Petition for Writ of Certiorari — Waseem Daker, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections

Supreme Court briefFeb 15, 2022

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USCA11 Case: 19-11723

Date Filed: 08/16/2021

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 19-11723

D.C. Docket No. 6:18-cv-00032-JRH-BWC

WASEEM DAKER,

Plaintiff - Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,

Defendant - Appellee,

TIMOTHY WARD, et. al.,

Assistant Commissioner,

Defendants.

No. 19-11849

D.C. Docket No. 6:18-cv-00073-RSB-BWC

WASEEM DAKER,

USCA11 Case: 19-11723

Date Filed: 08/16/2021

Page: 2 of 4

Plaintiff - Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,

HOMER BRYSON,

Former GDC Commissioner,

ASSISTANT COMMISSIONER, DEPARTMENT OF CORRECTIONS,

WARDEN,

Facilities Director,

STEVE UPTON,

Deputy Facilities Director, et al.,

Defendants - Appellees.

Appeals from the United States District Court

for the Southern District of Georgia

(August 16,2021)

Before JORDAN, JILL PRYOR and TJOFLAT, Circuit Judges.

PER CURIAM:

Waseem Daker appeals the district court’s sua sponte dismissal without

prejudice of two actions under 42 U.S.C. § 1983 and the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-l(a), alleging

various constitutional and statutory violations relating to the Georgia Department

of Corrections’ (“GDC”) grooming policy.1 Daker is a practicing Muslim. As part

Daker proceeded pro se in the district court in both cases. We consolidated the appeals

when we determined they presented the same question and appointed counsel to represent Daker.

USCA11 Case: 19-11723

Date Filed: 08/16/2021

Page: 3 of 4

of his religion, he must wear a beard at least as long as the width of his fist, about

three inches. GDC requires prisoners to have beards of no longer than half an inch.

Along with challenging this policy, Daker alleged in both complaints that GDC has

a custom and practice of forcibly shaving him with unsanitized clippers and using

excessive force. Daker maintains that this practice puts him at risk of contracting

infectious diseases and sustaining serious injury.

Daker moved to proceed in forma pauperis at the time he filed each

complaint. The district court sua sponte dismissed both suits under the Prison

Litigation Reform Act’s “three-strikes” provision, which prohibits inmates who

have had three previous civil actions dismissed “on the grounds that [they are]

frivolous, malicious, or fail[] to state a claim” from proceeding in forma pauperis.

28 U.S.C. § 1915(g). On appeal, Daker argues that the district court erred because

his complaints alleged an imminent danger of serious physical harm—an exception

to the three strikes provision. Id.

After we ordered that this case be orally argued, another panel of this Court

held that an essentially identical complaint in another of Daker’s appeals failed to

allege an imminent danger of future harm under § 1915(g). Daker v. Ward, 999

F.3d 1300, 1311-13 (11th Cir. 2021). Daker himself described the claims in Daker

v. Ward and the instant cases as similar, and our review confirms that the

complaints in all three cases are substantially identical. Given this similarity, we

USCA11 Case: 19-11723

Date Filed: 08/16/2021

Page: 4 of 4

conclude that this appeal is foreclosed by our decision in Daker v. Ward} We thus

affirm the district court’s dismissal.

AFFIRMED.

2 This is not to say that Daker is foreclosed from proceeding under § 1915(g)’ s imminent

danger of serious physical injury exception for any claim challenging GDC’s grooming policy.

But on the complaints before us, as in the complaint in Daker v. Ward, Daker has not sufficiently

alleged that the GDC practices create such a risk.

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Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

WASEEM DAKER,

Plaintiff,

CIVIL ACTION NO.: 6:18-cv-32

COMMISSIONER GREGORY DOZIER, et

al.,

Defendants.

ORDER

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

The Magistrate Judge issued the Report and Recommendation on March 7, 2019. Doc. 19. The

record before the Court reflects that a copy was mailed to Plaintiff the same day. Thus, Daker had until

March 25,2019, to file his Objections or to make a timely request for an extension. See Daker v. Comm’r.

Georgia Dep’t of Corr.. 820 F.3d 1278, 1286 (11th Cir. 2016) (stating that prisoners have 17 days to file

objections to a Report and Recommendation (citing Fed. R. Civ. P. 6(d), 72(b)(2))); see also Forde v. Miami

Fed. Dep’t of Corr.. 730 F. App’x 794, 800-01 (11th Cir. 2018) (“The prison mailbox rule provides that a

pro se prisoner’s legal submission is considered filed on the date it is delivered to prison authorities for

mailing.”); Washington v. United States. 243 F.3d 1299, 1301 (11th Cir. 2001) (noting that “absent

evidence to the contrary,” courts “assume that [a prisoner’s pleading] was delivered to prison authorities

the day [the prisoner] signed it.”); see also Fed. R. Civ. P. 6(a)(1)(C) (providing that, when computing a

time period where “the last day is a Saturday, Sunday, or legal holiday,” the time period “continues to run

until the end of the next day that is not a Saturday, Sunday, or legal holiday”). Daker signed his Motion on

March 18,2019, and the envelope bears a March 22,2019 postmark. (Doc. 21, pp. 1-2). Similarly, Daker’s

Partial Objections were signed and postmarked on March 24, 2019. (Doc. 22, pp. 43-44). Thus, even

though the Court received Daker’s Motion and his Partial Objections on March 26 and March 28,

respectively, both are timely filed.

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 2 of 13

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.

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 F. App’x 433,436 (11th Cir. 2018); Shepherd v. Wilson. 663 F. App’x 813,

Because the time to file objections is now past, Daker’s self-styled “Partial Objections,” (doc. 22),

are, in fact, his full Objections. Additionally, in his Motion, Daker indicated that he intended to file

objections to both the Report and Recommendation, (doc. 19), and the Court’s Order, filed the same day,

which denied Daker leave to proceed in forma pauperis, (doc. 18). (Doc. 22, p. 1). In denying the Motion

to Extend Time to Object, the Court is denying Daker any additional time to file any Objections to either

the Report and Recommendation or the Order denying in forma pauperis status. See Fed. R. Civ. P. 72

(setting the same time period for filing objections to both dispositive and non-dispositive rulings from a

magistrate judge).

Daker requests an “emergency remand” for an evidentiary hearing, arguing that the evidentiary

hearing would be especially helpful because “each of the forcible shavings at issue were videotaped” and

the recordings will prove that “there was no need to forcibly shave Plaintiff” and that “on each occasion,

[Defendants forcibly shaved him with unsantized clippers.” (Doc. 22, p. 30). First, the issue before the

Court is whether Daker may proceed without prepayment of filing fees, not whether the forcible shaving

was necessary or whether it occurred with unsanitized clippers. For purposes of this Order, the Court

accepts as true that these forcible shavings occurred and that unsanitized clippers were used each time.

Moreover, because the purpose of the Prisoner Litigation Reform Act (“PLRA”) is to curb abusive

litigation, it follows that evidentiary hearings on preliminary issues such as imminent danger or exhaustion

of administrative remedies should be rarely granted. See. e.g„ Stephens v. Howerton. No. CV 105-171,

2007 WL 1810242, at * 11 (S.D. Ga. June 21,2007); Williams v. Rich. No. CV 606-003,2006 WL 2534417,

at *5, n.5 (S.D. Ga. Aug. 30,2006).

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 3 of 13

817-18 (11th 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 F. App’x 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 F. App’x 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 F. App’x 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

However, the subsequently-filed Partial Objections, (doc. 22), provide some guidance on what

Daker might argue. As further explained below, nothing in these Objections demonstrates that Daker was

in imminent danger of a serious physical injury at the time he filed his Complaint. Additionally, the Court

notes that Daker’s Partial Objections contain a hodgepodge of arguments, many of which this Court has

previously considered and dismissed. Here, Daker filed the same document containing the same Partial

Objections in two different cases and, within his Objections, continually refers to filings not contained

within the present action and which may have taken place in other litigation.

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 4 of 13

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. 1:1 l-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 F. App’x 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

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 5 of 13

good cause for an extension, the Court DENIES Plaintiffs Motion to Extend Time to Object,

(doc. 21).

II.

Daker’s Objections, (doc. 22)5

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

Daker argues that the Magistrate Judge erred by construing the facts asserted by Daker against

Daker, rather than in his favor. That is incorrect. A plain reading of the Magistrate Judge’s Report and

Recommendation demonstrates that the Magistrate Judge construed all facts alleged in Daker’s favor and

assumed those facts to be true for purposes of the three-strikes review. Moreover, it is entirely appropriate

for the Magistrate Judge to weigh Daker’s history as a serial litigant when considering whether his claims

are sufficiently serious as to allow him to proceed without payment. Mathis v. Smith. 181 F. App’x 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))); see Skillem v. Paul. 202 F. App’x 343, 344 (11th Cir. 2006) (considering, during the analysis of

imminent danger under § 1915(g), that “the PLRA was enacted to ‘curtail abusive prisoner litigation’”);

see also Daker v. Comm’r. Ga. Dep’t of Corr.. 820 F.3d 1278,1281 (11th Cir. 2016) ("Daker has submitted

over a thousand pro se filings in over a hundred actions and appeals in at least nine different federal

courts.”); Daker v. Warren. No. 1:1 l-cv-1711,2014 WL 806858, at *1 (N.D. Ga. Feb. 28,2014)(“Waseem

Daker is an extremely litigious state prisoner....”).

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 6 of 13

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 F. App’x 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. 12n.l4). Daker alleges in this case that the forcible shavings

. 6

Indeed, the issue is currently being litigated in Smith v. Owens. 848 F.3d 975 (11th Cir. 2017).

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 7 of 13

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. (IdL, pp. l 1-22).

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). Asa

result, Daker suffered skin irritation, characterized as a “bum,” 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

As Daker admits, he has already filed multiple actions to challenge these forced shaving practices,

including the use of chemical sprays during forced shavings. (Doc. 22, pp. 3 & n.l, 21).

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 8 of 13

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 F. App’x 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 to lack of medical attention). Daker may pay the filing fee if he desires to litigate

the underlying merits of such forcible shavings and the use of force, including chemical agents, to

effectuate the GDC grooming policy. However, a skin injury lasting only days or weeks does not

constitute a serious physical injury sufficient to overcome § 1915(g) and allow Daker to proceed

in forma pauperis in this action.

Not only does Daker not face serious physical injury, there are multiple factors which

weigh against a finding that Daker is in imminent danger of any physical injury. First, Daker

alleges he faced imminent danger during his confinement at Georgia State Prison, and he has since

been transferred to Valdosta State Prison. (Doc. 15). This transfer makes it less likely that Daker

can assert new facts upon which his imminent danger allegation may rest. See, e.g.. Medberrv v.

Butler. 185 F.3d 1189,1193 (11th Cir. 1999) (finding no error in denying a plaintiff-prisoner leave

to amend when the prisoner had been transferred after filing his complaint because any additional

allegations of imminent danger faced at the new prison would be futile). Notably, though Daker

alleges that he has been subjected to around 14 forced shaves since 2015, only three of these

involved the use of chemical spray. (Doc. 22, pp. 7,26). While Daker may be subject to a forcible

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 9 of 13

shaving while confined to any GDC institution, he does not provide any facts which show that the

new prison officials are also likely to employ chemical sprays. Thus, Daker fails to show he

imminent danger at the time he filed the Complaint.

Daker devotes six pages of his 44-page Objections to attacking the Magistrate Judge’s

conclusion that Daker created the imminent danger he allegedly faces. (Id., pp. 14—20). First, the

Magistrate Judge based his finding on other grounds in addition to finding that Daker's “danger,”

to the extent it exists, is self-created, (specifically, that Daker did not show the danger he faced

was imminent, nor that it was likely to result in a serious physical injury). (Doc. 19, pp. 11-12).

Second, Daker argues that the finding of the Magistrate Judge in this regard “opens a dangerous

can of worms.” (Doc. 22, p. 19). Daker then proceeds to propose a series of hypothetical that he

asserts show the error in holding that he created the own danger that he faces. (Id., p. 20).

However, the Court is not charged with resolving hypothetical disputes. Instead, the Court must

decide if Daker created his own harm in this case.

To the extent Daker asserts he is not subjecting himself to this imminent danger, he is

incorrect. Daker is not forced to choose between punishment for expressing his professed religious

belief and compliance with prison regulations. The result is the same whether Daker complies

with prison policy or does not—in either scenario, he cannot grow a beard of his desired length.

Daker’s resistance does not allow him to express his professed religious belief. Instead, it merely

manufactures the “imminent danger” which Daker asserts and then results in the same outcome as

if he had complied with regulations. Daker could certainly challenge the constitutionality of the

prison policy while complying with it. If Daker chose to do so, he could not avoid paying filing

fees due to an imminent danger of physical injury. For all of the reasons above, the Court finds

Daker failed to meet his burden of demonstrating an imminent danger of serious physical'harm.

