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Daker v. Dozier

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

June 24, 2019

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

          ORDER DENYING PLAINTIFF'S MOTION TO VACATE

          TILMAN E. SELF, III, JUDGE

         Pending before the Court is pro se Plaintiff Waseem Daker's Motion to Vacate [Doc. 20] the Court's pervious Order [Doc. 13] which, among other things, denied Plaintiff's Motion for Leave to Proceed In Forma Pauperis (“IFP Motion”) [Doc. 2] and dismissed Plaintiff's case without prejudice. For the following reasons, the Court DENIES Plaintiff's Motion.

         DISCUSSION

         A. Standard of Review

          Plaintiff filed this Motion pursuant to Federal Rule of Civil Procedure 59(e). As the Court previously advised Plaintiff, “‘motions for reconsideration are disfavored'” and “‘relief under Rule 59(e) is an extraordinary remedy to be employed sparingly.'” Mercer v. Perdue Farms, Inc., No. 5:10-cv-324 (CAR), 2012 WL 1414321, at *1 (M.D. Ga. Apr. 20, 2012) (quoting Krstic v. Princess Cruise Lines, Ltd., 706 F.Supp.2d 1271, 1282 (S.D. Fla. 2010)); see also Daker v. Dozier, No. 5:17-cv-25 (CAR), 2017 WL 4797522 at *1 (M.D. Ga. Oct. 24, 2017) (holding same). Furthermore, Rule 59(e) “cannot serve as a vehicle to relitigate old matters or present the case under a new legal theory . . . [or] give the moving party another ‘bite at the apple' by permitting the arguing of issues and procedures that could and should have been raised prior to judgment.” Daker, 2017 WL 4797522, at *1 (internal quotation marks omitted) (alterations in original). The Court recognizes only three circumstances that warrant reconsideration of a prior order under Rule 59(e): “(1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice.” Daker v. Humphrey, No. 5:12-CV-461 (CAR), 2013 WL 1296501, at *2 n.1 (M.D. Ga. Mar. 27, 2013) (quoting Fla. College of Osteopathic Med., Inc. v. Dean Witter, 12 F.Supp.2d 1306, 1308 (M.D. Fla. 1998)).

         B. Plaintiff's Motion

         Plaintiff contends that the Court erred when it determined that he was not entitled to proceed in forma pauperis because he failed to demonstrate that he was in imminent danger of serious physical injury for purposes of 28 U.S.C. § 1915(g). Plaintiff has not identified any intervening change in the law or new evidence that affects his claims. Thus, the Court presumes that Plaintiff's Motion is based on his belief that there is a need for the Court to correct clear errors or manifest injustice in this case.

         1. Reconsideration is Unnecessary to Prevent a Manifest Injustice

         As a preliminary matter, it is unclear to the Court why Plaintiff continues to seek leave to proceed in forma pauperis in this case. Plaintiff acknowledges in recently-filed affidavits to proceed in forma pauperis that he sold his home in August of 2018 and has approximately $36, 000.00 in his checking and savings accounts as a result. See, e.g., Daker v. Head, Mot. Proceed IFP 3, ECF No. 35 in No. 5:14-cv-00138-MTT-CHW (M.D. Ga. Mar. 5, 2019). Plaintiff has paid thousands of dollars in filing fees in recent months from the proceeds of this sale. See, e.g., Daker v. Owens, No. 5:12-cv-00459-CAR-MSH (M.D. Ga. Nov. 20, 2012) ($505.00 appeal fee paid on June 10, 2019); Daker v. Ward, No. 5:19-cv-00126-MTT-CHW (M.D. Ga. Apr. 8, 2019) ($400.00 filing fee paid at filing); Nolley v. McLaughlin, No. 5:15-cv-00149-TES-CHW (M.D. Ga. Apr. 27, 2015) ($505.00 appeal fee paid on Feb. 7, 2019 regarding Plaintiff's motion to intervene); Daker v. Jackson, Appeal No. 18-11989 (11th Cir. May 9, 2018) ($505.00 appeal fee paid on Jan. 30, 2019); Daker v. USA, Appeal No. 17-15629 (11th Cir. Dec. 18, 2017) ($505.00 filing fee paid Jan. 28, 2019); Daker v. Owens, No. 5:12-cv-00459-CAR-MSH (M.D. Ga. Nov. 20, 2012) ($4.00 partial appeal fee paid on Jan. 4, 2019); Daker v. USA, Appeal No. 18-11383 (11th Cir. Apr. 3, 2018) ($505.00 appeal fee paid on November 30, 2018); Daker v. Deal, No. 1:18-cv-05243-WMR-CMS (N.D.Ga. Nov. 13, 2018) ($400.00 filing fee paid at filing); Smith v. Owens, No. 5:12-cv-00026-WLS-CHW (M.D. Ga. Jan. 24, 2012) ($505.00 appeal fee paid on Sept. 4, 2018 with check listing Plaintiff as account holder, see ECF No. 215).[1] The Order for which Plaintiff seeks reconsideration in this case merely found that Plaintiff was not entitled to proceed in forma pauperis and dismissed Plaintiff's Complaint without prejudice to his refiling the Complaint accompanied by the appropriate filing fee. Plaintiff appears to have ample resources to pay this fee. Plaintiff does not assert that the statute of limitations could bar any of his claims if he is required to refile, and the Court cannot conceive of any other prejudice Plaintiff would experience if he does so. Frankly, Plaintiff's filing of a motion for reconsideration in which he presses his position that he needs to avail himself of the § 1915(g) exception because of his indigence does not appear to be made in good faith given Plaintiff's current financial status. At the very least, the Court finds that Plaintiff would not suffer a manifest injustice if he is required to refile this case and pay a fee that he can obviously pay if he so chooses. The Court is therefore not compelled to reconsider its previous Order filed on February 21, 2019, on the basis that its ruling could work a manifest injustice.

