Daker v. Dozier et al

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, without prejudice, and DENY Plaintiff in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recom mendation 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 10/19/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/5/2017. (ca)

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

WASEEM DAKER,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-110

v.
COMMISSIONER GREGORY DOZIER, et
al.,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Georgia State Prison in Reidsville, Georgia, filed this action
pursuant to 42 U.S.C. § 1983 and the Religious Land Use Institutionalized Persons Act
(“RLUIPA”). For the reasons which follow, the Court DENIES Plaintiff leave to proceed in
forma pauperis. Additionally, I RECOMMEND that the Court DISMISS Plaintiff’s Complaint,
without prejudice and DENY Plaintiff in forma pauperis status on appeal. 1

1

A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers
Local Union, 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a
district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678
F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that the R&R served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is
barred and due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his
objections to this finding, and the district judge will review de novo properly submitted objections.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWTJFK, 2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that the magistrate judge’s R&R
constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable
opportunity to respond).

BACKGROUND
In his Complaint, Plaintiff levies a litany of claims against dozens of Defendants
regarding his confinement at Georgia State Prison. (Doc. 1-1.) Plaintiff contends that all of
these Defendants maintain a policy limiting the length of a male prisoner’s facial hair. (Id. at p.
9.) He contends that Georgia Department of Corrections written policy provides that shaving
clippers should be sanitized after every use. Id. He maintains that sanitizing the clippers
prevents the spread of HIV, hepatitis, and other infectious diseases. Id. However, Plaintiff
maintains, Defendants disregard this policy and use clippers that have not been sanitized or that
are broken. (Id.at pp. 9–10.)
Plaintiff also levies allegations against Defendants Hutcheson and Shuemake, who are
correctional officers at Georgia State Prison, regarding an incident that occurred on July 6, 2017.
(Id. at pp. 10–12.) Plaintiff claims that these officers escorted him from his cell to the prison’s
barbershop. Id. At the barbershop, Plaintiff refused to have another inmate cut his hair and
demanded that Hutcheson and Shuemake allow him to cut his own hair. Id. He told them that he
needed to shave his own hair so that he could insure that he was shaved in accordance with his
religious beliefs. Id. When Plaintiff persisted in his refusal to allow another inmate to cut his
hair, the officers slammed him to the ground, forcibly restrained him, and shaved him with
clippers that had not been sanitized. Id. He contends that the officers then placed him on strip
cell status and stripped him down to his undergarments in front of female staff members, in
contradiction of Plaintiff’s religious beliefs. Id. Plaintiff also makes 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.)

2

Plaintiff contends that the use of excessive force to shave him as well as cutting his hair
with unsanitary clippers violates his Eighth Amendment rights. (Id. at p. 13.) He also maintains
that Defendants violated his rights to religious exercise guaranteed by 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, he makes claims of due process violations
attendant to the confiscation of his property and his disciplinary hearing. Id.
STANDARD OF REVIEW
Plaintiff brought this action in forma pauperis under 42 U.S.C. § 1983. (Doc. 2.) 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 and 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).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. 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.

3

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)).
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

4

have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).
DISCUSSION
I.

Three Strikes Dismissal Under Section 1915(g)
A prisoner, such as Plaintiff, attempting to proceed in forma pauperis in a civil action in

federal court must comply with the mandates of the Prison Litigation Reform Act (“PLRA”).
Pertinently, 28 U.S.C. § 1915(g) of the PLRA 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.
The Eleventh Circuit Court of Appeals has explained that “[t]his provision of the PLRA,
‘commonly known as the ‘three strikes’ provision,’ requires frequent filer prisoners to prepay the
entire filing fee before federal courts may consider their lawsuits and appeals.” Rivera v. Allin,
144 F.3d 719, 723 (11th Cir. 1998) (quoting Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997)). 2
Dismissals for providing false filing-history information and failing to comply with court orders
both fall under the category of “abuse of the judicial process”, which the Eleventh Circuit has
held to be a “strike-worthy” form of dismissal under Section 1915(g). See id. at 731 (dismissing
for failure to disclose prior litigation is “precisely the type of strike that Congress envisioned
when drafting section 1915(g)”); Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1544 (11th Cir.
1993) (characterizing failure to comply with court orders as “abuse of the judicial process”).