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 10 of 13

The Constitutionality of § 1915(g)

Daker specifically concedes that the cases the Magistrate Judge cited as strikes “were both

filed by Mr. Daker and dismissed as frivolous.” (Doc. 22, pp. 26-27, 33-34). However, Daker

alleges that the “three-strikes” provision in § 1915(g) is unconstitutional. First, the Court notes

that this is not the first time Plaintiff has made this argument, nor the first time this Court has

dismissed it. See Daker v. Brvson. 6:16-cv-57 (S.D. Ga. Mar. 20,2017). Daker states the Rivera

decision did not address each and every constitutional challenge to § 1915(g), such as the.issue of

the First Amendment “breathing space” principle. (Doc. 22, pp. 31-44). Additionally, Plaintiff

challenges § 1915(g) on equal protection grounds. (Id.). Plaintiff also maintains § 1915(g) violates

his right to access to the courts.

In Rivera v. Allin. the Eleventh Circuit Court of Appeals answered many of Plaintiff’s

present challenges to § 1915(g). 144 F.3d 719 (11th Cir. 1998), abrogated on other grounds by

Jones v. Bock. 549 U.S. 199 (2007). Specifically, the Eleventh Circuit determined § 1915(g) does

not violate a prisoner-plaintiffs right of access to the courts. Rather, the Court stated that

§ 1915(g) “does not prevent a prisoner with three strikes from filing civil actions; it merely

prohibits him from enjoying IFP [“/«forma pauperis”] status.” Id. at 723-24 (first alteration in

original) (citing Carson v. Johnson. 112 F.3d 818, 821 (5th Cir. 1997) (rejecting plaintiffs claim

that § 1915(g) is unconstitutional because it blocks access to the courts), and Lvon v. Krol. 127

F.3d 763, 765 (8th Cir. 1997) (“Section 1915(g) does not prohibit prisoners from pursuing legal

claims if they have had ‘three strikes’ or three prior dismissals. It only limits their ability to

proceed [IFP].”)). The Eleventh Circuit asserted “proceeding IFP is a privilege, not a- right—

fundamental or otherwise.” Id. at 724. The Eleventh Circuit continued by stating that Rivera’s

claims of deliberate indifference to serious medical needs did not implicate a fundamental right,

such as “state controls or intrusions or family relationships.” Id. (internal citation omitted).

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 11 of 13

The Eleventh Circuit also determined the three strikes provision does not violate a litigant’s

right to due process or to equal protection. Id. at 727 (citing Parsell v. United States. 218 F.2d

232,235 (5th Cir. 1955) (denying leave to proceed IFP “does not offend the requirements of due

process”), and Hampton v. Hobbs. 106 F.3d 1281, 1287 (6th Cir. 1997) (“Hampton’s ability to

petition the government for redress of grievances has not been deprived or limited by the [PLRA]

and thus that interest cannot provide the basis for a due process violation.”)).

As for an equal protection argument, the Eleventh Circuit noted the equal protection clause

is not implicated if a law does not burden a fundamental right or target a suspect classification. Id

The Eleventh Circuit determined that Rivera did not and could not contend “that prisoner indigents

(specifically, frequent filer prisoner indigents) form a suspect or quasi-suspect class.” Id. (citations

omitted). The Court had already rejected Rivera’s fundamental rights argument and declined his

“invitation to review section 1915(g) under any standard more onerous than rational basis.” Id

The Eleventh Circuit noted Congress enacted § 1915(g) to curb “abusive prisoner tort, civil rights

and conditions litigation” and to preserve “scarce judicial resources” and determined this law

serves those ends “through its requirement that prisoner indigents with three strikes prepay the

entire filing fee before the court may further review their lawsuit (unless imminent danger of

serious physical injury exists).” Id

The Seventh Circuit Court of Appeals had occasion to tangentially address the “breathing

space” principle Plaintiff advances here. Lewis v. Sullivan. 279 F.3d 526 (7th Cir. 2002). In

Lewis, the Seventh Circuit reversed the judgment of the district court that § 1915(g) “would be

unconstitutional unless read to allow judges to dispense with prepayment whenever, in their

discretion, they viewed the prisoners’ claims to be substantial.” Lewis. 279 F.3d at 527 (citing

135 F. Supp. 2d 954 (W.D. Wis. 2001)). In so doing, the Seventh Circuit looked to the decisions

of the other seven Courts of Appeals concerning constitutionality challenges to § 1915(g),

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 12 of 13

including the Eleventh Circuit’s decision in Rivera. The Seventh Circuit noted § 1915(g) had been

challenged on several grounds, including the right to access the courts, due process, and the First

Amendment right to petition for redress of grievances, and none of the challenges had been

successful. Id. at 528 (collecting cases). The Seventh Circuit agreed with its sister Circuits which

had decided the issue and found the “decisions to be sound,” because “there is no constitutional

entitlement to subsidy.” Id. “Federal courts are subsidized dispute-resolvers; filing fees defray

only a small portion of the costs. A requirement that plaintiffs cover some of these costs cannot

be called unconstitutional. The Supreme Court has never held that access to the courts must be

free; it has concluded, rather, that reasonably adequate opportunities for access suffice.” Id. (citing

Lewis v. Casey, 518 U.S. 343 (1996)). This Court agrees with the Seventh Circuit’s analysis and

conclusion.

Daker’s constitutional challenges to § 1915(g), whether generally or to his situation, are

without merit, as has been determined by the Eleventh Circuit, other Courts of Appeals, and this

Court. What is more, Daker does not attempt to show how § 1915(g) violates his constitutional

rights. Instead, Daker makes blanket statements in this regard. However, even if Daker had

provided reasoning in support of his arguments, such reasoning would be without merit. Having

to prepay his filing fee before the Court addresses the relative merits of his claims, unless he shows

he is in imminent danger of serious physical injury, does not violate Daker’s rights. Consequently,

the Court OVERRULES this Objection.

CONCLUSION

The Court OVERRULES Daker’s Objections and ADOPTS the Magistrate Judge’s

Report and Recommendation as the opinion of the Court. The Court DENIES Daker’s Motion to

Extend Time, (doc. 21), and his request for emergency remand for evidentiary hearing, (doc. 22,

p. 30). The Court DISMISSES without prejudice Plaintiffs Complaint, DENIES Plaintiff in

Case 6:18-cv-00032-JRH-BWC Document 23 Filed 03/29/19 Page 13 of 13

forma pauperis status on appeal, and DIRECTS the Clerk of Court to CLOSE this case and enter

the appropriate judgment of dismissal.

SO ORDERED, this

day of March, 2019.

XLL, CPflEF JUDGE

united States district court

SOUTHERN DISTRICT OF GEORGIA

hP&r*jixrx

/Wifccr/U'KT TM&'X ficPOfl-r/\«b P-FatArvi&'toATTtifij

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

WASEEM DAKER,

Plaintiff,

CIVIL ACTION NO.: 6:18-cv-32

COMMISSIONER GREGORY DOZIER, et

al.,

Defendants.

ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

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-l et seq., contesting certain conditions of his confinement

while incarcerated at Georgia State Prison (“GSP”) in Reidsville, Georgia.1 Docs. 1, 1-1.

Plaintiff also filed a Motion for Leave to Proceed in Forma Pauperis, doc. 2, and Motions for

Preliminary Injunction or Temporary Restraining Order, docs. 6, 7, 8, 9.2 For the reasons set

forth below, the Court DENIES Plaintiff leave to proceed in forma pauperis. Additionally, I

RECOMMEND that the Court DISMISS without prejudice Plaintiffs Complaint, DENY as

moot Plaintiffs remaining Motions, docs. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, DIRECT the

Plaintiff is now confined at Valdosta State Prison. Doc. 16.

In addition, Plaintiff filed two identical Motions for Recusal of Judge R. Stan Baker and Judge J.

Randal Hall, docs. 3, 5, which are still pending.

Case 6:18-cv-00032-JRH-BWG Document 19 Filed 03/07/19 Page 2 of 15

Clerk of Court to close this case and enter the appropriate judgment of dismissal, and DENY

Plaintiff in forma pauperis status on appeal.3

PLAINTIFF’S ALLEGATIONS

In his Complaint, Plaintiff asserts numerous claims against dozens of Defendants

regarding his confinement at GSP. Doc. 1-1. 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 55-58.

A “district court can only dismiss an action on its own motion as long as the procedure employed

is fair. To employ fair procedure, a district court must generally provide the plaintiff with notice of its

intent to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S.. 631 F.3d 1321,1336 (11th Cir.

2011) (citations and internal quotations marks omitted). A Magistrate Judge’s Report and

Recommendation (“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of

Elec. Workers Local Union 349. 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has

notice of a district court’s intent to grant summary judgment sua sponte when a magistrate judge issues a

report recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored. Inc..

678 F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua

sponte dismissed). This R&R constitutes fair notice to Plaintiff that his suit is barred and due to be

dismissed. As indicated below, Plaintiff will have the opportunity to present his objections to this

finding, and the presiding district judge will review de novo properly submitted objections. See 28 U.S.C.

§ 636(b)(1); Fed. R. Civ. P. 72: see also Glover v. Williams. No. L12-CV-3562, 2012 WL 5930633, at *1

(N.D. Ga. Oct. 18, 2012) (explaining that an R&R constituted adequate notice and petitioner’s

opportunity to file objections provided a reasonable opportunity to respond).

As discussed in detail below, the Court will only reach the merits of Plaintiff s allegations if

Plaintiff pays the entire filing fee upfront or is granted leave to appeal in forma pauperis.

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 3 of 15

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 6-9. 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 September 20, 2017, and occurring most recently on March 5, 2018. Id at 9-13. Plaintiff

contends Defendants created false disciplinary reports regarding his refusal to shave. Doc. 1-1 at

9-11. After Plaintiff refused to shave, Plaintiff alleges multiple Defendants forcibly shaved him,

causing injuries to his shoulders, cuts and bruises on his neck, hands, wrists, and ankles, and skin

damage to his pinky finger. Id. Afterward, Plaintiff alleges Defendants subjected him to a series

of false disciplinary reports, confinement in administrative segregation, and continued threats of

forced shaving. Id. at 11-13.

Plaintiff avers Defendants placed him in administrative segregation in violation of his due

process rights, ftf at 13-19. 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 19-24. 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. IdL at 24-55.

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 4 of 15

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 6-8 & n.2, 58-59. 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

at 58-59.

In addition, Plaintiff avers he faces imminent danger due to Defendants’ custom of

providing insufficient food to prisoners in administrative segregation. Id at 32-34. Plaintiff

claims this custom caused him to lose 17 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 for his right wrist). Id at 35-37. 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 three sinus

infections. Id. at 38-39, 58.

DISCUSSION

Three-Strikes Dismissal Under § 1915(g)

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:

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 5 of 15

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

In the Eleventh Circuit, dismissals for failing to follow court orders or for abusing the judicial

process are also considered strikes. See Rivera. 144 F.3d at 731; Malautea v. Suzuki Motor Co.. 987 F.2d

1536, 1544 (11th Cir. 1993).

The applicable filing fee is now $400.00. “The entire fee to be paid in advance of filing a civil

complaint is $400. That fee includes a filing fee of $350 plus an administrative fee of $50, for a total of

$400. A prisoner who is granted in forma pauperis status will, instead, be assessed a filing fee of $350

and will not be responsible for the $50 administrative fee. A prisoner who is denied in forma pauperis

status must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the

complaint will be filed.” Callaway v. Cumberland Ctv. Sheriff Pet)’t. No. Civ. 14-4853, 2015 WL

2371614, at *1 (D.N.J. May 18, 2015); see also Owens v. Sec’v Fla. Dep’t of Corr.. Case No. 3:15cv272,

2015 WL 5003649 (N.D. Fla. Aug. 21, 2015) (noting that the filing fee applied to cases in which a

prisoner-plaintiff is denied in forma pauperis status is $400.00).

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 6 of 15

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).

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).

Courts routinely take judicial notice of a plaintiff s litigation history when evaluating if the plaintiff

has three strikes under § 1915(g). See Lloyd v. Benton. 686 F.3d 1225, 1226 (11th Cir. 2012); Rivera 144

F.3d at 721 (noting that the trial court took judicial notice of the results of plaintiffs prior lawsuits when

evaluating if plaintiff had three strikes.) Moreover, the dispositions of a plaintiffs previous actions “can

be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed

R. Evid. 201(b)(2).

This Court, as well as other courts, previously observed that Plaintiff is a serial litigant with a

significant history of filing frivolous lawsuits. See, e.g.. Daker v. Head. 739 F. App’x 597 (11th Cir.

2018) (“During his incarceration for murder, Daker has filed over a hundred pro se suits.”); Daker v.

