USCA11 Case: 21-11068 Document: 30-1 Date Filed: 05/24/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11068
Non-Argument Calendar
____________________
WASEEM DAKER,
Plaintiff-Appellant,
versus
KIMBERLY M. ESMOND ADAMS,
Judge,
JANE C. BARWICK,
Judge,
JERRY W. BAXTER,
Judge,
T. JACKSON BEDFORD, JR.,
Judge,
CHRISTOPHER M. BRASHER,
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2 Opinion of the Court 21-11068
Judge, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-04130-WMR
____________________
Before WILLIAM PRYOR, Chief Judge, and LAGOA, and BRASHER, Cir-
cuit Judges.
PER CURIAM:
Waseem Daker, a Georgia prisoner, appeals pro se the dis-
missal of his complaint against state judges and court clerks,
42
U.S.C. § 1983, for failure to state a claim and the denial of his mo-
tion to vacate the dismissal order, Fed. R. Civ. P. 59(e). Daker also
appeals the order striking his amended complaint, which sought to
add new defendants and claims, because he did not comply with a
permanent filing injunction, which was reimposed between the fil-
ing of his original and amended complaints. We affirm.
In May 2020, Daker complained that the state judges rou-
tinely failed to timely rule on civil filings, entered opposing parties’
proposed orders against him, and failed to recuse, for which Daker
sought declaratory and injunctive relief. Daker also complained
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21-11068 Opinion of the Court 3
that, between 2013 and 2017, the court clerks routinely misapplied
the process for screening civil cases to habeas-corpus petitions,
which violated his right of access to the state courts. Daker asserted
that these counts against the court clerks were timely under the
“renewal statute,” O.C.G.A. § 9-2-61, because they were part of an
earlier lawsuit that was dismissed by the district court.
In October 2020, a magistrate judge issued a report and rec-
ommendation that the district court dismiss Daker’s complaint
without prejudice. 28 U.S.C. § 1915A. The magistrate judge stated
that Daker failed to state a claim against the state judges because
they were entitled to absolute judicial immunity, and none of his
allegations entitled him to declaratory or injunctive relief. The
magistrate judge stated that Daker failed to state a claim against the
court clerks because it was apparent that he was aware of their al-
leged misconduct no later than the end of 2017, so his claims were
barred by the two-year statute of limitations. The magistrate judge
found that the renewal statute did not apply because the earlier
lawsuit was dismissed before the defendants were served. The
magistrate judge also noted that the filing injunction imposed
against Daker in August 2020 was not in effect when he filed the
complaint. Daker objected to the report and recommendation.
In November 2020, before the district court ruled, Daker
filed an amended and supplemental complaint. In addition to the
31 judges sued in the original complaint, the amended complaint
named 25 state appellate judges but did not state any specific alle-
gations against them. Instead, the amended complaint added three
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4 Opinion of the Court 21-11068
counts against two state judges who were named in the original
complaint. In those new counts, Daker alleged that, in 2020, the
two judges “denied filing of [his in forma pauperis] request” because
a prison official did not sign the request, O.C.G.A. § 9-10-14(b), and
because he did not include a copy of his prison account statement,
id. § 42-12-5(a)(3). Daker also alleged that, during 2020, the clerk of
the Georgia Supreme Court failed to file several of his petitions for
a writ of certiorari.
In February 2021, the district court overruled Daker’s objec-
tions, adopted the magistrate judge’s recommendation, and dis-
missed the original complaint. The district court also reviewed sua
sponte Daker’s amended complaint and ruled that it was a “new ac-
tion” and did not relate back because he added “entirely new claims
against entirely new defendants.” The district court ruled that the
permanent filing injunction imposed in August 2020 applied to the
amended complaint and struck it for failing to comply with the re-
quirements of the injunction.
Daker moved the district court to vacate the dismissal order,
Fed. R. Civ. P. 59(e). As relevant, Daker argued that the renewal
statute applied because he was not required to pay the filing fee or
serve the defendants for the federal action to be “valid.” Daker also
challenged the application of the filing injunction to his amended
complaint. The district court rejected Daker’s arguments and de-
nied the motion.
Daker argues that the district judge and magistrate judge
erred by failing sua sponte to recuse. See
28 U.S.C. § 455(a). Daker
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21-11068 Opinion of the Court 5
argues that, because the district judge and magistrate judge recused
themselves from several of Daker’s cases in March 2022, their rul-
ings in this earlier case should be vacated and reconsidered by a
new judge. We disagree.
Section 455 provides two conditions for recusal.
28 U.S.C.
§ 455(a)–(b). Under subsection (a), “Any justice, judge, or magis-
trate judge of the United States shall disqualify himself in any pro-
ceeding in which his partiality might reasonably be questioned.”
Id.
§ 455(a). Under subsection (b), a judge must recuse himself
“[w]here he has a personal bias or prejudice concerning a
party . . . .” Id. § 455(b).
Without evidence of pervasive bias and prejudice, “a judge’s
rulings in the same or a related case may not serve as the basis for
a recusal motion.” McWhorter v. City of Birmingham,
906 F.2d 674,
678 (11th Cir. 1990). Daker cites only the district judge’s and mag-
istrate judge’s recusals from his other cases in March 2022, but their
later recusals do not establish that they held any pervasive bias or
prejudice against him at the time of their earlier rulings. See
id.