2

The Eleventh Circuit upheld the constitutionality of Section 1915(g) in Rivera. In so doing, the Court
concluded that Section 1915(g) does not violate an inmate’s rights to access to the courts, to due process
of law, or to equal protection, or the doctrine of separation of powers. Rivera, 144 F.3d at 721–27.
5

The Eleventh Circuit has held that a prisoner barred from proceeding in forma pauperis
due to the “three strikes” provision in § 1915(g) must pay the entire filing fee 3 when he initiates
suit. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Therefore, the proper
procedure for a district court faced with a prisoner who seeks in forma pauperis status but is
barred by the “three strikes” provision is to dismiss the complaint without prejudice. Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
In Daker v. Commissioner, Georgia Department of Corrections, 820 F.3d 1278 (11th Cir.
2016), the Eleventh Circuit had occasion to consider whether Plaintiff was a three-striker within
the meaning of Section 1915(g) based on six (6) of Plaintiff’s previous filings that the Middle
District of Georgia cited as being “strikes”. The cases the Middle District of Georgia counted as
strikes were: (1) Daker v. Head, No. 01-14624 (11th Cir. Jan. 25, 2002) (an interlocutory appeal
from a civil lawsuit the Eleventh Circuit dismissed for lack of jurisdiction); (2) Aziyz v.
Tremble, No. 05-11696 (11th Cir. May 9, 2005) (same); (3) Daker v. Barrett, No. 03-15771
(11th Cir. July 26, 2004) (Eleventh Circuit dismissed an appeal from a civil lawsuit “for want of
prosecution because [Daker] has failed to file [an] appellant brief within the time fixed by the
rules”); (4) In re Daker, No. 12-12073 (11th Cir. July 12, 2012) (dismissal of a petition for a writ
of mandamus “for want of prosecution” under Eleventh Circuit Rule 42-1(b) “because . . . Daker
failed to pay the $450 docket fee . . . within the time fixed by the rules”); (5) In re Daker, No. 1212072 (11th Cir. Aug. 6, 2012) (same); and (6) Georgia v. Daker, No. 12-12519 (11th Cir. Nov.
3

The applicable filing fee is now $400.00. “The entire fee to be paid in advance of filing a civil
complaint is $400. That fee includes a filing fee of $350 plus an administrative fee of $50, for a total of
$400. A prisoner who is granted in forma pauperis status will, instead, be assessed a filing fee of $350
and will not be responsible for the $50 administrative fee. A prisoner who is denied in forma pauperis
status must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the
complaint will be filed.” Callaway v. Cumberland Cty. Sheriff Dep’t, No. CIV. 14-4853 NLH, 2015 WL
2371614, at *1 (D.N.J. May 18, 2015); see also Owens v. Sec’y Fla. Dep’t of Corr., Case No.:
3:15cv272/MCR/EMT, 2015 WL 5003649 (N.D. Fla. Aug. 21, 2015) (noting that the filing fee applied to
cases in which a prisoner-plaintiff is denied in forma pauperis status is $400.00).
6

5, 2012) (same). The Eleventh Circuit noted that, in the last three dismissals listed, only “a
single judge of this Court denied Daker’s petitions to proceed in forma pauperis because his
filings were ‘frivolous.’” Daker, 820 F.3d at 1282. The Eleventh Circuit determined that the
three appeals, which were dismissed for lack of prosecution, could not count as strikes because
Daker’s applications to proceed in forma pauperis on appeal were denied by only one judge on
the panel as being frivolous. Id. at 1284–85. The Eleventh Circuit reasoned that the text of
Section 1915(g) mandates that the reason for the dismissal of a cause of action or an appeal—as
opposed to a denial of an application to proceed in forma pauperis—had to be because the cause
of action or appeal was frivolous, malicious, or failed to state a claim. Id. at 1285. In addition,
the Eleventh Circuit stated that a dismissal for lack of jurisdiction was likewise not a
determination on the merits of a litigant’s cause of action or appeal. Id. at 1284.
Thus, the Eleventh Circuit concluded that the six (6) cases the Middle District of Georgia
used to label Plaintiff a three-striker did not constitute strikes under the language of Section
1915(g). However, the Eleventh Circuit made clear that it “express[ed] no view on whether
Daker has any other strikes . . . [or] as to whether one or more of the six dismissals might have
failed to qualified as strikes for other reasons.” Daker, 820 F.3d at 1286. Therefore, the
Eleventh Circuit did not determine that Plaintiff is not a three-striker. Rather, it only determined
that the six (6) particular cases the Middle District of Georgia used did not constitute strikes for
the reasons the district court found.
Reviewing Plaintiff’s history of filings reveals that he indeed has brought more than three
civil actions or appeals which count as strikes under Section 1915(g).

