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Daker v. Allen

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

March 2, 2018

WASEEM DAKER, Petitioner,
v.
MARTY ALLEN, Warden, Respondent.

          ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Petitioner Waseem Daker (“Daker”), an inmate at Georgia State Prison in Reidsville, Georgia, filed an action pursuant to 28 U.S.C. § 2254 challenging his confinement in administrative segregation. (Doc. 1.) Daker has an additional habeas corpus petition pending before this Court: Civil Action No. 6:17-cv-23. For the reasons and in the manner set forth below, I RECOMMEND that the Court CONSOLIDATE Daker's Petitions. Further, the Court DISMISSES Daker's Motion for Leave to Proceed in Forma Pauperis, (doc. 2), DISMISSES as moot Daker's Motion to Expedite Proceedings, (doc. 4), and DENIES Daker's Motion for Law Library Access, (doc. 5), Motion for Subpoena and Preservation of Evidence, (doc. 6), and Motion to Appoint Counsel, (doc. 7).

         BACKGROUND

         On July 3, 2017, Daker filed this Petition for a Writ of Habeas Corpus alleging that he was unlawfully placed in Tier II administrative segregation. (Doc. 1.) Daker seeks release from administrative segregation. (Doc. 1, pp. 1, 2, 4.) Daker contends his placement in Tier II segregation violates the First Amendment, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., substantive due process, and procedural due process. (Id. at pp. 5-9.)

         Specifically, Daker argues the disciplinary reports on which his Tier II status was premised violate the First Amendment and RLUIPA because they concern his refusal to comply with the prison's policy limiting beard length, and he contends this policy violates the law, as it infringes his religious beliefs as a Muslim. (Id. at pp. 5, 6.) Daker also argues this policy violates his substantive due process right to bodily privacy through forced shaving. (Id. at p. 5.) Further, Daker argues he was denied a fair and impartial hearing and an adequate opportunity to be heard when he was found guilty of these disciplinary reports. (Id. at pp. 5, 8.) Finally, Daker argues his retention in Tier II segregation on June 26, 2017, violated his right to procedural due process because it was done without notice and an opportunity to be heard and was otherwise premised on unlawful disciplinary reports. (Id. at pp. 8-9.)

         Prior to this case, Daker filed a presently pending habeas corpus action on February 3, 2017. In that earlier Petition, Daker set forth legally identical and factually similar claims related to his placement in Tier II administrative segregation. See Daker v. Allen, 6:17-cv-23 (S.D. Ga. Feb. 3, 2017), ECF No. 1 (alleging his placement in administrative segregation violated substantive due process, procedural due process, the First Amendment, and RLUIPA). Like his claim here, Daker complains he was unlawfully found guilty of certain disciplinary reports concerning his beard and insubordination, among other transgressions, and was committed to segregation without due process. Id. A review of Respondent's Answer and Daker's Petition in that case shows Daker's application for habeas release emanates from a single uninterrupted stay in Tier II segregation that is continuous to his Petition presently before the Court. Id. at pp. 5-9; ECF No. 30-1, pp. 57-58.

         DISCUSSION

         I. Consolidation of Daker's Habeas Cases

         A district court has authority to consolidate multiple actions if they “involve a common question of law or fact.” Fed.R.Civ.P. 42(a). Consolidation under Rule 42(a) “is permissive and vests a purely discretionary power in the district court.” Young v. City of Augusta, 59 F.3d 1160, 1168 (11th Cir. 1995) (internal quotes omitted). “District courts in this circuit have been urged to make good use of Rule 42(a) . . . in order to expedite the trial and eliminate unnecessary repetition and confusion.” Young, 59 F.3d at 1169 (internal quotes omitted). The decision of whether to consolidate “is entirely within the discretion of the district court as it seeks to promote the administration of justice.” Gentry v. Smith, 487 F.2d 571, 581 (5th Cir. 1973);[1] see also Devlin v. Transp. Communs. Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999) (courts can sua sponte consolidate cases under Rule 42(a)).

         In exercising that discretion, district courts must weigh the risk of prejudice and confusion wrought by consolidation against the risk of inconsistent rulings on common factual and legal questions; the burden on the parties and the Court posed by multiple lawsuits as opposed to one; the length of time required to conclude multiple lawsuits as opposed to one; and the relative expense of proceeding with separate lawsuits if they are not consolidated. Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985).

         In the Petitions at hand, both actions involve similar facts, the same Respondent, and plead identical legal claims. At their core, Daker's Petitions seek his release from administrative segregation for the same reasons-allegedly unlawful disciplinary reports and segregated confinements. Moreover, Daker seeks release from the same, uninterrupted stay in Tier II administrative segregation. Given this congruence, and in light of Daker's well-documented litigiousness, the benefits of consolidation far outweigh any prejudice to the parties.

         Accordingly, the Court should CONSOLIDATE Daker's habeas Petitions and DIRECT the Clerk of Court to file all pleadings docketed in Case No. 6:17-cv-90 upon the docket and record of Case No. 6:17-cv-23; CONSOLIDATE Case No. 6:17-cv-90 with Case No. 6:17-cv-23; and CLOSE Case No. 6:17-cv-90. For this reason, the Court DISMISSES Daker's Motion for Leave to Proceed in Forma Pauperis, (doc. 2).

         II. Motion to Expedite Proceedings (Doc. 4)

         Given the routine passage of time since Daker filed his habeas corpus action, his Motion to Expedite Proceedings is not appropriately before the Court presently because there has been no unreasonable delay. Cf. Johnson v. Rogers, 917 F.2d 1283, 1284 (10th Cir. 1990) (finding a 14-month delay in ruling on a habeas petition impermissible where no explanation other than docket congestion was provided). The Court will address Daker's Petition in the ordinary course of business. Daker has not presented sufficient allegations to warrant giving his case priority over the other cases on the Court's docket. Particularly given Daker's extensive history of litigation in this and ...


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