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Gandy v. Gramiak

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

June 16, 2017

KASIM GANDY, Plaintiff,
v.
TOM GRAMIAK, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Presently before the Court is non-party Waseem Daker's (“Daker”) Motion for Reconsideration of the Court's Order dated February 28, 2017. (Doc. 55.) For the reasons set forth below, the Court DENIES Daker's Motion for Reconsideration. Additionally, I RECOMMEND that the Court DENY Daker leave to proceed in forma pauperis on appeal. The Court DIRECTS the Clerk of Court to serve a copy of this Order and Report and Recommendation upon Plaintiff AND non-party Waseem Daker.

         BACKGROUND

         On February 3, 2017, Daker filed a Motion to Intervene in this case. (Doc. 36.) Daker argued that he should be allowed to intervene as a matter of right under Federal Rules of Civil Procedure Rule 24(a) and permissively under Rule 24(b). (Id. at p. 2.) Daker contended that intervention was proper for his claims that his placement in the Tier II program at Georgia State Prison violates his substantive and procedural due process rights. As support, Daker conclusively asserted that: his Motion was timely filed; he has a “direct, substantial, legally protectable interest in the proceedings” by nature of his status as a prisoner in the Tier II segregation program; the disposition of this case would impair his ability to protect his interest due to stare decisis; and Plaintiff would not adequately represent his interests. (Id. at pp. 2-4.)

         On February 28, 2017, the Court denied Daker's Motion to Intervene. (Doc. 39). The Court advised Daker that the Prison Litigation Reform Act (“PLRA”) disallows multiple-prisoner/plaintiff lawsuits wherein the prisoners/plaintiffs seek to proceed in forma pauperis together. (Id. at p. 2.) Specifically, the Court informed Daker that a prisoner wishing to bring a civil action in forma pauperis must pay the full amount of the filing fee.[1] (Id.)

         In his instant Motion, Daker restates the arguments from his Motion to Intervene and further argues that intervention is allowed because neither the PLRA nor Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001), applies to motions brought pursuant to Rule 24.

         DISCUSSION

         I. Motion for Reconsideration (Doc. 55)

         A motion for reconsideration, or a Federal Rule of Civil Procedure 59(e) motion, is “an extraordinary remedy, to be employed sparingly.” Smith ex rel. Smith v. Augusta-Richmond Cty., No. CV 110-126, 2012 WL 1355575, at *1 (S.D. Ga. Apr. 18, 2012) (internal citation omitted). “A movant must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Id. (internal citation omitted). “The only grounds for granting a Rule 59 motion are newly-discovered evidence or manifest errors of law or fact.” Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (internal punctuation omitted)). “A Rule 59(e) motion cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Id. (quoting Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763 (11th Cir. 2005) (alterations omitted)).

         The Court discerns no reason to grant Daker's Motion for Reconsideration. Here, Daker does not present any newly- discovered evidence or manifest errors of law or fact. Daker simply attempts to argue that Hubbard does not apply to Rule 24 motions, and that even if it did, the United States Supreme Court's decision in Jones v. Bock, 549 U.S. 199 (2007), overruled Hubbard. However, both these arguments are without merit.[2]

         While it is true that the Eleventh Circuit Court of Appeals addressed joinder rather than intervention in Hubbard, the reasoning and analysis behind Hubbard remain true for intervention under Rule 24. That is, in order to curtail abusive prisoner tort, civil rights, and conditions of confinement litigation, “[T]he PLRA clearly and unambiguously requires that ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.'” Hubbard, 262 F.3d at 1197 (quoting 28 U.S.C. § 1915(b)(1)). Additionally, “the Congressional purpose in promulgating the PLRA enforces an interpretation that each prisoner pay the full filing fee.” Id. at 1197-98. In fact, the Court's reasoning in Hubbard is especially appropriate in this case. Daker, a known serial litigant in this district and others, has been denied in forma pauperis status on multiple occasions pursuant to 28 U.S.C. § 1915(g), the PLRA's three-strikes provision.[3] See 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). His Motion to Intervene in this case is a blatant attempt to circumvent the requirements of the PLRA and is precisely the type of behavior the PLRA sought to curtail.

         The Court sees no error in its analysis denying Daker's Motion to Intervene, much less manifest error warranting reconsideration. Accordingly, the Court DENIES Daker's Motion for Reconsideration, (doc. 55).

         II. Leave to Appeal in Forma Pauperis

         Additionally, the Court should DENY Daker in forma pauperis status on appeal. Though Daker has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the Court's order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal is not ...


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