases dismissed" for those reasons was
he allowed to proceed informa pauperis. (Id.)

Although the Court did not review the docket for each of Plaintiffs one-hundred ninety

(190) federal cases filed since 1999, a more thorough review of PACER reveals Plaintiff may be
correct that he has not had a case dismissed for being frivolous, malicious, or failing to state a

claim where he was also granted informa pauperis status. Nonetheless, Plaintiffs technically
correct answer to that form complaint question does not excuse his manipulative failure to

disclose information pertaining to his extensive and prolific litigation history. Plaintiffs twin
assertions that he cannot recall the cases he has filed without PACER access but that he correctly

containing unlabeled and cancerous substances, along with allegations of unsanitary general population
conditions, are not sufficient to establish imminent danger of serious physical injury).

remembers none of his in forma pauperis cases were dismissed on the grounds noted above are

contradictory and evidence a lack of candor before the Court. It strains credulity that Plaintiff

remembers this precise detail as it pertains to all of his cases, yet he cannot recall his presently
pending cases and can only describe a single case on his form complaint involving facts different
from those at issue here. Plaintiff could have followed the form complaint's instructions and

attached a sheet containing as much information about his litigation history as he could recall but

did not. Although Plaintiff directed the Court to research his previous case filings on PACER,

by saddling the Court with this responsibility, Plaintiff both shirks his duty of candor in

pleadings before the Court and undermines the Court's interest in preserving finite judicial
resources. Moreover, just as the Magistrate Judge found, Plaintiff failed to disclose all of his

currently pending cases, which very obviously does not require access of past records to do.

Finally, the Magistrate Judge found Plaintiffs allegations of poverty "to understate his assets in

order to shirk his obligation to pay the full filing fee."2 (Doc. 4, p. 15 n.5.) Thus, even though
Plaintiff honestly answered the form question pertaining to prior dismissed cases, he still
exhibited bad faith and an overall lack of candor before the Court such that the Magistrate Judge

correctly determined Plaintiffs abuse of judicial process. See Attwood v. Singletarv, 105 F.3d
610, 614 (11th Cir. 1997) ("A finding that the plaintiff engaged in bad faith litigiousness or
manipulative tactics warrants dismissal.") (citation omitted).

Third, and finally, Plaintiff objects to the Magistrate Judge's finding that he failed to
exhaust the administrative remedies available to him at Georgia State Prison. (Doc. 8, pp. 6-9.)

Plaintiff argues that Georgia State Prison's grievance procedure was a "dead end" and
"unavailable" to him, as contemplated by the Unites States Supreme Court's decision in Ross v.
2 Other courts have found the same. See In re Daker, No. 1:11-CV-1711-RWS, 2014 WL 2548135, at *3

(N.D. Ga. June 5, 2014) ("Daker has repeatedly abused the judicial process by filing IFP affidavits that
conceal and/or misstate his true assets and income.").

Blake,

U.S.

, 136 S. Ct. 1850, 1858-61 (June 6, 2016). Plaintiff also contends that

Georgia State Prison officials did not "process" his seven July 2017 grievances, as required by

their own procedures, and returned them to him without deciding on them. (Id.) While Plaintiff

complains that Georgia State Prison officials allegedly failed to heed their own grievance

procedures, his Objections show that he unquestionably failed to heed the prison's grievance
procedure himself when he simultaneously filed seven grievances in July 2017. See Simpson v.
Allen, No. 6:15-cv-118, 2016 WL 5024226, at *6-7 (S.D. Ga. Sept. 16, 2016) (discussing

Georgia State Prison's grievance procedure, Standard Operating Procedure ("SOP") IIB05-0001,
which mandates that "an inmate may only have two active grievances pending at one time"

unless the inmate grievance meets one of three exceptions, and finding that such a restriction

does not render a grievance process "unavailable"), report and recommendation adopted, 2016
WL 6609195 (S.D. Ga. Nov. 7, 2016).

