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Daker v. Dozier

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

October 5, 2017

WASEEM DAKER, Plaintiff,



         Plaintiff, an inmate at Georgia State Prison in Reidsville, Georgia, filed this action pursuant to 42 U.S.C. § 1983 and the Religious Land Use Institutionalized Persons Act (“RLUIPA”). For the reasons which follow, the Court DENIES Plaintiff leave to proceed in forma pauperis. Additionally, I RECOMMEND that the Court DISMISS Plaintiff's Complaint, without prejudice and DENY Plaintiff in forma pauperis status on appeal.[1]


         In his Complaint, Plaintiff levies a litany of claims against dozens of Defendants regarding his confinement at Georgia State Prison. (Doc. 1-1.) Plaintiff contends that all of these Defendants maintain a policy limiting the length of a male prisoner's facial hair. (Id. at p. 9.) He contends that Georgia Department of Corrections written policy provides that shaving clippers should be sanitized after every use. Id. He maintains that sanitizing the clippers prevents the spread of HIV, hepatitis, and other infectious diseases. Id. However, Plaintiff maintains, Defendants disregard this policy and use clippers that have not been sanitized or that are broken. ( pp. 9-10.)

         Plaintiff also levies allegations against Defendants Hutcheson and Shuemake, who are correctional officers at Georgia State Prison, regarding an incident that occurred on July 6, 2017. (Id. at pp. 10-12.) Plaintiff claims that these officers escorted him from his cell to the prison's barbershop. Id. At the barbershop, Plaintiff refused to have another inmate cut his hair and demanded that Hutcheson and Shuemake allow him to cut his own hair. Id. He told them that he needed to shave his own hair so that he could insure that he was shaved in accordance with his religious beliefs. Id. When Plaintiff persisted in his refusal to allow another inmate to cut his hair, the officers slammed him to the ground, forcibly restrained him, and shaved him with clippers that had not been sanitized. Id. He contends that the officers then placed him on strip cell status and stripped him down to his undergarments in front of female staff members, in contradiction of Plaintiff's religious beliefs. Id. Plaintiff also makes allegations regarding the confiscation of his personal property following this incident as well as claims that his due process rights were violated at a July 28, 2017 disciplinary hearing. (Id. at pp. 11-12.)

         Plaintiff contends that the use of excessive force to shave him as well as cutting his hair with unsanitary clippers violates his Eighth Amendment rights. (Id. at p. 13.) He also maintains that Defendants violated his rights to religious exercise guaranteed by the First Amendment to the United States Constitution and RLUIPA by stripping him to his underwear in front of females and by confiscating his property. Id. Further, he makes claims of due process violations attendant to the confiscation of his property and his disciplinary hearing. Id.


         Plaintiff brought this action in forma pauperis under 42 U.S.C. § 1983. (Doc. 2.) 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 and 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).

         When reviewing a Complaint on an application to proceed in forma pauperis, the Court is guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. 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 unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

         In its analysis, the Court will abide by the long-standing principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”).


         I. Three Strikes Dismissal Under Section 1915(g)

         A prisoner, such as Plaintiff, attempting to proceed in forma pauperis in a civil action in federal court must comply with the mandates of the Prison Litigation Reform Act (“PLRA”). Pertinently, 28 U.S.C. § 1915(g) of the PLRA provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner 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.

         The Eleventh Circuit Court of Appeals has explained that “[t]his provision of the PLRA, ‘commonly known as the ‘three strikes' provision, ' requires frequent filer prisoners to prepay the entire filing fee before federal courts may consider their lawsuits and appeals.” Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998) (quoting Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997)).[2] Dismissals for providing false filing-history information and failing to comply with court orders both fall under the category of “abuse of the judicial process”, which the Eleventh Circuit has held to be a “strike-worthy” form of dismissal under Section 1915(g). See id. at 731 (dismissing for failure to disclose prior litigation is “precisely the type of strike that Congress envisioned when drafting section 1915(g)”); Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1544 (11th Cir. 1993) (characterizing failure to comply with court orders as “abuse of the judicial process”).

