Daker v. Dozier et al

Filing 39

ORDER denying 19 Motion to Vacate and denying 22 Motion to Vacate; finding as moot 17 Motion to Amend; finding as moot 27 - 29 and 31 Motions for TRO; finding as moot 30 and 31 Motions for Preliminary Injunction; finding as moot 16 , 32 , 34 and 35 Motions for Law Library Access; finding as moot 33 Motion for Access to Photocopying. This case remains CLOSED. Signed by Chief Judge J. Randal Hall on 3/15/2019. (pts)

IN THE UNITED STATES DISTRICT COURT FOR THE"
SOUTHERN DISTRICT OF GEORGIA

15 AM 9:53

STATESBORO DIVISION

clerk „

WASEEM DAKER,

so.oisf:

Plaintiff,
CV 617-110

V,

COMMISSIONER GREGORY DOZIER,

et al.,
Defendants.

ORDER

Before the Court are thirteen post-judgment motions filed by
Plaintiff Waseem

Daker.

(Docs. 16, 17, 19, 22, 27-35.)

Most

notable among them are two motions to vacate the Court's January
29, 2018 Order, dismissing this case without prejudice.
19, 22.)

(Docs.

The Court addresses Plaintiff's numerous motions as

follows.

I. BACKGROUND

Plaintiff, proceeding pro se, filed this action pursuant to
42 U.S.C. § 1983 and the Religious Land Use and Institutionalized
Persons Act ("RLUIPA") against dozens of Defendants.
Doc. 1.)

(Compl.,

Plaintiff's allegations arise from his confinement at

Georgia State Prison ("GSP") where Plaintiff was not permitted to
grow lengthy facial hair in contravention of his religious beliefs.

prison officials forcibly shaved Plaintiff s beard with unsanitary
clippers, and unconstitutionally punished Plaintiff for refusing
to submit to grooming.^ (See id. at 8-13.) This is one of numerous
cases

Plaintiff

has

before

this

substantially similar claims.

Court

bringing

the

same

or

See, e.g., Daker v. Bryson, Case

No. 6:17-CV-079 (S.D. Ga. filed June 9, 2017); Daker v. Dozier,
Case No. 6:18-CV-032 (S.D. Ga. filed Mar. 26, 2018).

Plaintiff moved to proceed in forma pauperls (^^IFP") (Doc.

2), so the United States Magistrate Judge screened the complaint

pursuant to 28 U.S.C. § 1915.
Report

and

Plaintiffs

Litigation

Recommendation
claims

Reform

(^^R&R")

without

Acfs

The Magistrate Judge entered a
that

prejudice

fPLRA")

the

because

"three

Court
(1)

strikes"

dismiss

the

Prison

provision

precluded Plaintiff from proceeding in forma pauperis and he did
not qualify for the imminent danger exception; (2) Plaintiff abused
the

judicial

process

by

failing

to

adequately

disclose

his

litigation history and for misstating his true assets; and (3)
Plaintiff did not exhaust his administrative remedies as required

by the PLRA.

(R&R, Doc. 4, at 5-20.)

Plaintiff filed two objections to the R&R (Docs. 8, 11) and
a handful of other motions.

(Docs. 5, 6, 7, 9, 10, 12, 13.)

The

Court conducted a de novo review of the record and entered an Order

^ A more comprehensive recitation of Plaintiff's allegations can be found in
the Court's January 29, 2018 Order.

(See Doc. 14, at 2-3.)

on January 29, 2018, overruling Plaintiff's objections, adopting
the R&R, and denying the rest of Plaintiff's motions.
Jan. 29, 2018, Doc. 14.)

(Order of

Now, Plaintiff has filed two motions to

vacate the Court's January 29th Order and the resulting Judgment.

(Docs. 19, 22.)

Plaintiff further moves to amend his complaint

(Doc. 17), for access to a law library (Docs. 16, 32, 34, 35), for

access to photocopying (Doc. 33), and for a preliminary injunction
or temporary restraining order (Docs. 27-31).

II. DISCUSSION

A. Motions to Vacate

Plaintiff s motions to vacate contend the Court committed

clear errors in each of the three grounds on which the Magistrate

Judge recommended dismissal.
outset,

that

any

one

It is important to note at the

of the

three

grounds

advanced

by

the

Magistrate Judge and adopted by the Court is alone sufficient to
dismiss the complaint in its entirety.

