Daker v. Adams

Filing 100

ORDER denying 90 Motion to Vacate and Reconsider and dismissing as moot relief related to the other requests in this motion because it has already been considered in case CV622-36; denying 98 Motion for Leave to Appeal in forma pauperis. Pursu ant to the terms of the Injunction in case CV622-36, sanctions are warranted. The Court will assess the sanction upon reviewing Petitioner's response to the show cause order pertaining to filing restrictions in case CV620-115. Signed by District Judge J. Randal Hall on 11/22/2024. gmh

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

WASEEM DAKER,

Petitioner,
CV 622-037

V.

BRIAN ADAMS, Warden,

Respondent.

ORDER

Before

the

Court

are

Petitioner's

Reconsider,

his

Motion

for

Leave

(^'IFP"),

and

Appeal

Petitioner's "'Declaration

bond" in case CV622-31.

On

to

January

26,

Motion

of

in

to

Vacate

forma

payment

and

pauperis

of

contempt

permanently

enjoined

{Docs. 90, 98, & 99.)

2023,

this

Court

Petitioner from filing any new lawsuit or petition in this District

without first posting a $1,500 contempt bond in addition to paying
the filing fee.

See Daker v. Ward, CV622-36, doc. 24 (S.D. Ga.

January 26, 2023).

Petitioner was instructed to "refrain from

filing

duplicative

frivolous

or

pleadings

or

motions

in

this

District," and he was warned that "his failure to so refrain may
result in the imposition of additional sanctions."

Id. at 6.

Court further warned:

If any of Daker's filings are deemed frivolous or
duplicative, the presiding judge may, after notice to
Daker and an opportunity to respond, impose a contempt

The

sanction against Daker to be paid from the contempt bond.
In the event of such a sanction, Daker will not be
allowed to file any further complaints or petitions
unless and until the contempt bond is replenished to the
amount of $1,500.
Id.

Then, in Daker v. Adams, CV620-115, doc. 114 (S.D. Ga. Aug.

26, 2024), after noting

Petitioner's continuation of frivolous

filings, this Court directed Petitioner to show cause as to why
filing

restrictions should

not

be imposed

upon

him,

including

having his filings placed in a miscellaneous file for tracking
purposes, to be reviewed for frivolity and compliance with the

injunction before docketing in any separate case.
Petitioner responded to that Order on

See id., p. 20.

November 20, 2024.

See

CV620-115, docs. 119, 123 (S.D. Ga. Oct. 16, 2024).

Additionally,

pursuant

in

to

this

Court's

March

31,

2023

Order

CV620-115,

Petitioner is no longer entitled to the ^^automatic presumption"
that he has filed his papers on the date of signature, a concept
also known as the prison mailbox rule.

CV620-115, doc. 76 at 9-

10

holding

(S.D.

Ga.

Mar.

31,

2023).

This

is

disputed

by

Petitioner in his filings and on appeal but remains the law of
this Court.

(See, e.g., doc. 86, pp. 4-19.)

Court

that

noted

Petitioner

had

not

In CV620-115, the

provided

the

indicia

of

timeliness which would mandate the Court apply the presumption,
and

that

there

was

evidence

which

indicated

that

Petitioner's

filings should not be considered timely, such as his historic

dishonesty.
Therefore,

CV620-115, doc. 76 at 9-15 (S.D. Ga. Mar. 31, 2023).
before

allowing

the

presumption

to

apply the

Court

directed the Magistrate Judge to conduct an inquiry into whether
Petitioner was entitled to the prison mailbox rule's benefits.
In this case, the application of the presumption is moot,

because, even assuming the signature dates constitute the filing
dates, for the reasons identified below, all of his arguments fail.
I.

On

PROCEDURAL HISTORY

March

23,

2023,

the

Court incorporated

the

injunction

entered in CV622-36 into this case, directing Petitioner to pay a

$1,500 contempt bond before this case could proceed.
61.)

(See doc.

Petitioner was directed to pay the required contempt bond or

file objections to the application of the bond within fourteen
days of that incorporation.

(Id., p. 3.)