         2. Reconsideration is Unnecessary to Correct Clear Error

         Plaintiff has also failed to show that reconsideration is warranted because the Court needs to correct clear errors. Plaintiff contends that he is presently in imminent danger of serious physical injury due to Defendants' customs and policies of (1) using excessive force to enforce the Georgia Department of Correction's (”GDC”) grooming policy and (2) requiring prisoners to shave (or be forcibly shaven) with clippers that are not properly sanitized.[2] Neither of these contentions support reconsideration of the Court's previous ruling that Plaintiff is not entitled to the § 1915(g) exception.

         a. Prison Officials' Custom of Using Force to Enforce the Grooming Policy Does Not Place Plaintiff in Imminent Danger of Serious Physical Injury

         First, Plaintiff contends that it was Defendants' custom, policy, or practice of forcibly shaving inmates-rather than his own refusal to comply with Defendants' orders to shave-that placed him in imminent danger of serious physical injury. The Court previously found that Defendants' policy of using excessive force to shave prisoners could not place Plaintiff in imminent danger because Plaintiff can avoid the application of any force at all if he voluntarily shaves himself. To reverse course on this conclusion would require the Court to accept Plaintiff's arguments that (1) the GDC's grooming policy is so obviously unlawful that his refusal to comply with it is justified and (2) the use of any force to compel compliance with the grooming policy is unnecessary and therefore excessive. See, e.g., [Doc. 20 at pp. 10-11 (contending that prison officials should have left “him alone in his cell, with or without a beard” and that “[i]t is never necessary to forcefully remove a locked-down prisoner from a lock-down cell for the purpose of shaving him” (emphasis in original))]. The fact remains, however, that the GDC's grooming policy has not yet been found to be unlawful, [3] and the Eleventh Circuit has indicated that the use of some force to compel compliance with a presumably lawful grooming policy is justifiable. See [Doc. 13 at pp. 9-10 (citing, e.g., 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”))]. It is therefore evident that any “ongoing danger” caused by the use of force to compel compliance with the grooming policy is (1) caused by Plaintiff's own actions and (2) simply not “imminent.”[4]

         The Court emphasizes that, contrary to Plaintiff's assertions, it has not reached the merits of Plaintiff's claims that Defendants violated his constitutional or statutory rights, and nothing in its Orders should be construed as condoning the use of excessive force or other unconstitutional action to enforce prison policies. See [Doc. 20 at p. 15 (“The district court appears to assume that because the GDC grooming Rule prohibits long beards, anything and everything is acceptable in the way of enforcement[, ]” including “beating, tazing, pepper-spraying” and other types of force as well as exposing prisoners to the risk of disease or “denying non-shaving prisoners medication, food, clothing, shelter, or other of ‘life's necessities[.]'”)]. At this stage, the Court does not have to decide whether prison officials used excessive force to shave Plaintiff or what amount of force or other hypothetical deprivation rises to the level of an Eighth Amendment violation. Instead, the Court is only required to decide whether the alleged GDC practice of using excessive force ...


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