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Daker v. Bryson

United States District Court, S.D. Georgia, Statesboro Division

March 20, 2017

WASEEM DAKER, Plaintiff,
v.
HOMER BRYSON, ET AL., Defendants.

          ORDER

          HONORABLE J. RANDAL HALL UNITED STATES DISTRICT JUDGE

         Presently before the Court are Plaintiffs Objections, (doc. 12), to the Magistrate Judge's Report and Recommendation dated January 19, 2017, (doc. 10). Plaintiff also filed a Motion to Consolidate, a Motion for Reconsideration of the Magistrate Judge's Order denying Plaintiff in forma pauperis status and his Motion to Expedite, and a Motion to Certify. (Docs. 13, 14, 15.) After an independent and de novo review of the record, the Court OVERRULES Plaintiffs Objections, CONCURS with the Magistrate Judge's Report and Recommendation, and ADOPTS that Report and Recommendation, as supplemented herein, as the opinion of the Court. The Court DISMISSES Plaintiffs Complaint without prejudice pursuant to 28 U.S.C. § 1915(g), DISMISSES as moot Plaintiffs Motions for Preliminary Injunction, (docs. 4, 5, 6), and DIRECTS the Clerk of Court to CLOSE this case. The Court DENIES Plaintiff in forma pauperis status on appeal. In addition, the Court DENIES Plaintiffs Motion to Consolidate, Motion for Reconsideration, and Motion to Certify.

         BACKGROUND

         Plaintiff submitted a 114-page, 542-paragraph Complaint and named 83 individuals as Defendants. (Doc. 1.) Plaintiff stated the tenets of his religion require him to have a beard, yet all inmates were required to be clean-shaven. Plaintiff contended he was either forced to shave or was forcibly shaven with broken and/or unsanitized equipment, even after this equipment was used on other inmates who were HIV ("Human Immunodeficiency Virus") or hepatitis positive on ten (10) occasions between late 2012 and 2014 and on "other occasions." (Id. at pp. 15-16.) The latest date Plaintiff contended he was forcibly shaven with a razor lacking a razor guard was on March 20, 2015. (Id. at p. 23.) Plaintiff asserted he was threatened with being shaved (but was not actually shaved) in February and March 2016, even though his beard was in compliance with policy. (Id. at p. 31.) Plaintiff also set forth a litany of other unrelated claims, such as his prayer oil was confiscated and that he has been denied access to: a law library; his stored legal materials; photocopies; nutritionally-adequate food; flushing toilets; cleaning supplies; religious feasts in 2014 and 2015; religious and legal publications; and religious services while he was in lockdown. (Id. at pp. 45, 67-81, 83, 85-102.) Plaintiff asserted his property was confiscated, in violation of his right to due process. Plaintiff also asserted his access to the grievance procedures was obstructed. (Id. at pp. 104-06.) Plaintiff stated he is not a "three-striker" within the meaning of 42 U.S.C. § 1915(g), that the three strikes provision is unconstitutional because it infringes on his First Amendment rights, and he was in imminent danger of serious physical injury because "Defendants" were forcing him to shave or forcibly shaving him with broken and/or unsanitized equipment. (Id. at p. 113.)

         In reviewing Plaintiffs Complaint, the Magistrate Judge noted: 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.

(Doc. 10, p. 6.) With this provision in mind, the Magistrate Judge found Plaintiff has accumulated more than the three strikes under Section 1915(g): 1) Daker v. NBC, et al.. No. 15- 330 (2d Cir. May 22, 2015), ECF No. 35 (noting Plaintiffs appeal "lacks an arguable basis either in law or in fact" and quoting Nietzke v. Williams. 490 U.S. 319, 325 (1989) ("[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.")); 2) Daker v. Warren. No. 13-11630-B (11th Cir. Mar. 4, 2014) (appeal dismissed after finding it frivolous); 3) Daker v. Mokwa. 2:14cv395-UA-MRW (CD. Cal. Feb. 4, 2014), ECF No. 2 (complaint dismissed as being frivolous, malicious, or failing to state a claim); 4) Daker v. Robinson. l:12-cv-00118-RWS (N.D.Ga. Sept. 12, 2013) (Plaintiffs complaint dismissed based on his failure to follow a court order); and 5) Daker v. Dawes. l:12-cv-00119-RWS (N.D.Ga. Sept. 12, 2013) (same). (Id. at p. 9.) The Magistrate Judge also determined that Plaintiffs allegations did not rise to the level of meeting the imminent danger exception, and thus, Plaintiff should not be allowed to proceed with his cause of action without paying the entire filing fee. (Id. at pp. 10-11.) Accordingly, the Magistrate Judge recommended Plaintiffs Complaint be dismissed without prejudice.

