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Daker v. Dozier

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

March 29, 2019

WASEEM DAKER, Plaintiff,



         The Court has conducted an independent and de novo review of the entire record and concurs with the Magistrate Judge's Report and Recommendation, (doc. 19). Plaintiff first submitted a Motion to Extend Time to Object, asserting that he needed more time to prepare and file his Objections. (Doc. 21). Despite that assertion, Daker filed a 44-page document styled as his "Partial Objections" on March 28, 2019.[1] (Doc. 22). After consideration of Daker's partial Objections, (doc. 22), the Court finds that nothing in these Objections alters the Magistrate Judge's conclusion that Daker should be denied in forma pauperis status. The Court, therefore, OVERRULES Daker's Objections and ADOPTS the Magistrate Judge's Report and Recommendation as the Order of the Court. The Court DENIES Daker's Motion to Extend Time to Object, (doc. 21), and will not consider any other objections postmarked after March 25, 2019.[2]The Court also DENIES Daker's request for emergency remand for evidentiary hearing, (doc. 22, p. 30).[3] The Court DISMISSES without prejudice Plaintiffs Complaint, (doc. 1), DIRECTS the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENIES Plaintiff in forma pauperis status on appeal.

         I. Daker's Motion to Extend Time, (doc. 21)

         Rule 6(b) allows courts to extend filing deadlines when a party makes a timely request and shows good cause to do so. Fed.R.Civ.P. 6(b). Thus, "[a] request for an extension, made before the expiration of the deadline, should be granted where good cause is shown." Sensi v. Fla. Officers of Court, 737 Fed.Appx. 433, 436 (11th Cir. 2018); Shepherd v. Wilson, 663 Fed.Appx. 813, R17-1R ni th Cir. 2016: United States v. Johnson, No. 1:05-CR-1, 2011 WL 66044, at *1 (N.D. Fla. Jan. 7, 2011) (denying, in a criminal case, a request for an extension of time to file objections when defendant failed to show good cause). "To establish good cause, the party seeking the extension must establish that the schedule could not be met despite the party's diligence." Ashmore v. Sec'v. Dep't of Transo., 503 Fed.Appx. 683, 685 (11th Cir. 2013).

         Though Daker timely filed his Motion, he fails to show that good cause justifies his request for an extension. The Magistrate Judge recommended dismissal because Daker has filed at least three previous actions which courts dismissed as frivolous, and Daker failed to show he was in imminent danger of a future physical injury at the time he filed his Complaint. (Doc. 19, pp. 8-9) (citing Smith v. Clemons, 465 Fed.Appx. 835, 836 (11th Cir. 2012)). In support of his Motion, Daker argues that he needs more time because he is pro se, incarcerated, and "needs, outside assistance from family members or friends to assist with preparing and filing his Objections." (Doc. 21). However, Daker does not explain what additional Objections he might raise if he was given additional time, nor does he explain why he requires additional outside assistance.[4]Additionally, Daker does not explain why his incarceration and pro se status prevent him from meeting the deadline for objections "despite his diligence." FTC v. Lalonde, 545 Fed.Appx. 825, 835 (11th Cir. 2013) (finding no error in denying an incarcerated plaintiffs motion for a discovery extension when the plaintiff "did not show that the deadline for discovery could not be met despite his diligence"). Further, some impairment of Daker's "civil litigating capacity" is "one of the constitutional consequences of his incarceration." Id.

         Moreover, Daker's assertion that he needs more time to formulate his objections is vitiated by his own filings of record. First, Daker timely filed 44 pages of Objections, despite this Motion. (Doc. 22). Even if Daker had not submitted such voluminous Objections, he knew the Court would issue a Report and Recommendation in his case and filed-not just one, but two-motions to expedite the Court's requisite frivolity review. (Docs. 14, 17). Daker's simultaneous attempts to expedite the Court's rulings and to extend his own time to respond weigh against a finding of good cause. In both of his motions to expedite, Daker asserted that his claims should proceed because he was in imminent danger of physical injury. (Docs. 14, 17). Notably, Daker is a well-known litigant with an extensive history of filing federal lawsuits. Daker v. Brvson, No. 5:15-CV-88, 2015 WL 4973548, at *1 (M.D. Ga. Aug. 20, 2015) ("A review of court records . . . reveals that Plaintiff has filed more than one hundred federal civil actions and appeals since 1999."); Daker v. Warren, No. 1:11-CV-1711, 2014 WL 806858, at *1 (N.D.Ga. Feb. 28, 2014) ("Waseem Daker is an extremely litigious state prisoner[.]"); see also Mathis v. Smith, 181 Fed.Appx. 808, 809-10 (11th Cir. 2006) ("When considering the issue of frivolity, 'a litigant's history of bringing unmeritorious litigation can be considered.'" (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001))). Thus, Daker was well aware that the Magistrate Judge's Report and Recommendation would be forthcoming and that he may have to prepare legal and factual defenses regarding his imminent danger claim.

         While he would not be able to prepare the precise objections until he received the Report and Recommendation, nothing prevented Daker from preparing any additional factual evidence or legal argument beforehand. In fact, if more evidence existed, Daker could easily have submitted it to the Court for consideration before frivolity review. Because Daker's Partial Objections, (doc. 22), were timely filed, the Court will consider them. However, because Daker fails to show good cause for an extension, the Court DENIES Plaintiffs Motion to Extend Time to Object, (doc. 21).