On March 27, 2023,

Petitioner filed his Objection, (doc. 62, p. 16), as well as a
""Motion to Reconsider, Vacate, or Modify" the injunction, (doc.
63, p. 17.)
that this

On April 14, 2023, the Magistrate Judge recommended

case

be

dismissed,

rejecting

Petitioner's

arguments

against the incorporation of the bond, and noting that Petitioner
had not paid the contempt bond as directed.

(Doc. 64.)

Petitioner

then filed a Motion to Consolidate Cases, Substitute Party, and
Transfer his case to the Northern District of Georgia (herein
referenced as ""Motion to Consolidate"), which

until May 15, 2023.

was not docketed

(Doc. 71 at 1 (signed May 2, 2023).)

Before

the Court received and docketed his Motion to Consolidate, the

Court adopted the Magistrate Judge's recommendation and dismissed
Petitioner's case because of Petitioner's continued failure to pay
the

contempt

bond.

(See

Doc.

67

(adopting

Recommendation, doc. 64, entered May 9, 2023).)

Report

and

In that Order,

the Court determined Petitioner was not entitled to appeal IFP

because any appeal would not be taken in good faith.

(Id. at 2.)

On June 6, 2023, Petitioner appealed the Order dismissing his case,
the Clerk's Judgment, and the Amended Clerk's Judgment.

76 (Notice of Appeal as to docs. 67, 68, and 69.)

(See doc.

That same day,

he filed a Motion to Vacate the Order Adopting the Magistrate
Judge's Recommendation, (doc. 67).

(Doc. 75.)

Meanwhile, because

his Motion to Consolidate remained pending despite dismissal given
the discrepancy between

signature

date

(and

therefore, filing

date^), and the docketing date of that Motion, Daker continued to

file multiple responses and replies relating to his Motion to
Consolidate despite this Court's previous dismissal of this case,

and despite his appeal.

(See, e.g., doc. 78, p. 3 (Signed, and

therefore filed, on

10, 2023).)

June

Petitioner then filed

a

Motion for Recusal, which was dated May 15, 2023, and, according
to Petitioner, was ""refiled" in September 2023, but was not mailed

'See United States v. Carter, 411 Fed, App'x 242, 243 (11th Cir. 2011); but see
Allen V. Gulliver, 471 F.3d 1196 (11th Cir. 2006) (holding that the district

court had the discretion to inquire further concerning the alleged delivery of
a prisoner's pleading and make a factual finding as to timeliness).

until October 30, 2023.

(Doc. 86, (signature dates noted on pp.

21

noted

&

22,

mailing

Petitioner's

date

Motion

to

on

Vacate,

p.

23.))

(doc.

The

75),

Court

denied

as

denied
moot

Petitioner's Motion to Consolidate, (doc. 71), and denied as moot

his Motion for Recusal, (doc. 86), given that the Recusal sought
to ^^refile" a Motion which was never filed in this case.

(Doc.

89.)

Petitioner then filed a motion, (doc. 90), seeking various
forms

of

relief

(herein

the

^^Miscellaneous

Motion"):

a

'"supplemental" Motion to "modify" the filing injunction issued in
CV622-36; a "supplemental" Motion to Vacate the judgment in CV62236; and a Motion to Vacate and Reconsider the Order dismissing

this case, (doc. 67), as well as the Judgment and Amended Judgment
in this case, (docs. 68 & 69).

(Doc. 90.)

This Miscellaneous

Motion, (doc. 90), remained pending during Petitioner's failed
appeal,

which

was

dismissed

by

Appeals for failure to prosecute.

the

Eleventh

(Doc. 91.)

Motion, (doc. 90) remains pending today.^

Circuit

Court

of

The Miscellaneous

However, the Eleventh

Circuit reinstated Petitioner's appeal on July 22, 2024 (Doc. 94).
The Order reinstating Petitioner's appeal also granted his IFP
motion. (Doc. 94, p. 3.)

2 In CV620-115, the Court directed the Clerk to terminate this Motion upon
entering the filing restriction order creating the miscellaneous case.

Because

Petitioner has not yet shown cause, that direction will be omitted from the

order if Petitioner fails to meet his burden resulting in filing restrictions
being imposed. See Daker, CV620-115, doc. 114, p. 21 (S.D. Ga. Aug. 26, 2024).

