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Daker v. Head

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

February 22, 2019

WASEEM DAKER, Plaintiff,
v.
PATRICK H. HEAD, et al., Defendants.

          ORDER

          MARC T. TREADWELL, JUDGE

         On October 9, 2018, the Eleventh Circuit confirmed that Plaintiff Waseem Daker, an inmate presently housed at the Valdosta State Prison in Valdosta, Georgia, did not have three strikes at the time he filed the Complaint in this case. The Eleventh Circuit accordingly reversed the Court's previous judgment and remanded the case for further proceedings (ECF No. 24). The Eleventh Circuit's mandate issued on November 7, 2018 (ECF No. 26).

         Plaintiff has filed the following motions that are presently pending before the Court: (1) two motions to expedite the preliminary screening of this case pursuant to 28 U.S.C. § 1915A (ECF Nos. 25, 31); (2) an emergency motion for preliminary injunction (ECF No. 27); (3) a motion to recuse United States Magistrate Judge Weigle (ECF No. 28); and (4) a motion for preliminary injunction or temporary restraining order (ECF No. 29). For the following reasons, the Court DENIES each of these pending motions. In addition, the Court ORDERS Plaintiff to (1) file a motion for leave to proceed in forma pauperis in this case; and (2) recast his Complaint in accordance with the instructions below.

         I. Motion for Recusal

         Plaintiff has filed a motion seeking recusal of Magistrate Judge Weigle (ECF No. 28). This motion is duplicative of a motion filed in Case Number 5:18-cv-00245-TES-CHW. In this 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 Mot. Recusal 2-4, Dec. 10, 2018, ECF No. 28. Plaintiff alleges 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 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. Id. at § 455(b)(1)-(5). 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.” See Liteky, 510 U.S. at 555. Plaintiff has not demonstrated that Magistrate Judge Weigle has a bias towards Plaintiff “so extreme as to display clear inability to render fair judgment.” See Id. at 551. 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, and his theory that Judge Weigle 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.

         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 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 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 motion for recusal (ECF No. 28) is therefore DENIED.

         II. Motions for Preliminary Injunction

         Plaintiff has also filed an “emergency” motion for a preliminary injunction or temporary restraining order “enjoining Defendants from physically forcibly shaving Plaintiff pending final disposition of this case.” Mot. Prelim. Inj. 1, ECF No. 27. Plaintiff additionally filed a motion for preliminary injunction or temporary restraining order requiring Defendants to provide Plaintiff with adequate access to either a lockdown satellite law library or the general population library, or to “otherwise make arrangements to provide Plaintiff adequate law library access.” Mot. Prelim. Inj. 1, ECF No. 29.[1]

         A temporary restraining order (“TRO”) or preliminary injunction is a drastic remedy used primarily to preserve the status quo rather than grant most or all of the substantive relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982).[2] Factors a movant must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the TRO would inflict on the non-movant; and (4) the TRO would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (per curiam).

         Since Plaintiff filed his motions for injunctive relief, he has been transferred from the Macon State Prison to the Valdosta State Prison. “The general rule is that a prisoner's transfer or release from a jail moots his individual claim for declaratory and injunctive relief.” See, e.g., McKinnon v. Talladega Cnty., 745 F.2d 1360, 1363 (11th Cir. 1984)). This general rule may not apply, however, where a reason to except the claims exists. See, e.g., Smith v. Artus, 522 Fed.Appx. 82, 84 (2d Cir. 2013) (unpublished opinion) (finding that transferred prisoner's claims for injunctive relief were not moot where defendants acknowledged claims were based on a statewide policy). With respect to Plaintiff's motion regarding law library access, the Court finds Plaintiff has failed to allege facts sufficient to show that an exception to the general rule should apply. Plaintiff has not alleged any facts suggesting that his alleged lack of law library access is the result of a statewide policy or otherwise exists at his new prison. Plaintiff's motion is based on his contention that lockdown prisoners are not afforded sufficient law library access. It is unclear whether Plaintiff is even on “lockdown” at VSP or whether he is now housed in general population. The Court therefore cannot determine whether Plaintiff actually requires a “lockdown satellite law library” or the other accommodations he requests. See Mot. Prelim. Inj. 1, ECF No. 29. Furthermore, Plaintiff acknowledges in his motion that some Georgia state prisons do maintain satellite law libraries in their lockdown units. Id. at 2. It therefore appears that no uniform statewide policy exists, and Plaintiff has failed to file any supplemental briefing or pleadings in this case indicating that his access to legal materials at VSP is limited. Plaintiff's motion for injunctive relief regarding law library access (ECF No. 29) is therefore DENIED as moot.

         As to Plaintiff's motion seeking an order enjoining Defendants from forcibly shaving Plaintiff, the Court finds that at this juncture the facts have not been sufficiently developed to conclude that there is a substantial likelihood that Plaintiff will ultimately prevail on the merits. This Court has previously observed that Plaintiff can avoid being forcibly shaven by simply complying with the GDC's grooming policy. See Daker v. Dozier, No. 5:17-CV-0025-CAR, 2017 WL 3037420, at *6 (M.D. Ga. July 18, 2017) (noting that Plaintiff's “allegations . . . suggest that it was Plaintiff's repeated failure to follow instructions, not the GDC's policies, that created the dangerous situation that led to his injuries”). Plaintiff does not allege that the GDC's current grooming policy has been found unconstitutional or otherwise unlawful, and the Eleventh Circuit has indicated that some use of force is permissible to enforce prison regulations. Muhammad v. Sapp, 494 Fed.Appx. 953, 957 (11th Cir. 2012) (per curiam) (holding that prison official “was authorized to use force to enforce the prison's shaving policy”); cf. also, e.g., Robinson v. Lambert, No. 18-11033, 2018 WL 5255238, at *3 (11th Cir. Oct. 22, 2018) (per curiam) (holding that officer “was warranted in using force given [plaintiff's] repeated refusal to obey commands to attend his first appearance”). While Defendants clearly are not permitted to use excessive force to enforce their regulations, this Court cannot issue an injunction that simply requires Defendants to follow the law. See Elend v. Basham, 471 F.3d 1199, 1209 (11th Cir. 2006) (“It is well-established in this circuit that an injunction demanding that a party do nothing more specific than ...


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