         II. Daker's Objections, (doc. 22)[5]

         A. Imminent Danger of Serious Physical Injury

         Next, Daker argues that he faces-and since early 2015 has faced-an "ongoing danger" that physical force will be used against him. (Doc. 22, pp. 12-14). He cites to multiple sources of authority to show that prison officials are not justified in using force to effectuate these shavings. (Id. He argues that, even if the grooming policy was valid (a point he does not concede), "it does not follow that force is justified to maintain it." (Id.).

         Daker is correct that the imminent danger standard does not require prisoners suffer a physical injury before bringing suit. However, he still fails to show that an "ongoing danger" of forced shavings creates an imminent danger of serious physical injury. More importantly, questions around the justification for use of force go to the merits of Daker's actions. The question currently before the Court is not whether prison officials are justified in their use of force, but rather, whether Daker has sufficiently alleged that he faced an imminent danger of physical injury at the time he brought his Complaint. It may be that prison officials cannot forcibly shave Daker in the manner which he alleges.[6] However, the issue the Court must currently determine is whether Daker faced an imminent danger of a serious physical injury at the time he brought his Complaint. If so, then Daker's claim may proceed without prepayment of cost. If not, then this action will be dismissed, but dismissal would not foreclose the claim. If Daker chooses, he may proceed with his claim simply by refiling it and paying the costs up front. But, the underlying merits of forcible shaving and grooming policies are not currently before the Court.

         Notably, Daker must show not that he is currently or has been under threat of imminent danger, but rather that he faced an imminent danger of physical injury at the time he filed his complaint. See Owens v. Schwartz, 519 Fed.Appx. 992, 994 (11th Cir. 2013) ("A prisoner who qualifies under imminent danger of serious physical injury at the time that he filed his complaint, however, can proceed [in forma pauperis]"). Here, Daker originally submitted a 67-page Complaint and supplement at the time he filed this action. Additional factual arguments must therefore be extremely limited in scope-any new fact-based allegations are only relevant if they pertain to the dangers Daker faced at Georgia State Prison on or around March 26, 2018, when he initially filed this action. (Doc. 1).

         First, Daker argues he faces an ongoing imminent danger because the prison uses unsanitized clippers every time he is forcibly shaved. (Doc. 22, pp. 5, 23). This argument does not alter the Magistrate Judge's conclusion that Daker's assertion that use of unsanitized clippers may lead him to contract HIV or hepatitis is merely "hypothetical conjecture" which is insufficient to sustain a finding of imminent danger. (Doc. 19, pp. 11-12). As the Magistrate Judge noted, this case-like Daker's other cases challenging the GDC's grooming policy-involves "duplicative, longstanding allegations of imminent harm [from] infectious diseases which have never come to fruition." (Doc. 19, p. 12 n.14). Daker alleges in this case that the forcible shavings began in 2015, though in other cases, he has claimed that such shavings began as early as 2012. (Id., p. 11 & n.13). However, Daker never states that he has personally contracted any communicable disease from the unsanitized clippers, nor does he provide even one instance of another inmate who contracted a disease. While prisoners are not required to show they have personally contracted a disease in order to successfully claim imminent danger, simply pointing to a "documented causal link" between unsanitized tools and disease is not enough to show that Daker, specifically, suffers risk of disease from the prison's use of unsanitized shaving tools. (Doc. 22, pp. 27-28). The Court's consideration of the lack of disease does not, as Daker alleges, create a situation where there is no way to bring an imminent danger claim. Rather, the length of time such conditions have persisted without any infection, coupled with Daker's allegations of frequent forced shaves and the prison's common and widespread practice of providing inmates with unsanitary grooming materials, are factors which speak directly to Daker's risk of injury. These factors weigh strongly against a finding of any "imminent" danger.

         In his Objections, Daker also argues that he faces imminent danger of serious physical injury due to the force used in the prison's implementation of grooming policy. (Id., pp.T1-22). This includes the prison's use of handcuffs, chemical sprays, and other restraints during the forcible shavings. For the first time in this action, Daker states that prison officials used a chemical spray on him during three forced shaves on November 10, 2016, January 10, 2017, and, finally, on September 18, 2018, about six months after Daker filed this action.[7] (Id., p. 21; Doc. 1). As a result, Daker suffered skin irritation, characterized as a "burn," which lasted "over a week." (Doc. 22, p. 7). This is a new factual allegation, as Daker did not assert that prison officials used chemical sprays on him in any of his prior filings in this action. (Doc. 1; Doc. 19, p. 11). Regardless, it is difficult to see how this additional fact shows that Daker was in imminent danger of a serious physical injury at the time he filed his Complaint. Like the bruises, split toenails, and minor scrapes of which he complains, a skin rash lasting slightly over a week is not a serious physical injury. Rather, it is the natural and anticipated result of the use of chemical agents on a prisoner who is actively resisting prison guards ordered to implement a Georgia Department of Corrections ("GDC") policy. Daker does not state the skin rash was so severe as to require medical attention, nor does he describe any long-lasting, permanent, or life-threatening consequences. See, e.g., Jackson v. Jackson, 335 Fed.Appx. 14, 15 (11th Cir. 2009) (finding imminent danger of physical injury when plaintiff-prisoner alleged that he faced "face tissue death, gangrene, and internal bleeding" due ...

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