Furthermore, Plaintiffs excessive number of grievances aside, he plainly admits he did

not appeal any adverse decision to the highest level possible in the administrative procedure,
(doc. 1-1, p. 4), which is required to properly exhaust. Bryant v. Rich, 530 F.3d 1368, 1378
(11th Cir. 2008) ("To exhaust administrative remedies in accordance with the PLRA, prisoners
must 'properly take each step within the administrative process.'") (quoting Johnson v.
Meadows, 418 F.3d 1152,1157 (11th Cir. 2005)). Plaintiffunsuccessfully attempts to excuse his

failure to appeal by arguing that his grievances were "unprocessed," thereby rendering the
grievance system "unavailable" to him. (Doc. 8, p. 6.) Such a contention fails at the outset
because Georgia State Prison's grievance procedure authorizes and requires a grievant to appeal

his grievance after the grievance coordinator rejects it, after the warden responds to it, or when
the time allowedfor the warden's decision has expired. Shaw v. Toole, No. 6:14-CV-48, 2015

WL 4529817, at *5 (S.D. Ga. July 27, 2015) (citing SOP HB05-0001) (emphasis added) ("The
warden has a period of forty (40) calendar days from the date the inmate gave his grievance to

the counselor to respond."), report and recommendation adopted, 2015 WL 5025478 (S.D. Ga.

Aug. 24, 2015). Because Plaintiff filed this action only one month after he filed his seven

grievances, (doc. 1-1), he neither waited the required amount of time for the warden's decision

nor filed an appeal once that time expired, as required by the SOP.

Thus, Plaintiff

unquestionably failed to properly exhaust his grievances, irrespective of any "unprocessed"

grievance allegations. As the Magistrate Judge stated, "[g]iven that Plaintifffailed to take basic
steps to pursue GSP's administrative remedies, he cannot now complain that that those remedies

were unavailable to him."3 (Doc. 4, p. 20.)
Accordingly, the Court OVERRULES Plaintiffs Objections and Supplemental

Objections, (docs. 8, 11), and ADOPTS the Magistrate Judge's Report and Recommendation as

the opinion of the Court. Nevertheless, theCourt still addresses Plaintiffs remaining pleadings.
II.

Motion to Stay Time to Object to Magistrate's October 5, 2017 Report and
Recommendation or to Extend Time and Motion for Access to Case Authorities
(Docs. 5, 7)

In these Motions, Plaintiff asks the Court to issue a stay to permit Plaintiff to file

Objections to the Magistrate Judge's Report and Recommendation, pending a ruling on his
Motion for Access to Case Authorities, or, in the alternative, to grant an extension of time in

which to file objections. (Doc. 5, pp. 1-2.) Plaintiff contends he is supposed to have access to

the law library but does not because the prison's lockdown unit lacks a satellite law library.
3 Additionally, Plaintiff contends the Magistrate Judge erred in recommending dismissal on this ground
because exhaustion is an affirmative defense that has yet to be asserted. (Doc. 8, p. 9.) While exhaustion
is an affirmative defense, courts are to dismiss lawsuits at frivolity review where a prisoner's complaint

clearly admits or shows a failure to exhaust. See Okpala v. Drew, 248 F. App'x 72, 73 (11th Cir. 2007)
(citation omitted). Moreover, Plaintiffs apparent belief that Georgia State Prison's grievance procedure
is futile does not excuse him from the exhaustion requirement. Higginbottom v. Carter, 223 F.3d 1259,
1261 (11th Cir. 2000).

10

(Doc. 7, p. 2.) Plaintiff asserts the Magistrate Judge cited to numerous statutes, rules, and cases,
and he does not have access to these authorities, rendering him unable to formulate Objections or

to distinguish these authorities from his cause of action. (Id.) Plaintiff seeks an Order directing
Defendants to provide Plaintiff with the authorities cited or for the Court to do so. (Id at p. 3.)
Plaintiff offers no compelling reason why he cannot formulate Objections to the Report

and Recommendation without having access to the authorities the Magistrate Judge cited.