The district court did not err by dismissing Daker’s original
complaint. Daker’s claims against the court clerks were barred by
the two-year statute of limitations because their alleged miscon-
duct occurred between 2013 and January 2017, and he presented
his complaint for filing in May 2020. See Hancock v. Cape,
875 F.3d
1079, 1082 & n.1 (11th Cir. 2017). And Daker cannot benefit from
the Georgia renewal statute because the statute applies only to ac-
tions that were considered valid before dismissal. See
id. at 1084
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6 Opinion of the Court 21-11068
(applying Georgia law to determine whether a federal lawsuit
could be renewed after a non-merits dismissal); Scott v. Muscogee
Cty.,
949 F.2d 1122, 1123 (11th Cir. 1992) (same). And the “mere
filing of appellant’s complaint . . . without service on appellee[s],
[does] not . . . constitute a ‘valid’ action. . . . [I]t is essential that the
declaration filed in the first instance should have been served upon
the defendant[s].” Scott,
949 F.2d at 1123 (quoting Acree v. Knab,
348
S.E.2d 716, 717 (Ga. Ct. App. 1986) (second and third alterations in
original). Because Daker did not serve the state officials in the ear-
lier lawsuit, that action was not valid, and the renewal statute does
not revive his untimely claims. See
id.
The district court properly dismissed Daker’s claims against
the state judges too. In Georgia, as in the federal system, judges are
immune from suit unless they have committed a nonjudicial act or
“act[ed] in the complete absence of all jurisdiction.” Withers v.
Schroeder,
819 S.E.2d 49, 52 (Ga. 2018). A “judge is not deprived of
judicial immunity simply because she has allegedly acted mistak-
enly, maliciously or corruptly.”
Id. Judicial immunity does not pro-
tect a state judge from claims for injunctive and declaratory relief.
See Pulliam v. Allen,
466 U.S. 522, 542 (1984); GeorgiaCarry.Org, Inc.
v. Bordeaux,
834 S.E.2d 896, 900–01 (Ga. Ct. App. 2019). But Con-
gress has amended section 1983 to bar claims for injunctive relief
against judges acting in their judicial capacity unless “‘a declaratory
decree was violated or declaratory relief was unavailable.’” Bolin v.
Story,
225 F.3d 1234, 1239 (11th Cir. 2000) (quoting
42 U.S.C.
§ 1983). To obtain declaratory relief, Daker must prove that there
was a constitutional violation, a serious risk of continuing
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21-11068 Opinion of the Court 7
irreparable injury if relief is not granted, and the absence of an ad-
equate remedy at law.
Id. at 1242.
Daker was ineligible for declaratory relief because he had an
adequate remedy—the right to appeal to the state appellate courts.
See
id. Specifically, Daker sought “injunctive relief enjoining Judge
Defendants from denying filing of future prisoner civil actions
based on failure to provide a certified copy of his prison account
statement.” He also sought a declaratory judgment that the state
judges who received and entered proposed orders from opposing
parties violated his right of access to the courts, for which he sought
an injunction requiring those judges to recuse from his future
cases. But because Daker did not establish that he was unable to
avail himself of the appellate process to challenge any of these rul-
ings, declaratory and injunctive relief were unavailable. See
id.
Daker argues that his amended complaint was not subject to
the requirements of the filing injunction because it was not a “new
action,” but Daker is only partially correct. His amended complaint
was new in two ways: he alleged in three new counts that two pre-
viously-named state judges failed to file his in forma pauperis re-
quests, and he alleged in passing in five counts that the clerk of the
Georgia Supreme Court failed to file his petitions for a writ of cer-
tiorari. The district court correctly determined that Daker’s at-
tempt to add entirely new claims against a new party—the clerk of
the Georgia Supreme Court—would not relate back to the original
complaint for the purpose of applying the filing injunction. See Fed.
R. Civ. P. 15(c)(1)(B),(C) (providing that a pleading can relate back
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8 Opinion of the Court 21-11068
if it ”asserts a claim or defense that arose out of the conduct, trans-
action, or occurrence set out—or attempted to be set out—in the
original pleading,” and that the added party must have “(i) received
such notice of the action that it will not be prejudiced in defending
on the merits . . . and (ii) knew or should have known that the ac-
tion would have been brought against it, but for a mistake concern-
ing the proper party’s identity.”). Because the clerk was a new party
and the claim against her did not arise from the same transactions
or occurrences alleged in the original complaint, Daker’s claims
against her were subject to the filing injunction.
As for the new counts against the two state judges named in
the original complaint, even if the injunction did not apply, allow-
ing the amendment would be futile. See L.S. ex rel. Hernandez v. Pe-
terson,
982 F.3d 1323, 1332 (11th Cir. 2020); Silberman v. Miami Dade
Transit,
927 F.3d 1123, 1132 (11th Cir. 2019). The new counts—al-
leging that the judges denied filing his in forma pauperis requests be-
cause they were not signed by a prison official and Daker did not
provide a copy of his inmate account—contain the same allegations
that Daker raised against several other states judges in his original
complaint and that the district court ruled did not entitle him to
declaratory or injunctive relief. For these reasons, the new counts
in Daker’s amended complaint could not state a claim for relief
even if the filing injunction did not apply to the amended com-
plaint. See Silberman,
927 F.3d at 1133 (“Leave to amend a complaint
is futile when the complaint as amended would still be properly
dismissed.”). Although Daker identified in his amended notice of
appeal the order denying his motion to vacate the dismissal order,
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21-11068 Opinion of the Court 9
Fed. R. Civ. P. 59(e), he does not raise any argument about it. Tim-
son v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
We AFFIRM the dismissal of Daker’s amended complaint
and the denial of his motion to vacate.
