Opinion
5:21-CV-00087-TES-MSH
10-06-2021
WASEEM DAKER, Plaintiff, v. CLERK JUANITA M. LAIDLER, et al., Defendants.
RECOMMENDATION OF DISMISSAL
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Presently pending before the Court is a Complaint filed by pro se Plaintiff Waseem Daker, a prisoner currently confined in the Smith State Prison in Glennville, Georgia, seeking relief pursuant to 42 U.S.C. § 1983 and raising state law claims (ECF No. 1). Plaintiff has paid the applicable filing fee in this case. For the following reasons, it is RECOMMENDED that Plaintiff's Complaint be DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A.
PRELIMINARY SCREENING OF PLAINTIFF'S COMPLAINT
I. Standard of Review
In accordance with the Prison Litigation Reform Act (“PLRA”), the district courts are obligated to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.2006) abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are “held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Id. (internal quotation marks omitted). Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A(b).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
II. Factual Allegations
Pro se Plaintiff Waseem Daker is “an extraordinarily prolific serial litigant in the federal courts” who has “clogged the federal courts with frivolous litigation.” Daker v. Ward, 999 F.3d 1300, 1302 (11th Cir. 2021) (internal quotation marks omitted). Plaintiff's claims in this action arise from his efforts to challenge his 1996 conviction for aggravated stalking in the Superior Court of Cobb County, Georgia. Compl. 13, ECF No. 1. Plaintiff claims that on October 29, 2018, he mailed Defendants-two Cobb County Superior Court clerks-an application for writ of habeas corpus challenging this conviction (the “2018 Petition”). Id. The 2018 Petition challenged Plaintiff's 1996 stalking convictions on four grounds: (1) that Plaintiff's right to counsel was violated because he never waived his right to appellate counsel; (2) that his Fourth and Fifth Amendment rights were violated by the admission of his “private papers” during trial; (3) that his rights under the Double Jeopardy Clause were violated because his consecutive sentences were “multiplicitous and void”; and (4) his due process rights were violated when the Cobb County District Attorney's Office failed to disclose exculpatory evidence during discovery. Compl. 13-14, ECF No. 1.
Although Plaintiff's sentence on the aggravated stalking convictions has expired, it appears Plaintiff is challenging the 1996 conviction because the “State introduced the 1996 conviction into evidence” at the trial for the convictions on which he is now serving a life sentence plus 47.5 years. Compl. 12, ECF No. 1; see also Daker v. State, 285 Ga. 735, 736 (2009) (per curiam) (“In 2005, while the instant habeas corpus action was pending, Daker completed his sentence for the Cobb County conviction and was released from prison.”). The Court expresses no opinion on whether Plaintiff can still challenge the 1996 conviction on this basis in this Court or any other venue.
Plaintiff contends that Defendants refused to file the 2018 Petition and instead returned it to Plaintiff unfiled. Id. at 14. Plaintiff received the unfiled application on November 13, 2018. Id. Plaintiff contends that Defendants' refusal to file the 2018 Petition violated his First Amendment right to access the courts and “constitutes the tort of violation of public duty” pursuant to O.C.G.A. § 51-1-1. Id. at 15. As a result of these alleged violations, Plaintiff seeks declaratory relief and injunctive relief, prospective injunctive relief, nominal and compensatory damages, the costs of prosecuting this action, and “other such relief that the court deems necessary or appropriate.” Id. at 16.
III. Plaintiff's Claims
A. Statute of Limitations Issues
The Court must first determine whether Plaintiff's claims, which were filed more than two years after they accrued, are barred by the applicable statute of limitations. The limitations period for filing a section 1983 claim is controlled by state law. Wilson v. Garcia, 471 U.S. 261, 266 (1985). In Georgia, the proper limitations period for a section 1983 claim is the two-year period prescribed for personal injury claims in O.C.G.A. § 93-33. Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986). Although state law determines the applicable statute of limitations period for claims under § 1983, federal law determines the date of accrual. Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996). Under § 1983, a claim accrues when the plaintiff knows or has reason to know he has been injured, and he is or should be aware of who injured him. Id. at 562; Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987). A complaint may not be dismissed on statute of limitations grounds prior to service unless it “appear[s] beyond a doubt from the complaint itself that [Plaintiff] can prove no set of facts which would avoid a statute of limitations bar.” Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001). “When applying state limitations periods to § 1983 claims, we also apply any relevant state tolling provisions.” Meyer v. Gwinnett Cnty., 636 Fed.Appx. 487, 489 (11th Cir. 2016) (per curiam).