Comm’r, Ga. Dep’t of Corr.. 820 F.3d 1278, 1281 (11th Cir. 2016) (“Daker has submitted over a

thousand pro se filings in over a hundred actions and appeals in at least nine different federal courts.”);

Daker v. Head. No. 6:14-cv-47 (S.D. Ga. Sept. 8, 2014) (denying Plaintiff leave to proceed in forma

pauperis due to three striker status); Daker v. Warren. No. 1:1 l-cv-1711, 2014 WL 806858, at *1 (N.D.

Ga. Feb. 28, 2014) (“Waseem Daker is an extremely litigious state prisoner . .. .”). Moreover, this

Court’s review of Plaintiff s filing history reveals scores of other civil actions and appeals which were

dismissed and which may count as strikes under § 1915(g). See In re Daker. No. 1:1 l-cv-1711, 2014 WL

2548135, at *2 (N.D. Ga. June 5,2014) (summarizing Plaintiffs litigation history): see also Daker v.

Dozier, No. 5:17-CV-0025, 2017 WL 3037420, at *2 (M.D. Ga. July 18, 2017) (reviewing Daker’s status

as a three-striker in light of the Eleventh Circuit opinion); Daker v. Brvson. No. 6:16-CV-57, 2017 WL

242615, at *5 (S.D. Ga. Jan. 19, 2017) (listing five cases, including the four listed here, which constitute

strikes under § 1915(g)). The Eleventh Circuit already “determined that the ‘three strikes’ provision of

the Prison Litigation Reform Act of 1995 is applicable to” Plaintiff. See, e.g.. Letter dated May 29, 2014,

in Daker v. Comm’r. No. 14-12139 (11th Cir. 2014); Letter dated April 18, 2014, in Daker v. Comm’r.

No. 14-11571 (11th Cir. 2014).

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 7 of 15

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, Case No. 15-13179 (11th Cir. Order dated Dec. 19, 2016) (threejudge panel dismissing appeal as frivolous);

(2) Daker v. Ferrero, Case No. 15-13176 (11th Cir. Order dated Nov. 3, 2016) (threejudge panel dismissing appeal as frivolous);

(3) Daker v. Commissioner. Case No. 15-11266 (11th Cir. Order dated Oct. 7, 2016)

(three-judge panel dismissing appeal as frivolous);

(4) Daker v. Warden. Case No. 15-13148 (11th Cir. Order dated May 26, 2016) (threejudge panel dismissing appeal as frivolous).;

(5) Daker v. Warren. Case No. 13-11630 (11th Cir. Order dated Mar. 4,2014) (threejudge panel dismissing appeal as frivolous);

(6) Daker v. NBC, et al., No. 15-330 (2d Cir. May 22, 2015), ECF No. 35 (dismissing

Plaintiff s appeal because it “lacks an arguable basis either in law or in fact”);

(7) Daker v. Robinson, l:12-cv-00118 (N.D. Ga. Sept. 12, 2013) (dismissing based on

Plaintiffs failure to follow a court order); and

(8) Dakerv. Dawes, l:12-cv-00119 (N.D. Ga. Sept. 12, 2013) (dismissingbased on

Plaintiffs failure to follow a court order).

In 2016, in a separate action, the Eleventh Circuit reviewed a district court order finding Daker

accumulated at least three strikes under § 1915(g). See Daker v. Comm’r, Ga. Den’t of Corr., 820 F.3d

1278, 1284—85 (11th Cir. 2016). The Eleventh Circuit found that three of the five cases the district court

relied on to form the basis of the three-strikes dismissal did not qualify as strikes. Id. The Eleventh

Circuit explicitly declined to opine on whether Plaintiff had any other strikes. Id at 1286 (“We express

no view on whether Daker has any other strikes.”). In calculating Plaintiffs strikes in this case, the cases

that the Eleventh Circuit found did not qualify as strikes against Plaintiff have not been included.

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 8 of 15

(9) Daker v. Mokwa. 2:14-cv-395 (C.D. Cal. Feb. 4, 2014) (dismissing as frivolous,

malicious, or failing to state a claim);

The above actions and appeals were dismissed for being frivolous, malicious, failing to state a

claim for relief, or for abusing the judicial process, not on grounds which failed to address the

merits of Plaintiff s claims.10 As Plaintiff has filed at least three previously dismissed cases or

appeals which qualify as strikes under § 1915(g), Plaintiff cannot proceed in forma pauperis

unless he meets the “imminent danger of serious physical injury” exception to § 1915(g).

Section 1915(g)’s Imminent Danger Exception

“In order to come within the imminent danger exception, the Eleventh Circuit requires

‘specific allegations of present imminent danger that may result in serious physical harm.’”

Odum v. Brvan Ctv. Judicial Circuit. No. CV407-181, 2008 WL 766661, at *1 (S.D. Ga. Mar.

20, 2008) (quoting Skillem v. Jackson. No. CV606-49, 2006 WL 1687752, at *2 (S.D. Ga. June

14, 2006)). In determining whether Plaintiff s allegations sufficiently overcome the three-strikes

bar, the Court will abide by the long-standing principle that the pleadings of unrepresented

parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be

liberally construed. Haines v. Kemer. 404 U.S. 519, 520 (1972); Boxer X v. Harris. 437 F.3d

1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys . ... ” (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d

1157, 1160 (11th Cir. 2003))). However, the § 1915(g) exception requires plaintiffs include

The last two cited causes of action were dismissed based on Plaintiffs failure to follow the orders

of a court. The Eleventh Circuit treats dismissals for “abuse of the judicial process,” including dismissals

for providing false filing-history information and failing to comply with court orders, as “strikes” under

§ 1915(g). See Ingram v. Warden. 735 F. App’x 706 (11th Cir. 2018) (affirming that dismissals for

failure to truthfully disclose litigation history constitute a strike under § 1915(g)); Rivera. 114 F.3d at 731

(dismissing for failure to disclose prior litigation is “precisely the type of strike that Congress envisioned

when drafting § 1915(g)”).

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 9 of 15

specific facts indicating serious physical injury is imminent. Brown v. Johnson. 387 F.3d 1344,

1349-50 (11th Cir. 2004). General or conclusory allegations, even construed liberally, do not

“invoke the exception absent specific fact allegations of ongoing serious physical injury or a

pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Id.;

see also Margiotti v. Nichols. No. CV306-113, 2006 WL 1174350, at *2 (N.D. Fla. May 2,

2006).

“[A] prisoner cannot create the imminent danger so as to escape the three strikes

provision of the PLRA.” Ball v. Allen. No. 06-0496, 2007 WL 484547, at *2 (S.D. Ala. Feb. 8,

2007) (quoting Muhammad v. McDonough. No. CV306-527-J-32, 2006 WL 1640128, at *1

(M.D. Fla. June 9, 2006)). Moreover, harms already incurred or dangers now past do not justify

an exception to the three strikes bar. Medberry. 185 F.3d at 1193 (“Prisoner’s allegation that he

faced imminent danger sometime in the past is an insufficient basis to allow him to proceed in

forma pauperis pursuant to the imminent danger exception to the statute.”); see also Parish v.

Davis, No. 4:16-CV-148, 2016 WL 1579385, at *1 (N.D. Fla. Mar. 25, 2016) (“The imminent

danger exception should be applied only in ‘genuine emergencies’ where ‘time is pressing,’ the

‘threat or prison condition is real and proximate,” and ‘the potential consequence is serious

physical injury.’” (quoting Lewis v. Sullivan. 279 F.3d 526, 531 (7th Cir. 2002))).

Plaintiffs Claims of Imminent Danger

Plaintiff should not be excused from prepaying the filing fee because his claims do not

show any imminent danger of serious physical injury. Rather, Plaintiffs claims, as drafted,

show that he is “a seasoned vexatious litigant who has read 28 U.S.C. § 1915(g) and is

manipulating it to serve his ends.” Skillem. 2006 WL 1687752, at *2 (quoting McNeil v. United

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 10 of 15

States. No. C05-1975, 2006 WL 581081, at *3 n.3 (W.D. Wash. Mar. 8, 2006)): see also Daker

v. Bryson. No. 6:16-CV-57, 2017 WL 242615, at *1 (S.D. Ga. Jan. 19, 2017).

First, the overwhelming majority of Plaintiff s claims do not approach § 1915(g)’s

requirement of serious risk of imminent physical danger. First, the claims regarding the

December 4, 2017 forcible shaving center on past physical injuries which occurred before

Plaintiff filed his Complaint, not dangers Plaintiff faces in the imminent future. Likewise,

Plaintiff s allegations related to his treatment in administrative segregation, including lack of

exercise and unsanitary housing conditions, relate to past treatment without showing the

possibility of serious future injury.11 Claims based on other past forced shaving incidents with

unsanitary hair clippers also seek redress for past injuries. Plaintiffs claims that Defendants

violated his religious beliefs under RLUIPA, confiscated his property, and did not provide him

due process at his disciplinary and administrative confinement hearings do not allege physical

injury, much less an imminent threat of future serious physical injury.12

Although allegations of denied medical care can sometimes show imminent danger,

Plaintiff s complaints—that he was denied his toothpaste of choice and denied speedy dental,

orthopedic, and nerve care—fail to show that Plaintiff faces imminent, serious physical injury.

Notably, some of these claims relate to past harm, as Plaintiff eventually received orthopedic

In a similar case, Plaintiff alleged that he was denied outdoor recreation, that “he is housed with

inmates who throw feces, and [he] is being denied adequate sanitation and cleaning supplies.” Daker v.

Dozier, No. 5:17-CV-0025, 2017 WL 3037420, at *4 (M.D. Ga. July 18, 2017). The Middle District of

Georgia found these allegations insufficient to establish an exception to the three-strikes rale. Id at *6.

The circumstances Plaintiff alleges created imminent danger arose during Plaintiffs confinement

at Georgia State Prison, but Plaintiff is now incarcerated at Valdosta State Prison in the Middle District of

Georgia. Doc. 15. However, his “transfer does not affect [the] imminent danger analysis, as that analysis

focuses on whether Smith alleged an imminent danger at the time his complaint was filed.” Smith v.

Dewberry. 741 F. App’x 683, 687 n.3 (11th Cir. 2018).

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 11 of 15

treatment and surgery for his nerve damage. Doc. 1-1 at 35-36. Similarly, while Plaintiff claims

the lack of adequate food in administrative segregation caused sinus infections and weight loss,

he admits his sinus infections have been successfully treated with antibiotics. Id. at 34. Plaintiff

does not describe any serious physical harm related to his purported weight loss.

Only Plaintiff s claims related to Defendants forcible use of broken or unsanitary hair

clippers begin to approach the “imminent danger of serious physical injury” requirement. Here,

however, Plaintiff merely offers generalized and conclusory allegations devoid of any specific

facts showing an actual, imminent threat of physical injury. Plaintiff alleges the damaged,

unsanitized clippers may spread HIV or hepatitis, but this is simply hypothetical conjecture.

Plaintiff claims he has been forcibly shaved with allegedly dangerous clippers at least nine times

since February 5, 2015, but does not claim to have contracted any infection or disease or suffered

any other serious, negative health effects.13 Id. at 8. Moreover, while Plaintiff claims that

Defendants use force and chemical agents to effectuate the forced shavings, he does not state that

Defendants used these chemical agents on him.

Generalized allegations such as these do not sufficiently demonstrate that the prisoner

faces “imminent danger of serious physical injury” as required under § 1915(g). See, e.g.. Daker

v. Dozier. No. 5:17-CV-0025, 2017 WL 3037420, at *5-6 (M.D. Ga. July 18, 2017) (finding

Daker’s nearly identical allegations, including forced shavings with unsanitary clippers and poor

administrative confinement conditions, did not show imminent danger of serious physical

injury); Ball v. Allen. No. CIV. 06-0496, 2007 WL 484547, at *1 (S.D. Ala. Feb. 8, 2007)

(finding the provision of clean clothes twice per week, unsanitary showers, inadequate fire safety

Indeed, in another action, Plaintiff made similar allegations concerning the use of broken,

unsanitary clippers, which he claims started as early as 2012. See Daker v. Bryson. No. 6:16-CV-57,

2017 WL 242615, at *1 (S.D. Ga. Jan. 19, 2017). Despite this apparently longstanding practice, Plaintiff

has not suffered any of the serious physical injuries he claims this custom creates.

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 12 of 15

in cells, lack of cleaning supplies for cells, inadequate lighting, and inadequate, unsanitary, and

contaminated food and beverages, are insufficient under § 1915(g)). Plaintiff, therefore, fails to

show the danger posed by forced shaving warrants application of the § 1915(g) exception.

