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Daker v. Dozier

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

January 29, 2018

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

          ORDER

          J. Randal Hall, Judge

         Presently before the Court are Plaintiffs Objections to the Magistrate Judge's Report and Recommendation dated October 5, 2017, (doc. 4), and six (6) other pleadings Plaintiff has filed since the Magistrate Judge issued his Report and Recommendation. (Docs. 5-7, 9, 10, 12.) Plaintiff initiated this action on August 11, 2017, when he filed his Complaint and Motion to Proceed in Forma Pauperis. (Docs. 1, 2.) The Honorable R. Stan Baker recommended the Court dismiss Plaintiffs Complaint on three grounds: (1) Plaintiff has filed at least three previously dismissed cases or appeals which qualify as strikes under 28 U.S.C. § 1915(g) of the Prison Litigation Reform Act ("PLRA"); (2) Plaintiff abused the judicial process through his lack of candor regarding his extensive litigation history in his Complaint; and (3) Plaintiff failed to exhaust his available administrative remedies, as required by 42 U.S.C. § 1997e(a). (Doc. 4.)

         After an independent and de novo review of the entire record, the undersigned concurs with the Magistrate Judge's Report and Recommendation. Accordingly, for the reasons set forth below, the Court OVERRULES Plaintiffs Objections, (docs. 8, 11), and ADOPTS the Magistrate Judge's Report and Recommendation, (doc. 4), as the opinion of the Court. The Court DISMISSES without prejudice Plaintiffs Complaint, DENIES Plaintiff leave to proceed in forma pauperis on appeal, and DIRECTS the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.

         Additionally, the Court: DENIES Plaintiffs Motion to Stay Time to Object to the October 5, 2017 Report and Recommendation or to Extend Time, (doc. 5); DENIES Plaintiffs Motion to Appoint Counsel, (doc. 6); DENIES Plaintiffs Motion for Access to Case Authorities, (doc. 7); DENIES Plaintiffs Motion for Reconsideration, (doc. 9); DENIES Plaintiffs Motion to Exceed the Ten-Page Limit on Amended Complaint, (doc. 10); and DISMISSES as moot Plaintiffs Motion for Subpoena and Preservation of Evidence, (doc. 12).

         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-l, et seq., ("RLUIPA"). In his Complaint, Plaintiff presented a number of claims against dozens of Defendants regarding the conditions of his imprisonment at Georgia State Prison. Plaintiff generally alleged that Defendants violated his constitutional rights and the RLUIPA. (Doc. 1-1, p. 13.) Plaintiff asserted he is an adherent of the Islamic religion and contends that all Defendants maintain a policy of limiting the length of a male prisoner's facial hair. (Doc. 1-1, pp. 8-9.) He contended that the Georgia Department of Corrections' written policy requires shaving clippers to be sanitized after every use so as to avoid the spread of HIV, hepatitis, and other infectious diseases. (Id.) Plaintiff asserted, however, that Defendants disregard this written policy by using clippers that have not been sanitized or that are broken. (Id.)

         Plaintiff also levied allegations against Defendants Hutcheson and Shuemake, correctional officers at Georgia State Prison, regarding an incident that occurred on July 6, 2017. (Id. at pp. 10-12.) Plaintiff claimed that these officers escorted him to the prison's barbershop where Plaintiff refused to allow another inmate to cut his hair and demanded that he be allowed to cut his own hair. (Id.) Plaintiff told Defendants Hutcheson and Shuemake he needed to shave his own hair to ensure that he was shaved according to his religious beliefs. (Id.) When Plaintiff persisted in his refusal to allow another inmate cut his hair, Plaintiff claimed the officers slammed him to the ground, forcibly restrained him, and shaved him with clippers that had not been sanitized. (Id.) He contended that the officers then placed him on strip cell status and stripped him down to his undergarments in front of female staff members, in contravention of Plaintiffs religious beliefs. (Id.) Plaintiff also made 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 argued Defendants used excessive force to shave him and did so with unsanitary clippers, in violation of his Eighth Amendment rights. (Id. at p. 13.) Plaintiff also argued that Defendants violated his rights to religious exercise under 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, Plaintiff made claims of retaliation and due process violations attendant to the confiscation of his property and his disciplinary hearing. (Id.)

         Finally, Plaintiff asserted that he was not barred from proceeding in forma pauperis under the PLRA's "three strikes" provision because he meets the imminent danger exception, 28U.S.C. 1915(g). (Id. at pp. 13-14.) Plaintiff argued he qualifies for this exception and should be allowed to proceed without paying the requisite filing fee, because Defendants maintain a policy and custom of "using force to enforce their grooming policy" and utilize non-sanitized clippers in forcing inmates to shave. (Id.) He contended this policy poses an imminent threat because it will be adhered to in the future. (Id.)

         After reviewing these claims and Plaintiffs Motion to Proceed in Forma Pauperis, the Magistrate Judge denied Plaintiffs Motion and issued a Report recommending the Court dismiss Plaintiffs Complaint. (Docs. 3, 4.) Rather than filing objections to the Report and Recommendation, on October 25, 2017, Plaintiff filed an untimely Motion to Stay Time to Object to Magistrate's October 5, 2017 Report and Recommendation or to Extend Time, wherein he argues for more time to conduct case research in opposition to the Report and Recommendation, (doc. 5). In addition to the Motion for Extension of Time, Plaintiff also filed a Motion to Appoint Counsel, (doc. 6), and a Motion for Access to Case Authorities, (doc. 7), on the same day. On November 2, 2017, Plaintiff filed Objections to the Report and Recommendation, as well as a Motion for Reconsideration of the October 5, 2017 Order, (doc. 9), and a Motion for Permission to Exceed the Ten-Page Limit on Amended Complaint, (doc. 10); Plaintiff attached a typewritten, 119-page proposed Amended Complaint to that Motion, (doc. 10-1). Plaintiff then filed a Supplemental Objection to the Report and Recommendation, (doc. 11). Finally, Plaintiff filed a Motion for Subpoena and Preservation of Evidence, (doc. 12). The Court first addresses Plaintiffs Objections and then his other filings in turn, combining his pleadings as necessary due to their repetitive nature.

