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Daker v. Dozier

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

February 21, 2019

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

          ORDER

          TILMAN E. SELF, III, UNITED STATES DISTRICT COURT.

         Plaintiff Waseem Daker, a prisoner who is presently incarcerated at Valdosta State Prison in Valdosta, Georgia, has filed a pro se Complaint [Doc. 1] seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff also seeks leave to proceed in forma pauperis [Doc. 2]. In addition, Plaintiff has filed (1) three motions seeking recusal of the judges assigned to this case, [Docs. 5, 6, 9]; (2) two motions to expedite the preliminary screening of this case, [Docs. 7, 12]; (3) an emergency motion for a preliminary injunction [Doc. 8]; and (4) a motion for preliminary injunction or temporary restraining order [Doc. 10]. For the following reasons, Plaintiff's recusal motions are DENIED, and the Court finds that Plaintiff has three strikes under the Prison Litigation Reform Act, so he may not proceed in forma pauperis. Accordingly, the Court DENIES Plaintiff leave to proceed in forma pauperis, and DISMISSES this action without prejudice. Plaintiff's remaining motions are DENIED as moot.

         I. Motions for Recusal [Docs. 5, 6, 9]

         Plaintiff has filed three motions seeking the recusal of Magistrate Judge Charles H. Weigle and in the second motion [Doc. 6], sought the recusal of the undersigned. As has been Plaintiff's custom, these motions are duplicative, and Plaintiff appears to be filing them as a matter of course in his cases. An identical copy of one of these motions [Doc. 6] was also filed in Case Number 5:15-cv-88; an identical copy of another one of these motions [Doc.9] was also filed in Case Number 5:14-cv-138; and it appears Plaintiff has also simply recycled portions of previous recusal motions filed in other courts, referring to other judges, and has re-submitted them in this case. See, e.g., [Doc. 5 at p. 4 (“Magistrate Smith has . . .” and “Judge Story has . . .”)].

         In Plaintiff's first motion, he primarily repeats his allegations that Magistrate Judge Weigle has displayed “pervasive bias and prejudice” by ruling against Plaintiff on claims that have been allowed to proceed in other cases. [Doc. 5 at pp. 4-6]. In his second motion, Plaintiff repeats his prior allegations that the judges involved in his cases “display a deep-seated favoritism or antagonism that would make fair judgment impossible.” See [Doc. 6 at p. 8]. Plaintiff also repeats nearly verbatim arguments made in his objections and his motion for reconsideration in Case Number 5:15-cv-88 and contends that the allegedly incorrect rulings on those issues demonstrate the Court's “bias, prejudice, hostility, and antagonism against Mr. Daker.” [Id. at p. 22]. In his third motion, Plaintiff contends that Magistrate Judge Weigle should recuse himself because he is “ghost-writing” orders for district judges rather than entering recommendations to which Plaintiff would have an opportunity to object. See [Doc. 9 at pp. 2-4]. Plaintiff also repeats his allegations that Magistrate Judge Weigle has “demonstrate[ed] bias, prejudice, hostility, and antagonism” towards Plaintiff in this case and that he has “discriminat[ed] against Plaintiff in comparison with other similarly situated prisoners.” [Id. at p. 9].

         Plaintiff bases his motions on 28 U.S.C. § 455. The statute generally provides that a 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. 28 U.S.C. § 455(b)(1)-(5). In essence, Plaintiff's primary complaint is that the Court is biased towards him. 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 the Court's rulings exhibit “such a high degree of . . . antagonism as to make fair judgment impossible” or that any judge involved in his cases in this district have a bias toward Plaintiff “so extreme as to display clear inability to render fair judgment.” See Liteky, 510 U.S. at 551, 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). Plaintiff's contention that any judge who rules against him exhibits pervasive bias and prejudice is simply incorrect. Moreover, Plaintiff's theory that the Court is treating him differently than other pro se inmates making similar claims is undercut by Plaintiff's failure to differentiate between the procedural postures and the overall circumstances of the cases and litigants he is comparing.

         Secondly, the standard under 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 the undersigned or Magistrate Judge Weigle, and Plaintiff also fails to identify any specific “disputed evidentiary facts” of which the Court might have 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 the undersigned and Magistrate Judge Weigle have not ruled in his favor are not alone sufficient to merit recusal, and Plaintiff has also failed to show that the Court harbors the type of pervasive bias or prejudice against Plaintiff that would otherwise require recusal. Thus, Plaintiff's motions for recusal [Docs. 5, 6, 9] are DENIED.

         II. Motion for Leave to Proceed in Forma Pauperis [Doc. 2]

         Plaintiff has sought leave to proceed in forma pauperis in this case. Federal law bars a prisoner from bringing a civil action in federal court in forma pauperis

if [he] 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.

28 U.S.C. § 1915(g). This is known as the “three strikes provision.” Under § 1915(g), a prisoner incurs a “strike” any time he has a federal lawsuit or appeal dismissed on the grounds that it is (1) frivolous, (2) malicious, or (3) fails to state a claim. See Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999); see also Daker v. Comm'r, Ga. Dep't of Corr., 820 F.3d 1278, 1283-84 (11th Cir. 2016) (confirming that “these three grounds are the only grounds that can render a dismissal a strike”). Once a prisoner incurs three strikes, his ability to proceed in forma pauperis in federal court is greatly limited: leave to proceed in forma pauperis may not be granted unless the prisoner is under imminent danger of serious physical injury. Medberry, 185 F.3d at 1192.

         A review of court records on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) database reveals that Plaintiff has filed multiple federal lawsuits and that at least three of his complaints or appeals have been dismissed as frivolous, malicious, or for failure to state a claim: Daker v. Mokwa, Order Denying Leave to Proceed IFP, ECF No. 2 in No. 2:14-cv-00395-UA-MRW (C.D. Cal. Feb. 4, 2014) (denying leave to proceed in forma pauperis and dismissing case after conducting screening under 28 U.S.C. § 1915(e)(2)(B) and finding claims were frivolous and failed to state a claim upon which relief may be granted); Daker v. Warren, Order Dismissing Appeal, No. 13-11630 (11th Cir. Mar. 4, 2014) (three-judge panel dismissal of appeal on grounds that appeal was frivolous); Order Dismissing Appeal, Daker v. Warden, No. 15-13148 (11th Cir. May 26, 2016) (three-judge panel dismissing appeal as frivolous); Order Dismissing Appeal, Daker v. Commissioner, No. 15-11266 (11th Cir. Oct. 7, 2016) (three-judge panel dismissing appeal as frivolous); Order Dismissing Appeal, Daker v. Ferrero, No. 15-13176 (11th Cir. Nov. 3, 2016) (three-judge panel dismissing appeal as ...


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