At.best, Plaintiff shows the forced shavings caused him a series of cuts, bruises, shoulder

pain, and skin damage and that he will likely be subject to this custom again.14 Doc. 1-1 at 8 &

n.2, 11. Even assuming, without deciding, that the threat that Plaintiff may endure these same

injuries in the future is sufficiently “imminent” and “serious” to trigger the exception to

§ 1915(g), Plaintiff still cannot avail himself of this exception because his actions created the

harm. Plaintiff alleges Defendants forcibly shaved him because he refused to comply with the

prison’s grooming policy due to a religious objection. Id at 6, 8-11. Because Plaintiff is

subjected to Defendants’ forced shaving custom due to his own behavior, Plaintiff is empowered

to end the forcible shaving by choosing to comply with the grooming policy. What Plaintiff

cannot do, however, is create a physically harmful situation through his own conduct and then

claim the dangers his actions create excuse him from the PLRA’s three-strikes bar. Ball. 2007

WL 484547, at *2 (prisoner cannot create imminent danger to escape three strikes rule);

Although not mentioned in his Complaint, Plaintiff argues in his preliminary injunction Motion

that “[cjourts have repeatedly recognized that use of unsanitized clippers satisfies” § 1915(g). Doc. 6 at

8. As support, Plaintiff cites: Andrews v. Cervantes. 493 F.3d 1047, 1055 (9th Cir. 2007) (finding a

prisoner’s “allegation that he is at serious risk of contracting HIV or Hepatitis C, if true, more than

plausibly raises the specter of serious physical injury”); Bingham v. Morales. No. CV 311-019, 2011 WL

53585941, at *1 n.2 (S.D. Ga. Nov. 4, 2011) (noting that the magistrate judge concluded that prisoner

satisfied imminent danger exception based on allegation that prisoner was forced to share razors with

other inmates under unsanitary conditions); James v. Dormire. No. 07-4141, 2008 WL 625027, at *2-3

(W.D. Mo. Mar. 4,2008) (allowing a claim to proceed based on allegations that sharing electric razors

presented danger of spreading infection, then found the § 1915(g) exception inapplicable when officials

showed that they cleaned the razors between uses with Barbicide). Each of these cases is distinguishable

from Daker’s claims. First, none of these cases involve duplicative, longstanding allegations of imminent

harm with infectious diseases which have never come to fruition, like Plaintiff’s forced shaving

allegations. Second, none involve an alleged imminent danger of serious physical injury of the inmate’s

own making, as Plaintiffs refusal to comply with GSP’s grooming policy does.

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 13 of 15

Muhammad. 2006 WL 1640128, at *1. Thus, he cannot invoke the §1915(g) exception based on

this harm.

The above reasons demonstrate that § 1915(g) bars Plaintiff from proceeding in forma

pauperis in this action.15 Plaintiff has not paid the filing fee required of all plaintiffs who are not

allowed to proceed in forma pauperis. I, therefore, RECOMMEND the Court DISMISS

without prejudice the Complaint, and, accordingly, DENY as moot the remainder of Plaintiff s

Motions. Docs. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17. I DENY Plaintiffs Motion for Leave to

Proceed in Forma Pauperis. Doc. 2. If Plaintiff wishes to proceed with his claims, he may do so

by refiling the action and paying the entire filing fee upfront. Dupree. 284 F.3d at 1236.

II.

Leave to Appeal in Forma Pauperis

The Court should also deny Plaintiff leave to appeal in forma pauperis .16 Though

Plaintiff has, of course, not yet filed a notice of appeal, it is appropriate to address these issues in

the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (providing that a trial court may certify

that appeal is not take in good faith “before or after the notice of appeal is filed”). An appeal

cannot be taken in forma pauperis if the trial court certifies that the appeal is not taken in good

faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context is judged by

an objective standard. Busch v. County of Volusia. 189 F.R.D. 687, 691 (M.D. Fla. 1999). A

party does not proceed in good faith when he seeks to advance a frivolous claim or argument.

See Coppedge v. United States. 369 U.S. 438, 445 (1962). A claim or argument is frivolous

when it appears the factual allegations are clearly baseless or the legal theories are indisputably

meritless. Neitzke v. Williams. 490 U.S. 319, 327 (1989); Carroll v. Gross. 984 F.2d 392, 393

If Plaintiff wishes to continue to litigate his claims against Defendants, he may do so, but he must

pay the entire filing fee upfront. See Vanderberg. 259 F.3d at 1324.

A certificate of appealability is not required in this § 1983 action.

l^>

Case 6:18-CV-00032-JRH-BWC Document 19 Filed 03/07/19 Page 14 of 15

(11th Cir. 1993). An in forma pauperis action is frivolous and not brought in good faith if it is

“without arguable merit either in law or fact.” Napier v. Preslicka. 314 F.3d 528, 531 (11th Cir.

2002); see also Brown v. United States. Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2

(S.D. Ga. Feb. 9, 2009).

The above analysis of Plaintiff s action shows that Plaintiff does not possess any nonfrivolous issues to raise on appeal, and an appeal would not in good faith. Just as Daker’s status

as a three-striker prevents him from filing this action without prepaying the filing fee in this

Court, it also blocks him from achieving in forma pauperis status on appeal. Thus, the Court

should DENY him in forma pauperis status on appeal.

CONCLUSION

For the above-stated reasons, the Court DENIES Plaintiffs Motion for Leave to Proceed

in forma pauperis. Doc. 2. Additionally, I RECOMMEND the Court DISMISS without

prejudice Plaintiffs Complaint, DENY as moot Plaintiffs Motions for Preliminary Injunction

or Temporary Restraining Order, docs. 6, 7, 8, 9, 10, DENY as moot Plaintiffs remaining

Motions, docs. 11, 12, 13, 14, 15, 17, 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.

The Court ORDERS any party seeking to object to this Report and Recommendation to

file specific written objections within 14 days of the date on which this Report and

Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address

any contention raised in the Complaint must also be included. Failure to do so will bar any later

challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28

U.S.C. § 636(b)(1)(C); Thomas v. Am. 474 U.S. 140 (1985). A copy of the objections must be

served upon all other parties to the action.

Case 6:18-cv-00032-JRH-BWC Document 19 Filed 03/07/19 Page 15 of 15

Upon receipt of Objections meeting the specificity requirement set out above, a United

States District Judge will make a de novo determination of those portions of the report, proposed

findings, or recommendation to which objection is made and may accept, reject, or modify in

whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not

meeting the specificity requirement set out above will not be considered by a District Judge. A

party may not appeal a Magistrate Judge’s report and recommendation directly to the United

States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of

Court to serve a copy of this Report and Recommendation upon Plaintiff.

SO ORDERED and REPORTED and RECOMMENDED, this 7th day of March,

2019.

BENJAMIN W. CHEESBRO

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGIA

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USCA11 Case: 19-11723

Date Filed: 10/26/2021

Page: 1 of 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 19-11723-GG

D.C. Docket No. 6:18-cv-00032-JRH-BWC

WASEEM DAKER,

Plaintiff - Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,

Defendant - Appellee,

TIMOTHY WARD, et. al.,

Assistant Commissioner,

Defendants.

No. 19-11849-GG

D.C. Docket No. 6:18-cv-00073-RSB-BWC

WASEEM DAKER,

Plaintiff - Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,

HOMER BRYSON,

Former GDC Commissioner,

ASSISTANT COMMISSIONER, DEPARTMENT OF CORRECTIONS,

WARDEN,

Facilities Director,

STEVE UPTON,

Deputy Facilities Director, et al.,

Defendants - Appellees.

USCA11 Case: 19-11723

Date Filed: 10/26/2021

Page: 2 of 2

Appeal from the United States District Court

for the Southern District of Georgia

ON PETITIONS FOR REHEARING AND PETITION(S) FOR REHEARING EN BANC

BEFORE: JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc. (FRAP 35) The Petition for

Rehearing En Banc is also treated as a Petition for Rehearing before the panel and is DENIED.

(FRAP 35, IOP2)

ORD-42

Date Filed: 08/16/2021

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 19-11723

D.C. Docket No. 6:i8-cv-00032-JRH-BWC

WASEEM DAKER,

Plaintiff-Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF

CORRECTIONS,

Defendant-Appellee.

TIMOTHY WARD, et al.,

Assistant Commissioner,

Defendants.

No. 19-11849

D.C. Docket No. 6:i8-cv-00073-RSB-BWC

WASEEM DAKER,

App. 1

Plaintiff-Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF

CORRECTIONS,

HOMER BRYSON,

Former GDC Commissioner,

ASSISTANT COMMISSIONER, GEORGIA DE

PARTMENT OF CORRECTIONS,

WARDEN,

Facilities Director,

STEVE UPTON,

Deputy Facilities Director, et al.,

Defendants-Appellees

Appeals from the United States District Court

for the Southern District of Georgia

(August 16, 2021)

Before JORDAN, JILL PRYOR and TJOFLAT, Cir

cuit Judges.

PER CURIAM:

Waseem Daker appeals the district court’s sua

sponte dismissal without prejudice of two actions un

der 42 U.S.C. § 1983 and the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §

2000cc-l(a), alleging various constitutional and statu

tory violations relating to the Georgia Department of

App. 2

Corrections’ (“GDC”) grooming policy.1 Daker is a

practicing Muslim. As part of his religion, he must

wear a beard at least as long as the width of his fist,

about three inches. GDC requires prisoners to have

beards of no longer than half an inch. Along with chal

lenging this policy, Daker alleged in both complaints

that GDC has a custom and practice of forcibly shav

ing him with unsanitized clippers and using excessive

force. Daker maintains that this practice puts him at

risk of contracting infectious diseases and sustaining

serious injury.

Daker moved to proceed in forma pauperis at

the time he filed each complaint. The district court sua

sponte dismissed both suits under the Prison Litiga

tion Reform Act’s “three-strikes” provision, which pro

hibits inmates who have had three previous civil ac

tions dismissed “on the grounds that [they are] frivo

lous, malicious, or failD to state a claim” from proceed

ing in forma pauperis. 28 U.S.C. § 1915(g). On appeal,

Daker argues that the district court erred because his

complaints alleged an imminent danger of serious

physical harm—an exception to the three strikes pro

vision. Id.

After we ordered that this case be orally argued,

another panel of this Court held that an essentially

identical complaint in another of Daker’s appeals

failed to allege an imminent danger of future harm

under § 1915(g). Daker v. Ward, 999 F.3d 1300, 1311—

1 Daker proceeded pro se in the district court in

both cases. We consolidated the appeals when we de

termined they presented the same question and ap

pointed counsel to represent Daker.

App. 3

13 (llth Cir. 2021). Daker himself described the

claims in Daker v. Ward and the instant cases as sim

ilar, and our review confirms that the complaints in

all three cases are substantially identical. Given this

similarity, we conclude that this appeal is foreclosed

by our decision in Daker v. Ward.2 We thus affirm the

district court’s dismissal.

AFFIRMED.

2 This is not to say that Daker is foreclosed from

proceeding under § 1915(g)’s imminent danger of seri

ous physical injury exception for any claim challeng

ing GDC’s grooming policy. But on the complaints be

fore us, as in the complaint in Daker v. Ward, Daker

has not sufficiently alleged that the GDC practices

create such a risk.

App. 4

Case 6G8-cv-00032-JRH-BWC Document 23

Filed 03/29/19

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

WASEEM DAKER,

Plaintiff,

: CIVIL ACTION NO.

• 6-18-cv32

COMMISSIONER GREGORY DOZIER, et al,:

Defendants. •

ORDER

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).

1 The Magistrate Judge issued the Report and

Recommendation on March 7, 2019. Doc. 19. The rec

ord before the Court reflects that a copy was mailed

to Plaintiff the same day. Thus, Daker had until

March 25, 2019, to file his Objections or to make a

timely request for an extension. Daker v. Comm'r.

Georgia Den't of Corr.. 820 F.3d 1278, 1286 (llth Cir,

App. 5

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 Recom

mendation as the Order of the Court. The Court DE

NIES Daker's Motion to Extend Time to Object, (doc.

2016) (stating that prisoners have 17 days to file ob

jections to a Report and Recommendation (citing Fed.

R. Civ. P. 6(d), 72(b)(2))); see also Forde v. Miami

Fed. Den't of Corr.. 730 F. App'x 794, 800-01

(llth.Cir.2018) ("The prison mailbox rule provides

that a pro se prisoner's legal submission is consid

ered filed on the date it is delivered to prison authori

ties for mailing."); Washington v. United States. 243

F.3d 1299, 1301 (llth Cir. 2001) (noting that "absent

evidence to the contrary," courts "assume that [a

prisoner's pleading] was delivered to prison authori

ties the day [the prisoner] signed it."); see also Fed.

R. Civ. P. 6(a)(1)(C) (providing that, when computing

a time period where "the last day is a Saturday, Sun

day, or legal holiday," the time period "continues to

run until the end of the next day that is not a Satur

day, Sunday, or legal holiday"). Daker signed his Mo

tion on March 18, 2019, and the envelope bears a

March 22,2019 postmark. (Doc. 21, pp. 1-2). Simi

larly, Daker's Partial Objections were signed and

postmarked on March 24, 2019. (Doc. 22, pp. 43-44).