         I. Plaintiffs Objections and Supplemental Objections to the Magistrate Judge's Report and Recommendation (Docs. 8, 11)

         In his Objections, Plaintiff opposes each of the three grounds on which the Magistrate Judge recommended dismissal of his Complaint. Initially, it must be clarified that each of the three grounds advanced by the Magistrate Judge in recommending the dismissal of Plaintiffs Complaint-for having three "strikes" under 28 U.S.C. § 1915(g), for abusing the judicial process, and for failing to exhaust available administrative remedies-is sufficient in and of itself to dismiss Plaintiffs Complaint in its entirety. Thus, Plaintiff must show error on all three grounds for relief. This Plaintiff cannot do.

         First, Plaintiff objects to the Magistrate Judge's finding that Plaintiff does not satisfy the "imminent danger of serious physical injury" exception to the PLRA's "three strikes" provision, which bars prisoner litigants who have three or more cases dismissed as frivolous, malicious, or failing to state a claim from proceeding in forma pauperis. (Doc. 8, pp. 1-3.) He asserts the Magistrate Judge incorrectly focused on the past harm Plaintiff faced rather than Defendants' ongoing custom or policy of forced shaving with "unsanitized" clippers. (Id.) Plaintiff also argues that the allegations in his Amended Complaint, discussed below, further show the imminent danger posed by Defendants' alleged policy and also show he faces an imminent danger of serious physical injury because of untreated toothaches, inadequate food, threats from prison officials, and unsanitary prison conditions. (Id.) Contrary to Plaintiffs Objections, the Magistrate Judge directly addressed Plaintiffs contention regarding Defendants' alleged policy, correctly finding that allegation conclusory and factually unconnected to any specific Defendant. (Doc. 4, p. 12.) Further, as the Magistrate Judge found, Plaintiff failed to show a likelihood that any particular Defendant would shave him again in the future. (Id.) Furthermore, even if Defendants maintained such a policy, Plaintiff cannot show how being shaved, with or without sanitary clippers, poses an "imminent danger of serious physical injury." 28 U.S.C. § 1915(g) (emphasis added). Simply put, shaving does not pose the type of "life-threatening" serious injury contemplated by Section 1915(g). See Brown v. Johnson, 387 F.3d 1344, 1349-50 (11th Cir. 2004) (quoting Gibbs v. Cross, 160 F.3d 962, 965 (3d Cir. 1998)) (collecting cases, discussing what risks satisfy Section 1915(g), and holding that a prisoner whose medical treatment for HIV and hepatitis was terminated, causing infection and susceptibility to other illnesses, satisfied the exception); cf Renoir v. Brown, No. CIV A 707CV00166, 2007 WL 1052477, at *1 (W.D. Va. Apr. 5, 2007) (denial of sharp razors does not involve future serious physical injury). Unlike the plaintiff in Brown, Plaintiffs allegations here neither concern terminated medical treatment nor actual infection and susceptibility to other illnesses.

         Likewise, Plaintiffs allegations in his proposed Amended Complaint do not satisfy Section 1915(g)'s imminent danger exception to the "three strikes rule" barring Plaintiff from proceeding in forma pauperis. Even if the Court were to allow Plaintiff to amend his Complaint as proposed, which it declines to do for the reasons discussed below, he would still fail to show he faces an imminent danger of serious physical injury. A present toothache and unsanitary prison conditions are not imminent, serious dangers. Cf, e.g., McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002) (finding plaintiffs allegations that he had severe gum infection requiring five extractions, was initially denied dental extractions, and suffered decay during a six-month delay between extractions sufficient to state a claim of imminent danger of serious physical injury); Daker v. Dozier, No. 5:17-CV-0025-CAR, 2017 WL 3037420, at *6 (M.D. Ga. July 18, 2017) (finding plaintiffs allegations that "he lives with inmates who throw feces, has to wait for hours before the feces is cleaned, and [that] defendants have ignored his complaints about the unsanitary conditions and requests for cleaning supplies" insufficient to state a claim of imminent danger of serious physical injury). While inadequate food provisions and threats from prison officials could possibly meet the imminent danger exception, the Court does not find Plaintiffs conclusory allegations in this respect credible or factually plausible.[1] See Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (noting that the PLRA authorizes courts to dismiss clearly baseless factual contentions) (citation omitted). Furthermore, Plaintiffs Objections stemming from his proposed Amended Complaint are unrelated to his forced shaving allegations, and plaintiffs are not permitted to bring unrelated claims in a single cause of action. Fed.R.Civ.P. 20(a)(2) (A plaintiff may not join claims and various defendants in one action unless the claims arise "out of the same transaction, occurrence, or series of transactions or occurrences; and any question of law or fact common to all defendants will arise in the action.").

         Second, Plaintiff objects to the Magistrate Judge's finding that he mispresented his litigation history such that he abused the judicial process. (Doc. 8, pp. 3-6; Doc 11, pp. 1-2.) Specifically, Plaintiff asserts that he did not misrepresent his prison litigation history because he lacked the necessary records to show his history and instructed the Court to "see PACER" for cases additional to the one he disclosed. (Id.) He also argues that he honestly answered "No" to the question of whether he had any in forma pauperis cases dismissed as frivolous, malicious, or for failing to ...


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