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Daker v. Dozier

United States District Court, M.D. Georgia, Macon Division

June 18, 2017

WASEEM DAKER, Plaintiff,
v.
GREGORY DOZIER, et al., Defendants.

          ORDER

          C. ASHLEY ROYAL, SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Waseem Daker, an inmate confined at Georgia State Prison in Reidsville, Georgia, has filed a pro se complaint in this Court seeking damages and injunctive relief under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) § 2 et seq., 42 U.S.C.A. § 2000cc et seq. Currently before the Court is Plaintiff's motion to proceed in forma pauperis (“IFP) under 28 U.S.C. § 1915 (Doc. 2). Plaintiff has also filed a motion to “expedite proceedings” (Doc. 3), several motions for preliminary injunction (Docs. 4, 5, 6); two motions for partial summary judgment (Docs. 13, 14); a motion for subpoena and/or preservation of evidence (Doc. 15); and a second motion to proceed in forma pauperis (Doc. 16).

         I. Plaintiff's Motion to Proceed in forma pauperis

         Plaintiff's motion to proceed IFP is made pursuant to 28 U.S.C. § 1915, which allows the district courts to authorize the commencement of a civil action without prepayment of the normally-required fees upon a showing that the plaintiff is indigent and financially unable to pay the filing fee. Because Plaintiff is presently confined in a state prison, however, his ability to proceed IFP in federal court is also subject to the restrictions imposed by Prison Litigation Reform Act (“PLRA”). See 28 U.S.C. § 1915(g); see also 28 U.S.C. § 1915A. The PLRA specifically prohibits a prisoner from bringing a civil action in federal court in forma pauperis

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, unless the prisoner is under imminent danger of serious physical injury.

§ 1915(g). This is known as the “three strikes provision.” Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998). Under § 1915(g), a prisoner incurs a “strike” any time he has a federal complaint or appeal dismissed on the grounds that it is frivolous or malicious or fails to state a claim. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). Once a prisoner incurs “three strikes” under this provision, he is no longer allowed to proceed in forma pauperis, and must prepay the entire filing fee before a federal court may consider his complaint or appeal, unless the prisoner demonstrates that he is in “imminent danger of serious physical injury.” Id.

         II. Applicability of the Three-Strikes Bar

         In his Complaint, Plaintiff states that the three-strikes bar cannot be applied in this case because (1) it is unconstitutional and (2) he has not accumulated “three strikes.”

         A. Constitutional Challenge

         Though often challenged, the PLRA's three-strikes bar has repeatedly been found to pass constitutional muster; and thus, despite Plaintiff's objection and present claim that the rule is unconstitutional, see Compl. at 28, the Court finds it both valid and properly considered in this case. Medberry, 185 F.3d at 1193. “Having to prepay his filing fee before the Court addresses the relative merits of his claims, unless he shows he is in imminent danger of serious physical injury, does not violate Plaintiff's rights.” Daker v. Bryson, 6:16-CV-57, 2017 WL 1053082, at *6 (S.D. Ga. Mar. 20, 2017) (finding same arguments by Daker meritless). Plaintiff's objections to the constitutionality of § 1915(g) are thus found to be without merit. Id.

         B. Plaintiff's Strikes

         Plaintiff next contends that he does not have three strikes under § 1915(g). See Comp. at 28. A review of court records on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) database nonetheless reveals that Plaintiff has filed multiple lawsuits in federal court and that at least three of his complaints or appeals have been dismissed and count as strikes under § 1915(g). Plaintiff has, in fact, repeatedly been barred from filing lawsuits within this Circuit under § 1915(g), and his status as a three-striker was recently confirmed by both this Court and the United States District Court for the Southern District of Georgia. See Daker v. Owens, 5:12-cv-459-CAR-MSH, ECF No. 388 (M.D. Ga. May 8, 2017); Daker v. Bryson, 6:16-CV-57, 2017 WL 242615, at *5 (S.D. Ga. Jan. 19, 2017), adopted by 6:16-CV-57, 2017 WL 1053082 (Mar. 20, 2017).

         In Daker v. Bryson, supra, the Southern District explained its application of the three-strikes provision to Mr. Daker in detail, and it is worth repeating here in light of Plaintiff's misplaced reliance on the Eleventh Circuit's findings in Daker v. Comm'r, Ga. Dep't. of Corr., 820 F.3d 1278 (2016)[1] for the argument that he is not subject to the three-strikes provision:

To be sure, a review of Plaintiff's history of filings reveals that he indeed has brought more than three civil actions or appeals which count as strikes under Section 1915(g). In reaching this conclusion, this Court has not utilized the same six (6) cases … counted as strikes [in Daker v. Comm'r]. Instead, the following cases, which do not include any of the cases the Eleventh Circuit found are not strikes, constitute strikes under Section 1915(g): 1) Daker v. NBC,, No. 15-330 (2d Cir. May 22, 2015), ECF No. 35 (noting Plaintiff's appeal “lacks an arguable basis either in law or in fact” and quoting Nietzke, 490 U.S. at 325 (“[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 (C.D. Cal. Feb. 4, 2014), ECF No. 2 (complaint dismissed as being frivolous, malicious, or failing to state a claim; 3) Daker v. Robinson, 1:12-cv-00118-RWS (N.D.Ga. Sept. 12, 2013) (Plaintiff's complaint dismissed based on his failure to follow a court order); and 4.) Daker v. Dawes, 1:12-cv-00119-RWS (N.D.Ga. Sept. 12, 2013) (same).
The causes of action and appeals this Court cites to as being “strikes” were dismissed for being frivolous, malicious, or failing to state a claim for relief, and these causes of action and appeals were not dismissed on any other ground which failed to address the merits of Plaintiff's claims. This same review also reveals scores of other civil actions and appeals which were dismissed and/or count as strikes under Section 1915(g). In re Daker, No.1:11-CV-1711-RWS, 2014 WL 2548135, at *2 (N.D.Ga. June 5, 2014) (summarizing Plaintiff's litigation history). This Court and other courts have noted that Plaintiff is a serial litigant with a significant history of filing frivolous lawsuits. See e.g., Daker v. Bryson, No. 5:15-CV-88-CAR-CHW, 2015 WL 4973548, at *1 (M.D. Ga. Aug. 20, 2015) (“A review of court records on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) database reveals that Plaintiff has filed more than one hundred federal civil actions and appeals since 1999.”); Daker v. Head,, 6:14-cv-47 (S.D. Ga. Sept. 8, 2014), ...

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