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Daker v. Bryson

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

March 16, 2018

WASEEM DAKER, Plaintiff
v.
Commissioner HOMER BRYSON, et al., Defendants

          ORDER

          C. ASHLEY ROYAL, SENIOR JUDGE.

         Presently pending before the Court are a number of motions filed by pro se Plaintiff Waseem Daker and the Report and Recommendation filed by the United States Magistrate Judge on December 29, 2017 (ECF No. 64). For the following reasons, the Court will (1) deny Plaintiff's motion for appointed counsel (ECF No. 69); (2) deny Plaintiff's motions to recuse Magistrate Judge Weigle (ECF Nos. 66, 76); (3) deny Plaintiff's motion to access authorities (ECF No. 72); (4) deny Plaintiff's motion for copies (ECF No. 75); and (5) deny Plaintiff's pending “emergency” motion (ECF No. 63). Plaintiff's motion for leave to proceed in forma pauperis in Case Number 5:17-cv-188 (ECF No. 62) shall also be terminated as moot. The Court will construe Plaintiff's request for a “stay” of the “time to object to the R&R while his other motions are pending, ” as a motion to extend the time in which to file objections and provide Plaintiff with an additional FOURTEEN (14) DAYS from the date of this Order to supplement his Objections. See Mot. Access Authorities 2, ECF No. 72, The Court DEFERS ruling on Plaintiff's remaining pending motions and the Magistrate Judge's Report and Recommendation until the time for supplementation has expired.

         I. Motion to Appoint Counsel

         Plaintiff has filed a motion for appointed counsel (ECF No. 69). In his motion, Plaintiff requests appointment of counsel to either (1) generally assist him “for the whole case” or (2) to assist him “in drafting and filing an amended complaint[.]” Mot. Appoint Counsel 1, ECF No. 69. Under 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to represent any person unable to afford counsel.” There is, however, “no absolute constitutional right to the appointment of counsel” in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claims and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989) (en banc).

         Plaintiff first argues that this case is sufficiently complex to warrant appointment for counsel. In support of this contention, Plaintiff cites to a similar case pending before the Court involving a prisoner's challenge to Georgia Department of Corrections (“GDC”) grooming policies. See Mot. Appoint Counsel 1-2, ECF No. 69. While Plaintiff correctly observes that counsel was appointed for the plaintiff in that case, counsel was appointed on appeal, at a much later stage in the litigation and long after the complaint had been screened and served on defendants. See Order Appointing Counsel, ECF No. 138 in Smith v. Owens, Case No. 5:12-cv-00026-WLS-CHW (M.D. Ga. June 17, 2016) (case originally filed Jan. 24, 2012). Plaintiff also cites to another case in which he was appointed counsel, Daker v. Head, Case No. 5:14-cv-00138-MTT-CHW (M.D. Ga. Apr. 4, 2014). The procedural posture of that case also differs from that of the above-captioned case: in that case, the Eleventh Circuit appointed counsel for Plaintiff, on appeal, and after this Court acknowledged that Plaintiff had a good faith basis for taking an appeal based on the Eleventh Circuit's ruling in Daker v. Comm'r, Ga. Dep't Corr., 820 F.3d 1278 (11th Cir. 2016). See Order Appointing Counsel, Daker v. Head, No. 14-13257 (11th Cir. Nov. 17, 2017). Plaintiff's comparisons are thus inapt and fail to support his motion.

         Plaintiff also argues that his purported lack of access to legal materials and his previous pleadings warrants the appointment of counsel in this case. But “[t]he key” in determining whether appointed counsel is warranted “is whether the pro se litigant needs help in presenting the essential merits of his position to the court.” Nelson v. McLaughlin, 608 F. App'x 904, 905 (11th Cir. 2015) (per curiam). In this case, Plaintiff's numerous filings demonstrate his ability to present the merits of his position to the Court. See Id. (holding that court did not abuse its discretion in denying appointed counsel where prisoner “articulated his claims for relief in his complaint and filed several responsive pleadings and motions before the district court in which he accurately cited the essential facts, legal arguments, and relevant law”). Furthermore, as noted below, the Court finds that Plaintiff's allegations that he has been denied access to legal materials are not specific (or credible) enough to merit relief.

         In sum, Plaintiff has not established that “exceptional circumstances” exist to justify appointment of counsel at this time. Plaintiff's motion to appoint counsel (ECF No. 69) is accordingly DENIED.