Confusing the matter more. Petitioner filed another notice of
appeal,

dated

August

8,

2024,

which

denotes

his

intention

^'refile" an unfiled and lost March 20, 2024 appeal.
2.)

to

(Doc. 95 at

Petitioner claimed that the March 20, 2024 appeal ''was never

received by the clerk of court" and appeared to have never been
mailed by prison officials.

(Id.)

of

a

Appeals

appeal,

as

sent

Petitioner

it

had

respectively.)

done

for

On August 16, 2024, the Court

docketing
his

notice

first.

for

his

second

(Docs.

97

&

81,

That notice directed Petitioner to either pay a

filing fee or file a motion to proceed IFP in the district court,
"[u]nless [such] requirements have already been satisfied."
97, p. 1.)

(Doc.

The notice also directed Petitioner to file an IFP

motion in the Court of Appeals "[i]f the district court has denied
the appellant IFP status on appeal."

(Id.)

Petitioner thereafter

filed in this Court a motion to proceed IFP on August 27, 2024.^
(Doc. 98.)

Thus, because Petitioner's second Notice of Appeal not

only applies to the Order closing the case and concomitant entries

of judgment, (docs. 67, 68, 69), but also applies to the additional
ruling arising from the post-judgment denial of his Motion to
Consolidate, (doc. 71), his first Motion to Vacate, (doc. 75), and

his Motion for Recusal, (doc. 86), it is, perhaps, unclear whether
the Court's denial of IFP on appeal issued in its prior Order

^ Petitioner's IFP motion was added to the docket on September 16, 2024, but
Petitioner signed and dated the Motion on August 27, 2024. (Doc. 98, p. 2.)

closing the case, (doc. 67), applies to the second

Notice of

Appeal, (doc. 95). Thus, to the extent the Court must address his
ability to appeal IFP regarding those additional issues, the Court

returns to this IFP question as regards the novel issues raised in
Petitioner's Second appeal while acknowledging and confirming its

prior

finding

regarding

the

denial

of

IFP

status

on

appeal

articulated in its Order closing this case, (doc. 67).
II.

MOTION TO APPEAL IFP

Pursuant to 28 U.S.C. § 1915(a)(1), a court may authorize an
appeal of a civil action or proceeding without prepayment of fees
or security therefore if the

putative

appellant has filed ""an

affidavit that includes a statement of all assets" and ^^state[s]

the nature of the . . . appeal and [the] affiant's belief that the
person is entitled to redress."

If the trial court certifies in

writing that the appeal is not taken in good faith, however, such
appeal may not be taken in forma pauperis.

28 U.S.C. § 1915(a)(3).

""MGJood faith' . . . must be judged by an objective standard."
Coppedqe v. United States, 369 U.S. 438, 445 (1962).

A movant

demonstrates good faith when he seeks review of a non-frivolous
issue.

Id.; see also Morris v. Ross, 663 F.2d 1032, 1033 (11th

Cir. 1981).

An issue ""is frivolous if it is ^without arguable

merit either in law or fact.'" Napier v. Preslicka, 314 F.3d 528,
531 (11th Cir. 2002), overruled on other grounds by Hoever v.

Marks, 933 F.3d 1353 (11th Cir. 2021).
7

''Arguable means being

capable of being convincingly argued."
924,

925

(11th

Cir.

1991)

(per

Sun v. Forrester^ 939 F.2d

curiam)

(quotation

marks

and

citations omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.

1993) (per curiam) (""[A] case is frivolous . . . when it appears
the plaintiff ^has little or no chance of success.'") (citations

omitted).

""^In deciding whether an [in forma pauperis] appeal is

frivolous, a district court determines whether there is ^a factual

and legal basis, of constitutional dimension, for the asserted
wrong,

however

inartfully

pleaded.'"

Sun,

939

F.2d

at

925

(citations omitted).

Even though Petitioner has provided meager argument as to the

substantive issues he seeks to raise on appeal, review of the

issues addressed in the Court's February 20, 2024 Order, (doc. 89)
demonstrates that Petitioner's appeal is frivolous.

See Hyche v.

Christensen, 170 F.3d 769, 771 (7th Cir. 1999), overruled on other
grounds

by

Lee

v.

Clinton,

209

F.3d

1025

(7th

Cir.

