Daker v. Dozier et al

Filing 49

ORDER denying 48 Motion for from judgment. Signed by Chief Judge J. Randal Hall on 8/6/2020. (ca)

Case 6:17-cv-00110-JRH-BWC Document 49 Filed 08/06/20 Page 1 of 4

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

WASEEM DAKER,

•k
■k

Plaintiff,

k

*

V.

CV

617-110

*

COMMISSIONER GREGORY DOZIER,

k

et al.,

k

Defendants.

ORDER

Before the Court is Plaintiff Waseem Daker's motion for relief

from judgment.

(Doc.

48. )

Plaintiff moves pursuant to Federal

Rule of Civil Procedure 60(b)

for relief from this Court's January

29, 2018 Order adopting the United States Magistrate Judge's Report
and Recommendation that

Plaintiff's

case be dismissed.

has already appealed and moved to vacate that Order.
19,

23. )

appeal

Plaintiff

(See Docs.

Plaintiff's prior motion to vacate was denied and his

dismissed.

(See

Docs.

36,

39. )

Plaintiff

has

since

appealed a second time, challenging the denial of his first motion
to

vacate.

In the pending motion.

Plaintiff asks this Court to

indicate its intention to vacate its first holding that Plaintiff had three (3) strikes [] and did not

Case 6:17-cv-00110-JRH-BWC Document 49 Filed 08/06/20 Page 2 of 4

qualify for the IDOSPI^ exception . . . so that, on
appeal, the Eleventh Circuit only has to address this
Court's second and third reasons for dismissal: Abuse of

the

judicial

process . . . and

Failure

to

exhaust

administrative remedies.

{Doc. 48, at 13-14.)

Circuit's

grant

of

Plaintiff's request follows the Eleventh

his

motion

for

leave

to

proceed

based

imminent danger in another of his cases (the ""2018 Case").
Order of March 27, 2020, in Case No. 19-11849).

(See

That Eleventh

Circuit Order also found Plaintiff's appeal nonfrivolous.

id.)

on

(See

Plaintiff argues that because the facts and arguments in the

2018 Case are the same as those here, this Court should indicate

its intention to grant the Rule 60(b) motion with respect to its
holding that Plaintiff did not qualify for the imminent danger
exception.

While a notice of appeal generally deprives a district court

of jurisdiction over the issues in the appeal, a district court
may act ^'in furtherance of the appeal."
1176, 1179 (11th Cir. 2003).

Mahone v. Ray, 326 F.3d

Considering and denying a Rule 60(b)

motion falls within that purview.

See id. at 1180.

''However,

following the filing of a notice of appeal district courts do not
possess jurisdiction to grant a Rule 60(b) motion[;]" they may
either

deny

the

motion

or

"indicate

[their]

belief

1 Plaintiff uses IDOSPI to mean "imminent danger
physical injury," as found in 28 U.S.C. § 1915(g).

that

of

the

serious

Case 6:17-cv-00110-JRH-BWC Document 49 Filed 08/06/20 Page 3 of 4

arguments raised are meritorious." Id.

Therefore, the Court will

now consider the merits of Plaintiff's motion.

Federal

Rule

of

Civil

Procedure

60(b)

permits

courts

to

relieve a party from final judgment for six reasons:
1) mistake,
neglect;

inadvertence,

surprise,

or

excusable

2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);

3) fraud, . . . misrepresentation, or misconduct by an
opposing party;
4) the judgment is void;

5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that
has been
reversed or
vacated; or applying it
prospectively is no longer equitable; or

6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).

"Motions under [Rule 60(b)] are directed to

the sound discretion of the district court."

Griffin v. Swim-Tech

Corp., 722 F.2d 677, 680 (11th Cir. 1984).

Although both this case and the 2018 Case involve forcible

shavings, they involve different factual allegations.

This case

is

2018

premised

solely on

forcible

shavings,

while

the

Case

involves numerous other allegations including the denial of food
and medical and dental care in administrative segregation.

The

parties

the

also

differ

across

the

cases.

Finally,

some

of

allegations in the 2018 Case took place at Macon State Prison while

Case 6:17-cv-00110-JRH-BWC Document 49 Filed 08/06/20 Page 4 of 4

the allegations in this case stem only from Plaintiff's time at

Georgia

State

Prison.

Because

the

Eleventh

Circuit's

Order

granting Plaintiff leave to proceed in the 2018 Case does not
explain which of Plaintiff's allegations were sufficient to meet
the imminent danger threshold, this Court declines to rely on that
Order as a basis for granting Rule 60(b) relief here.

Moreover,

upon review, the Court remains convinced that the allegations in
this case do not meet 28 U.S.C. § 1915(g)'s imminent danger of

serious physical injury threshold.

Accordingly, the motion for

relief from judgment (Doc. 48) is DENIED.

ORDER ENTERED at Augusta, Georgia this ^^^day of August,
2020.

;iEF

J.
UNITE

^'ERN

JUDGE

'ATES DISTRICT COURT
DISTRICT OF GEORGIA