In reaching this

conclusion, this Court has not utilized the same six (6) cases the Middle District of Georgia
counted as strikes. Instead, at least the following cases, which do not include any of the cases

7

the Eleventh Circuit found are not strikes, constitute strikes under Section 1915(g): (1) Daker v.
Warren, No. 13-11630-B (11th Cir. Mar. 4, 2014) (appeal dismissed after finding it frivolous);
(2) Compl., Daker v. Mokwa, 2:14cv395-UA-MRW (C.D. Cal. Feb. 4, 2014), ECF No. 2
(dismissed as being frivolous, malicious, or failing to state a claim); (3) Daker v. Robinson, 1:12cv-00118-RWS (N.D. Ga. Sept. 12, 2013) (complaint dismissed based on Plaintiff’s failure to
follow a court order); and (4) Daker v. Dawes, 1:12-cv-00119-RWS (N.D. Ga. Sept. 12, 2013)
(same). The causes of action and appeals this Court cites to as being “strikes” were dismissed
for being frivolous, malicious, or failing to state a claim for relief. These causes of action and
appeals were not dismissed on any other ground which failed to address the merits of Plaintiff’s
claims. 4
This same review also reveals scores of other civil actions and appeals which were
dismissed and/or count as strikes under Section 1915(g). See In re Daker, No. 1:11-CV-1711RWS, 2014 WL 2548135, at *2 (N.D. Ga. June 5, 2014) (summarizing Plaintiff’s litigation
history).

This Court and other courts have noted that Plaintiff is a serial litigant with a

significant history of filing frivolous lawsuits. See e.g., R&R, Order, Daker v. Head, et al., 6:14cv-47 (S.D. Ga. Sept. 8, 2014), ECF Nos. 13, 14 (denying Plaintiff leave to proceed in forma
pauperis due to three striker status); Daker v. Warren, No. 1:11-CV-1711-RWS, 2014 WL
806858, at *1 (N.D. Ga. Feb. 28, 2014) (“Waseem Daker is an extremely litigious state
prisoner[.]”). In light of Plaintiff’s litigation history, the Eleventh Circuit “has determined that
the ‘three strikes’ provision of the Prison Litigation Reform Act of 1995 is applicable to” him.
See, e.g., Letter dated May 29, 2014, in Daker v. Comm’r, No. 14–12139 (11th Cir. 2014); Letter

4

While the last two causes of action this Court cites were dismissed based on Plaintiff’s failure to follow
the orders of a court, the Eleventh Circuit has considered cases dismissed for this reason (or those
representing an abuse of the judicial process) to be “strike-worthy”. See Rivera, 144 F.3d at 731;
Malautea, 987 F.2d at 1544.
8

dated April 18, 2014, in Daker v. Comm’r, No. 14–11571 (11th Cir. 2014) (same). Indeed, the
Middle District of Georgia recently had occasion to revisit Plaintiff’s three-striker status and held
that “Plaintiff has had more than three of his cases or appeals dismissed on the statutorilyenumerated grounds [of Section 1915(g)].” Daker v. Comm’r Homer Bryson, No. 5:16-CV-538CAR-MSH, 2017 WL 3584910, at *2 (M.D. Ga. Aug. 17, 2017). These cases, as well as those
cited above, make clear that Plaintiff has filed at least three previously dismissed cases or
appeals which qualify as strikes under Section 1915(g).
Thus, Plaintiff may not proceed in forma pauperis in this action unless he can
demonstrate that he meets the “imminent danger of serious physical injury” exception to Section
1915(g). “In order to come within the imminent danger exception, the Eleventh Circuit requires
‘specific allegations of present imminent danger that may result in serious physical harm.’”
Odum v. Bryan Cty. Judicial Circuit, No. CV407-181, 2008 WL 766661, at *1 (S.D. Ga. Mar.
20, 2008) (quoting Skillern v. Jackson, No. CV606-49, 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.