Because the Magistrate Judge recommended Plaintiffs Complaint be dismissed in the first
instance based on Plaintiffs personal litigation history, which renders him ineligible to proceed

in forma pauperis under the PLRA's "three strikes" provision, external case law is unnecessary
to formulate a response. (Doc. 4.) As this ground concerns Plaintiffs own case history, he
could easily respond to this recommendation without having the cited case authorities. To be

sure, Plaintiff didjust that by filing Objections to the Report and Recommendation as two of the

litany of pleadings he has filed since the Magistrate Judge issued his Report and
Recommendation. (Docs. 8, 11.) Plaintiffs actions since the Magistrate Judge issued his Report
and Recommendation belie any contention that Plaintiffcannot respond to this Court's rulings or
directives without extra time or Court-ordered legal research access. Specifically, in four of his

post Report and Recommendation pleadings, Plaintiff has been able to provide the Court with
citations to and discussion of various federal statutes and extensive case law, including cases

cited in the Report and Recommendation. (See Docs. 6, 8, 10-12.) Further, in light of the
Court's consideration of Plaintiff s untimely Objections above, an additional extension of time is
not warranted. In short, Plaintiffs actions either contradict or undermine the reasons advanced
in these Motions.

11

Accordingly, the Court DENIES Plaintiffs Motion to Stay Time to Object to

Magistrate's October 5, 2017 Report and Recommendation or to Extend Time and his Motion for
Access to Case Authorities.

III.

Motion to Appoint Counsel (Doc. 6)

Plaintiff requests the Court appoint him counsel for the limited purpose of assisting

Plaintiff with the drafting of his Amended Complaint. In this civil case, Plaintiff has no

constitutional right to the appointment of counsel. Wright v. Langford, 562 F. App'x 769, 777

(11th Cir. 2014) (citing Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)). "Although a court

may, pursuant to 28 U.S.C. § 1915(e)(1), appoint counsel for an indigent plaintiff, it has broad
discretion in making this decision, and should appoint counsel only in exceptional
circumstances." Id. (citing Bass, 170 F.3d at 1320). Appointment of counsel in a civil case is a

"privilege that is justified only by exceptional circumstances, such as where the facts and legal
issues are so novel or complex as to require the assistance of a trained practitioner." Fowler v.

Jones, 899 F.2d 1088,1096 (11th Cir. 1990) (citing Poole v. Lambert, 819 F.2d 1025, 1028 (11th

Cir. 1987), and Wahl v. Mclver, 773 F.2d 1169, 1174 (11th Cir. 1985)). The Eleventh Circuit
Court of Appeals has explained that "the key" to assessing whether counsel should be appointed

"is whether the pro se litigant needs help in presenting the essential merits of his or her position
to the court. Where the facts and issues are simple, he or she usually will not need such help."

McDaniels v. Lee, 405 F. App'x 456, 457 (11th Cir. 2010) (quoting Kilgo v. Ricks, 983 F.2d
189, 193 (11th Cir. 1993)).

The Court has reviewed the record and pleadings in this case and finds no "exceptional

circumstances" warranting the appointment of counsel.

While the Court understands that

Plaintiff is incarcerated, this Court has repeatedly found that "prisoners do not receive special

12

consideration notwithstanding the challenges of litigating a case while incarcerated." Hampton
v. Peeples, No. CV 614-104, 2015 WL 4112435, at *2 (S.D. Ga. July 7, 2015). "Indeed, the

Eleventh Circuit has consistently upheld district courts' decisions to refuse appointment of
counsel in 42 U.S.C. § 1983 actions similar to this case for want of exceptional circumstances."

Id (citing Smith v. Warden, Hardee Corr. Inst., 597 F. App'x 1027, 1030 (11th Cir. 2015);
Wright, 562 F. App'x at 777; Faulkner v. Monroe Ctv. Sheriffs Dep't, 523 F. App'x 696, 702

(11th Cir. 2013); McDaniels, 405 F. App'x at 457; Sims v. Nguyen, 403 F. App'x 410, 414

(11th Cir. 2010); Fowler, 899 F.2d at 1091, 1096; and Wahl, 773 F.2d at 1174). This case is not
so complex legally or factually to prevent Plaintifffrom presenting "the essential merits of his

position" to the Court. In fact, the sheer volume of pleadings Plaintiff has filed with the Court is
clearly indicative of his ability to present this Court with the essential merits of his position. The
Magistrate Judge's recommended dismissal of Plaintiffs Complaint was not due to his inability
to communicate or his inability to present the essential merits of his forced shaving claims.

Rather, the Magistrate Judge recommended Plaintiffs Complaint be dismissed on groimds that
were distinct from the merits of his Complaint, grounds which would not be remedied by the
appointment of counsel.

For these reasons, the Court DENIES Plaintiffs Motion to Appoint Counsel.
IV.