Applying these principles to the present case, Plaintiff has pleaded that Defendants refused to file his habeas corpus application on November 8, 2018. Compl. 14, ECF No. 1. Plaintiff was or should have been aware of his claim concerning this refusal when he received the unfiled petition on November 13, 2018. Id. Plaintiff did not file his Complaint until March 7, 2021. Id. at 16. Thus, without a valid basis for tolling, the claims Plaintiff raises in his Complaint are time-barred.
Plaintiff asserts that his claims are not barred by the applicable statute of limitations because the Georgia Supreme Court issued several orders extending deadlines in state court cases due to the COVID-19 coronavirus pandemic. Compl. 14, ECF No. 1. More specifically, Plaintiff contends that the Georgia Supreme Court entered four separate orders declaring a statewide judicial emergency on March 14, 2020, April 6, 2020, May 11, 2020, and June 12, 2020. Id. at 14-15. Plaintiff contends that each of those orders extended all deadlines in Georgia cases for a period of thirty days; thus, the combined effect of the orders would be to “extend[] all legal deadlines, ” including statutes of limitations, “for 120 days.” Id. at 15. Plaintiff thus asserts that his Complaint, which was filed more than three months past the statute of limitations, was timely.
Plaintiff is correct that the Georgia Supreme Court's emergency orders “suspend[ed], toll[ed], extend[ed], and otherwise grant[ed] relief from any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters, including but not limited to any . . . statute of limitation” and that each extension lasted approximately a month. Order Declaring Statewide Judicial Emergency 2 (Mar. 14, 2020) (stating order would expire on April 13, 2020 unless otherwise modified or extended), https://www.gasupreme.us/wp-content/uploads/2020/03/CJ-Melton-amended-Statewide-Jud-Emergency-order.pdf; Order Extending Statewide Judicial Emergency 1 (Apr. 6, 2020) (extending March 14, 2020 Order until May 13, 2020), https://www.gasupreme.us/wp-content/uploads/2020/04/CJ_Melton_Extension_Order signed_entered.pdf; Second Order Extending Declaration of Statewide Judicial Emergency 1 (May 11, 2020) (extending March 14, 2020 Order until June 12, 2020), https://www.gasupreme.us/wp-content/uploads/2020/05/Second-Order-Extending-Declaration-of-Statewide-Judicial-Emergency_as-issued.pdf; Third Order Extending Declaration of Statewide Judicial Emergency 2 (June 12, 2020) (extending March 14, 2020 Order until July 12, 2020), https://www.gasupreme.us/wp- content/uploads/2020/06/THIRD_ORDER_EXTENDING_DECLARATION_OF_STATEWIDE_JUDICIAL_EMERGENCY_AS_ISSUED.pdf. In addition, the Third Order provided that “[t]he 122 days between March 14 and July 14, 2020, or any portion of that period in which a statute of limitation would have run, shall be excluded from the calculation of that statute of limitation.” 3d Ext. Order 4. It is therefore not clear from the face of the Complaint that the statute of limitations bars Plaintiff's claims, and his Complaint should not be dismissed on preliminary screening on that basis.
B. Plaintiff's Section 1983 Claims
Plaintiff's § 1983 claims are based on his contention that Defendants' failure to file the 2018 Petition challenging his 1996 aggravated stalking conviction violated his constitutional right to access the courts. Compl. 15, ECF No. 1. These claims should be dismissed because Plaintiff has failed to state a claim upon which relief may be granted and because these claims are frivolous and/or malicious.
1. Dismissal for Failure to State a Claim
It is well established that “[a]ccess to the courts is clearly a constitutional right, grounded in the First Amendment, the Article IV Privileges and Immunities Clause, the Fifth Amendment, and/or the Fourteenth Amendment.” Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (citing Christopher v. Harbury, 536 U.S. 403, 415 n. 12 (2002)). “To have standing to seek relief under this right, however, a plaintiff must show actual injury by ‘demonstrat[ing] that a nonfrivolous legal claim ha[s] been frustrated or . . . impeded.'” Jackson v. State Bd. of Pardons & Paroles, 331 F.3d 790, 797 (11th Cir. 2003) (alterations and omission in original) (citing Lewis v. Casey, 518 U.S. 343, 353(1996)). In other words, “[t]he injury requirement means that the plaintiff must have an underlying cause of action the vindication of which is prevented by the denial of access to the courts.” Cunningham v. Dist. Attorney's Office for Escambia Cnty., 592 F.3d 1237, 1271 (11th Cir. 2010).