Margiotti v. Nichols, No. CV306-113, 2006 WL

1174350, at *2 (N.D. Fla. May 2, 2006). “Additionally, ‘it is clear that a prisoner cannot create
the imminent danger so as to escape the three strikes provision of the PLRA.’” Ball v. Allen,
No. 06-0496, 2007 WL 484547, at *2 (S.D. Ala. Feb. 8, 2007) (citing Muhammad v.
McDonough, No. CV306-527-J-32, 2006 WL 1640128, at *1 (M.D. Fla. June 9, 2006)).
Moreover, a harm that has already occurred or danger that has now passed cannot justify skirting
the three strike bar. 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

9

him to proceed in forma pauperis pursuant to the imminent danger exception to the statute.”); see
also Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (“By using the term
‘imminent,’ Congress indicated that it wanted to include a safety valve for the ‘three strikes’ rule
to prevent impending harms, not those harms that had already occurred.”).
Plaintiff should not be excused from prepaying the filing fee under the imminent danger
of serious physical injury exception.

As an initial matter, the overwhelming majority of

Plaintiff’s claims do not approach Section 1915(g)’s requirement that the claim address a serious
risk of imminent physical danger. His claims regarding Defendants Hutcheson and Shuemake’s
prior use of force center on physical injuries that have already occurred, not dangers that Plaintiff
faces in the imminent future. Likewise, his claims based on past shaving with unsanitary hair
clippers seek redress for past injuries and do not aim to prevent future physical injury. Further,
his claims that Defendants violated his religious beliefs, that his property was confiscated, and
that he was not afforded due process at his disciplinary hearing, do not allege physical injury
much less a threat of future physical injury.
Plaintiff’s only claims that approach the “imminent danger of serious physical injury”
exception to Section 1915(g) are his claims for declaratory and injunctive relief centered on his
allegations that Defendants use hair clippers that have not been cleaned or that are broken.
However, Plaintiff’s claims are generalized and conclusory allegations that do not contain any
specific facts that Plaintiff himself actually faces a real threat of physical injury. While he
alleges that the clippers are “unsanitized”, he does not explain what he means by this description.
He also provides no specifics regarding the frequency with which the clippers are used or the
alleged infectious diseases to which Defendants are supposedly exposing him. Courts have
frequently found that such generalized allegations do not sufficiently allege that a prisoner faces

10

“imminent danger of serious physical injury” to meet Section 1915(g)’s exception for three
strikers. See, e.g., Daker v. Dozier, No. 5:17-CV-0025-CAR, 2017 WL 3037420, at *6 (M.D.
Ga. July 18, 2017) (finding plaintiff’s 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 and requests for cleaning supplies” insufficient to
state a claim of imminent danger of serious physical injury); 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); Ball v. Allen, No. CIV.A. 06-0496-CG-M, 2007 WL
484547, at *1 (S.D. Ala. Feb. 8, 2007) (allegations of no cleaning supplies for cells, clean clothes
only twice per week, unsanitary showers, inadequate fire safety in cells, inadequate lighting,
inadequate, unsanitary, and contaminated food and beverages, 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 prison overcrowding, double bunking, placing two inmates per cell,
unsanitary conditions in the general prison population cells and in the restricted housing units,
food containing unlabeled, cancerous substances, strip searches, inadequate exercise facilities
and law libraries not sufficient to establish imminent danger of serious physical injury).
Plaintiff’s claim on this front is “insufficient to demonstrate that plaintiff is, in fact, in imminent
danger of physical injury. What it demonstrates is that plaintiff is a seasoned vexatious litigant
who has read 28 U.S.C. § 1915(g) and is manipulating it to serve his ends.” McNeil v. United
States, 2006 WL 581081, *3 n. 3 (W.D. Wash. March 8, 2006) (internal quotes omitted); see also
Daker v. Bryson, No. 6:16-CV-57, 2017 WL 242615, at *1 (S.D. Ga. Jan. 19, 2017), report and
recommendation adopted, No. 6:16-CV-57, 2017 WL 1053082 (S.D. Ga. Mar. 20, 2017).

11

Moreover, Plaintiff fails to connect his claims regarding the future threatened use of
unsanitary hair clippers to any specific Defendant.

