USCA11 Case: 21-14102 Document: 16-1 Date Filed: 03/02/2023 Page: 1 of 16
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14102
Non-Argument Calendar
____________________
WASEEM DAKER,
Plaintiff-Appellant,
versus
CHIEF LEGAL AFFAIRS OFFICER, VALDOSTA STATE
UNIVERSITY,
VALDOSTA STATE UNIVERSITY,
A Comprehensive University of the University System of Georgia,
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
GEORGIA,
Defendants-Appellees.
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2 Opinion of the Court 21-14102
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:19-cv-00159-WLS-TQL
____________________
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Waseem Daker, a Georgia prisoner proceeding pro se, ap-
peals the district court’s sua sponte dismissal of his amended com-
plaint. The district court liberally construed the amended com-
plaint as asserting claims under
42 U.S.C. § 1983, as well as state-
law claims under Georgia’s Open Records Act, O.C.G.A. §§ 50-18-
70 et seq. The district court dismissed the claims, concluding that
Daker failed to state a claim for relief under § 1983 and that it lacked
subject-matter jurisdiction to review the state-law claims. Daker
then filed a motion under Federal Rule of Civil Procedure 59(e) to
vacate the district court’s order dismissing his claims, which the
court denied.
On appeal, Daker argues that the district court erred in dis-
missing his claims and in denying his Rule 59(e) motion. After care-
ful consideration, we conclude that the district court did not err in
dismissing Daker’s claims and that we lack appellate jurisdiction to
review the denial of the Rule 59(e) motion. Accordingly, we affirm
in part and dismiss in part.
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21-14102 Opinion of the Court 3
I.
This case arises out of records requests that Daker submitted
under Georgia’s Open Records Act. We begin by reviewing the rel-
evant portions of the Act. We then discuss Daker’s requests and the
litigation that followed.
A.
In the Open Records Act, the Georgia “General Assem-
bly . . . declare[d] that there is a strong presumption that public rec-
ords should be made available for public inspection without delay.”
O.C.G.A. § 50-18-70(a). The Act directs that “[a]ll public records
shall be open for personal inspection and copying, except those
which by order of a court of this state or by law are specifically
exempted from disclosure.” Id. § 50-18-71(a). It defines “public rec-
ord” to include
all documents, papers, letters, maps, books, tapes,
photographs, computer based or generated infor-
mation, data, data fields, or similar material prepared
and maintained or received by an agency or by a pri-
vate person or entity in the performance of a service
or function for or on behalf of an agency or when
such documents have been transferred to a private
person or entity by an agency for storage or future
governmental use.
Id. § 50-18-70(b)(2).
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4 Opinion of the Court 21-14102
Upon receipt of an open records request, an agency 1 gener-
ally must “produce for inspection” responsive records within
“three business days of receipt of a request.” Id. § 50-18-71(b)(1)(A).
When an agency is unable to make the records available within this
timeframe, it must “provide the responsive records or access
thereto as soon as practicable.” Id. “At the time of inspection, any
person may make photographic copies or other electronic repro-
ductions of the records using suitable portable devices brought to
the place of inspection.” Id. § 50-18-71(b)(1)(B). In some circum-
stances, “an agency may, in its discretion, provide copies of a rec-
ord in lieu of providing access to the record.” Id.
In response to a request, an agency “may impose a reasona-
ble charge for the search, retrieval, redaction, and production” of
records. Id. § 50-18-71(c)(1). When an agency provides copies of a
record in lieu of providing access to the record, it may “charge a
fee for the copying.” Id. § 50-18-71(c)(2). The Act sets forth the max-
imum that the agency may charge for providing such copies. Id..
A party who believes that an agency wrongfully denied a
records request may bring an action “against persons or agencies
having custody of records open to the public . . . to enforce com-
pliance with the provisions” of the Act. Id. § 50-18-73(a). If a court
finds that the person or agency “acted without substantial
1 The Act defines “agency” to include, among other entities, “[e]vey state de-
partment, agency, board, bureau, office, commission, public corporation, and
authority.” O.C.GA. §§ 50-14-1(a)(1); 50-18-70(b)(1).