Plaintiff has not pleaded facts sufficient to show that Defendants' failure to file the 2018 Petition caused him any actual injury. Plaintiff has filed at least two state habeas petitions challenging his 1996 aggravated stalking conviction. In the first, originally filed in 2003, the Georgia Supreme Court found that Plaintiff's 1996 conviction for aggravated stalking was not voided by the repeal and amendment of the aggravated stalking statutes prior to the entry of final judgment on that conviction. Daker v. Williams, 279 Ga. 782, 782 (2005) (holding that “[t]he actions for which Daker was originally indicted . . . were not decriminalized by the statutory amendment”). Plaintiff's second petition was originally filed in Butts County in 2013. Pet. 1, Daker v. Emmons, Case No. 2019CV0161 (Lowndes Cnty. Sup. Ct. Feb. 1, 2019) (hereinafter, the “2013 Petition”), available at https://portalprod.lowndescounty.com/PortalProd/Home/ Dashboard/29 (searched “Daker, Waseem”) (last accessed Oct. 5, 2021). The 2013 Petition was subsequently transferred to Cobb County in March 2013, to Tattnall County in May 2018, to Macon County in July 2018, and to Lowndes County in January 2019. Order Dismissing 2013 Pet. 3, July 25, 2019.
Documents attached to Plaintiff's 2013 Petition indicate that the 2013 Petition may have been Plaintiff's fourth state court habeas corpus petition challenging his 1996 aggravated stalking conviction. 2013 Pet. 41, Jan. 10, 2019 (respondent's motion to transfer case to Lowndes County). Plaintiff has also sought federal habeas corpus relief as to his 1996 aggravated stalking conviction. See, e.g., Daker v. Benton, No. 1:05-CV-2751-RWS, 2005 WL 8173353, at *1 (N.D.Ga. Dec. 8, 2005) (“The Applicant has submitted the instant 28 U.S.C. § 2254 pro se habeas corpus application, seeking to challenge his October 30, 1996, convictions in the Cobb County Superior Court for aggravated stalking.”).
Plaintiff's initial 2013 Petition clearly raised two of the grounds raised in the 2018 Petition that Defendants refused to file. First, Plaintiff contended that “[t]he State failed to disclose exculpatory and impeaching evidence in violation of due process and Brady v. Maryland and its progeny.” See, e.g., 2013 Pet. 63-64. Second, Plaintiff claimed that “[t]he trial court erred in admitting into evidence petitioner's ‘private papers' in violation of the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution, the corresponding provisions of the Georgia Constitution, O.C.G.A. § 17-5-21, and Brogdon v. State, 287 Ga. 528, 697 S.E.2d 211 (2010).” Id. at 65. In fact, Plaintiff was advised that the 2018 Petition could not be filed because Plaintiff “already ha[d] an existing Habeas Corpus filing with the exact same charges in Cobb County that [was] received from Tattnall County on July 30, 2018 and given case number 2018 CV-00102, ” and he could not “have duplicate cases on the same matter.” Id. at 16. Shortly before the April 2019 evidentiary hearing in Lowndes County, Plaintiff also amended the 2013 Petition to include the other two claims raised in the 2018 Petition, i.e., that his aggravated stalking convictions were “multiplicitous” and violated double jeopardy and that he was denied appellate counsel for his direct appeal. Order Den. 2013 Pet. 5, 7, July 25, 2019.
This procedural history demonstrates that each claim Plaintiff sought to raise in the 2018 Petition was either pending in the 2013 Petition at the time he attempted to file the 2018 Petition or raised less than six months later when he amended the 2013 Petition. Plaintiff also had a full and fair opportunity to litigate each of the claims in the 2018 Petition: the Lowndes County Superior Court held an evidentiary hearing and entered a final order denying each of the claims in the 2013 Petition. Defendants' purported failure to file the 2018 Petition therefore could not have caused Plaintiff any actual injury. See, e.g., Oaks v. Wainwright, 430 F.2d 241, 242 (5th Cir. 1970) (per curiam) (affirming dismissal of access to courts claims where prisoner failed to allege “that he has ever lost the right to commence, prosecute, or appeal in any court, or that he has been substantially delayed in obtaining a judicial determination in any proceeding”). Plaintiff has thus failed to allege an essential element of his access-to-courts claim, and any such claim should be dismissed.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.