Accordingly, Plaintiff

must show clear error or manifest injustice on all three grounds

to prevail on his motions and vacate the Court's January 29th
Order.

Under Federal Rule of Civil Procedure 59(e), a party may seek

to alter or amend a judgment.

Reconsideration of a previous order

is "an extraordinary remedy, to be employed sparingly." Gold Cross
EMS, Inc. V. Children's Hosp. of Ala., 108 F. Supp. 3d 1376, 1379
3

(S.D. Ga. 2015) {quotations omitted). Motions for reconsideration
should not be used to raise legal arguments or present evidence
that

could

issued.

and

should

have

been

made

before

the

judgment

was

Michael Linet, Inc. v. Vill. of Wellington, Fla./ 408

F.3d 757, 763 (11th Cir. 2005); Lockhard v. Equifax, Inc., 163
F.3d 1259, 1267 (11th Cir. 1998).

While Rule 59(e) does not lay out grounds for relief, district
courts in this Circuit have identified three reasons that merit

reconsideration

of

a

judgment:

(1)

an

intervening

change

in

controlling law; (2) the availability of new evidence; and (3) the
need to correct clear error or prevent manifest injustice.

Gold

Cross, 108 F. Supp. 3d at 1379. To correct clear error ''ordinarily
requires a showing of clear and obvious error where the interests

of justice demand correction." McGuire v. Ryland Grp., Inc., 497
F. Supp. 2d 1356, 1358 (M.D. Fla. 2007) (internal quotations
omitted).

An error, however, is not "clear and obvious" if the

legal issues are "at least arguable."

Am. Home Assurance Co. v.

Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985).
1. Imminent Danger Exception

Plaintiff advances two arguments to show the Court erred in
denying him the imminent danger exception to the PLRA's three
strikes provision.

First, GSP's custom of using excessive force

to shave inmates places him in imminent danger.

Second, GSP's

practice of using unclean clippers places Plaintiff at risk of
contracting infectious disease, "which are already common in the
prison population." (Def.'s Mot. to Vacate, Doc. 19, at 6.)
The "three strikes" provision of the PRLA 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 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.

28 U.S.C. § 1915(g).

To invoke the "imminent danger of

serious physical injury" exception, the Eleventh Circuit requires

"specific allegations of present imminent danger that may result
in serious physical harm." Skillern v. Jackson, 2006 WL 1687752,
at *2 (S.D. Ga. June 14, 2006) (citing Brown v. Johnson, 387 F.3d
1344, 1349 (11th Cir. 2004)). General and conclusory allegations

not grounded in specific facts indicating that injury is imminent
cannot

invoke

the

Section

1915(g)

exception.

Marqiotti

v.

Nichols, 2006 WL 1174350, at *2 (N.D. Fla. May 2, 2006) ("Vague

allegations of harm and
insufficient.").

unspecific references to injury are

Importantly, a harm that has already occurred

or danger that has now passed will not qualify for the exception.
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
5

forma pauperis pursuant to the imminent danger exception to the
statute

.

The Court previously held that Plaintiff did not allege a
risk of serious harm in the future, but only past harms.

(Order

of Jan. 29, 2018, at 5.) The Court further noted that Plaintiff's

allegations were conclusory and unconnected with any specific
Defendant.

(Id.)

None of Plaintiff's arguments overcome these

issues, instead they are an attempt to ^^raise argument or present

evidence that could have been raised prior the entry of judgment,"

which is not the purpose of a Rule 59(e) motion.

See Michael

Linet, Inc., 408 F.3d at 763.

The excessive use of force argument made by Plaintiff quotes

caselaw at length, all of which addresses the merits of his
underlying

exception.

Eighth

Amendment

claim,

not

the

imminent

danger

These arguments on the merits of Plaintiff's claim

do not provide a basis to vacate the January 29th Order.

Next, although Plaintiff cites a few cases that purportedly
hold the use of unsanitary clippers satisfies the imminent danger

exception, a review of those cases reveals they are all either
inapplicable or distinguishable.

In Daker v. Bryson, 2015 WL

4973548, at *1 (M.D. Ga. Aug. 20, 2015), the court did not reach

the

imminent

danger

exception

issue

allegations of poverty were untruthful.

because

Plaintiff s

In Bingham v. Morales,

Case No. 3:11-CV-019, Doc. 20 (S.D. Ga. Sept. 16, 2011), the

magistrate judge found the plaintiff qualified for the imminent

danger exception because he was forced to share razors with
inmates who had open cuts on their faces and that his clothes
were washed with other inmates' feces stained clothes, which

already caused him two staph infections.

