Daker v. Head

District Court, S.D. Georgia·Decided February 26, 2021·No. 6:14-cv-00047·Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION

WASEEM DAKER,

Plaintiff, CIVIL ACTION NO.: 6:14-cv-47

v.

BRIAN OWENS, et al.,

Defendants.

O RDE R Before the Court is the Motion to Vacate Plaintiff’s In Forma Pauperis Status (“Motion to Vacate”), doc. 140, filed by Defendants Brian Owens, Timothy Ward, Robert Toole, Shirley Kilgore, Linton DeLoach, Milton Smith, Benjamin Warren, Miguel Salgado, Ronnie Shuemake, Taral Todman, Freddie Davis, and Betty Bailey-Dean (“Movants”), Plaintiff’s Response, doc. 154, and Movants’ Reply, doc. 159. Movants also filed a Motion to Supplement the Record on Their Motion (“Motion to Supplement”), in which they argue the Court should find Plaintiff has made material misrepresentations regarding his indigency status and the consequences of such misrepresentations should be dismissal of all claims with prejudice. Doc. 208. Plaintiff also responded in opposition to the Motion to Supplement. Doc. 240. In their Motion to Vacate, Movants make essentially two arguments: (1) Plaintiff misrepresented his financial circumstances in his 2014 affidavit in support of his request to proceed in forma pauperis, and (2) Plaintiff is no longer indigent and his claims of indigency should be reevaluated. Doc. 140. Regarding the first argument, Movants argue Plaintiff had his in forma pauperis (“IFP”) request denied in a case in the Northern District of Georgia around the same time and the denial of IFP status there demonstrates Plaintiff made misrepresentations in his motion in this case in 2014. Id. at 3–4 (citing Daker v. Humphrey, 1:13-cv-01554 (N.D. Ga. 2013)). The parties

dispute what transpired in that Northern District of Georgia case after Plaintiff was denied IFP status and how it should impact the Court’s analysis here. Docs. 157, 159. Based on the record in this case and a review of the docket and appellate history of the Northern District of Georgia case in question, the Court cannot conclude, at this point, Plaintiff made misrepresentations about his financial position in this case in his 2014 motion. This is not to say Plaintiff was fully truthful in his affidavit, only that the Court cannot resolve this issue based on the current record.1 The passage of time—nearly seven years—complicates this inquiry. To the extent Movants’ Motion to Vacate and Motion to Supplement are based on a purported material misrepresentation in Plaintiff’s 2014 affidavit submitted in this matter, this portion of the Motions is DENIED without prejudice. However, the Court considers Movant’s

secondary argument as well. In their second argument, Movants assert Plaintiff is not indigent now, and the Court should reevaluate Plaintiff’s IFP status. Doc. 140. Movants assert Plaintiff owned a home at the outset of this case, in 2014, but on August 27, 2018, he sold the home for $464,900. Doc. 140 at 3–4. Movants also point out Plaintiff paid the filing fees in a number of cases in 2019 and 2020 and has been found not indigent by at least one court. Id. In their Motion to Supplement, Movants point to a case Plaintiff filed in the Middle District of Georgia. Doc. 208 (citing Daker

1 In his June 4, 2014 application to proceed without prepayment of fees, Plaintiff did disclose he had a “house worth $285,000–$330,000,” noting it had a mortgage of about $345,000 and was listed for sale. Doc. 4 at 2. v. Head, 5:14-CV-138 (M.D. Ga. Apr. 4, 2014)). In that case, the court reevaluated Plaintiff’s initial assertion of indigency based on changes in Plaintiff’s financial status and Plaintiff’s pattern of misrepresentations about his financial status, and, in 2019, ordered Plaintiff to submit an updated motion to proceed in forma pauperis. The Court reviewed Plaintiff’s updated motion

and concluded, among other things, Plaintiff has a history of intentionally misleading courts and engaging in vexatious and bad faith litigation and had engaged in “calculated efforts to conceal sources of funds” from which he could have paid filing fees. That court dismissed Plaintiff’s case with prejudice as a result. Movants in this case argue the record in the Middle District of Georgia case supports this Court reevaluating Plaintiff’s indigency status. In his Responses, Plaintiff argues Movants’ characterizations of his finances are incorrect because his debts and liabilities far outweigh any proceeds he received as a result of selling his home. Doc. 154 at 7. Plaintiff also attempts to provide the Court with a partial accounting of his expenditures since his 2019 affidavit.2 Doc. 240. Regarding the Middle District of Georgia case, Plaintiff argues that court’s disposition in that matter does not warrant dismissal of

Plaintiff’s claims in this action because the factual circumstances are different. Most importantly, Plaintiff argues that in the Middle District of Georgia case, he was ordered to submit an updated motion to proceed IFP, which formed the basis for the dismissal, but he has not been ordered to file an updated motion in this case. Doc. 216 at 3. The Court does not have sufficient information to determine whether Plaintiff is currently indigent. Unlike the Middle District of Georgia case described above, Plaintiff has not been ordered to submit an updated motion to proceed IFP in this case. Although Plaintiff made some

2 Movants note Plaintiff testified to having substantially more assets in the 2019 affidavit he submitted in the Middle District of Georgia case than he did in his 2020 Response to their Motion to Vacate and question whether the discrepancy is the result of Plaintiff’s misrepresentations. Doc. 208 at 4. representations about his more recent financial circumstances in his Responses to Movants’ Motion to Vacate and Motion to Supplement, those representations were not made in support of Plaintiff’s affirmative request to continue proceeding IFP. For these reasons, the Court DENIES without prejudice Movants’ Motion to Vacate and Movants’ Motion to Supplement. Docs. 140,

208. However, Movants have presented legitimate concerns about Plaintiff’s ongoing indigency status and about whether Plaintiff’s financial circumstances have significantly changed since this case was filed, in large part due to the sale of his home in 2018. Doc. 140 at 4; Doc. 154 at 3–4. Additionally, Plaintiff’s sworn testimony in his Response to Movants’ Motion to Vacate indicates he had sufficient funds in several accounts at that time (April 2020) to pay the Court’s filing fee. Doc. 154 at 7 (listing approximately $3,647.44 in checking accounts and $11,085.55 in a savings account). Plaintiff does not dispute Movants’ evidence he has repeatedly paid filing fees in other cases over the years. Id. at 9. In fact, Plaintiff estimates he paid over $20,000.00 in filing fees over the past few years. Doc. 240 at 2–3. Plaintiff also paid a

$402.00 filing fee earlier this month in another case in this District, indicating Plaintiff currently has the ability to pay filing fees. Daker v. Ward, No. 6:21-cv-3 (S.D. Ga. Feb. 4. 2021). Plaintiff, however, contends he should still be considered indigent based on his current assets, debts, and liabilities. Additionally, the Court has concerns about Plaintiff’s actions related to his prisoner trust account. When initially granting in forma pauperis status to Plaintiff in 2014, and again when reinstating his in forma pauperis status in 2019, the Court notified Plaintiff he would be obligated to pay the entire filing fee. Doc. 5 at 1; Doc. 97 at 1 (stating “all prisoners, even those who are allowed to proceed in forma pauperis” must pay the full filing fee). The Court also informed Plaintiff he would be put on a payment schedule, as outlined in § 1915(b), according to the funds available in his prisoner trust fund account. Id.

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