         II. Motion for Recusal

         Plaintiff has also filed two motions seeking the recusal of Magistrate Judge Weigle from this case. In support of his motions, Plaintiff again compares his case to a similar pending case, contending that in that case, Judge Weigle permitted the claims of the pro se prisoner challenging the same GDC grooming restrictions “to proceed as non-frivolous or malicious, appointed counsel, and allowed discovery, while recommending that Plaintiff's claims be dismissed as frivolous or malicious.” Mot. Recusal 2, ECF No. 66. Plaintiff thus contends that Judge Weigle “has demonstrated a ‘double standard, ' hypocrisy, and a refusal to ‘play by his own rules[.]'” Id. at 2-3. Plaintiff concludes that “the only discernable explanation for Magistrate Weigle's conflicting and inconsistent handling” of the two cases is that Judge Weigle has “a bias against Plaintiff and is looking for any excuse he can find to rubberstamp-dismiss any and all of Plaintiff's cases.” Id. at 3. Plaintiff further alleges that Judge Weigle maintains “an overall tone” that shows he “has a deep-seated bias, prejudice, hostility, and antagonism against Plaintiff; is not taking any of Plaintiff's claims seriously . . ., and has a proclivity to rubber-stamp-dismiss or-deny anything Plaintiff files.” Id. at 4-5.

28 U.S.C. § 455 provides the standard for when a judge, justice, or magistrate judge must disqualify himself from a particular proceeding.[1] The statute generally provides that a magistrate judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The statute also enumerates certain other circumstances requiring a judge to disqualify himself. Id. at § 455(b)(1)-(5). It appears that Plaintiff's primary complaint is that Judge Weigle is biased towards Defendants in this action. Plaintiff may thus be relying on either subsection (a) or subsection (b)(1).

         The standard under subsection (a) is objective and requires the Court to ask “whether an objective, disinterested lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain significant doubt about the judge's impartiality.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (internal quotation marks omitted). In the Eleventh Circuit, “it is well settled that the allegation of bias must show that the bias is personal as distinguished from judicial in nature.” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (internal quotation marks and citation omitted) (per curiam). As a result, “a judge's rulings in the same or a related case are not a sufficient basis for recusal, ” except in rare circumstances where the previous proceedings demonstrate pervasive bias and prejudice. Id.; see also Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute [a] valid basis for a bias or partiality recusal motion.”); McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990) (“[The bias] must derive from something other than that which the judge learned by participating in the case.”). In this case, Plaintiff has not pointed to any specific facts showing that any sort of extrajudicial bias existed, nor has Plaintiff demonstrated that Judge Weigle's rulings exhibit “such a high degree of . . . antagonism as to make fair judgment impossible.” See Liteky, 510 U.S. at 555. It is clear that “[r]epeated rulings against a litigant, no matter how erroneous and how vigorously and consistently expressed, are not a basis for disqualification of a judge on the grounds of bias and prejudice, ” see Maret v. United States, 332 F.Supp. 324, 326 (E.D. Mo. 1971), and Plaintiff's theory that Judge Weigle is treating him differently than another pro se inmate making similar claims is undercut by Plaintiff's failure to differentiate between the procedural postures of the cases he is comparing, as noted in section I, supra.

         28 U.S.C. § 455(b)(1) requires disqualification where the judge “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]” “Recusal under this subsection is mandatory, because ‘the potential for conflicts of interest are readily apparent.'” Patti, 337 F.3d at 1321 (quoting Murray v. Scott, 253 F.3d 1308, 1312 (11th Cir. 2001)). Again, Plaintiff has failed to establish any personal or pervasive bias on the part of Judge Weigle, and Plaintiff also fails to identify any specific “disputed evidentiary facts” of which Judge Weigle has knowledge. Any knowledge gained through the course of a judicial proceeding is not a “disputed evidentiary fact” that requires recusal. United States v. Bailey, 175 F.3d 966, 969 (11th Cir. 1999) (per curiam). Instead, knowledge of disputed evidentiary facts must be gained through an extrajudicial source to warrant recusal. See Id. Plaintiff has not asserted that such knowledge exists here.

         In sum, Plaintiff's contentions that Judge Weigle has not ruled in his favor are not alone sufficient to merit recusal, and Plaintiff has also failed to show that Judge Weigle harbors the type of pervasive bias or prejudice against Plaintiff that would otherwise require recusal. Plaintiff's motions for recusal (ECF No. 66, 76) are therefore DENIED.

         III. Motion to “Access ...


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