Waseem Daker v. Neil Warren

Opinion

Case: 14-13078 Date Filed: 07/11/2019 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-13078 Non-Argument Calendar ________________________

D.C. Docket No. 1:13-cv-03053-RWS

WASEEM DAKER,

Plaintiff-Appellant

versus

NEIL WARREN, Sheriff, Cobb County, COBB COUNTY, LAWSON, Mailroom Officer, LT. COL. JANET PRINCE, Cobb County Sheriff Office, JAY C. STEPHENSON, Clerk, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________ (July 11, 2019) Case: 14-13078 Date Filed: 07/11/2019 Page: 2 of 8

Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

Waseem Daker, a state prisoner, appeals pro se the dismissal of his amended

complaint that county officials violated his constitutional rights, 42 U.S.C. § 1983,

and the denial of his motions to proceed in forma pauperis and for recusal. The

district court dismissed Daker’s complaint after determining he was ineligible to

proceed as a pauper on the grounds that he had seven appeals that counted as

strikes against him under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g),

and that he was not indigent. A careful review of the record establishes that the

district court erred in denying Daker’s motion to proceed in forma pauperis

because only one of his appeals qualified as a strike and erred when it determined

that his allegation of poverty was untrue without providing him notice and an

opportunity to respond. Those errors require us to vacate the dismissal of Daker’s

amended complaint and to remand for further proceedings. But we affirm the

denial of Daker’s motion for recusal because he offers no reason to doubt the

impartiality of the district judge.

In 2014, when Daker filed his complaint, he was no stranger to the federal

courts. After Daker was convicted in 2010 in a Georgia court of twelve crimes

including murder, he filed several petitions for a writ of habeas corpus, 28 U.S.C.

§ 2254, and civil actions, 42 U.S.C. § 1983. In his amended complaint, Daker

2 Case: 14-13078 Date Filed: 07/11/2019 Page: 3 of 8

alleged that he had been denied access to legal materials by Neil Warren, the

former Sheriff of Cobb County, his staff, and officials of the Cobb County

Superior Court. Id. Daker accompanied his complaint with a motion to proceed in

forma pauperis. 28 U.S.C. § 1915. “Ordinarily, a federal litigant who is too poor to

pay court fees” is allowed to “commence a civil action without prepaying fees or

paying certain expenses.” Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015). But

the Prison Litigation Reform Act bars a prisoner from proceeding as an indigent if

he “has, on 3 or more prior occasions, while incarcerated . . ., brought an action or

appeal . . . that was dismissed on the grounds that it is frivolous, malicious, or fails

to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g).

The district court denied Daker’s motion to proceed in forma pauperis,

dismissed his amended complaint without prejudice, and denied his motion to

recuse. The district court ruled that Daker’s serial litigation barred him from

proceeding as an indigent. See id. The district court attached to its order a

spreadsheet cataloguing Daker’s numerous filings, referenced two letters from this

Court stating that he had at least three strikes under the Act, and identified seven

specific cases as strikes. The district court stated that it was counting “Daker’s

appeals . . . having ended in dismissal either (1) because the circuit court deemed

them frivolous, see, e.g., In re Daker, No. 11-11937; In re Daker, No. 12-12072; In

re Daker, No. 12-14369; Daker v. Warren, No. 13-11630; or (2) for want of

3 Case: 14-13078 Date Filed: 07/11/2019 Page: 4 of 8

prosecution, see, e.g., In re Daker, No. 12-12073; Georgia v. Daker, No. 12-

12519; and Daker v. Comm’r, 13-13398.” Alternatively, the district court ruled that

Daker was not indigent and had “conceal[ed] and/or misstate[d] his true assets and

income.” 28 U.S.C. § 1915(e)(2)(A). The district court found that Daker omitted

owning “a home . . . [with] a market value of over $398,000” and with “current . . .

tax payments” and “other substantial asserts” identified in “past IFP affidavits.”

The district court also ruled that Daker alleged no reasons warranting recusal.

Daker appealed, but we dismissed his appeal for failure to pay filing fees.

Later, in separate appeals, we held that four of the cases relied on by the

district court did not qualify as strikes under section 1915(g). In Daker v.

Commissioner, Georgia Dep’t of Corrections, 820 F.3d 1278 (11th Cir. 2016), we

held that the dismissal of an action or appeal for “lack of jurisdiction” or “want of

prosecution” did not qualify as a strike because the text of the Act required a

“dismiss[al] on the grounds that it is frivolous, malicious, or fails to state a claim

upon which relief may be granted.” Id. at 1283–84 (quoting 28 U.S.C. § 1915(g)).

Because three of the dismissals used to deem Daker ineligible to proceed in forma

pauperis “were on the ground for want of prosecution—In re Daker, No. 12-

12073; In re Daker, No. 12-12072; and Georgia v. Daker, No. 12-12519—” they

did not qualify as strikes. Id. at 1284–85. And applying the same textual analysis in

Daker v. Head, 730 F. App’x 765 (11th Cir. 2018), we held that the dismissal of a

4 Case: 14-13078 Date Filed: 07/11/2019 Page: 5 of 8

filing “‘pursuant to Daker’s motion for voluntary dismissal,’ In re Daker, No. 11-

11937 (11th Cir. Aug. 24, 2011),” also could not serve as a strike. Id. at 767

(alteration adopted). In the midst of those decisions, Daker filed a motion to

reinstate his appeal, which we granted.