Plaintiff names dozens of Defendants

including administrators such as the Commissioner of the Georgia Department of Corrections as
well as the prison chaplain, the chief counselor, and several correctional officers. (Doc. 1-1, pp.
7–8.) He makes conclusory allegations that “all Defendants maintain a custom in GDC Prisons
of . . . refusing to sanitize clippers and of using clippers that are unsanitized [sic] or damaged or
both . . . .” (Id. at p. 9.) However, he fails to allege any specific facts to support this allegation
against any one of the Defendants, much less all of them. The most that he alleges is that Officer
Hutcheson shaved him using unclean clippers on July 7, 2017. (Id. at p. 11.) Plaintiff, however,
does not allege that Officer Hutcheson ever shaved him on any other instances or any facts
demonstrating a likelihood that Officer Hutcheson would shave him in the future. As to his
claims for prospective relief regarding shaving with unsanitary clippers, Plaintiff has not offered
sufficient facts to plausibly allege that any particular Defendant has some connection to the
allegedly unconstitutional acts from which he seeks relief. Luckey v. Harris, 860 F.2d 1012,
1015–16 (11th Cir. 1988); see also Farmer v. Brennan, 511 U.S. 825, 828 (1994) (“In order to be
held liable under the Eighth Amendment, a prison official must know that the inmate faces a
substantial risk of serious harm and then disregard that risk.”); Bryant v. Jones, 575 F.3d 1281,
1299 (11th Cir. 2009) (Section 1983 liability must be based on something more than defendant’s
supervisory position or a theory of respondeat superior). Plaintiff’s conclusory allegations do not
meet even the less stringent pleading standard applied to claims of pro se litigants.
For all of these reasons, Section 1915(g) bars Plaintiff from proceeding in forma pauperis
in this case. Should Plaintiff choose to prosecute these claims while incarcerated, he must bring
a separate action and pay the full filing fee.

12

II.

Dismissal for Abuse of Judicial Process
As previously stated, Section 1915 requires a court to dismiss a prisoner’s action if, at

any time, the court determines that it is frivolous or malicious, fails to state a claim, or seeks
relief from an immune defendant. 28 U.S.C. § 1915(e)(2)(B). Significantly, “[a] finding that the
plaintiff engaged in bad faith litigiousness or manipulative tactics warrants dismissal” under
Section 1915. Redmon v. Lake Cty. Sheriff’s Office, 414 F. App’x 221, 225 (11th Cir. 2011)
(alteration in original) (quoting Attwood v. Singletary, 105 F.3d 610, 613 (11th Cir. 1997)). In
addition, Federal Rule of Civil Procedure 11(c) permits a court to impose sanctions, including
dismissal, for “knowingly fil[ing] a pleading that contains false contentions.” Id. at 225–26
(citing Fed. R. Civ. P. 11(c)). Again, although pro se pleadings are to be construed liberally, “a
plaintiff’s pro se status will not excuse mistakes regarding procedural rules.” Id. at 226.
Relying on this authority, the Court of Appeals for the Eleventh Circuit has consistently
upheld the dismissal of cases where a pro se prisoner plaintiff has failed to disclose his previous
lawsuits as required on the face of the Section 1983 complaint form. See, e.g., Redmon, 414 F.
App’x at 226 (pro se prisoner’s nondisclosure of prior litigation in Section 1983 complaint
amounted to abuse of judicial process resulting in sanction of dismissal); Shelton v. Rohrs, 406
F. App’x 340, 341 (11th Cir. 2010) (same); Young v. Sec’y Fla. for Dep’t of Corr., 380 F. App’x
939, 941 (11th Cir. 2010) (same); Hood v. Tompkins, 197 F. App’x 818, 819 (11th Cir. 2006)
(same). Even where the prisoner has later provided an explanation for his lack of candor, the
Court has generally rejected the proffered reason as unpersuasive. See, e.g., Redmon, 414 F.
App’x at 226 (“The district court did not abuse its discretion in concluding that Plaintiff’s
explanation for his failure to disclose the Colorado lawsuit—that he misunderstood the form—
did not excuse the misrepresentation and that dismissal was a proper sanction.”); Shelton, 406 F.