         Plaintiff filed Objections to the Magistrate Judge's findings and recommended disposition of the Complaint, as well as other Motions. The Court addresses Plaintiffs pleadings in turn.

         I. Plaintiffs Objections to the Magistrate Judge's Report and Recommendation (Doc. 12)

         Plaintiff contends he is not a three-striker within the meaning of Section 1915(g). Plaintiff alleges that, to the extent the Court finds he is a three-striker, he meets the imminent danger of serious physical injury exception. Additionally, Plaintiff asserts that the three strikes provision is unconstitutional, as applied to him. (Doc. 12.)

         A. Whether Plaintiff is a Three-Striker

         Plaintiff maintains that four of the five cases the Magistrate Judge found to be strikes under Section 1915(g) are not strikes. Specifically, Plaintiff asserts the cases numbered l:12-cv-118 and l:12-cv-119 arising out of the Northern District of Georgia are not strikes because these cases were dismissed based on Plaintiffs failure to pay the requisite filing fee. Plaintiff contends these cases were dismissed without prejudice, and the dismissals were not based on his complaints being frivolous or malicious or failing to state a claim. (Id. at pp. 2-4.) Plaintiff states his appeal with the Second Circuit Court of Appeals in Case Number 15-330 is not a strike because this appeal was dismissed under collateral estoppel, which was in turn based on a case arising from the Northern District of Georgia that was later determined not to be a strike. (IdL at p. 5.) Finally, Plaintiff asserts his appeal in the Eleventh Circuit Court of Appeals in Case Number 13-11630 should not be counted as a strike because the Eleventh Circuit remanded the district court's determinations on the motions for summary judgment. (Id. at p. 6.)

         (1) Cases Numbered l:12-cv-118 and l:12-cv-119 (N.D.Ga.)

         Plaintiff contends these two dismissals should not count as strikes because these cases were not dismissed as being frivolous, malicious, or failing to state a claim. Rather, Plaintiff maintains these cases were dismissed without prejudice based on his failure to pay the requisite filing fee.

         Contrary to Plaintiffs contentions, the Northern District of Georgia dismissed these two cases based on Plaintiffs failure to follow the lawful orders of that court. Specifically, the Northern District of Georgia directed Plaintiff to pay the requisite $350.00 filing fee before he would be permitted to proceed with those cases. When Plaintiff failed to pay his filing fees, the Northern District dismissed his cases without prejudice pursuant to that court's Local Rule 41.3A(2), which concerns dismissals for want of prosecution if a plaintiff, after notice, fails or refuses to obey a lawful order of that court. R. & R. and Order, Daker v. Robinson, l:12-cv-00118-RWS (N.D.Ga. Sept. 12, 2013), ECF Nos. 11, p. 3; 19 (Plaintiffs complaint dismissed based on his failure to follow a court order); and R. & R. and Order, Daker v. Dawes, l:12-cv-00119-RWS (N.D.Ga. Sept. 12, 2013), ECF Nos. 11, p. 3; 15 (same) Plaintiffs failure to pay the requisite filing fee was the manner in which he failed to abide by the Northern District's orders, but this is not the reason his complaints were dismissed. Instead, Plaintiffs complaints were dismissed for failing to follow the court's orders, and the Eleventh Circuit has found that a plaintiffs failure to follow a court's lawful order is strike-worthy as being an abuse of the judicial process. See Malautea v. Suzuki Motor Co.. 987 F.2d 1536, 1544 (11th Cir. 1993) (implying that the failure to comply with the court's orders is an abuse of the judicial process)[1]; Henderson v. Wright. 2012 WL 1790319, at *1 n.5 (S.D. Ga. Apr. 18, 2012) (citing Malautea and counting as strikes dismissals of previously-filed cases dismissed for failure to follow court orders).

         By example, in Rivera v. Allin.144 F.3d 719, 731 (11th Cir. 1998), the Eleventh Circuit stated the district court's dismissal without prejudice of the plaintiffs case after he lied under the penalty of perjury about the existence of a previous lawsuit was "equally, if not more, strike-worthy[ ]" than the plaintiffs dismissal of his previous case as frivolous.[2] "Although the district court may not have uttered the word 'frivolous' or 'malicious, ' dismissal for abuse of the judicial process is precisely the type of strike that Congress envisioned when drafting section 1915(g)." Id. (citing Roller v. Gunn.107 F.3d 227, 234 (11th Cir. 1997) (Congress sought to curtail "abuse of the federal judicial system[.]")). Thus, it is immaterial whether a previously-filed case was dismissed with or without prejudice, as even a dismissal without prejudice can be considered a strike. Id; D'Angelo v. Screven Ctv. Comm'rs. CV616-061, 2016 WL 7013523, at *2 (S.D. Ga. Nov. 8, 2016) (noting that a ...


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