2000)

(explaining that the arguments to be advanced on appeal are often

obvious and decisions regarding good faith can be made by looking
at the ''reasoning in the ruling sought to be appealed" instead of
requiring a statement from the plaintiff).

As to the Court's

holding on his Motion to Vacate, (doc. 75), Petitioner has been

told time and time again—by this Court and others—that his repeated
filings of motions for reconsideration of orders are improper.
See, e.g., Daker v. Adams, 2024 WL 4560059, at *3 (S.D. Ga. Aug.

26, 2024) (^'[I]t is improper on a motion for reconsideration to
ask the Court to rethink what the Court has already thought through

- rightly or wrongly."); see also Daker v. Bryson, 2019 WL 826474,
at *2 (M.D. Ga. Feb. 21, 2019), aff^d, 848 F. App'x 884 (11th Cir.
2021) (Noting that "Plaintiff has blatantly ignored the Court's

prior admonitions that motions for reconsideration should not be
filed as a matter of routine practice and that they should not
^re-assert[ ] the same arguments and evidence this Court previously
considered in its original ruling.'"); see also Daker v. Dozier,
2017

WL

4797522,

Plaintiff

that

at

the

*2

(M.D.

Court

Ga.

would

Oct.

impose

24,

2017)

sanctions

(cautioning

if

Plaintiff

continued to seek routine reconsideration of the Court's orders).
The Court denied Petitioner's Motion to Vacate, construed as
a Motion for Reconsideration under Federal Rule of Civil Procedure

60(b) because he had not articulated any argument justifying relief

under that rule.'^

(Doc. 89, p. 4.)

his prior assertions.

He instead attempted to rehash

Thus, the Court denied his request and his

further attempt to rehash those issues via
Vacate

and

in the

present

Motion

to

a second Motion to

Proceed

IFP

are

likewise

frivolous.

As he has done here, other courts have noted that Petitioner

has "abused the system by repeatedly filing recusal motions." In

^ The propriety of that construction is at issue on Petitioner's still-pending
Motion to Vacate, doc. 90.

re Daker, 2018 WL 9986853, at *1 (N.D. Ga. July 20, 2018); see
also Daker v. Ward, 2022 WL 17627833, at *2 n. 1 (S.D. Ga. Dec.

13, 2022)(noting that Magistrate Judges have routinely determined
Daker's

repeated

and ''utterly frivolous" recusal

motions

with

approval from the Eleventh Circuit (citing Daker v. Poff, 4:16CV-158-JRH-CLR, doc. 9 at 8 (July 25, 2016), aff'd, Daker v. United
States, 787 F. App'x 678, 680 (11th Cir. 2019); Daker v. Robinson,
694 F. App'x 768, 770 (11th Cir. 2017) (affirming Magistrate Judges

Order denying recusal)).
Petitioner's
Recuse.

Motion

as

In the present case, the Court construed
seeking

reconsideration

(See doc. 89, p. 5.)

of a

Motion

to

The Court found the Motion was

entered in this case in error, given there was no prior Motion to

recuse filed.

(Id.)

The nature of the filing was made clearer by

the text of the Motion itself, which only mentions "recusal" in
the heading, but otherwise does not, in fact, even seek recusal.

(See

doc.

86.)

It

is

rather

yet

another

Motion

to

Vacate,

containing a laundry list of Petitioner's frustrations with the
order given in Daker v. Adams, CV620-115, doc. 76 (S.D. Ga. March

31, 2023), a separate case wherein the undersigned found that
Petitioner's abuse of the prison mailbox rule mandated that an

inquiry be made into whether he was entitled to the prison mailbox
rule, as discussed above.

(See generally, doc. 86, p. 4 (arguing

against the undersigned's holding in "Doc. 76 at 9-10" regarding
Petitioner's "historical dishonesty" and its impact on whether he
10

is entitled to the benefit of the prison mailbox rule).)

The

arguments relevant to vacating the order in CV620-115 are clearly
not relevant to this case.

(See, e.g., id., p. 1 (Petitioner

referenced

the

""Doc.

76,''

as

basis

for

his

need

for

reconsideration, but in this case, ^^Doc. 76" is Petitioner's own

Notice of Appeal).)