13

App’x at 341 (“Even if [the plaintiff] did not have access to his materials, he would have known
that he filed multiple previous lawsuits.”); Young, 380 F. App’x at 941 (finding that not having
documents concerning prior litigation and not being able to pay for copies of same did not
absolve prisoner plaintiff “of the requirement of disclosing, at a minimum, all of the information
that was known to him”); Hood, 197 F. App’x at 819 (“The objections were considered, but the
district court was correct to conclude that to allow [the plaintiff] to then acknowledge what he
should have disclosed earlier would serve to overlook his abuse of the judicial process.”).
Another district court in this Circuit recently explained the importance of this information
as follows:
The inquiry concerning a prisoner’s prior lawsuits is not a matter of idle curiosity,
nor is it an effort to raise meaningless obstacles to a prisoner’s access to the
courts. Rather, the existence of prior litigation initiated by a prisoner is required
in order for the Court to apply 28 U.S.C. § 1915(g) (the “three strikes rule”
applicable to prisoners proceeding in forma pauperis). Additionally, it has been
the Court’s experience that a significant number of prisoner filings raise claims or
issues that have already been decided adversely to the prisoner in prior litigation. .
. . Identification of prior litigation frequently enables the Court to dispose of
successive cases without further expenditure of finite judicial resources.
Brown v. Saintavil, No. 2:14-CV-599-FTM-29, 2014 WL 5780180, at *3 (M.D. Fla. Nov. 5,
2014) (emphasis omitted).
Plaintiff misrepresented his prolific litigation history in his Complaint.

The plain

language of the complaint form is clear—asking whether Plaintiff has brought any lawsuits in
federal court while incarcerated or detained. (Doc. 1-1, p. 2.) Thus, regardless of the outcome of
Plaintiff’s prior lawsuits, his initiation of those lawsuits is the precise type of activity for which
this prompt requires disclosure. Nonetheless, Plaintiff failed to fully disclose his prior litigation
history. While he claimed that he did not have full records of his past cases, he also failed to
disclose cases that were still pending. Perhaps more egregiously, Plaintiff denied that any of his
prior lawsuits had been dismissed as frivolous or malicious or for failure to state a claim. (Doc.
14

1-1, p. 3.) As noted above and previously found by other courts, Plaintiff has had not just one
but many actions that fit this description. 5 Plaintiff’s dishonesty provides another ground for
dismissal of this case.
III.

Dismissal for Failure to Exhaust GSP’s Administrative Remedies Before Filing Suit
Even if Plaintiff’s lawsuit was not barred by Section 1915(g) and his own dishonesty, the

Court should still dismiss his case due to his failure to exhaust his administrative remedies.
A.

Exhaustion at Frivolity Review Stage

Failure to exhaust administrative remedies is an affirmative defense, and inmates are not
required to specially plead or demonstrate exhaustion in their complaint. Jones v. Bock, 549
U.S. 199, 216 (2007). However, the normal pleading rules still apply, and when an affirmative
defense appears on the face of a complaint making it clear that a prisoner cannot state a claim for
relief, dismissal is warranted under the screening process set out in 28 U.S.C. § 1915A. Id. at
214–15.

“Even though a failure-to-exhaust defense is non-jurisdictional, it is like” a

jurisdictional defense because such a determination “ordinarily does not deal with the merits” of
a particular cause of action. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (internal
punctuation and citation omitted). Thus, when a prisoner admits in his complaint that he has not
exhausted the grievance process, the Court should dismiss the lawsuit during the frivolity
screening. See Okpala v. Drew, 248 F. App’x 72 (11th Cir. 2007); Cole v. Ellis, No. 5:10-CV00316-RS-GRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec. 28, 2010); Rashid v. Liberty Cty. Jail,

5

Courts have also recognized that Plaintiff has “repeatedly abused the judicial process by filing IFP
affidavits that conceal and/or misstate his true assets and income.” In re Daker, No. 1:11-CV-1711-RWS,
2014 WL 2548135, at *2. Indeed, the Eleventh Circuit recently upheld a district court’s dismissal of two
of Plaintiff’s lawsuits based on the district court’s findings that Plaintiff was not indigent. Daker v.
Robinson, No. 13-14873, 2017 WL 3381819, at *1 (11th Cir. Aug. 7, 2017) (noting that Plaintiff’s listed
assets include a home valued at $395,000). Plaintiff’s allegations of poverty in this case are somewhat
more detailed than those made in other cases. (Doc. 2.) However, it still appears that he is attempting to
understate his assets in order to shirk his obligation to pay the full filing fee.
15

CV410-092, 2010 WL 3239241, at *1 n.1 (S.D. Ga. May 3, 2010) (“Nothing in Jones . . . forbids
the Court from dismissing a complaint pursuant to § 1997e(a) if it is clear from the face.”).
B.