Motion for Reconsideration of the October 5,2017 Order (Doc. 9)

Plaintiff seeks reconsideration Court's October 5, 2017 Order denying his Motion to

Proceed in Forma Pauperis.

Plaintiff maintains that his Objections and first Amended

Complaint provide basis for reconsideration.

A motion for reconsideration, or a Federal Rule of Civil Procedure 59(e) motion, is "an

extraordinary remedy, to be employed sparingly." Smith ex rel. Smith v. Augusta-Richmond

13

Ctv., No. CV 110-126, 2012 WL 1355575, at *1 (S.D. Ga. Apr. 18, 2012) (internal citation

omitted). "A movant must set forth facts or law of a strongly convincing nature to induce the

court to reverse its prior decision."

Id (internal citation omitted).

"The only grounds for

granting a Rule 59 motion are newly-discovered evidence or manifest errors of law or fact."
Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (quoting In re

Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (internal punctuation omitted)). "A Rule 59(e)

motion cannot be used to relitigate old matters, raise argument or present evidence that could

have been raised prior to the entry of judgment." Id. (quoting Michael Linet, Inc. v. Village of
Wellington, 408 F.3d 757, 763 (11th Cir. 2005) (alterations omitted)).

The Court discerns no reason to grant Plaintiffs Motion. He fails to present any newly-

discovered evidence in support of his request, and he does not demonstrate that the Court's

previously-entered Order represents a manifest error of law or fact. In fact, Plaintiffs Motion is

nothing more than a duplicative filing of his Objections to the Magistrate Judge's Report and
Recommendation, which the Court already considered and overruled.

Accordingly, the Court DENIES Plaintiffs Motion for Reconsideration.
V.

Motion for Permission to Exceed the Ten-Page Limit on Amended Complaint
(Doc. 10)

Plaintiff seeks the Court's permission to amend his Complaint and to exceed the ten-page

attachment limit the Magistrate Judge allotted him when advising Plaintiff to submit an

Amended Complaint in a separate, but related, case Plaintiff brought. Order, Daker v. Brvson, et

al, 6:17-cv-79 (S.D. Ga. July 20, 2017), ECF No. 21. In support of his Motion, Plaintiff states

the ten-page attachment limit is impossible for him to meet, this limit violates Federal Rule of
Civil Procedure 18, and it violates the Simmons principle. (Doc. 10, pp. 1-2.) Plaintiff attached
to this Motionhis "First Amended and Supplemental Complaint." (Doc. 10-1.)

14

Plaintiffs proposed Amended Complaint is 119-typewritten pages, comprised of nearly

700 paragraphs and brought against 116 different Defendants.

(Id.)

The Court notes that

Plaintiff submitted the same Motion and proposed Amended Complaint in another case before

this Court.4 He names individuals in this Amended Complaint the District Court for the Middle
District of Georgia and this Court already dismissed in Daker v. Brvson, et al., 6:17-cv-79 (S.D.

Ga. Dec 6, 2017), ECF No. 42, and this Amended Complaint still includes unrelated claims.
Moreover, Plaintiff has included claims in his Amended Complaint that post-date the filing of his

original Complaint and are not related to the claims in his original Complaint, and he seeks to
include new Defendants. This attempt to file the same Amended Complaint in two distinct cases

clearly violates Federal Rule of Civil Procedure 20 by combining separate and unrelated claims

against separate and unrelated Defendants into a single cause of action maintained on two fronts.
Plaintiffs action—filing the same voluminous complaint containing scores of unrelated claims
and defendants—typifies the frivolous and vexatious nature of Plaintiffs filings.
Furthermore, the ten-page attachment limit to the Section 1983 form complaint does not
violate Federal Rule of Civil Procedure 18(a), as Plaintiff contends. Rule 18(a) provides that

