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Daker v. Allen

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

September 18, 2017

WASEEM DAKER, Plaintiff,
v.
MARTY ALLEN, et al., individually and in their official capacities, Defendants.

          ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Plaintiff, who is incarcerated at Georgia State Prison in Reidsville, Georgia, filed a Complaint pursuant to 42 U.S.C. § 1983 in the Middle District of Georgia on December 7, 2016. (Doc. 1.) Plaintiff also filed Motions to Proceed in Forma Pauperis. (Docs. 2, 16.) Moreover, Plaintiff filed: two Emergency Motions for Partial Summary Judgment, Preliminary Injunction, and Temporary Restraining Order, (docs. 7, 8); three Emergency Motions for Preliminary Injunction and Temporary Restraining Order, (docs. 13, 14, 15); two additional Motions for Partial Summary Judgment, Permanent Injunction, and Preliminary Injunction, (docs. 10, 11); and a Motion for Subpoena and/or Preservation of Evidence, (doc. 12). The District Court for the Middle District of Georgia transferred Plaintiff’s case to this Court after conducting a review of Plaintiff’s Complaint and dismissing Plaintiff’s claims against any Defendant residing within the Middle District of Georgia. (Doc. 17.)

         This Court deferred ruling on Plaintiff’s Motions to Proceed in Forma Pauperis and the numerous other Motions Plaintiff filed by Order dated July 20, 2017. (Doc. 21.) In that same Order, the Court deferred its requisite frivolity review of Plaintiff’s Complaint. The Court directed Plaintiff to amend his Complaint and to submit the appropriate form on which to move to proceed in forma pauperis within fourteen (14) days of that Order. (Id. at p. 2.) The Court advised Plaintiff his claims were not related to each other and that he must set forth allegations in his Amended Complaint indicating that his constitutional and/or statutory rights had been violated and by whom those rights had been violated. (Id. at p. 6.) In this regard, the Court provided Plaintiff with specific instructions as to how he should amend his Complaint. (Id. at pp. 6–7.) Plaintiff was cautioned that his failure to file an appropriate Amended Complaint “could result in the dismissal of his cause of action for failure to follow this Court’s Order.” (Id. at p. 7 (emphasis in original).)

         While Plaintiff did file a proper and timely third Motion to Proceed in Forma Pauperis, (doc. 23), he also filed a Motion for Extension of Time to Comply, Object, or Move to Reconsider this Court’s Order. (Doc. 24.) Plaintiff sought an extension of time until September 6, 2017, to comply with this Court’s directive to file an appropriate Amended Complaint. According to Plaintiff, he intended to file an Amended Complaint, but he could not access the law library to research the claims, the proper Defendants, and the facts he needed to assert in his Amended Complaint. (Id. at p. 2.) This Court granted Plaintiff’s Motion in part and allowed Plaintiff up to and including August 28, 2017, to file any desired response to the Court’s July 20, 2017, Order. (Doc. 26.) Plaintiff was forewarned “that the Court will not grant any additional motions for extension of time to respond he may file.” (Id. at p. 1.) Nevertheless, Plaintiff filed a Second Motion for Extension of Time to Comply, Object, or Move to Reconsider on August 30, 2017. (Doc. 27.) Plaintiff asserts he had surgery on his wrist on August 8, 2017, and is unable to “do any lengthy writing/typing” until he recovers from his surgery. Plaintiff estimates this will take four to eight (4–8) weeks’ time. (Id. at p. 1.)

         Plaintiff requests an extension of time until October 6, 2017, to respond to the Court’s July 20, 2017, Order. (Id. at pp. 1–2.) Plaintiff has also filed a Motion for Extension of Time to File Objections to the August 14, 2017, Order and a Motion for Reconsideration of this same Order. (Docs. 28, 29.)

         For the reasons which follow, the Court DENIES Plaintiff’s Second Motion for Extensions of Time and his Motion for Reconsideration, (docs. 27, 28, 29), and Plaintiff’s Motions for Leave to Proceed in Forma Pauperis, (docs. 2, 16, 23). For these same reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint, DISMISS as moot all other pending Motions, (docs. 7, 8, 10, 11–15), and DIRECT the Clerk of Court to CLOSE this case for failure to follow this Court’s Order. Additionally, I RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.

         Further, given that the Court denies Plaintiff’s in Forma Pauperis Motions and Plaintiff has failed to comply with this Court’s Orders, the Court hereby STAYS this case. The Court DIRECTS the Clerk of Court to note the stay of this case on the Court’s docket. This stay does not relieve Plaintiff of his obligation to file Objections to this Report and Recommendation within fourteen (14) days of the date of this Order.

         BACKGROUND

         Plaintiff brings his Complaint pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1, et seq., (“RLUIPA”). In his Complaint, Plaintiff generally alleges that the remaining Defendants have violated his constitutional rights and the RLUIPA while he has been housed at Georgia State Prison. Specifically, Plaintiff asserts he is an adherent to the Islamic religion, and “Defendants’ policies and customs” are leading to the denial of Plaintiff’s participation in religious celebrations and feasts, prayer oils, religious publications and educational materials, and the ability to correspond with religious leaders. (Doc. 1, p. 11.) Plaintiff contends “Defendants” placed him in the Tier II program in April 2016 without providing advanced notice or an opportunity to present testimony or evidence against his placement, in violation of due process. (Id. at pp. 14–15.) Plaintiff also contends the Tier II program consists of three (3) different phases, he was placed in these different phases as recently as November 29, 2016, and he was denied due process protections each time. (Id. at pp. 14–16.) In addition, Plaintiff maintains that “Defendants” have a custom of enforcing grooming regulations through disciplinary action, threats of the use of force, and actual uses of force. (Id. at p. 17.) Plaintiff avers he was forcibly shaven with clippers that were not sanitized on several occasions, including one occasion on November 9, 2016. Plaintiff states Defendants Hutcheson, Moye, and Anderson told him to shave his beard, but Plaintiff declined to follow this directive for religious reasons. As a result, Plaintiff alleges Defendants Williams, Nobilio, and Jones forcibly dragged and carried Plaintiff by his arms to the barbershop while Defendants Worthen, Kelley, and Hester watched this occur and did nothing to intervene on Plaintiff’s behalf. Plaintiff contends he had injuries to his back, right shoulder blade, and wrists as a result of this incident. (Id. at pp. 17–18.) Plaintiff also alleges Defendant Allen, later this same day, directed Defendants Hutcheson, Ford, Littles, Mendez, Nobilio, Williams, and Wright to forcibly shave Plaintiff, at which time Plaintiff was sprayed with MK-9, a chemical agent, and was dragged to the barbershop without being de-contaminated, causing his eyes and throat to burn for more than thirty (30) minutes’ time. (Id. at p. 18.)

         Moreover, Plaintiff maintains he has been diagnosed with allergy and sinus problems and is on medication for these problems. Plaintiff states he has been suffering with ongoing toothaches and pains. (Id. at p. 20.) However, Plaintiff asserts “Defendants” deny Sensodyne toothpaste, which Defendant Geiger instructed Plaintiff to use, to inmates in the Tier II program and to those inmates who are indigent.

         STANDARD OF REVIEW

         Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all of his assets, shows an inability to pay the filing fee, and also includes a statement of the nature of the action which shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a complaint in which a prisoner seeks redress from a governmental entity. Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         The Court looks to the instructions for pleading contained in the Federal Rules of Civil Procedure when reviewing a Complaint on an application to proceed in forma pauperis. See Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R. Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

         Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that standard, this Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the ...


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