Id. at 5.

Finally, in

Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007), the

Court held the imminent danger exception applied because the

plaintiff alleged an ongoing pattern of placing him close to
inmates ^'^with serious contagious diseases" who had ^^a history of

causing serious illness," the plaintiff previously contracted a
tuberculosis infection, and the prison had an ongoing outbreak
of hepatitis.

Here,

by

Id.

contrast.

Plaintiff

merely

states

unsanitary

clippers place him at risk of contracting an infectious disease,
''which are already common in the prison population." (Pl.'s Mot.
to Vacate, at 7; see also Compl., at 9-10.)

Plaintiff points to

no facts showing inmates at GSP are spreading contagious diseases,
as

the

plaintiffs

Plaintiff's

claims

in
are

Andrews
the

and

sort

of

Bingham
general

allegations that do not show imminent danger.

did.

Instead,

and

conclusory

See Brown, 387

F.3d at 1349; Margiotti, 2006 WL 1174350, at *2.

Simply put.

Plaintiff did not allege facts sufficient to invoke the imminent
danger exception, as the Court previously held.^
Moreover, the cases cited by Plaintiff and by the Court in

its

January

29th

Order

show

that

unsanitary clippers create an

the

question

imminent danger is

of

whether

^'at least

arguable," and therefore not a clear error requiring the Court
to vacate its January 29th Order.

See Am. Home Assurance Co.,

763 F.2d at 1239.

2. Abuse of Judicial Process

Plaintiff claims

history

by

he did

instructing

previously filed cases.

the

not misrepresent

Court

to '"see

his litigation

PACER"^

for

his

Plaintiff cites to multiple cases where

he used this tactic without issue and even an Order from this

Court that, in Plaintiff's view, sanctions such a disclosure
strategy.

2 As the Court has repeatedly stated. Plaintiff's other allegations, such as
sinus infections, toothaches, or being subjected to unsanitary prison
conditions, are all past harms that cannot satisfy the imminent danger
exception.
See Medberry, 185 F.3d at 1193.
Further, many of the medical
conditions Plaintiff complains of have been treated. See Daker v. Dozier, Case.
No. 6:18-CV-032, Doc. 19 (S.D. Ga. March 7, 2019) (R&R addressing same issue

and same allegations showing Plaintiff received orthopedic treatment for his
nerve damage and antibiotics for his sinus infections).

3 The full language of Plaintiff's litigation history response is: "I do not
have all the information on all of them, and I no longer have my paperwork on
most. However, the information on all of them can be found online on PACER.
Please see PACER for more info. Also, on 7/6/17, Defendants lost/stole/threw

away much of my paperwork on other cases. Thus, I no longer have the info that
I used to have. I need PACER to give more info, and I don't have PACER access."
(Compl., at 2.)
8

Regardless of whether ^^see PACER" is an acceptable response

for disclosing litigation history, the Magistrate Judge found
Plaintiff's allegations of poverty in his IFP motion ''understate
his assets in order to shirk his obligation to pay the full filing

fee."

(R&R, at 15 n.5.)

The Court emphasized this issue in its

January 29th Order, specifically finding that it showed bad faith
and a lack of candor "such that the Magistrate Judge correctly
determined Plaintiff's abuse of judicial process." (Order of Jan.

29, 2018, at 8; see also Attwood v. Singletary, 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)).)

In fact, this was not the first or even the

second time that Plaintiff had his case dismissed based on a court

finding he was not indigent.

See, e.g., Daker v. Robinson, 694 F.

App'x 768, 769 (11th Cir. 2017) (consolidated appeal of two cases
dismissed where the district court "reasonably determined that

Daker was not indigent"); In re Daker, 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.").

Plaintiff's motions do not address

this lack of candor and therefore do not provide grounds to vacate
the Court's January 29th Order.

3. Administrative Exhaustion Requirement

Next, Plaintiff argues that the Court erred by dismissing his

complaint for failure to exhaust administrative remedies.

First,

Plaintiff contends that he did file multiple grievances about the

grooming

policy

and

unsanitary

clippers,

but

administrators

returned those grievances as ^^unprocessed" in violation GSP's

procedure.

Second, Plaintiff argues, in the alternative, that

GSP's grievance procedure was unavailable to him because officials
were unwilling to provide relief, no ordinary prisoner could
navigate the procedures, and prison officials prevented inmates

from using the process through machination, misrepresentation, and
intimidation.