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21-14102 Opinion of the Court 5
justification,” it may award the plaintiff “reasonable attorney’s
fees.” Id. § 50-18-73(b). If the court finds that the person or agency
“negligently violate[d]” the Act, it may impose a civil penalty. 2 Id.
§ 50-18-74(a); see Cardinale v. Keane,
869 S.E.2d 613, 647–49 (Ga.
Ct. App. 2022) (“[T]he award of a civil penalty under the Open Rec-
ords Act is a matter committed to a trial court’s discretion.”).
B.
While incarcerated at the Valdosta State Prison, Daker sent
a records request to Valdosta State University, a public university
in Georgia. He requested copies “of all songs in rotation or on the
playlist or in the song bank” of the university’s radio station. Doc.
11 at ¶ 14 (internal quotation marks omitted). 3
Eschol Lee Davis, Jr., the school’s chief legal affairs officer,
responded to Daker’s request. Davis sent Daker copies of the radio
station’s written playlists. Davis also treated the request as seeking
“copies of the song audio files themselves.”
Id. at ¶ 16. Davis re-
sponded that the university would make the audio files “available
for inspection” with a pre-arranged appointment.
Id. But he stated
that the university would not make copies of the audio files for
2 For a first violation, a court may impose a civil penalty of up to $1,000.
O.C.G.A. § 50-18-74(a). For each additional violation committed within a 12-
month period from the date the initial civil penalty was imposed, a court may
impose a civil penalty of up to $2,500 per violation. Id.
3 “Doc.” numbers refer to the district court’s docket entries.
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6 Opinion of the Court 21-14102
Daker because the audio files were “protected under copyrights
held [by] their respective owners.” Id.
Upon receiving Davis’s response, Daker submitted a second
request, again seeking copies of “all songs in rotation or on the
playlist or in the song bank” for the university’s radio station. Id. at
¶ 17. He wrote that because he was incarcerated and unable to
come to Davis’s office, “inspection in person is not an adequate
substitute for copying or duplication.” Id. at ¶ 23 (emphasis in orig-
inal). He demanded that the university “copy or duplicate” the re-
quested audio files. Id. Daker also maintained that, regardless of
whether the songs have been copyrighted, the university was re-
quired to provide him with copies under the Open Records Act. He
also asserted that many of the songs played on the radio station
“have not been copyrighted.” Id. at ¶ 19 (emphasis omitted).
Davis responded to Daker’s second request. Again, he re-
fused to provide Daker with copies of the requested audio files. Da-
vis stated that the audio files of the songs were “subject to federal
copyright.” Id. at ¶ 24.
Daker, proceeding pro se, then filed this lawsuit in federal
district court against Davis, the university, and the Board of Re-
gents of the University System of Georgia (collectively the “defend-
ants”).4 In the amended complaint, Daker set forth the history of
4 Daker paid the filing for the lawsuit and did not seek to proceed in forma
pauperis.
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21-14102 Opinion of the Court 7
the records requests in which he sought audio files of 4,803 songs.
He claimed that the defendants violated the Open Records Act
when, after each of his records requests, they refused to provide
him with “a copy of each of the 4,803 songs.” Id. at ¶¶ 29, 32.
In the amended complaint, Daker claimed that the defend-
ants were liable under
42 U.S.C. § 1983 because the withholding of
the audio files violated the First and Fourteenth Amendments to
the Constitution. He sought a declaration that the defendants’ re-
fusal to provide copies of the audio files violated the Constitution
and the Open Records Act. He requested an injunction requiring
the defendants to provide him a copy of each requested song. He
also demanded nominal, compensatory, and punitive damages as
well as $9,600,000 in civil penalties under the Open Records Act.
A magistrate judge conducted an initial screening of Daker’s
amended complaint and recommended dismissal.5 The magistrate
judge determined that Daker failed to state a claim for relief under
§ 1983 because his allegations did not establish any violation of the
First or the Fourteenth Amendment.