Legal Requirements for Exhaustion

Where Congress explicitly mandates, prisoners seeking relief for alleged constitutional
violations must first exhaust inmate grievance procedures before filing suit in federal court. See
Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) of Title 42 of the United States
Code states, “No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law . . . until such administrative remedies as are available are
exhausted.”

In Porter, the United States Supreme Court held that exhaustion of available

administrative remedies is mandatory. 534 U.S. at 523; see also O’Brien v. United States, 137 F.
App’x 295, 301–02 (11th Cir. 2005) (finding lack of exhaustion where prisoner “prematurely
filed his civil complaint . . . and . . . ‘failed to heed that clear statutory command’ requiring [] his
administrative remedies be exhausted before bringing suit”).
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)).

Furthermore, requiring

exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the
administration of prisons” and allows “corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548
U.S. 81, 93 (2006).

16

The Supreme Court has noted exhaustion must be “proper.”

Id. at 92.

“Proper

exhaustion demands compliance with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Id. at 90–91. In other words, an institution’s requirements
define what is considered exhaustion. Jones, 549 U.S. at 218.
Thus, under the law, prisoners must do more than simply initiate grievances; they must
also appeal any denial of relief through all levels of review that comprise the administrative
grievance process. Bryant, 530 F.3d at1378 (“To exhaust administrative remedies in accordance
with the PLRA [Prison Litigation Reform Act], prisoners must ‘properly take each step within
the administrative process.’”) (quoting Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir.
2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27, 2007) (finding
that a plaintiff who is still awaiting a response from the warden regarding his grievance is still in
the process of exhausting his administrative remedies).
Moreover, an inmate who files an untimely grievance or simply spurns the administrative
process until it is no longer available fails to satisfy the exhaustion requirement of the PLRA.
Johnson, 418 F.3d at 1157–59; Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000)
(inmate’s belief that administrative procedures are futile or needless does not excuse the
exhaustion requirement). Additionally, “[t]he only facts pertinent to determining whether a
prisoner has satisfied the PLRA’s exhaustion requirement are those that existed when he filed his
original complaint.” Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012).
“However, ‘while [Section] 1997e(a) requires that a prisoner provide as much relevant
information as he reasonably can in the administrative grievance process, it does not require
more.’” Id. (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000)). The purpose of

17

Section 1997e(a) is not that “fact-intensive litigation” result over whether every fact relevant to
the cause of action was included in the grievance. Hooks v. Rich, CV605-65, 2006 WL 565909,
at *5 (S.D. Ga. Mar. 7, 2006) (internal citation omitted). “‘As long as the basic purposes of
exhaustion are fulfilled, there does not appear to be any reason to require a prisoner plaintiff to
present fully developed legal and factual claims at the administrative level.’” Id. (quoting Irvin
v. Zamora, 161 F. Supp. 2d 1125, 1135 (S.D. Cal. 2001)). Rather, Section 1997e(a) is intended
to force inmates to give state prison authorities a chance to correct constitutional violations in
their prisons before resorting to federal suit and to prevent patently frivolous lawsuits. Id.
C.

Georgia Department of Corrections’ Grievance Process

Within the Georgia Department of Corrections, the grievance procedure is a two-step
process. See Shaw v. Toole, No. 6:14-CV-48, 2015 WL 4529817, at *5 (S.D. Ga. July 27,
2015), report and recommendation adopted, No. CV 614-048, 2015 WL 5025478 (S.D. Ga.
Aug. 24, 2015) (citing Georgia Department of Corrections’ Standard Operating Procedure
IIB05–0001 (“SOP IIB05–0001”)). The process commences with the filing of a grievance,
which must be filed within ten calendar days from “the date the offender knew, or should have
known, of the facts giving rise to the grievance.” Id. The Grievance Coordinator is to screen the
grievance to determine whether the warden should accept the grievance or reject it. Id. The
warden has a period of forty (40) calendar days from the date the inmate gave his grievance to
the counselor to respond. An extension of ten (10) calendar days can be granted once, provided
the inmate is advised in writing of the extension before the original 40 calendar days have
expired. Id. An inmate can file an appeal with the Commissioner’s Office in the following
instances: if the grievance coordinator rejects his original grievance; after the warden responds to
the original grievance; or when the time allowed for the warden’s decision has expired. The

18

inmate has seven (7) calendar days in which to file this appeal, and the Commissioner has 100
calendar days after receipt to render a decision. Id. These time limits may be waived for good
cause. Id.
D.