Thus, even though the Court received Daker's Motion

and his Partial Objections on March 26 and March

28, respectively, both are timely filed.

App. 6

21), and will not consider any other objections post

marked after March 25,2019.2 The Court also DE

NIES Daker's request for emergency remand for evi

dentiary hearing, (doc. 22, p. 30).3 The Court DIS

MISSES without prejudice Plaintiffs Complaint, (doc.

2 Because the time to file objections is now

past, Daker's self-styled "Partial Objections," (doc.

22), are, in fact, his full Objections. Additionally, in

his Motion, Daker indicated that he intended to file

objections to both the Report and Recommendation,

(doc. 19), and the Court's Order, filed the same day,

which denied Daker leave to proceed in forma pau

peris, (doc. 18). (Doc. 22, p. l). In denying the Motion

to Extend Time to Object, the Court is denying Daker

any additional time to file any Objections to either

the Report and Recommendation or the Order deny

ing in forma pauperis status. See Fed. R. Civ. P. 72

(setting the same time period for filing objections to

both dispositive and non-dispositive rulings from a

magistrate judge).

3 Daker requests an "emergency remand" for

an evidentiary hearing, arguing that the evidentiary

hearing would be especially helpful because "each of

the forcible shavings at issue were videotaped" and

the recordings will prove that "there was no need to

forcibly shave Plaintiff and that "on each occasion,

[Defendants forcibly shaved him with unsanitized

clippers." (Doc. 22, p. 30). First, the issue before the

Court is whether Daker may proceed without prepay

ment of filing fees, not whether the forcible shaving

was necessary or whether it occurred with unsan

itized clippers. For purposes of this Order, the Court

accepts as true that these forcible shavings occurred

App. 7

l), 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 dead

lines when a party makes a timely request and shows

good cause to do so. Fed. R. Civ. P. 6(b). Thus, "[a] re

quest 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 F. App'x

433, 436 (11th Cir. 2018); Shepherd v. Wilson. 663 F.

App'x 813, 817*18 (llth Cir. 2016); United States v.

Johnson. No. i:05-CR-l, 2011 WL 66044, at *1 (N.D.

Fla. Jan. 7,2011) (denying, in a criminal case, a re

quest 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 es

tablish that the schedule could not be met despite the

party's diligence." Ashmore v. Sec'v. Dep't of Transn..

503 F. App'x 683, 685 (llth Cir. 2013).

and that unsanitized clippers were used each time.

Moreover, because the purpose of the Prisoner Litiga

tion Reform Act ("PLRA") is to curb abusive litiga

tion, it follows that evidentiary hearings on prelimi

nary issues such as imminent danger or exhaustion

of administrative remedies should be rarely granted.

See, e.g.. Stephens v, Howerton. No. CV 105-171,

2007 WL 1810242, at * 11 (S.D. Ga. June 21, 2007);

Williams v. Rich.No. CV 606-003, 2006 WL 2534417,

at *5, n.5 (S.D. Ga. Aug. 30, 2006).

App. 8

Though Daker timely filed his Motion, he fails

to show that good cause justifies his request for an ex

tension. The Magistrate Judge recommended dismis

sal because Daker has filed at least three previous ac

tions 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 F. App'x 835, 836 (llth 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 prepar

ing 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 assis

tance."4 Additionally, Daker does not explain why his

incarceration and pro se status prevent him from

meeting the deadline for objections "despite his dili

gence." FTC v. Lalonde. 545 F. App'x 825, 835 (llth

4 However, the subsequently-filed Partial Ob

jections, (doc. 22), provide some guidance on what

Daker might argue. As further explained below,

nothing in these Objections demonstrates that Daker

was in imminent danger of a serious physical injury

at the time he filed his Complaint. Additionally, the

Court notes that Daker's Partial Objections contain a

hodgepodge of arguments, many of which this Court

has previously considered and dismissed. Here,

Daker filed the same document containing the same

Partial Objections in two different cases and, within

his Objections, continually refers to filings not con

tained within the present action and which may have

taken place in other litigation.

App. 9

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 incarcer

ation." 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 Recom

mendation in his case and filed—not just one, but

two—motions to expedite the Court's requisite frivol

ity review. (Docs. 14, 17). Daker's simultaneous at

tempts 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:i5-CV-88, 2015 WL 4973548, at *1 (M.D.

Ga. Aug. 20, 2015) ("A review of court records ... re

veals that Plaintiff has filed more than one hundred

federal civil actions and appeals since 1999."); Daker

v. Warren. No. l-ll-CV-1711, 2014 WL 806858, at *1

(N.D. Ga. Feb. 28, 2014) ("Waseem Daker is an ex

tremely litigious state prisoner [.]"); see also Mathis v.

Smith. 181 F. App'x 808, 809-10 (llth 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 (llth Cir. 2001))). Thus, Daker was well aware

App. 10

that the Magistrate Judge's Report and Recommenda

tion would be forthcoming and that he may have to

prepare legal and factual defenses regarding his im

minent danger claim.

While he would not be able to prepare the pre

cise objections until he received the Report and Rec

ommendation, nothing prevented Daker from prepar

ing any additional factual evidence or legal argument

beforehand. In fact, if more evidence existed, Daker

could easily have submitted it to the Court for consid

eration before frivolity review. Because Daker's Par

tial 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

5 Daker argues that the Magistrate Judge

erred by construing the facts asserted by Daker

against Daker, rather than in his favor. That is in

correct. A plain reading of the Magistrate Judge's Re

port and Recommendation demonstrates that the

Magistrate Judge construed all facts alleged in

Daker's favor and assumed those facts to be true for

purposes of the three-strikes review. Moreover, it is

entirely appropriate for the Magistrate Judge to

weigh Daker's history as a serial litigant when con

sidering whether his claims are sufficiently serious

as to allow him to proceed without payment. Mathis

v. Smith. 181 F. App’x 808, 809-10 (llth Cir. 2006)

("When considering the issue of frivolity, 'a litigant's

history of bringing unmeritorious litigation can be

App. 11

A. Imminent Danger of Serious Physical Injury

Next, Daker argues that he faces—and since

early 2015 has faced—an "ongoing danger" that phys

ical 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 effec

tuate these shavings. (Id,). He argues that, even if the

grooming policy was valid (a point he does not con

cede), "it does not follow that force is justified to main

tain 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 cre

ates 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

considered.'" (quoting Bilal v. Driver. 251 F.3d 1346,

1349 (11th Cir. 2001))); see Skillern v. Paul. 202 F.

App'x 343, 344 (llth Cir. 2006) (considering, during

the analysis of imminent danger under § 1915(g),

that "the PLRA was enacted to 'curtail abusive pris

oner litigation'"); see also Daker v. Comm'r. Ga. Dep’t

of Corr.. 820 F.3d 1278, 1281 (llth Cir. 2016)

("Daker has submitted over a thousand pro se filings

in over a hundred actions and appeals in at least

nine different federal courts."); Daker v. Warren. No.

HI l-cv-1711, 2014 WL 806858, at *1 (N.D. Ga. Feb.

28,2014) ("Waseem Daker is an extremely litigious

state prisoner....").

App. 12

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 immi

nent 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 fore

close 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 cur

rently or has been under threat of imminent danger,

but rather that he faced an imminent danger of phys

ical injury at the time he filed his complaint. See Ow

ens v. Schwartz. 519 F. App'x 992, 994 (llth 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 pauperi^f).

Here, Daker originally submitted a 67-page Com

plaint and supplement at the time he filed this action.

Additional factual arguments must therefore be ex

tremely limited in scope—any new fact-based allega

tions are only relevant if they pertain to the dangers

Daker faced at Georgia State Prison on or around

6 Indeed, the issue is currently being litigated

in Smith v. Owens. 848 F.3d 975 (llth Cir. 2017).

App. 13

March 26,2018, when he initially filed this action.

(Doc. l).

First, Daker argues he faces an ongoing immi

nent danger because the prison uses unsanitized clip

pers 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] in

fectious 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. (Ich, p. 11 & n.13). However, Daker never states

that he has personally contracted any communicable

disease from the unsanitized clippers, nor does he pro

vide even one instance of another inmate who con

tracted a disease. While prisoners are not required to

show they have personally contracted a disease in or

der to successfully claim imminent danger, simply

pointing to a "documented causal link" between un

sanitized 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 per

sisted without any infection, coupled with Daker's al

legations of frequent forced shaves and the prison's

App. 14

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 "immi

nent" 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. (IcL, pp.21-22). This includes the pris

on's use of handcuffs, chemical sprays, and other re

straints 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. l). 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. l; Doc. 19,

p. 11). Regardless, it is difficult to see how this addi

tional 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

7 As Daker admits, he has already filed multi

ple actions to challenge these forced shaving prac

tices, including the use of chemical sprays during

forced shavings. (Doc. 22, pp. 3 & n.l, 21).

App. 15

resisting prison guards ordered to implement a Geor

gia 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-last

ing, permanent, or life-threatening consequences. See,

e.g., Jackson v. Jackson. 335 F. App'x 14, 15 (llth Cir.

2009) (finding imminent danger of physical injury

when plaintiff-prisoner alleged that he faced "face tis

sue death, gangrene, and internal bleeding" due to

lack of medical attention). Daker may pay the filing

fee if he desires to litigate the underlying merits of

such forcible shavings and the use of force, including

chemical agents, to effectuate the GDC grooming pol

icy. However, a skin injury lasting only days or weeks

does not constitute a serious physical injury sufficient

to overcome § 1915(g) and allow Daker to proceed in

forma pauperis in this action.

Not only does Daker not face serious physical

injury, there are multiple factors which weigh against

a finding that Daker is in imminent danger of any

physical injury. First, Daker alleges he faced immi

nent danger during his confinement at Georgia State

Prison, and he has since been transferred to Valdosta

State Prison. (Doc. 15). This transfer makes it less

likely that Daker can assert new facts upon which his

imminent danger allegation may rest. See, e.g.. Medberrv v. Butler. 185 F.3d 1189, 1193 (llth Cir. 1999)

(finding no error in denying a plaintiff-prisoner leave

to amend when the prisoner had been transferred af

ter filing his complaint because any additional allega

tions of imminent danger faced at the new prison

would be futile). Notably, though Daker alleges that

he has been subjected to around 14 forced shaves since

2015, only three of these involved the use of chemical

spray. (Doc. 22, pp. 7,26). While Daker maybe subject

App. 16

to a forcible shaving while confined to any GDC insti

tution, he does not provide any facts which show that

the new prison officials are also likely to employ chem

ical sprays. Thus, Daker fails to show he imminent

danger at the time he filed the Complaint.

Daker devotes six pages of his 44-page Objec

tions to attacking the Magistrate Judge's conclusion

that Daker created the imminent danger he allegedly

faces. (Id, pp. 14-20). First, the Magistrate Judge

based his finding on other grounds in addition to find

ing that Daker's "danger," to the extent it exists, is

self-created, (specifically, that Daker did not show the

danger he faced was imminent, nor that it was likely

to result in a serious physical injury). (Doc. 19, pp. 1112). Second, Daker argues that the finding of the Mag

istrate Judge in this regard "opens a dangerous can of

worms." (Doc. 22, p. 19). Daker then proceeds to pro

pose a series of hypothetical that he asserts show the

error in holding that he created the own danger that

he faces. (Id, p. 20). However, the Court is not charged

with resolving hypothetical disputes. Instead, the

Court must decide if Daker created his own harm in

this case.

To the extent Daker asserts he is not subjecting

himself to this imminent danger, he is incorrect.

Daker is not forced to choose between punishment for

expressing his professed religious belief and compli

ance with prison regulations. The result is the same

whether Daker complies with prison policy or does

not—in either scenario, he cannot grow a beard of his

desired length. Daker's resistance does not allow him

to express his professed religious belief. Instead, it

merely manufactures the "imminent danger" which

Daker asserts and then results in the same outcome

App. 17

as if he had complied with regulations. Daker could

certainly challenge the constitutionality of the prison

policy while complying with it. If Daker chose to do so,

he could not avoid paying filing fees due to an immi

nent danger of physical injury. For all of the reasons

above, the Court finds Daker failed to meet his burden

of demonstrating an imminent danger of serious phys

ical harm.

B. The Constitutionality of § 1915(g)

Daker specifically concedes that the cases the

Magistrate Judge cited as strikes "were both filed by

Mr. Daker and dismissed as frivolous." (Doc. 22, pp.

26-27, 33-34). However, Daker alleges that the "threestrikes" provision in § 1915(g) is unconstitutional.

First, the Court notes that this is not the first time

Plaintiff has made this argument, nor the first time

this Court has dismissed it. See Daker v. Bryson. 6:16cv-57 (S.D. Ga. Mar. 20, 2017). Daker states the Ri

vera decision did not address each and every constitu

tional challenge to § 1915(g), such as the issue of the

First Amendment "breathing space" principle. (Doc.