         The Eleventh Circuit has held that a prisoner barred from proceeding in forma pauperis due to the “three strikes” provision in § 1915(g) must pay the entire filing fee[3] when he initiates suit. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Therefore, the proper procedure for a district court faced with a prisoner who seeks in forma pauperis status but is barred by the “three strikes” provision is to dismiss the complaint without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).

         In Daker v. Commissioner, Georgia Department of Corrections, 820 F.3d 1278 (11th Cir. 2016), the Eleventh Circuit had occasion to consider whether Plaintiff was a three-striker within the meaning of Section 1915(g) based on six (6) of Plaintiff's previous filings that the Middle District of Georgia cited as being “strikes”. The cases the Middle District of Georgia counted as strikes were: (1) Daker v. Head, No. 01-14624 (11th Cir. Jan. 25, 2002) (an interlocutory appeal from a civil lawsuit the Eleventh Circuit dismissed for lack of jurisdiction); (2) Aziyz v. Tremble, No. 05-11696 (11th Cir. May 9, 2005) (same); (3) Daker v. Barrett, No. 03-15771 (11th Cir. July 26, 2004) (Eleventh Circuit dismissed an appeal from a civil lawsuit “for want of prosecution because [Daker] has failed to file [an] appellant brief within the time fixed by the rules”); (4) In re Daker, No. 12-12073 (11th Cir. July 12, 2012) (dismissal of a petition for a writ of mandamus “for want of prosecution” under Eleventh Circuit Rule 42-1(b) “because . . . Daker failed to pay the $450 docket fee . . . within the time fixed by the rules”); (5) In re Daker, No. 12-12072 (11th Cir. Aug. 6, 2012) (same); and (6) Georgia v. Daker, No. 12-12519 (11th Cir. Nov. 5, 2012) (same). The Eleventh Circuit noted that, in the last three dismissals listed, only “a single judge of this Court denied Daker's petitions to proceed in forma pauperis because his filings were ‘frivolous.'” Daker, 820 F.3d at 1282. The Eleventh Circuit determined that the three appeals, which were dismissed for lack of prosecution, could not count as strikes because Daker's applications to proceed in forma pauperis on appeal were denied by only one judge on the panel as being frivolous. Id. at 1284-85. The Eleventh Circuit reasoned that the text of Section 1915(g) mandates that the reason for the dismissal of a cause of action or an appeal-as opposed to a denial of an application to proceed in forma pauperis-had to be because the cause of action or appeal was frivolous, malicious, or failed to state a claim. Id. at 1285. In addition, the Eleventh Circuit stated that a dismissal for lack of jurisdiction was likewise not a determination on the merits of a litigant's cause of action or appeal. Id. at 1284.

         Thus, the Eleventh Circuit concluded that the six (6) cases the Middle District of Georgia used to label Plaintiff a three-striker did not constitute strikes under the language of Section 1915(g). However, the Eleventh Circuit made clear that it “express[ed] no view on whether Daker has any other strikes . . . [or] as to whether one or more of the six dismissals might have failed to qualified as strikes for other reasons.” Daker, 820 F.3d at 1286. Therefore, the Eleventh Circuit did not determine that Plaintiff is not a three-striker. Rather, it only determined that the six (6) particular cases the Middle District of Georgia used did not constitute strikes for the reasons the district court found.

         Reviewing 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 the Middle District of Georgia counted as strikes. Instead, at least 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. Warren, No. 13-11630-B (11th Cir. Mar. 4, 2014) (appeal dismissed after finding it frivolous); (2) Compl., Daker v. Mokwa, 2:14cv395-UA-MRW (C.D. Cal. Feb. 4, 2014), ECF No. 2 (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) (complaint dismissed based on Plaintiff's 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 ...

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