United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
Waseem Daker (“Daker”), who is currently
incarcerated at Georgia State Prison in Reidsville, Georgia,
filed a pleading, which is ostensibly a Petition for Writ of
Habeas Corpus and has been filed pursuant to 28 U.S.C. §
2254. (Doc. 1.) Daker also filed a Motion for Leave to
Proceed in Forma Pauperis and six other emergency
Motions. (Docs. 2, 4-9.) For the reasons set forth below, the
Court DENIES Daker's Motion for Leave to Proceed in
Forma Pauperis. Additionally, I RECOMMEND that the Court
DISMISS Daker's Petition for Writ of Habeas Corpus,
DISMISS AS MOOT all other pending Motions, DENY Daker a
certificate of appealability, and DENY Daker leave to appeal
in forma pauperis.
filed this pleading on February 3, 2017, on a form Section
2254 petition. (Doc. 1.) However, throughout the form, Daker
states, “This petition does not attack my conviction,
but my solitary confinement/segregation.” (Id.
at pp. 1-2, 4-7.) He then attaches approximately forty (40)
pages containing allegations of various constitutional and
statutory violations for which Defendant is allegedly
responsible. (Id. at pp. 8-48.) The requisite review
of Daker's Petition raises several doctrines of law which
require dismissal of his Petition.
Whether Daker Sets Forth Habeas Corpus Relief
brings this action under 28 U.S.C. § 2254. When a state
prisoner challenges the “‘fact or duration of his
physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.'” Harden v.
Pataki, 320 F.3d 1289, 1294 n.6 (11th Cir. 2003)
(quoting Preiser v. Rodriguez, 411 U.S. 475, 500
(1973)). An “[a]pplication for a writ of habeas corpus
shall . . . allege the facts concerning the applicant's
commitment or detention, the name of the person who has
custody over him and by virtue of what claim or authority, if
known.” 28 U.S.C. § 2242. Additionally, a court
“shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254.
Furthermore, pursuant to Rule 4 of the Rules Governing
Section 2254 petitions:
The clerk must promptly forward the petition to a judge . .
., and the judge must promptly examine [the petition]. If it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the
clerk to notify the petitioner.
Rules Governing Section 2254 Cases, R. 4.
Daker is not attacking his custody through this Section 2254
proceeding; he does not seek immediate or speedier release
from imprisonment. He does not allege in his Petition that
his actual custody is in violation of the Constitution or
laws or treaties of the United States. In fact, Daker clearly
states on multiple occasions in his Petition that he is not
attacking his conviction but his placement in segregation and
the prison's alleged refusal to allow him to grow a
beard. (Doc. 1, pp. 1-2, 4-7, 9.) Thus, relief pursuant to
Section 2254 is not applicable or available to Daker.
Preiser v. Rodriguez, 411 U.S. 475, 498 (1973)
(providing list of cases “establish[ing] that a §
1983 action is a proper remedy for a state prisoner who is
making a constitutional challenge to the conditions of his
prison life[.]”) Consequently, the Court should DISMISS
this Section 2254 Petition.
Whether Daker Can Proceed Pursant to 42 U.S.C. §
extent Daker seeks relief pursuant to 42 U.S.C. § 1983,
his attempt also fails. In order to bring this action in
forma pauperis under Section 1983, Daker must comply
with the mandates of the Prison Litigation Reform Act, 28
U.S.C. § 1915. Specifically, Daker may only proceed
without the prepayment of fees after submitting an affidavit
that includes a statement of all of his assets and shows an
inability to pay the filing fee. 28 U.S.C. § 1915(a)(1).
Furthermore, even if Daker shows an inability to pay, he may
not proceed if he 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[.]” 28 U.S.C. § 1915(g).
Court notified Plaintiff in a recent case with similar facts,
“Plaintiff has filed at least three previously
dismissed cases or appeals which qualify as strikes under
Section 1915(g), [therefore] Plaintiff may not proceed in
forma pauperis . . . unless he can demonstrate that he
meets the ‘imminent danger of serious physical
injury' exception to Section 1915(g).” Daker v.
Bryson, et al., No. 6:16-cv-57-JRH-RSB, 2017 WL 242615,
at *3 (S.D. Ga. Jan. 19, 2017), report and recommendation
adopted by No. 6:16-cv-57-JRH-RSB, 2017 WL 1053082 (S.D.
Ga. Mar. 20, 2017). This Court found that Daker did not meet
the imminent danger exception because his allegations of
imminent danger included events that occurred since at least
2012. Id. at *5. In this Petition, Daker does not
set forth any new allegations which would qualify him for the