22, pp. 31-44). Additionally, Plaintiff challenges §

1915(g) on equal protection grounds. (Id.). Plaintiff

also maintains § 1915(g) violates his right to access to

the courts.

In Rivera v. Allin. the Eleventh Circuit Court of

Appeals answered many of Plaintiffs present chal

lenges to § 1915(g). 144 F.3d 719 (llth Cir. 1998), ab

rogated on other grounds by Jones v. Bock. 549 U.S.

199 (2007). Specifically, the Eleventh Circuit deter

mined § 1915(g) does not violate a prisoner-plaintiffs

right of access to the courts. Rather, the Court stated

that § 1915(g) "does not prevent a prisoner with three

App. 18

strikes from filing civil actions! it merely prohibits him

from enjoying IFP ['in forma pauperis] status." Id. at

723-24 (first alteration in original) (citing Carson v.

Johnson. 112 F.3d 818, 821 (5th Cir. 1997) (rejecting

plaintiffs claim that § 1915(g) is unconstitutional be

cause it blocks access to the courts), and Lyon v. Krol.

127 F.3d 763, 765 (8th Cir. 1997) ("Section 1915(g)

does not prohibit prisoners from pursuing legal claims

if they have had 'three strikes' or three prior dismis

sals. It only limits their ability to proceed [IFF].")).

The Eleventh Circuit asserted "proceeding IFP is a

privilege, not a right— fundamental or otherwise." Id.

at 724. The Eleventh Circuit continued by stating that

Rivera's claims of deliberate indifference to serious

medical needs did not implicate a fundamental right,

such as "state controls or intrusions on family rela

tionships." Id. (internal citation omitted).

The Eleventh Circuit also determined the three

strikes provision does not violate a litigant's right to

due process or to equal protection. Id. at 727 (citing

Parsell v. United States. 218 F.2d 232, 235 (5th Cir.

1955) (denying leave to proceed IFP "does not offend

the requirements of due process"), and Hampton v.

Hobbs. 106 F.3d 1281, 1287 (6th Cir. 1997) ("Hamp

ton's ability to petition the government for redress of

grievances has not been deprived or limited by the

[PLRA] and thus that interest cannot provide the ba

sis for a due process violation.")).

As for an equal protection argument, the Elev

enth Circuit noted the equal protection clause is not

implicated if a law does not burden a fundamental

right or target a suspect classification. Id. The Elev

enth Circuit determined that Rivera did not and could

App. 19

not contend "that prisoner indigents (specifically, fre

quent filer prisoner indigents) form a suspect or quasi

suspect class." IcL (citations omitted). The Court had

already rejected Rivera's fundamental rights argu

ment and declined his "invitation to review section

1915(g) under any standard more onerous than ra

tional basis." I(L The Eleventh Circuit noted Congress

enacted § 1915(g) to curb "abusive prisoner tort, civil

rights and conditions litigation" and to preserve

"scarce judicial resources" and determined this law

serves those ends "through its requirement that pris

oner indigents with three strikes prepay the entire fil

ing fee before the court may further review their law

suit (unless imminent danger of serious physical in

jury exists)." Id.

The Seventh Circuit Court of Appeals had occa

sion to tangentially address the "breathing space"

principle Plaintiff advances here. Lewis v. Sullivan.

279 F.3d 526 (7th Cir. 2002). In Lewis, the Seventh

Circuit reversed the judgment of the district court that

§ 1915(g) "would be unconstitutional unless read to al

low judges to dispense with prepayment whenever, in

their discretion, they viewed the prisoners' claims to

be substantial." Lewis. 279 F.3d at 527 (citing 135 F.

Supp. 2d 954 (W.D. Wis. 2001)). In so doing, the Sev

enth Circuit looked to the decisions of the other seven

Courts of Appeals concerning constitutionality chal

lenges to § 1915(g), including the Eleventh Circuit's

decision in Rivera. The Seventh Circuit noted § 1915(g)

had been challenged on several grounds, including the

right to access the courts, due process, and the First

Amendment right to petition for redress of grievances,

and none of the challenges had been successful. IcL at

528 (collecting cases). The Seventh Circuit agreed

with its sister Circuits which had decided the issue

App. 20

and found the "decisions to be sound," because "there

is no constitutional entitlement to subsidy." Id. "Fed

eral courts are subsidized dispute-resolvers; filing fees

defray only a small portion of the costs. A requirement

that plaintiffs cover some of these costs cannot be

called unconstitutional. The Supreme Court has never

held that access to the courts must be free! it has con

cluded, rather, that reasonably adequate opportuni

ties for access suffice." Id. (citing Lewis v. Casev. 518

U.S. 343 (1996)). This Court agrees with the Seventh

Circuit's analysis and conclusion.

Daker's constitutional challenges to § 1915(g),

whether generally or to his situation, are without

merit, as has been determined by the Eleventh Circuit,

other Courts of Appeals, and this Court. What is more,

Daker does not attempt to show how § 1915(g) violates

his constitutional rights. Instead, Daker makes blan

ket statements in this regard. However, even if Daker

had provided reasoning in support of his arguments,

such reasoning would be without merit. Having to pre

pay his filing fee before the Court addresses the rela

tive merits of his claims, unless he shows he is in im

minent danger of serious physical injury, does not vi

olate Daker's rights. Consequently, the Court OVER

RULES this Objection.

CONCLUSION

The Court OVERRULES Daker's Objections

and ADOPTS the Magistrate Judge's Report and Rec

ommendation as the opinion of the Court. The Court

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

and his request for emergency remand for evidentiary

hearing, (doc. 22, p. 30). The Court DISMISSES with

out prejudice Plaintiffs Complaint, DENIES Plaintiff

App. 21

in forma pauperis status on appeal, and DIRECTS the

Clerk of Court to CLOSE this case and enter the ap

propriate judgment of dismissal.

SO ORDERED, this 29th day of March. 2019.

/s/ J. Randal Hall

J. RANDAL HALL, CHIEF JUDGE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

App. 22

Case 6*18-cv-00032-JRH-BWC Document 19

Filed 03/07/19

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

WASEEM DAKER,

Plaintiff,

CIVIL ACTION NO.

6:i8-cv-32

COMMISSIONER GREGORY DOZIER, et al, :

Defendants. :

ORDER AND MAGISTRATE JUDGE’S REPORT

AND RECOMMENDATION

Plaintiff, while incarcerated at Macon State

Prison in Oglethorpe, Georgia, filed this action pursu

ant to 42 U.S.C. § 1983 and the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”) 42

U.S.C. § 2000cc-l et seq., contesting certain conditions

of his confinement while incarcerated at Georgia State

Prison (“GSP”) in Reidsville, Georgia.1 Docs. 1, 1-1.

Plaintiff also filed a Motion for Leave to Proceed in

Forma Pauperis, doc. 2, and Motions for Preliminary

Injunction or Temporary Restraining Order, docs. 6, 7,

1 Plaintiff is now confined at Valdosta State

Prison. Doc. 16.

App. 23

8, 9.2 For the reasons set forth below, the Court DE

NIES Plaintiff leave to proceed in forma pauperis. Ad

ditionally, I RECOMMEND that the Court DISMISS

without prejudice Plaintiffs Complaint, DENY as

moot Plaintiffs remaining Motions, docs. 6, 7, 8, 9,10,

11, 12, 13, 14, 15, 17, DIRECT the Clerk of Court to

close this case and enter the appropriate judgment of

dismissal, and DENY Plaintiff in forma pauperis sta

tus on appeal.3

2 In addition, Plaintiff filed two identical Mo

tions for Recusal of Judge R. Stan Baker and Judge

J. Randal Hall, docs. 3, 5, which are still pending.

3 A “district court can only dismiss an action

on its own motion as long as the procedure employed

is fair. To employ fair procedure, a district court

must generally provide the plaintiff with notice of its

intent to dismiss or an opportunity to respond.”

Tazoe v. Airbus S.A.S.. 631 F.3d 1321, 1336 (llth

Cir. 2011) (citations and internal quotations marks

omitted). A Magistrate Judge’s Report and Recom

mendation (“R&R”) provides such notice and oppor

tunity to respond. See Shivers v. Int’l Bhd. of Elec.

Workers Local Union 349. 262 F. App’x 121, 125, 127

(llth Cir. 2008) (indicating that a party has notice of

a district court’s intent to grant summary judgment

sua sponte when a magistrate judge issues a report

recommending the sua sponte granting of summary

judgment); Anderson v. Dunbar Armored. Inc.. 678 F.

Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that

R&R served as notice that claims would be sua

sponte dismissed). This R&R constitutes fair notice

App. 24

PLAINTIFFS ALLEGATIONS

In his Complaint, Plaintiff asserts numerous

claims against dozens of Defendants regarding his

confinement at GSP. Doc. 1-1. Plaintiff contends that:

(l) 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) De

fendants retaliated against him by keeping him in ad

ministrative 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 vio

late due process by confiscating prisoners’ personal

property without inventory or opportunity for return.4

Id. at 55-58.

to Plaintiff that his suit is barred and due to be dis

missed. As indicated below, Plaintiff will have the op

portunity to present his objections to this finding,

and the presiding district judge will review de novo

properly submitted objections. See 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Wil

liams. No. i:i2-CV-3562, 2012 WL 5930633, at *1

(N.D. Ga. Oct. 18, 2012) (explaining that an R&R

constituted adequate notice and petitioner’s oppor

tunity to file objections provided a reasonable oppor

tunity to respond).

4 As discussed in detail below, the Court will

only reach the merits of Plaintiff s allegations if

App. 25

Plaintiff contends Defendants maintain a cus

tom of forcibly shaving inmates with unsanitary or

broken clippers and ensure compliance with forced

shavings through disciplinary reports, tasers, pepperspray, and similar chemical agents. IcL at 6-9. Plain

tiff contends the Georgia Department of Corrections’

(“GDC”) written policy requires shaving clippers be

sanitized after every use to prevent the spread of in

fectious disease. IcL According to Plaintiff, Defendants

ignore this policy and forcibly use broken or “unsan

itized” 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 for

cibly shave him at various times, beginning on Sep

tember 20, 2017, and occurring most recently on

March 5, 2018. IcL at 9—13. Plaintiff contends Defend

ants created false disciplinary reports regarding his

refusal to shave. Doc. 1*1 at 9-11. After Plaintiff re

fused to shave, Plaintiff alleges multiple Defendants

forcibly shaved him, causing injuries to his shoulders,

cuts and bruises on his neck, hands, wrists, and an

kles, and skin damage to his pinky finger. IcL After

ward, Plaintiff alleges Defendants subjected him to a

series of false disciplinary reports, confinement in ad

ministrative segregation, and continued threats of

forced shaving. IcL at 11-13.

Plaintiff avers Defendants placed him in ad

ministrative segregation in violation of his due pro-

Plaintiff pays the entire filing fee upfront or is

granted leave to appeal in forma pauperis.

App. 26

cess rights. IcL at 13—19. Plaintiff contends adminis

trative segregation hearings do not afford inmates a

meaningful opportunity to be heard, and that the dis

ciplinary report procedures run afoul of due process

guarantees. IcL at 19-24. Finally, Plaintiff states the

cell conditions and various restrictions imposed in ad

ministrative segregation violate his rights under the

First and Eighth Amendment and his rights under

RLUIPA. Id. at 24-55.

Plaintiff argues he is in “imminent danger of se

rious physical injury” from the forced shaves and from

Defendants’ means of enforcing the shaving policy,

which include disciplinary action and the use of pep

per spray and tasers. IcL at 6-8 & n.2, 58-59. Further,

Plaintiff claims he is in imminent danger because De

fendants injured him during past forced shaves,

threaten future forced shaves with unsanitary clip

pers, and, when he is in administrative segregation,

deny him adequate food, medical care, and exercise,

and subject him to unsanitary cell conditions. IcL at

58-59.

In addition, Plaintiff avers he faces imminent

danger due to Defendants’ custom of providing insuf

ficient food to prisoners in administrative segregation.

Id. at 32—34. Plaintiff claims this custom caused him

to lose 17 pounds and made him more susceptible to

sinus infections. IcL 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 for his right wrist). Id. at 3537. Plaintiff also states Defendants do not provide

timely dental care or dentist-recommended Sensodyne

App. 27

toothpaste. Id. Finally, Plaintiff feels he faces immi

nent danger due to unsanitary cell conditions because

Defendants allegedly leave him exposed to feces, trig

gering allergy problems and three sinus infections. Id.

at 38—39, 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 ac

tion in federal court must comply with the mandates

of the Prison Litigation Reform Act (“PLRA”). Perti

nently, 28 U.S.C. § 1915(g) of the PLRA providesIn no event shall a prisoner

bring a civil action or ap

peal a judgment in a civil

action or proceeding under

this section if the prisoner

has, on 3 or more prior occa

sions, 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, un

less the prisoner is under

imminent danger of serious

physical injury.