5 When a prisoner files a complaint in a civil action “seek[ing] redress from a
governmental entity or officer or employee of a governmental entity,” the dis-
trict court shall review the complaint and “dismiss the complaint, or any por-
tion” thereof, if it “is frivolous, malicious, or fails to state a claim upon which
relief may be granted” or “seeks monetary relief from a defendant who is im-
mune from such relief.” 28 U.S.C. § 1915A(a)–(b).
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8 Opinion of the Court 21-14102
The magistrate judge liberally construed Daker’s amended
complaint as raising state-law claims under Georgia’s Open Rec-
ords Act. The magistrate judge recommended that the district
court dismiss these claims for lack of subject matter jurisdiction be-
cause they did not arise under federal law and there was no com-
plete diversity of the parties.
Daker objected to the magistrate judge’s recommendation.
He argued that the allegations in his amended complaint were suf-
ficient to state a claim that the defendants had violated the First and
Fourteenth Amendments. He also asserted that the court had sub-
ject matter jurisdiction over his state-law claims because the de-
fendants would be raising a defense to those claims based on fed-
eral copyright law.
The district court overruled Daker’s objections and adopted
the magistrate judge’s recommendation. The district court deter-
mined that Daker failed to state a claim that the defendants violated
the First or the Fourteenth Amendment. And the district court con-
cluded that it lacked subject matter jurisdiction over Daker’s state-
law claims.
After the district court entered this order, Daker filed a no-
tice of appeal as well as a motion under Federal Rule of Civil Pro-
cedure 59(e) to vacate the district court’s order. The district court
denied the motion. Daker did not file a new or amended notice of
appeal after the district court entered the order denying his Rule
59(e) motion.
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II.
“A district court’s decision to dismiss for failure to state a
claim under 28 U.S.C. § 1915A is reviewed de novo[.]” Boxer X v.
Harris,
437 F.3d 1107, 1110 (11th Cir. 2006). “A complaint is subject
to dismissal for failure to state a claim if the allegations, taken as
true, show the plaintiff is not entitled to relief.” Jones v. Bock,
549
U.S. 199, 215 (2007).
We review de novo questions regarding a district court’s
subject matter jurisdiction. Absolute Activist Value Master Fund
Ltd. v. Devine,
998 F.3d 1258, 1264 (11th Cir. 2021).
“Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally con-
strued.” Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th
Cir. 1998). We may “affirm on any basis supported by the record,”
even if the district court did not actually rely on that basis. MidAm-
erica C2L Inc. v. Siemens Energy Inc.,
25 F.4th 1312, 1331 (11th Cir.
2022).
III.
Daker argues on appeal that the district court erred in dis-
missing his § 1983 claims for failure to state a claim for relief and
his state-law claims for lack of subject matter jurisdiction. He also
argues that the district court erred when it denied his Rule 59(e)
motion. We address each argument in turn.
A.
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10 Opinion of the Court 21-14102
Daker argues that the allegations in his amended complaint
were sufficient to state a claim under § 1983 that the defendants
violated either the First or the Fourteenth Amendment. We reject
his argument.
1.
We begin with Daker’s § 1983 claims alleging that the de-
fendants violated the First Amendment. The Supreme Court of the
United States has recognized that the First Amendment “protects
the right to receive information and ideas.” Stanley v. Georgia,
394
U.S. 557, 564 (1969). According to Daker, when the defendants de-
nied his records requests in “violation of state law,” their actions
“impermissibly constricted the flow of information or ideas” and
thus violated the First Amendment. Appellant’s Br. at 40 (internal
quotation marks omitted).
We assume for purposes of this appeal that if the defendants
denied Daker’s records requests in violation of the Open Records
Act, then the defendants violated Daker’s First Amendment rights.
We nevertheless conclude that Daker failed to state a claim for re-
lief because the allegations in the amended complaint establish that
Davis’s responses to Daker’s requests complied with the Act; thus,
there was no violation of state law.
An agency fulfills its statutory obligations under the Act
when it makes the responsive public records available for inspec-
tion. We know this because the plain language of the Act directs an
agency to make responsive records available “for inspection.”