Petitioner has never made argument in support

of recusal in this case, and consequently his appeal of the Order
denying as moot his "refiled" Motion for Recusal is nonsensical.

Finally, given the fact that the present Case was closed on May 9,
2023, and even accepting Petitioner's argument that the date of
^"refiling" his "Motion to Recuse" was in September 2023, Petitioner

filed

it

well

Therefore, an

after

the

case's

appeal of the

closure,

Order denying

(doc.

86,

p.

22).

Petitioner's (post-

judgment) so-called Motion for Recusal is not made in good faith.
Petitioner's appeal also seeks redress for this Court's Order

on his Motion to Consolidate, (doc. 71).

Again, the Court found

Petitioner's Motion to Consolidate moot because by the time it was
docketed and therefore before the Court for consideration, this
case was closed.

(Doc. 8 9, p. 5.)

Even had the Motion been

docketed prior to the close of this case, it is barely legible and

lacks any legal support whatsoever.

(See doc. 71.)

Appeal of

this Order is frivolous.

Petitioner's appeal, (doc. 95), therefore, is not brought in
good

faith.

He

has

raised

no
11

issues

with

arguable

merit.

Consequently, Plaintiff's application to appeal in forma pauperis
(doc. 98) is DENIED.
III. MISCELLANEOUS MOTION

Additionally at issue is Petitioner's Miscellaneous Motion,

signed

February

25,

2024,

which

remains

pending,

i.e.,

his

^'supplemental" Motion to Modify Filing Injunction in case CV62236, his "supplemental" Motion to Vacate the Order, (doc. 33), in

case

CV622-36,

and

his

"supplemental"

Motion

Reconsider the Judgment in this case, (doc. 90).

to

Vacate

and

As noted, that

Motion was filed February 25, 2024, nine months after this case
was closed on May 9, 2023.

(See docs. 67 & 90, p. 15.)

Even

accepting as true Petitioner's alleged March 20, 2024 filing date
of his second notice of appeal. Petitioner's Rule 59(e) Motion is
well outside the 28 day time limit.

See Fed. R. Civ. P. 59(e) ("A

motion to alter or amend a judgment must be filed no later than 28
days after the entry of judgment."); see also docs. 67, 68, & 69

(Order

Adopting

R&R

and

closing

case.

Judgment,

and

Judgment, respectively, all filed on May 9, 2023).

Amended

Petitioner

attempts to circumvent the deadline by asserting that the present
Motion "supplements" the first.

(Doc.

90,

p. 4.)

However,

Petitioner has not cited any rule which allows a movant to file an

out of time "supplement" to a previously filed Rule 59 Motion.
Not only is such a procedure unavailable. Petitioner's continuous
attempts to rehash issues in a closed case indicate that Petitioner

12

has no intention of heeding this Court's warning regarding his
frivolous filing and vexatious tactics.

This type of behavior

underlies the need for the sanctions and is in direct contravention

of the injunction.
Because the avenue

which Petitioner wishes to exploit for

filing his out of time Rule 59(e) Motion is nonexistent, his Motion
to

Vacate,

(doc.

90)

is

DISMISSED

as

moot.

The

Court

has

additionally considered Petitioner's request as though it were one
falling under Federal Rule 60, as well.

However, it first notes

that, because the Eleventh Circuit reinstated Petitioner's first

appeal, this Court only retains jurisdiction to entertain and deny
a Rule 60 motion.

Mahone v. Ray, 326 F.Sd 1176, 1180 (11th Cir.

2003) (citing Parks v. U.S. Life & Credit Corp.677 F.2d 838, 840
(11th Cir.1982) (citations omitted).

Moreover, despite the irregularity of this habeas case, which
seeks release from Tier II confinement and not from prison, it

remains grounded in the principles guiding those filed under 28
U.S.C. § 2254.

Under that precedent, ^^[bjecause a petitioner's

attempt to reopen a final habeas judgment pursuant to Rule 60(b)

is to be treated as an application to file a second or successive

petition, it ordinarily should be dismissed by the district court
pursuant to 28 U.S.C § 2244(b)(4)."

Gonzalez v. Sec'y for Dep't

of Corr., 366 F.3d 1253, 1277 (11th Cir. 2004), aff'd on other

13

grounds

sub

nom.

Gonzalez

v.