App. 28

28 U.S.C. § 1915(g). The Eleventh Circuit Court of Ap

peals has explained that “[t]his provision of the PLRA,

‘commonly known as the ‘three strikes’ provision,’ re

quires frequent filer prisoners to prepay the entire fil

ing fee before federal courts may consider their law

suits and appeals.” Rivera v. Allin. 144 F.3d 719, 723

(llth Cir. 1998) (quoting Lvon v. Krol. 127 F.3d 763,

764 (8th Cir. 1997)), abrogated in part on different

srounds bv Jones v. Bock. 549 U.S. 199 (2007).5 A pris

oner 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.

5 In the Eleventh Circuit, dismissals for failing

to follow court orders or for abusing the judicial pro

cess are also considered strikes. See Rivera. 144 F.3d

at 731; Malautea v. Suzuki Motor Co.. 987 F.2d 1536,

1544 (llth Cir. 1993).

6 The applicable filing fee is now $400.00. “The

entire fee to be paid in advance of filing a civil com

plaint is $400. That fee includes a filing fee of $350

plus an administrative fee of $50, for a total of $400.

A prisoner who is granted in forma pauperis status

will, instead, be assessed a filing fee of $350 and will

not be responsible for the $50 administrative fee. A

prisoner who is denied in forma pauperis status must

pay the full $400, including the $350 filing fee and

the $50 administrative fee, before the complaint will

be filed.” Callaway v. Cumberland Ctv. Sheriff Dep’t.

No. Civ. 14-4853, 2015 WL 2371614, at *1 (D.N.J.

May 18, 2015); see also Owens v. Sec’v Fla. Dep’t of

Com, Case No. 3:i5cv272, 2015 WL 5003649 (N.D.

Fla. Aug. 21, 2015) (noting that the filing fee applied

to cases in which a prisoner-plaintiff is denied in

forma pauperis status is $400.00).

App. 29

Donaldson, 259 F.3d 1321, 1324 (llth 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 (llth Cir. 2002) (finding

that because the filing fee must be paid “at the time

[the plaintiff-inmate] initiates the suit,” plaintiff-in

mates “cannot simply pay the filing fee after being de

nied in forma pauperis status” but may refile file ac

tion after dismissal and pay the entire filing fee up

front). The only exception is if the prisoner is “under

imminent danger of serious physical injury.” § 1915(g);

Medberrv v. Butler. 185 F.3d 1189, 1192 (llth Cir.

1999).

B. Plaintiffs Litigation History

Pursuant to its inherent authority under Fed

eral Rule of Evidence 201, the Court takes judicial no

tice of the dispositions of many of Plaintiffs 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

7 Courts routinely take judicial notice of a

plaintiffs litigation history when evaluating if the

plaintiff has three strikes under § 1915(g). See Llovd

v. Benton. 686 F.3d 1225, 1226 (llth Cir. 2012); Rr

vera, 144 F. 3d at 721 (noting that the trial court took

judicial notice of the results of plaintiffs prior law

suits when evaluating if plaintiff had three strikes.)

Moreover, the dispositions of a plaintiffs previous ac

tions “can be accurately and readily determined from

sources whose accuracy cannot reasonably be ques

tioned.” Fed. R. Evid. 201(b)(2).

App. 30

has had more than three of his cases or appeals dis

missed on the statutorily-enumerated grounds [of §

1915(g)].”8 Daker v. Comm’r. No. 5G6-cv-538, 2017

WL 3584910, at *2 (M.D. Ga. Aug. 17, 2017).

8 This Court, as well as other courts, previ

ously observed that Plaintiff is a serial litigant with

a significant history of filing frivolous lawsuits. See.

e.g.. Daker v. Head. 739 F. App’x 597 (llth Cir. 2018)

(“During his incarceration for murder, Daker has

filed over a hundred pro se suits.”); Daker v. Comm’r.

Ga. Den’t of Corr.. 820 F.3d 1278, 1281 (llth Cir.

2016) (“Daker has submitted over a thousand pro se

filings in over a hundred actions and appeals in at

least nine different federal courts.”); Daker v. Head.

No. 6^14-cv47 (S.D. Ga. Sept. 8, 2014) (denying

Plaintiff leave to proceed in forma pauperis due to

three striker status); 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 . . . .”). Moreover, this Court’s review of

Plaintiff s filing history reveals scores of other civil

actions and appeals which were dismissed and which

may count as strikes under § 1915(g). See In re

Daker. No. i:il-cv-1711, 2014 WL 2548135, at *2

(N.D. Ga. June 5, 2014) (summarizing Plaintiffs liti

gation history); see also Daker v. Dozier. No. 5-17CV-0025, 2017 WL 3037420, at *2 (M.D. Ga. July 18,

2017) (reviewing Daker’s status as a three-striker in

light of the Eleventh Circuit opinion); Daker v.

Bryson. No. 6:i6-CV-57, 2017 WL 242615, at *5 (S.D.

Ga. Jan. 19, 2017) (listing five cases, including the

four listed here, which constitute strikes under §

1915(g)). The Eleventh Circuit already “determined

App. 31

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. Case No. 15-13179 (llth

Cir. Order dated Dec. 19, 2016) (three-judge panel dis

missing appeal as frivolous);

(2) Daker v. Ferrero. Case No. 15-13176 (llth

Cir. Order dated Nov. 3, 2016) (three-judge panel dis

missing appeal as frivolous);

that the ‘three strikes’ provision of the Prison Litiga

tion Reform Act of 1995 is applicable to” Plaintiff.

See, e.g., Letter dated May 29, 2014, in Daker v.

Comm’r. No. 14-12139 (llth Cir. 2014); Letter dated

April 18, 2014, in Daker v. Comm’r. No. 14—11571

(llth Cir. 2014).

9 In 2016, in a separate action, the Eleventh

Circuit reviewed a district court order finding Daker

accumulated at least three strikes under § 1915(g).

See Daker v. Comm’r. Ga. Den’t of Corr.. 820 F.3d

1278, 1284—85 (llth Cir. 2016). The Eleventh Circuit

found that three of the five cases the district court re

lied on to form the basis of the three-strikes dismis

sal did not qualify as strikes. Id. The Eleventh Cir

cuit explicitly declined to opine on whether Plaintiff

had any other strikes. IcL at 1286 (“We express no

view on whether Daker has any other strikes.”). In

calculating Plaintiff s strikes in this case, the cases

that the Eleventh Circuit found did not qualify as

strikes against Plaintiff have not been included.

App. 32

(3) Daker v. Commissioner. Case No. 15*11266

(llth Cir. Order dated Oct. 7, 2016) (three-judge panel

dismissing appeal as frivolous);

(4) Daker v. Warden. Case No. 15*13148 (llth

Cir. Order dated May 26, 2016) (three-judge panel dis

missing appeal as frivolous);

(5) Daker v. Warren. Case No. 13*11630 (llth

Cir. Order dated Mar. 4, 2014) (three-judge panel dis

missing appeal as frivolous);

(6) Daker v. NBC, et al.. No. 15-330 (2d Cir.

May 22, 2015), ECF No. 35 (dismissing Plaintiffs ap

peal because it “lacks an arguable basis either in law

or in fact”);

(7) Daker v, Robinson. D12-CV-00118 (N.D. Ga.

Sept. 12, 2013) (dismissing based on Plaintiffs failure

to follow a court order); and

(8) Daker v. Dawes. l-12-cv-00119 (N.D. Ga.

Sept. 12, 2013) (dismissing based on Plaintiffs failure

to follow a court order).

(9) Daker v. Mokwa. 2G4-CV-395 (C.D. Cal. Feb.

4, 2014) (dismissing as frivolous, malicious, or failing

to state a claim);

The above actions and appeals were dismissed

for being frivolous, malicious, failing to state a claim

for relief, or for abusing the judicial process, not on

App. 33

grounds which failed to address the merits of Plain

tiffs claims.10 As Plaintiff has filed at least three pre

viously dismissed cases or appeals which qualify as

strikes under § 1915(g), Plaintiff cannot proceed in

forma pauperis unless he meets the “imminent danger

of serious physical injury” exception to § 1915(g).

C. Section 1915(g)’s Imminent Danger Excep

tion

“In order to come within the imminent danger

exception, the Eleventh Circuit requires ‘specific alle

gations of present imminent danger that may result

in serious physical harm.’” Odum v. Brvan Ctv. Judi

cial Circuit. No. CV407-181, 2008 WL 766661, at *1

(S.D. Ga. Mar. 20, 2008) (quoting Skillern v. Jackson.

No. CV606-49, 2006 WL 1687752, at *2 (S.D. Ga. June

14, 2006)). In determining whether Plaintiffs allega

tions sufficiently overcome the three-strikes bar, the

Court will abide by the long-standing principle that

the pleadings of unrepresented parties are held to a

10 The last two cited causes of action were dis

missed based on Plaintiffs failure to follow the or

ders of a court. The Eleventh Circuit treats dismis

sals for “abuse of the judicial process,” including dis

missals for providing false filing-history information

and failing to comply with court orders, as “strikes”

under § 1915(g). See Ingram v. Warden. 735 F. App’x

706 (llth Cir. 2018) (affirming that dismissals for

failure to truthfully disclose litigation history consti

tute a strike under § 1915(g)); Rivera. 114 F.3d at

731 (dismissing for failure to disclose prior litigation

is “precisely the type of strike that Congress envi

sioned when drafting § 1915(g)”).

App. 34

less stringent standard than those drafted by attor

neys and, therefore, must be liberally construed.

Haines v. Kerner. 404 U.S. 519, 520 (1972); Boxer X v,

Harris. 437 F.3d 1107, 1110 (llth Cir. 2006) (“Pro se

pleadings are held to a less stringent standard than

pleadings drafted by attorneys . . . . ” (emphasis omit

ted) (quoting Hughes v. Lott. 350 F.3d 1157, 1160

(llth Cir. 2003))). However, the § 1915(g) exception

requires plaintiffs include specific facts indicating se

rious physical injury is imminent. Brown v. Johnson.

387 F.3d 1344, 1349-50 (llth Cir. 2004). General or

conclusory allegations, even construed liberally, do

not “invoke the exception absent specific fact allega

tions of ongoing serious physical injury or a pattern of

misconduct evidencing the likelihood of imminent se

rious physical injury.” Id.; see also Margiotti v. Nichols, No. CV306-113, 2006 WL 1174350, at *2 (N.D. Fla.

May 2, 2006).

“[A] prisoner cannot create the imminent dan

ger so as to escape the three strikes provision of the

PLRA.” Ball v. Allen. No. 06-0496, 2007 WL 484547,

at *2 (S.D. Ala. Feb. 8, 2007) (quoting Muhammad v.

McDonough. No. CV306-527-J-32, 2006 WL 1640128,

at *1 (M.D. Fla. June 9, 2006)). Moreover, harms al

ready incurred or dangers now past do not justify an

exception to the three strikes bar. Medberrv. 185 F.3d

at 1193 (“Prisoner’s allegation that he faced imminent

danger sometime in the past is an insufficient basis to

allow him to proceed in forma pauperis pursuant to

the imminent danger exception to the statute.”); see

also Parish v. Davis. No. 4-16-CV-148, 2016 WL

1579385, at *1 (N.D. Fla. Mar. 25, 2016) (“The immi

nent danger exception should be applied only in ‘gen

uine emergencies’ where ‘time is pressing,’ the ‘threat

App. 35

or prison condition is real and proximate,” and ‘the po

tential consequence is serious physical injury.’” (quot

ing Lewis v. Sullivan. 279 F.3d 526, 531 (7th Cir.

2002))).

D. Plaintiffs Claims of Imminent Danger

Plaintiff should not be excused from prepaying

the filing fee because his claims do not show any im

minent danger of serious physical injury. Rather,

Plaintiffs claims, as drafted, show that he is “a sea

soned vexatious litigant who ha^ read 28 U.S.C. §

1915(g) and is manipulating it to serve his ends.” Skill

lern, 2006 WL 1687752, at *2 (quoting McNeil v.

United States. No. C05-1975, 2006 WL 581081, at *3

n.3 (W.D. Wash. Mar. 8, 2006)); see also Daker v.

Bryson. No. 6:i6-CV-57, 2017 WL 242615, at *1 (S.D.

Ga. Jan. 19, 2017).

First, the overwhelming majority of Plaintiffs

claims do not approach § 1915(g)’s requirement of se

rious risk of imminent physical danger. First, the

claims regarding the December 4, 2017 forcible shav

ing center on past physical injuries which occurred be

fore Plaintiff filed his Complaint, not dangers Plaintiff

faces in the imminent future. Likewise, Plaintiffs al

legations related to his treatment in administrative

segregation, including lack of exercise and unsanitary

housing conditions, relate to past treatment without

showing the possibility of serious future injury.11

11 In a similar case, Plaintiff alleged that he

was denied outdoor recreation, that “he is housed

with inmates who throw feces, and [he] is being de

nied adequate sanitation and cleaning supplies.”