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21-14102 Opinion of the Court 11
O.C.G.A. § 50-18-71(b)(1)(A). As Georgia courts have recognized,
an official “fully complie[s] with his obligations under the Act” by
notifying the requesting party “that the records would be made
available for inspection.” Felker v. Lukemire,
477 S.E.2d 23, 25–26
(Ga. 1996); see Garland v. State,
865 S.E.2d 533, 538 (Ga. Ct. App.
2021) (explaining that government agency discharges its obliga-
tions when it produces “for inspection all responsive records”).6
The allegations in Daker’s complaint reveal that the defend-
ants fulfilled this obligation under the Act. Upon receiving Daker’s
requests for the songs played on the university’s radio station, Da-
vis responded by telling Daker that the responsive records were
available for inspection. 7
Daker argues that Davis’s offer to make the recordings avail-
able for inspection was insufficient under the Act because he was
incarcerated and thus unable to perform the inspection himself. Ac-
cording to Daker, for an incarcerated person, an agency cannot sat-
isfy its duties under the Act by making the requested records avail-
able for inspection and instead must prepare and send the incarcer-
ated person copies of the responsive records. But we see nothing in
6 It is true that the Act generally gives an agency discretion to provide copies
of the responsive records in lieu of making them available for inspection. See
O.C.G.A. § 50-18-71(b)(1)(B), (c)(2). But the fact that an agency has discretion
to provide copies does not mean that it must do so.
7 We assume for purposes of this appeal that Valdosta State University quali-
fies as an “agency” and the audio recordings qualify as “public records” under
the Open Records Act. See O.C.G.A. § 50-18-70(b).
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the text of the Act that imposes such an obligation, and Daker has
identified no case or other authority recognizing such an obliga-
tion.8
We conclude that the defendants fulfilled their obligations
under the Open Records Act when Davis responded in writing to
Daker’s request that the requested recordings were available for
inspection. See Felker,
477 S.E.2d at 25. Because the allegations in
the amended complaint, taken as true, do not establish that the de-
fendants violated the Act, we conclude that Daker failed to state a
claim that the defendants violated the First Amendment.
2.
We now turn to Daker’s § 1983 claims alleging Fourteenth
Amendment violations. The Due Process Clause of the Fourteenth
Amendment provides that no State shall “deprive any person of
life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. Daker argues that because the Open Records Act
uses “mandatory language” that requires state agencies to make
public records available for inspection, it “create[s] a liberty interest
in access to public records.” Appellant’s Br. at 20. Daker claims that
the defendants’ wrongful denials of his requests in violation of the
8 We also note that nothing in the Act requires Daker to be the individual who
inspects the records. Even though Daker is incarcerated, he could arrange for
another person to inspect them on his behalf. See Deal v. Coleman,
751 S.E.2d
337, 347 (Ga. 2013).
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21-14102 Opinion of the Court 13
Act deprived him of this liberty interest and violated the Four-
teenth Amendment.
We assume for purposes of this appeal that the Act created
a liberty interest in access to public records. We also assume that if
the defendants wrongfully denied Daker’s records request in viola-
tion of the Act, then they violated the Fourteenth Amendment.
We nevertheless conclude that Daker failed to state a claim
for relief. The amended complaint’s allegations establish that the
defendants fulfilled their obligations under the Act because Davis
notified Daker that the responsive records were available for in-
spection. Because the allegations, taken as true, show there was no
violation of the Act, Daker failed to state a claim for a violation of
the Fourteenth Amendment.
B.
Daker also argues that the district court erred in dismissing
his state-law claims for lack of subject matter jurisdiction. We dis-
agree.
For a federal court to have subject matter jurisdiction over a
claim, there must be: “(1) jurisdiction under a specific statutory
grant; (2) federal question jurisdiction pursuant to
28 U.S.C. § 1331;
or (3) diversity jurisdiction pursuant to
28 U.S.C. § 1332(a).” PTA-
FLA, Inc. v. ZTE USA, Inc.,
844 F.3d 1299, 1305 (11th Cir. 2016)
(internal quotation marks omitted). Daker argues that the district
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14 Opinion of the Court 21-14102
court had jurisdiction over his Open Records Act claims under the
statutory grant set forth at
28 U.S.C. § 1338. 9
Section 1338 states that district courts “shall have original ju-
risdiction of any civil action arising under any Act of Congress re-
lating to patents, plant variety protection, copyrights and trade-
marks. No State court shall have jurisdiction over any claim for re-
lief arising under any Act of Congress relating to patents, plant va-
riety protection, or copyrights.”