2. Dismissal as Frivolous and/or Malicious
In addition to failing to state a claim, this case should be dismissed as frivolous and/or malicious pursuant to 28 U.S.C. § 1915A. As Plaintiff has been repeatedly warned, 28 U.S.C. § 1915A provides that a court “shall” dismiss claims that are frivolous or malicious. District courts are “‘vested with especially broad discretion' in determining” whether a dismissal for frivolousness or maliciousness is warranted. Bailey v. Johnson, 846 F.2d 1019, 1020-21 (5th Cir. 1988) (per curiam). A claim is “malicious if it was filed with the intention or desire to harm another, ” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (internal quotation marks omitted), or if it generally constitutes an abuse of the judicial process, see Sears v. Haas, 509 Fed.Appx. 935, 936 (11th Cir. 2013) (per curiam) (holding that prisoner's “failure to comply with court rules requiring disclosures about [his] previous litigation” may constitute “an abuse of the judicial process warranting dismissal” of the party's pleading as frivolous or malicious under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1)). In addition, “complaints that are plainly part of a longstanding pattern of abusive and repetitious lawsuits” are “malicious” for purposes of §§ 1915A or 1915(e). Horsey v. Asher, 741 F.2d 209, 213 (8th Cir. 1984).
Some of the authorities cited herein were decided under 28 U.S.C. § 1915(e)(2)(B)(i), which also provides that a court “shall dismiss” frivolous and malicious cases, or its predecessor statute, 28 U.S.C. § 1915(d), which provided that a court “may” dismiss a case “if satisfied that the action is frivolous or malicious.” All these authorities are therefore instructive on the issue of determining whether a particular action should be dismissed sua sponte as frivolous or malicious.
Plaintiff neglects to mention the 2013 Petition in the Complaint in this case, presumably because the state habeas court dismissed each of the claims raised in the 2013 Petition-which, again, are the very same claims raised in the 2018 Petition. Order Den. 2013 Pet. 11-12. Despite this clear adverse ruling, Plaintiff incredibly (if not unsurprisingly) asks this Court to direct the Macon County Superior Court to “immediately file his Complaints at issue on the dates that they were first received by Defendants.” Compl. 16, ECF No. 1. Plaintiff's attempt to relitigate his prior unsuccessful claims in a different venue is “plainly part of a longstanding pattern of abusive and repetitious lawsuits” and constitutes an abuse of the judicial process. Horsey, 741 F.3d at 213. Plaintiff has been warned previously that raising the same claims in multiple jurisdictions in an effort to secure at least one favorable ruling constitutes bad faith and malicious conduct. Daker v. Bryson, Civil Action No. 5:15-cv-00088-TES-CHW, 2019 WL 826474, at *4 (M.D. Ga. Feb. 21, 2019) (noting that “the filing of multiple, identical complaints-in different jurisdictions-with the stated intent of only prosecuting whichever case was ‘allowed to proceed' is a glaring example of bad faith and malicious conduct”). These claims should therefore be dismissed without prejudice as frivolous and/or malicious. Cochran v. Morris, 73 F.3d 1310, 1316 (4th Cir. 1996) (noting that “[a] plaintiff's past litigious conduct should inform a district court's discretion under § 1915(d)” and finding that court properly considered prisoner's “attempt[] to escape the final judgment of one federal court by filing in another” in determining that dismissal was warranted); cf. also Daker v. Ward, 999 F.3d 1300, 1310 (11th Cir. 2021) (affirming dismissal of Plaintiff's duplicative claims without prejudice as “malicious” under § 1915A(b)(1)); Daley v. U.S. Attorneys Office, 538 Fed.Appx. 142, 143 (3d Cir. 20130 (per curiam) (“Daley's complaint is also malicious as it repeats claims that he unsuccessfully previously litigated twice before in the District Court.”).
C. State Law Claims
Plaintiff also seeks to raise claims that Defendants committed the state law tort of violation of public duty under O.C.G.A. § 51-1-1. Compl. 16, ECF No. 1. It is recommended that the Court decline to exercise supplemental jurisdiction over any state law claims Plaintiff is attempting to assert. See 28 U.S.C. § 1367(c)(3) (stating that the district courts “may decline to exercise supplemental jurisdiction over” state law claims if “the district court has dismissed all claims over which it has original jurisdiction”).
III. Conclusion
For the foregoing reasons, it is RECOMMENDED that Plaintiff's § 1983 claims be DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A and that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable Tilman E. Self, III, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 31.
SO RECOMMENDED.