This appeal is governed by two standards of review. “We review the denial

of a petition to proceed in forma pauperis for abuse of discretion, but we review

interpretations of the Act de novo.” Daker, 820 F.3d at 1283. We also review the

denial of a motion for recusal for abuse of discretion. United States v. Bailey, 175

F.3d 966, 968 (11th Cir. 1999).

The district court erred by dismissing Daker’s amended complaint on the

basis that his litigiousness made him ineligible to proceed in forma pauperis. Six

of the seven appeals relied on by the district court did not qualify as strikes. Our

previous decisions establish that four of Daker’s appeals—In re Daker, 12-12072;

In re Daker, 12-12073; Georgia v. Daker, 12-12519; and In re Daker, No. 11-

11937—do not count as strikes. Daker, 820 F.3d at 1283; Daker, 730 F. App’x at

767. And two additional appeals the district court relied on—In re Daker, 12-

14369 and Daker v. Comm’r, No. 13-13398—also could not serve as strikes

because they were dismissed for “want of prosecution.” See Daker, 830 F.3d at

1284. Although Daker’s seventh appeal, Daker v. Warren, 13-11630 (11th Cir.

Mar. 4, 2014), qualified as a strike because we expressly dismissed the appeal on a

5 Case: 14-13078 Date Filed: 07/11/2019 Page: 6 of 8

“find[ing] that [it] [was] frivolous,” one strike was insufficient to disallow Daker to

proceed as a pauper, 28 U.S.C. § 1915(g). Daker did not have three or more strikes

under the Act.

Daker asks that we issue a writ of mandamus prohibiting our Clerk from

issuing letters stating that he has three strikes, but we lack jurisdiction to entertain

Daker’s request. Our jurisdiction is limited to the review of “final decisions of the

district courts or the United States,” specific interlocutory rulings, and various

decisions of federal agencies. 28 U.S.C. § 1291. And we “may issue writs of

prohibition only in aid of [our] jurisdiction to review final decisions of the district

courts.” In re Kilpatrick, 167 F.2d 471, 471 (5th Cir. 1948). We lack jurisdiction to

issue a writ of mandamus to our Clerk.

The district court also abused its discretion by denying Daker’s motion to

proceed in forma pauperis based on its summary finding that he was not indigent.

The district court ruled that Daker was not indigent without giving him notice or an

opportunity to explain deficiencies in his affidavit of poverty. Although a district

court “shall dismiss [a] case at any time if it determines that the [prisoner’s]

allegation of poverty is untrue,” 28 U.S.C. § 1915(e)(2)(A), our caselaw suggests

that a prisoner is entitled to notice and an opportunity to respond before having his

case dismissed with prejudice. See Dawson v. Lennon, 797 F.2d 934, 935–36 (11th

Cir. 1986) (mentioning prisoner’s objection to recommended dismissal under

6 Case: 14-13078 Date Filed: 07/11/2019 Page: 7 of 8

section 1915); Collier v. Tatum, 722 F.2d 653, 655–56 (11th Cir. 1983) (allowing

prisoner “a reasonable opportunity to explain withdrawals from his account”

before denying status as indigent). The district court stated that its dismissal of

Daker’s amended complaint was without prejudice, but its ruling barred Daker

from refiling his civil action because the applicable two-year period of limitation,

Ga. Code Ann. § 9-3-33; see Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003),

expired while his action was pending. The statute of limitations commenced

running on September 6, 2011, when the state officials’ actions allegedly prevented

Daker from timely filing a notice of appeal. Because the two-year period expired

well before the district court dismissed Daker’s civil action on June 6, 2014, the

dismissal of his amended complaint operated as a dismissal with prejudice. See

Justice v. United States, 6 F.3d 1474, 1482 & n.15 (11th Cir. 1993). Daker must be

afforded an opportunity to be heard.

The district court judge did not abuse his discretion by denying Daker’s

motion to recuse. A district court judge is required to “disqualify himself in any

proceeding in which his impartiality might reasonably be questioned,” 28 U.S.C.

§ 455(a), “[w]here he has a personal bias or prejudice concerning a party, or

personal knowledge of disputed evidentiary facts concerning the proceeding,” id.

§ 455(b)(1), or if he, “to [his] knowledge [is] likely be a material witness in the

proceeding,” id. § 455(b)(5)(iv). “The test on appeal for determining whether a

7 Case: 14-13078 Date Filed: 07/11/2019 Page: 8 of 8

judge should have recused himself under section 455(a) is whether an objective,

disinterested, lay observer fully informed of the facts underlying the grounds on

which recusal was sought would entertain a significant doubt about the judge’s

impartiality.” United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989)

(internal quotation marks and citation omitted).

Daker identified no ground that cast doubt on the district court judge’s

impartiality. Neither the judge’s adverse rulings in Daker’s criminal and civil

proceedings, see United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004),

nor the judge’s familiarity with Daker’s litigation, see Christo v. Padgett, 223 F.3d

1324, 1334 (11th Cir. 2000), required recusal. Nor was recusal required based on

Daker’s speculation that the district court judge might be called as a witness by the

state in a criminal proceeding. See Giles v. Garwood, 853 F.2d 876, 878 (11th Cir.

1988). Daker also could not force the district court judge to recuse by attempting to

subpoena him to testify in a civil action. The district court judge was not required

to recuse without some evidence that he had a disqualifying personal bias against

or interest adverse to Daker.

We VACATE the order dismissing Daker’s amended complaint and

REMAND for further proceedings, and we AFFIRM the denial of Daker’s motion

for recusal.