Plaintiff’s Failure to Exhaust

It is apparent from the face of Plaintiff’s Complaint that he did not exhaust his available
administrative remedies prior to filing this lawsuit. The complaint form that Plaintiff used to file
his Complaint asks whether Plaintiff filed a grievance, and Plaintiff indicated that he had filed
several. (Doc. 1-1, p. 3.) However, Plaintiff then admitted that he did not appeal any adverse
decision to the highest level possible in the administrative procedure. (Id. at p. 4.) Thus,
Plaintiff admits that he did not “properly take each step within the administrative process.”
Bryant, 530 F.3d at1378.
Plaintiff argues that he did not file any appeal on his grievances because the “GDC
grievance procedure is a rubber stamp sham process.” (Doc. 1-1 at p. 4.) The Supreme Court,
however, has established that “the PLRA’s text suggests no limits on an inmate’s obligation to
exhaust—irrespective of any ‘special circumstances.’ And that mandatory language means a
court may not excuse a failure to exhaust, even to take such circumstances into account.” Ross
v. Blake, ___ U.S ___, 136 S. Ct. 1850, 1856 (June 6, 2016). Though the Supreme Court
rejected a “special circumstances” exception to exhaustion in Ross, it reiterated that a prisoner
need only exhaust those remedies which were available to him. ___ U.S. ___, 2016 WL
3128839, at *7 (“An inmate, that is, must exhaust available remedies, but need not exhaust
unavailable ones.”)

The Court recognized “three kinds of circumstances in which an

administrative remedy, although officially on the books, is not capable of use to obtain relief.”
Id. First, the Court stated that, in some instances, the administrative procedure “operates as a

19

simple dead end—with officers unable or consistently unwilling to provide any relief to
aggrieved inmates.” Id. Thus, if the administrative procedure lacks authority or if the officials
with apparent authority “decline ever to exercise it,” the inmate has no obligation to exhaust the
remedy. Id. Second, when administrative remedies are so confusing that they are “essentially
‘unknowable,’” exhaustion is not required. Id., ___ U.S. ___, 2016 WL 3128839, at *8 (citing
Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007); Turner v. Burnside, 541 F.3d 1077,
1084 (11th Cir. 2008)). Lastly, exhaustion is not required “when prison administrators thwart
inmates from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” Id. However, the Supreme Court recognized that, “[g]iven prisons’ own
incentives to maintain functioning remedial processes, we expect that these circumstances will
not often arise.” Id., ___ U.S. ___, 2016 WL 3128839, at *7.
Though Plaintiff makes conclusory allegations that the grievance procedure at GSP was a
“dead end”, he provides no factual contentions in support of that allegation. Moreover, the plain
face of his Complaint belies any such contention. Plaintiff filed this action on August 3, 2017,
and the events giving rise to his claims occurred on July 3, 2017. (Doc. 1-1.) Thus, on the plain
face of Plaintiff’s Complaint, he did not even wait the forty days for the Warden to respond to
his initial grievance (as GSP policy provides) before filing this lawsuit.

If the grievance

coordinator rejected his grievances, then Plaintiff could have appealed to the Commissioner’s
Office and received a response within 100 days. Rather than pursue that step, Plaintiff shunned
the administrative process. Given that Plaintiff failed to take basic steps to pursue GSP’s
administrative remedies, he cannot now complain that that those remedies were unavailable to
him.

20

IV.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 6

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 take 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). Or, 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).
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. Additionally, Daker’s status as
a three-striker prevents him from filing an appeal in forma pauperis, just as it prevents him from
filing this action without prepaying the filing fee. Thus, the Court should DENY him in forma
pauperis status on appeal.

6

A certificate of appealability is not required in this Section 1983 action.
21

CONCLUSION
For the above-stated reasons, the Court DENIES Plaintiff’s Motion to Proceed in Forma
Pauperis. (Doc. 2.) For these same reasons, I RECOMMEND that the Court DISMISS
Plaintiff’s Complaint, without prejudice, and DENY Plaintiff in forma pauperis status on
appeal.
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
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.

22

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 5th day of October,
2017.

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

23