App. 36

Claims based on other past forced shaving incidents

with unsanitary hair clippers also seek redress for

past injuries. Plaintiffs claims that Defendants vio

lated his religious beliefs under RLUIPA, confiscated

his property, and did not provide him due process at

his disciplinary and administrative confinement hear

ings do not allege physical injury, much less an immi

nent threat of future serious physical injury.12

Although allegations of denied medical care can

sometimes show imminent danger, Plaintiffs com

plaints—that he was denied his toothpaste of choice

and denied speedy dental, orthopedic, and nerve

care—fail to show that Plaintiff faces imminent, seri

ous physical injury. Notably, some of these claims re

late to past harm, as Plaintiff eventually received or

thopedic treatment and surgery for his nerve damage.

Doc. 1-1 at 35-36. Similarly, while Plaintiff claims the

lack of adequate food in administrative segregation

Daker v. Dozier. No. 5H7-CV-0025, 2017 WL

3037420, at *4 (M.D. Ga. July 18, 2017). The Middle

District of Georgia found these allegations insuffi

cient to establish an exception to the three-strikes

rule, IcL at *6.

12 The circum stances Plaintiff alleges created

imminent danger arose during Plaintiffs confine

ment at Georgia State Prison, but Plaintiff is now in

carcerated at Valdosta State Prison in the Middle

District of Georgia. Doc. 15. However, his “transfer

does not affect [the] imminent danger analysis, as

that analysis focuses on whether Smith alleged an

imminent danger at the time his complaint was

filed.” Smith v. Dewberry. 741 F. App’x 683, 687 n.3

(11th Cir. 2018).

App. 37

caused sinus infections and weight loss, he admits his

sinus infections have been successfully treated with

antibiotics. IcL at 34. Plaintiff does not describe any

serious physical harm related to his purported weight

loss.

Only Plaintiffs claims related to Defendants

forcible use of broken or unsanitary hair clippers

begin to approach the “imminent danger of serious

physical injury” requirement. Here, however, Plaintiff

merely offers generalized and conclusory allegations

devoid of any specific facts showing an actual, immi

nent threat of physical injury. Plaintiff alleges the

damaged, unsanitized clippers may spread HIV or

hepatitis, but this is simply hypothetical conjecture.

Plaintiff claims he has been forcibly shaved with al

legedly dangerous clippers at least nine times since

February 5, 2015, but does not claim to have con

tracted any infection or disease or suffered any other

serious, negative health effects.13 Id. at 8. Moreover,

while Plaintiff claims that Defendants use force and

chemical agents to effectuate the forced shavings, he

does not state that Defendants used these chemical

agents on him.

13 Indeed, in another action, Plaintiff made

similar allegations concerning the use of broken, un

sanitary clippers, which he claims started as early as

2012. See Daker v. Brvson. No. 6H6-CV-57, 2017 WL

242615, at *1 (S.D. Ga. Jan. 19, 2017). Despite this

apparently longstanding practice, Plaintiff has not

suffered any of the serious physical injuries he claims

this custom creates.

App. 38

Generalized allegations such as these do not

sufficiently demonstrate that the prisoner faces “im

minent danger of serious physical injur/’ as required

under § 1915(g). See, e.g., Daker v. Dozier, No. 5-17CV-0025, 2017 WL 3037420, at *5-6 (M.D. Ga. July

18, 2017) (finding Daker’s nearly identical allegations,

including forced shavings with unsanitary clippers

and poor administrative confinement conditions, did

not show imminent danger of serious physical injury);

Ball v. Allen. No. CIV. 06-0496, 2007 WL 484547, at

*1 (S.D. Ala. Feb. 8, 2007) (finding the provision of

clean clothes twice per week, unsanitary showers, in

adequate fire safety in cells, lack of cleaning supplies

for cells, inadequate lighting, and inadequate, unsan

itary, and contaminated food and beverages, are insuf

ficient under § 1915(g)). Plaintiff, therefore, fails to

show the danger posed by forced shaving warrants ap

plication of the § 1915(g) exception.

At best, Plaintiff shows the forced shavings

caused him a series of cuts, bruises, shoulder pain,

and skin damage and that he will likely be subject to

this custom again.14 Doc. 1-1 at 8 & n.2, 11. Even asr

14 Although not mentioned in his Complaint,

Plaintiff argues in his preliminary injunction Motion

that “[cjourts have repeatedly recognized that use of

unsanitized clippers satisfies” § 1915(g). Doc. 6 at 8.

As support, Plaintiff cites* Andrews v. Cervantes. 493

F.3d 1047, 1055 (9th Cir. 2007) (finding a prisoner’s

“allegation that he is at serious risk of contracting

HIV or Hepatitis C, if true, more than plausibly

raises the specter of serious physical injury”); Bing

ham v. Morales. No. CV 311-019, 2011 WL 53585941,

App. 39

suming, without deciding, that the threat that Plain

tiff may endure these same injuries in the future is

sufficiently “imminent” and “serious” to trigger the ex

ception to § 1915(g), Plaintiff still cannot avail himself

of this exception because his actions created the harm.

Plaintiff alleges Defendants forcibly shaved him be

cause he refused to comply with the prison’s grooming

policy due to a religious objection. IcL at 6, 8-11. Be

cause Plaintiff is subjected to Defendants’ forced shav

ing custom due to his own behavior, Plaintiff is em

powered to end the forcible shaving by choosing to

comply with the grooming policy. What Plaintiff can

not do, however, is create a physically harmful situa*

at *1 n.2 (S.D. Ga. Nov. 4, 2011) (noting that the

magistrate judge concluded that prisoner satisfied

imminent danger exception based on allegation that

prisoner was forced to share razors with other in

mates under unsanitary conditions); James v. Dormire. No. 07-4141, 2008 WL 625027, at *2-3 (W.D.

Mo. Mar. 4, 2008) (allowing a claim to proceed based

on allegations that sharing electric razors presented

danger of spreading infection, then found the §

1915(g) exception inapplicable when officials showed

that they cleaned the razors between uses with

Barbicide). Each of these cases is distinguishable

from Daker’s claims. First, none of these cases in

volve duplicative, longstanding allegations of immi

nent harm with infectious diseases which have never

come to fruition, like Plaintiffs forced shaving allega

tions. Second, none involve an alleged imminent dan

ger of serious physical injury of the inmate’s own

making, as Plaintiffs refusal to comply with GSP’s

grooming policy does.

App. 40

tion through his own conduct and then claim the dan

gers his actions create excuse him from the PLRA’s

three-strikes bar. Ball. 2007 WL 484547, at *2 (pris

oner cannot create imminent danger to escape three

strikes rule); Muhammad. 2006 WL 1640128, at *1.

Thus, he cannot invoke the §1915(g) exception based

on this harm.

The above reasons demonstrate that § 1915(g)

bars Plaintiff from proceeding in forma pauperis in

this action.15 Plaintiff has not paid the filing fee re

quired of all plaintiffs who are not allowed to proceed

in forma pauperis. I, therefore, RECOMMEND the

Court DISMISS without prejudice the Complaint, and,

accordingly, DENY as moot the remainder of Plain

tiffs Motions. Docs. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17.

I DENY Plaintiffs Motion for Leave to Proceed in

Forma Pauperis. Doc. 2. If Plaintiff wishes to proceed

with his claims, he may do so by refiling the action and

paying the entire filing fee upfront. Dupree. 284 F.3d

at 1236.

II. Leave to Appeal in Forma Pauperis

The Court should also deny Plaintiff leave to

appeal in forma pauperis.16 Though Plaintiff has, of

course, not yet filed a notice of appeal, it is appropriate

15 If Plaintiff wishes to continue to litigate his

claims against Defendants, he may do so, but he

must pay the entire filing fee upfront. See Vanderberg, 259 F.3d at 1324.

16 A certificate of appealability is not required

in this § 1983 action.

App. 41

to address these issues in the Court’s order of dismis

sal. Fed. R. App. P. 24(a)(3) (providing that a trial

court may certify that appeal is not take in good faith

“before or after the notice of appeal is filed”). An ap

peal cannot be taken in forma pauperis if the trial

court certifies that the appeal is not taken in good

faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3).

Good faith in this context is judged by an objective

standard. Busch v. County of Volusia. 189 F.R.D. 687,

691 (M.D. Fla. 1999). A party does not proceed in good

faith when he seeks to advance a frivolous claim or ar

gument. See Connedge v. United States. 369 U.S. 438,

445 (1962). A claim or argument is frivolous when it

appears the factual allegations are clearly baseless or

the legal theories are indisputably meritless. Neitzke

v. Williams. 490 U.S. 319, 327 (1989); Carroll v. Gross.

984 F.2d 392, 393 (llth Cir. 1993). An in forma pau

peris action is frivolous and not brought in good faith

if it is “without arguable merit either in law or fact.”

Napier v. Preslicka. 314 F.3d 528, 531 (llth Cir. 2002);

see also Brown v. United States. Nos. 407CV085,

403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9,

2009).

The above analysis of Plaintiffs action shows

that Plaintiff does not possess any nonfrivolous issues

to raise on appeal, and an appeal would not in good

faith. Just as Daker’s status as a three-striker pre

vents him from filing this action without prepaying

the filing fee in this Court, it also blocks him from

achieving in forma pauperis status on appeal. Thus,

the Court should DENY him in forma pauperis status

on appeal.

CONCLUSION

App. 42

For the above-stated reasons, the Court DE

NIES Plaintiff s Motion for Leave to Proceed in forma

pauperis. Doc. 2. Additionally, I RECOMMEND the

Court DISMISS without prejudice Plaintiffs Com

plaint, DENY as moot Plaintiff s Motions for Prelimi

nary Injunction or Temporary Restraining Order, docs.

6, 7, 8, 9, 10, DENY as moot Plaintiffs remaining Mo

tions, docs. 11, 12,13,14, 15, 17, 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.

The Court ORDERS any party seeking to object

to this Report and Recommendation to file specific

written objections within 14 days of the date on which

this Report and Recommendation is entered. Any ob

jections asserting that the Magistrate Judge failed to

address any contention raised in the Complaint must

also be included. Failure to do so will bar any later

challenge or review of the factual findings or legal con

clusions of the Magistrate Judge. See 28 U.S.C. §

636(b)(1)(C); Thomas v. Arn. 474 U.S. 140 (1985). A

copy of the objections must be served upon all other

parties to the action.

Upon receipt of Objections meeting the specific

ity requirement set out above, a United States District

Judge will make a de novo determination of those por

tions of the report, proposed findings, or recommenda

tion to which objection is made and may accept, reject,

or modify in whole or in part, the findings or recom

mendations made by the Magistrate Judge. Objections

not meeting the specificity requirement set out above

will not be considered by a District Judge. A party may

not appeal a Magistrate Judge’s report and recom-

App. 43

mendation directly to the United States Court of Ap

peals for the Eleventh Circuit. Appeals may be made

only from a final judgment entered by or at the direc

tion of a District Judge. The Court DIRECTS the

Clerk of Court to serve a copy of this Report and Rec

ommendation upon Plaintiff.

SO ORDERED and REPORTED and RECOM

MENDED, this 7th day of March, 2019.

Is/ Beniamin W. Cheesbro

BENJAMIN W. CHEESBRO

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGIA

App. 44

USCAll Case: 19-11723 Date Filed: 10/26/2021

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 19-11723-GG

D.C. Docket No. 6:i8-cv-00032-JRH-BWC

WASEEM DAKER,

Plaintiff-Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF

CORRECTIONS,

Defendant-Appellee.

TIMOTHY WARD, et al.,

Assistant Commissioner,

Defendants.

No. 19-11849-GG

D.C. Docket No. 6:i8-cv-00073-RSB-BWC

WASEEM DAKER,

Plaintiff-Appellant,

versus

App. 45

COMMISSIONER, GEORGIA DEPARTMENT OF

CORRECTIONS,

HOMER BRYSON,

Former GDC Commissioner,

ASSISTANT COMMISSIONER, GEORGIA DE

PARTMENT OF CORRECTIONS,

WARDEN,

Facilities Director,

STEVE UPTON,

Deputy Facilities Director, et al.,

Defendants-Appellees

Appeals from the United States District Court

for the Southern District of Georgia

ON PETITION(S) FOR REHEARING AND PETI

TION^) FOR REHEARING EN BANC

BEFORE: JORDAN, JILL PRYOR, and TJOFLAT,

Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED,

no judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc. (FRAP 35) The Petition for Rehearing En Banc

is also treated as a Petition for Rehearing before the

panel and is DENIED. (FRAP 35, IOP2)

ORD-42

App. 46

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