Crosby^

545

U.S.

524

(2005).^

Furthermore, ""before a second or successive application permitted

by this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order authorizing
the

district court to consider the

§ 2244(b)(3)(A).

application."

28

U.S.C.A.

Petitioner has not done so, and therefore, his

Rule 60 Motion, properly viewed as a successive application, fails.
There

are

two

exceptions

in

which

a

petitioner

might

be

permitted to file a Rule 60 motion and have it treated by the
district court as a motion under that rule instead of as a second

or successive petition which is not authorized by the appellate

court pursuant to 28 U.S.C. § 2244(b)(3)(A)).

Petitioner does not

contend that either of these exceptions apply by claiming there
has been a clerical error in the final judgment denying him federal
habeas relief, or by asserting that fraud was used to obtain the
judgment.

meet

See Gonzalez, 366 F.3d at 1281.

either

exception,

and

consequently,

Therefore, he does not

even

when

the

Court

considers his Motion to Vacate, (doc. 90) as one falling under
Fed. R. Civ. P. 60, it is DENIED.«

^ See also id. ("Of course, if the grounds of relief stated in the Rule 60(b)
motion satisfy the stringent requirements of § 2244(b)(1) & (2), the petitioner
should put those grounds in a habeas petition and move under § 2244(b)(3)(A)
for an order from the court of appeals authorizing the district court to consider
it.")

^This Motion seeks relief from orders issued in other cases.

(See doc. 90, p.

2-3.) Relief is denied as relevant to the motion presented in this case—that
which seeks reconsideration of the so-called "retroactive" application of the
filing injunction in this case only.
As to the other requests, relief is
14

Finally, there is the issue of Petitioner's ""Declaration" of
his payment of the contempt bond, which he cross-docketed in this
case as well as in cases CV620-115 and CV622-36 pursuant to the

Injunction order issued in CV622-36.
money is untimely.

Petitioner's payment of this

The Court's March 23, 2023 Order incorporating

the CV622-36 Injunction Order instructed Petitioner that he must

deposit the $1500 contempt bond within fourteen days of the date
of the Order.

(See doc. 61.)

Petitioner's belated payment of

these funds does not resurrect any of the cases which have been
closed in this district.

Because Petitioner has no open cases in

the District, the bond was not necessary.

(See doc. 61 at 2; see

also Daker, CV622-36, doc. 24, p. 6 (S.D. Ga. Jan. 26, 2023) (Daker

is PERMANENTLY ENJOINED from filing any new lawsuit or petition in
this District without first posting a $1,500 contempt bond in

addition to paying the required filing fee.").)

However, as noted.

Petitioner has violated the injunction order by, inter alia, filing
frivolous post-judgment motions in this case.

Since his first

Notice of Appeal on June 6, 2023, Petitioner has filed ten postjudgment documents, including the Motion to Vacate, (doc. 75),
which he filed simultaneously with his Notice of Appeal.

This

vexatiousness constitutes a violation of the permanent injunction
and delays the progress of his appeal.

Therefore, pursuant to the

dismissed as moot in this case because it has already been considered in the
other case, CV622-36.
15

terms of the Injunction, sanctions are warranted.

(See doc. 61

("If any of Daker's filings are deemed frivolous or duplicative,
the presiding judge may, after notice to Daker and an opportunity
to respond, impose a contempt sanction against Daker to be paid
from

the

contempt

bond.").)

However,

given

Petitioner's

"Declaration" of payment of the contempt bond was cross-docketed,
(see doc. 99); see also Daker, CV620-115, doc. 116 (S.D. Ga. Sept.

24, 2024); Daker, CV622-36, doc. 44 (S.D. Ga. Sept. 24, 2024), and
because Petitioner's behavior in this case is not unique to this
case,

the

Court

will

assess

the

sanction

upon

reviewing

Petitioner's response to the show cause order pertaining to filing
restrictions in case CV620-115.

See Daker, CV620-115, doc. 114

(S.D. Ga. Aug. 26, 2024).

ORDER ENTERED at Augusta, Georgia, thi^/^;^2.

November,

2024.

HONORAbiJe')j."RAN^AL"TiALL
UNITeW-STATES district JUDGE
SOUTHERN

16

DISTRICT OF GEORGIA