28 U.S.C. § 1338(a). Jurisdiction
under § 1338 extends “to those cases in which a well-pleaded com-
plaint establishes” that federal copyright law “creates the cause of
action.” Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800,
809 (1988); MDS (Can.) Inc. v. Rad Source Techs., Inc.,
720 F.3d
833, 841 (11th Cir. 2013). A case raising a federal copyright-law “de-
fense does not . . . arise under” copyright law, “even if the defense
is anticipated in the plaintiff’s complaint.” Christianson,
486 U.S. at
809 (internal quotation marks omitted).
Daker claims that there is jurisdiction under § 1338. He ar-
gues that his state-law claims arise under copyright law because he
anticipates that the defendants will raise a defense under copyright
9 Daker does not argue on appeal that there is subject matter jurisdiction over
his state-law claims based on federal question jurisdiction pursuant to
28 U.S.C. § 1331 or diversity jurisdiction pursuant to
28 U.S.C. § 1332(a). Even
if he had raised these arguments, we cannot say that there is subject matter
jurisdiction on either basis because Daker’s claims relying on the cause of ac-
tion created by the Open Records Act, O.C.G.A. § 50-18-73, do not arise under
federal law and there was not complete diversity of citizenship.
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21-14102 Opinion of the Court 15
law. But as Christianson makes clear, we look to Daker’s complaint
to determine whether federal copyright law creates his causes of
action. See id. And the amended complaint shows that Georgia’s
Open Records Act, not federal copyright law, creates the cause of
action for these claims. See O.C.G.A. § 50-18-73 (creating cause of
action to “enforce compliance with” the Open Records Act). We
thus cannot say that there is jurisdiction under § 1338 and conclude
that the district court lacked subject matter jurisdiction over
Daker’s state-law claims. 10
C.
The final issue Daker raises on appeal is whether the district
court erred when it denied his Rule 59(e) motion in which he asked
the district court to reconsider its order dismissing his claims. We
lack appellate jurisdiction to review this issue.
“A party intending to challenge an order disposing of any
motion listed in Rule 4(a)(4)(A) . . . must file a notice of appeal, or
an amended notice of appeal . . . within the time prescribed by this
Rule measured from the entry of the order disposing of the last
such remaining motion.” Fed. R. App. P. 4(a)(4)(B)(ii). A motion to
10 Given that Daker brought § 1983 claims, which did arise under federal law,
the district court had discretion to exercise supplemental jurisdiction over
Daker’s state-law claims. See
28 U.S.C. § 1367(a); Silas v. Sheriff of Broward
Cnty.,
55 F.4th 863, 865 (11th Cir. 2022). But after dismissing Daker’s § 1983
claims, the district court “decline[d]” to exercise supplemental jurisdiction.
Doc. 22 at 19. We cannot say that this decision was an abuse of discretion. See
Silas, 55 F.4th at 865–67.
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16 Opinion of the Court 21-14102
alter or amend judgment under Rule 59 is one of the motions listed
in Rule 4(a)(4)(A). As a result, to appeal the denial of his Rule 59(e)
motion, Daker had to file a new notice of appeal within 30 days
after the district court entered the order denying that motion. See
Weatherly v. Ala. State Univ.,
728 F.3d 1263, 1271–72 (11th Cir.
2013) (concluding we lacked appellate jurisdiction to review denial
of Rule 59 motion when the appellant failed “to file a separate no-
tice of appeal or amend the previously filed notice of appeal”). Be-
cause Daker failed to file a new notice of appeal or amend his notice
of appeal after the district court denied his Rule 59(e) motion, we
lack appellate jurisdiction to review his challenge to the denial of
this motion. We dismiss this portion of the appeal.
IV.
For the above reasons, we affirm in part and dismiss in part.
AFFIRMED IN PART AND DISMISSED IN PART. 11
11 We DENY Daker’s motion to certify questions to the Georgia Supreme
Court.
