Daker v. Allen

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         BACKGROUND

         Daker 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.

         DISCUSSION

         I. Whether Daker Sets Forth Habeas Corpus Relief

         Daker 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.

         Here, 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.

         II. Whether Daker Can Proceed Pursant to 42 U.S.C. § 1983

         To the 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).

         As this 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 ...