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
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