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Daker v. Dozier

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

March 7, 2019

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

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, while incarcerated at Macon State Prison in Oglethorpe, Georgia, filed this action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) 42 U.S.C. § 2000cc-1 et seq., contesting certain conditions of his confinement while incarcerated at Georgia State Prison (“GSP”) in Reidsville, Georgia.[1] Doc. 1. Plaintiff also filed a Motion for Leave to Proceed in Forma Pauperis, doc. 2, Motions for Law Library Access, docs. 4, 7, 9, a Motion for Access to Photocopying, doc. 5, and Motions to Expedite docs. 8, 11. For the reasons set forth below, the Court DENIES Plaintiff leave to proceed in forma pauperis and DENIES as moot Plaintiff's remaining Motions, docs. 4, 5, 7, 8, 9, 11. Additionally, I RECOMMEND that the Court DISMISS without prejudice Plaintiff's Complaint, DIRECT the Clerk of Court to close this case and enter the appropriate judgment of dismissal, and DENY Plaintiff in forma pauperis status on appeal.[2]

         PLAINTIFF'S ALLEGATIONS[3]

         In his Complaint, Plaintiff asserts numerous claims against Defendants regarding his confinement at GSP. Doc. 1. Plaintiff contends that: (1) Defendants' shaving policies and customs violate the First and Eighth Amendments and RLUIPA; (2) Defendants' disciplinary report procedures violate substantive and procedural due process, as well as RLUIPA; (3) Defendants' administrative segregation review violates the Equal Protection Clause; (4) Defendants retaliated against him by keeping him in administrative segregation; (5) Defendants' restrictions on inmates in administrative segregation, as well as the cell conditions there, violate the First and Eighth Amendments and RLUIPA; and (6) Defendants violate due process by confiscating prisoners' personal property without inventory or opportunity for return.[4] Id. at 67-77.

         Plaintiff contends Defendants maintain a custom of forcibly shaving inmates with unsanitary or broken clippers and ensure compliance with forced shavings through disciplinary reports, tasers, pepper-spray, and similar chemical agents. Id. at 13-15. Plaintiff contends the Georgia Department of Corrections' (“GDC”) written policy requires shaving clippers be sanitized after every use to prevent the spread of infectious disease. Id. According to Plaintiff, Defendants ignore this policy and forcibly use broken or “unsanitized” clippers. As a result of Defendants' alleged shaving customs, Plaintiff was forcibly shaved several times, most recently on December 4, 2017. Id.

         Plaintiff asserts Defendants threatened to forcibly shave him at various times, beginning on February 5, 2015, and occurring most recently on March 23, 2018. Id. at 14-15. After Plaintiff refused to shave, Plaintiff alleges multiple Defendants assaulted and then forcibly shaved him, causing injuries to his shoulders, cuts and bruises on his neck, hands, wrists, and ankles, and a busted lip. Id. at 16-17. Afterward, Plaintiff alleges Defendants subjected him to continued threats of forced shaving at both Georgia State Prison and later at Macon State Prison after Plaintiff was transferred. Id. at 17.

         Plaintiff avers Defendants placed him in administrative segregation in violation of his due process rights. Id. at 17-23. Plaintiff contends administrative segregation hearings do not afford inmates a meaningful opportunity to be heard, and that the disciplinary report procedures run afoul of due process guarantees. Id. at 25-31. Finally, Plaintiff states the cell conditions and various restrictions imposed in administrative segregation violate his rights under the First and Eighth Amendment and his rights under RLUIPA. Id. at 31-83.

         Plaintiff argues he is in “imminent danger of serious physical injury” from the forced shaves and from Defendants' means of enforcing the shaving policy, which include disciplinary action and the use of pepper spray and tasers. Id. at 86-87. Further, Plaintiff claims he is in imminent danger because Defendants injured him during past forced shaves, threaten future forced shaves with unsanitary clippers, and, when he is in administrative segregation, deny him adequate food, medical care, and exercise, and subject him to unsanitary cell conditions. Id.

         In addition, Plaintiff avers he faces imminent danger due to Defendants' custom of providing insufficient food to prisoners in administrative segregation. Id. at 42-44. Plaintiff claims this custom caused him to lose 38 pounds and made him more susceptible to sinus infections. Id. As to imminent danger due to lack of adequate medical care, Plaintiff states Defendants have not provided timely care for his shoulder pain and nerve damage in his hands (although Plaintiff later underwent surgery on his right wrist). Id. at 45-48. Plaintiff also states Defendants do not provide timely dental care or dentist-recommended Sensodyne toothpaste. Id. Finally, Plaintiff feels he faces imminent danger due to unsanitary cell conditions because Defendants allegedly leave him exposed to feces, triggering allergy problems and six sinus infections. Id. at 48-58.

         DISCUSSION

         I. Three-Strikes Dismissal Under § 1915(g)

         A. Legal Standard

         An incarcerated individual, such as Plaintiff, attempting to proceed in forma pauperis in a civil action in federal court must comply with the mandates of the Prison Litigation Reform Act (“PLRA”). Pertinently, 28 U.S.C. § 1915(g) of the PLRA provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner 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). The Eleventh Circuit Court of Appeals has explained that “[t]his provision of the PLRA, ‘commonly known as the ‘three strikes' provision,' requires frequent filer prisoners to prepay the entire filing fee before federal courts may consider their lawsuits and appeals.” Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998) (quoting Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997)), abrogated in part on different grounds by Jones v. Bock, 549 U.S. 199 (2007).[5] A prisoner barred from proceeding in forma pauperis due to the “three strikes” provision in § 1915(g) must pay the entire filing fee when he initiates suit.[6] Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). When a prisoner who is barred by the “three strikes” provision seeks in forma pauperis status, courts must dismiss the complaint without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (finding that because the filing fee must be paid “at the time [the plaintiff-inmate] initiates the suit, ” plaintiff-inmates “cannot simply pay the filing fee after being denied in forma pauperis status” but may refile file action after dismissal and pay the entire filing fee upfront). The only exception is if the prisoner is “under imminent danger of serious physical injury.” § 1915(g); Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999).

         B. Plaintiff's Litigation History

         Pursuant to its inherent authority under Federal Rule of Evidence 201, the Court takes judicial notice of the dispositions of many of Plaintiff's previous lawsuits.[7] The Court also takes judicial notice of the determination of the United States District Court for the Middle District of Georgia, finding that “Plaintiff has had more than three of his cases or appeals dismissed on the statutorily-enumerated grounds [of § 1915(g)].”[8] Daker v. Comm'r, No. 5:16-cv-538, 2017 WL 3584910, at *2 (M.D. Ga. Aug. 17, 2017).

         Plaintiff has filed more than three civil actions or appeals which count as strikes under § 1915(g).[9] Actions filed by Plaintiff which count as strikes under § 1915(g) include:

(1) Daker v. Governor, No. 15-13179 (11th Cir. Order dated Dec. 19, 2016) (three-judge panel dismissing ...

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