"[a] party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as

independent or alternative claims, as many claims as it has against an opposing party." Fed. R.
Civ. P. 18(a). "However, 'multiple claims against a single party are fine, but Claim A against
Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims

against different defendants belong in different suits, not only to prevent the sort of morass [a

multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the

required filing fees—for the Prison Litigation Reform Act ["PLRA"] limits to 3 the number of
4 Compare Mot, Daker v. Brvson, et al., 6:17-cv-79 (S.D. Ga. Nov. 2, 2017), ECF No. 41, with (Docs.
10, 10-1.). The Court denied Plaintiffs Motion in that case, Order, Daker v. Brvson, et al., 6:17-cv-79
(S.D. Ga. Dec. 6, 2017), ECF No. 42, and does so again here.
15

frivolous suits or appeals that any prisoner may file without prepayment of the required fees.'"
Smith v.Conner, No. 8:12-CV-52-T-30AEP, 2012 WL 1676643, at *1 (M.D. Fla. May 14,2012)

(quoting George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)). Thus, while Plaintiff can assert as
many claims against one Defendant in this cause of action, he cannot bring unrelated claims
against all Defendants in a single cause of action.

Finally, Plaintiffs reliance on Simmons v. United States, 390 U.S. 377 (1967), is
misplaced. In Simmons, the Supreme Court discussed whether a criminal defendant who
testifies in support of a Fourth Amendment suppression issue waives his Fifth Amendment right

against self-incrimination during later proceedings.

The Supreme Court determined it

"intolerable" for one constitutional right to be surrendered at the sake of another and held, "that

when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment

grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt
unless he makes no objection." Simmons, 390 U.S. at 394. The Magistrate Judge directing
Plaintiff to narrow his claims to related claims in no way limits the exercise of Plaintiffs

constitutional rights, especially those of the same magnitude as the rights involved in Simmons.

By limiting his constitutional claims in this lawsuit to those that are related to one another,
Plaintiff would not be faced with the choice of sacrificing his other constitutional rights like the

testifying defendant in Simmons. Rather, Plaintiff could file his other unrelated, constitutional
claims in a separate lawsuit.

In sum, Plaintiffs proposed Amended Complaint in no way comports with the letter or

spirit of the Federal Rules of Civil Procedure or the Magistrate Judge's instructions. Having

already been instructed in another case on how to properly amend his Complaint, Plaintiff
consciously chose to persist in presenting a morass of unrelated claims, and in fact, doubled

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down on those efforts by filing the same deficient Amended Complaint in two separate cases. In
light of Plaintiffs disregard of the Federal Rules of Civil Procedure and this Court's instructions

on how to amend, the Court once again finds Plaintiffs proposed Amended Complaint improper.

Consequently, the Court DENIES Plaintiffs Motion for Permission to Exceed the TenPage Limit on Amended Complaint and his proposed Amended Complaint.
VI,

Motion for Subpoena and Preservation of Evidence (Doc. 12)

In this Motion, Plaintiff requests the Court to subpoena or issue an order preserving

surveillance videos of his cell being contaminated with feces from another inmate. According to
Plaintiff, this evidence will show that his placement in segregation constitutes an "atypical

hardship" due to the "denial of sanitation." (Doc. 12, p. 5.) For the reasons set forth in Sections
I, II, IV, and V above, the Court DISMISSES as moot Plaintiffs Motion for Subpoena and
Preservation of Evidence.
CONCLUSION

The Court OVERRULES Plaintiffs Objections, (docs. 8, 11), and ADOPTS the

Magistrate Judge's Report and Recommendation, (doc. 4), as the opinion of the Court. The
Court DISMISSES without prejudice Plaintiffs Complaint, DENIES Plaintiffleave to proceed

in forma pauperis on appeal, and DIRECTS the Clerk of Court to CLOSE this case and enter
the appropriate judgment of dismissal.

Additionally, the Court: DENIES Plaintiffs Motion to Stay Time to Object to

Magistrate's October 5, 2017 Report and Recommendation or to Extend Time, (doc. 5);
DENIES Plaintiffs Motion to Appoint Counsel, (doc. 6); DENIES Plaintiffs Motion for

Access to Case Authorities, (doc. 7); DENIES Plaintiffs Motion for Reconsideration, (doc. 9);
DENIES Plaintiffs Motion to Exceed the Ten-Page Limit on Amended Complaint, (doc. 10);

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and DISMISSES as moot Plaintiffs Motion for Subpoena and Preservation of Evidence,
(doc. 12).
SO ORDERED,

day of January, 2018

J. RAMDA^IALL, CHIEF JUDGE
UNITED.STATES DISTRICT COURT
lERN DISTRICT OF GEORGIA

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