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
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