Finally,

Plaintiff

maintains

that

because

exhaustion is an affirmative defense he was not required to plead
exhaustion in his complaint.

The

Court first

notes,

as it

previously

has,

that

when

screening a complaint under Section 1915, the Court may dismiss a
prisoner's

complaint

if

it

shows

a

failure

to

exhaust

administrative remedies, even though exhaustion is an affirmative
defense.

See Okpala v. Drew, 248 F. App'x 72, 73 (llth Cir. 2007);

Jones V. Bock, 549 U.S. 199, 214-15 (2007); see also R&R, at 15.

Further, Plaintiff s arguments regarding his '"unprocessed"
grievances

and

the

availability

of the

process

are

the

arguments Plaintiff raised in his objections to the R&R.

10

same

Rule

59(e) motions to vacate ^^cannot be used to relitigate old matters."
Michael Linet, Inc., 408 F.3d at 763; see also Wendy^s Int'l, Inc.

V. Nu-Cape Constr., Inc., 169 F.R.D. 680, 686 (M.D. Fla. 1996)
(Rule 59(e) ''is not a vehicle for rehashing arguments already

rejected by the court or for refuting the court's prior decision").
The Court will not continue to address arguments it has refuted in

prior Orders.

Accordingly, Plaintiff's familiar arguments do not

require the Court to vacate its January 29th Order.
Even

if

Plaintiff

could

show

that

he

exhausted

his

administrative remedies, it would be insufficient to vacate the
Court's Order.

As discussed above. Plaintiff does not satisfy the

imminent danger exception and he showed bad faith and a lack of
candor to the Court regarding his indigent status. Either of these
reasons is alone sufficient to dismiss Plaintiff's complaint.
4. Appointment of Counsel

Finally, Plaintiff contends that the Court dismissed this
case before it ruled on Plaintiff's motion to appoint counsel.

The Court, however, analyzed and ruled on Plaintiff's motion to

appoint counsel in its January 29th Order.
13.)

(See Doc. 14, at 12-

The cases cited by Plaintiff are all distinguishable because

they each involved situations in which the district court never
ruled on the plaintiff's motion to appoint counsel.

That is not

the case here as the Court squarely addressed Plaintiff s motion

11

to appoint counsel.

This argument does not require the Court to

vacate its January 29th Order.

To conclude, Plaintiff's grounds for vacating the Court's

Order dismissing his case are either attempts to relitigate

previously decided issues or lack merit.

Consequently, Plaintiff

has not carried his burden to invoke Rule 59{e)'s ^^extraordinary

remedy."

See Gold Cross EMS, Inc., 108 F. Supp. 3d at 1379.

B. Other Pending Motions

Plaintiff s remaining motions include a motion for leave to
amend his complaint (Doc. 17), four motions for law library access

(Docs. 16, 32, 34, 35), a motion for access to photocopying
resources (Doc. 33), and five motions for a preliminary injunction

or temporary restraining order.^

(Docs. 27-31.)

As discussed

above. Plaintiff's motions to vacate the Court's January 29th Order
are denied, and this case will remain closed.
remaining

motions

ask

for

relief

that

None of these
would

warrant

reconsideration of the Court's dismissal of the case.

Rather,

these motions request relief that is only relevant if Plaintiff
were allowed to continue litigating this case.

Because he is not.

Plaintiff's remaining motions are denied as moot.

'' Three of these injunction motions address the merits of Plaintiff's underlying
RLUIPA and Section 1983 claims (Docs. 27, 30, 31), one concerns law library
access (Doc. 29), and the final relates to photocopying access (Doc. 28).
12

III. CONCLUSION

Plaintiff

has

not

carried

his

burden

to

show

clear

error

requiring the Court to vacate its January 29, 2018 Order.

Thus,

Plaintiff's motions to vacate (Docs. 19, 22) are DENIED.

Also,

Plaintiff's motion to amend (Doc. 17), motions for law library

access (Docs. 16, 32, 34, 35), motion for access to photocopying
(Doc. 33), and motions for preliminary injunctions or temporary

restraining orders (Docs. 27-31) are DENIED AS MOOT.

This case

shall remain CLOSED.

ORDER ENTERED at Augusta, Georgia, this /S^day of March,
2019.

J. (gANDAL^ALL, CHIEF JUDGE

UNITE^?^ATES DISTRICT COURT
SDUTTtERN DISTRICT OF GEORGIA

13