Waseem Daker v. D. Victor Reynolds

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10614
Non-Argument Calendar
____________________
WASEEM DAKER,
Plaintiff-Appellant,
versus
D. VICTOR REYNOLDS,
former District Attorney,
DISTRICT ATTORNEY JOYETTE HOLMES,
AMELIA G. PRAY,
Assistant District Attorney, Cobb County,
CHRISTINA WILLOUGHBY,
Administrative Assistant,
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Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-02650-WMR
____________________
Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Waseem Daker, a Georgia prisoner proceeding pro se,
appeals the district court’s sua sponte dismissal of his first amended
civil complaint for failure to state a claim; the district court’s denial
of his motion to alter or amend judgment, pursuant to Federal Rule
of Civil Procedure 59(e); and the district court’s denial of his
motion for leave to amend. He presents three main arguments on
appeal: (1) the district court judge and magistrate judge abused
their discretion in failing to sua sponte recuse themselves; (2) the
district court erred in dismissing his complaint for failure to state a
claim; and (3) the district court abused its discretion in denying his
supplemental Rule 59(e) motion without granting his request for
leave to amend the first amended complaint. Because Daker has
shown no reversible error, we affirm.
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I. Background
In May 2020, Daker filed a pro se civil complaint under 42
U.S.C. § 1983, asserting six claims against several Cobb County,
Georgia, employees, namely, D. Victor Reynolds, a former district
attorney; Joyette Holmes, a former district attorney; Christina
Willoughby, an administrative specialist; and Amelia Pray, an
assistant district attorney (collectively “Cobb defendants”). In the
complaint, Daker asserted that he was convicted in 1996 in Cobb
County of two counts of aggravated stalking, and then again in
2012 of several other offenses, including malice murder, burglary,
false imprisonment, aggravated battery, and attempted aggravated
stalking. Daker explained that, since his convictions, he had filed
several habeas corpus petitions in both state and federal court
challenging his 1996 and 2012 convictions.
Daker then alleged that between 2017 and 2019, the Cobb
defendants denied, ignored, or failed to timely respond to multiple
Georgia Open Records Act (“ORA”) requests that Daker submitted
seeking a copy of files that he originally possessed and copied onto
a USB drive for the assistant district attorney during his 2012 case.
He maintained that by denying, ignoring, or not responding to his
requests, the Cobb defendants violated his First Amendment right
of access to courts, the ORA, and other Georgia statutes.
However, he did not provide any detail as to what was on the USB
drive, why he needed the files, or how he was injured by his
inability to access the files. Daker sought declaratory relief,
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compensatory and punitive damages, nominal damages, as well as
injunctive relief.
Pursuant to 28 U.S.C. § 1915A of the Prison Litigation
Reform Act (“PLRA”), 1 a magistrate judge conducted an initial
screening of Daker’s complaint and recommended dismissal. The
magistrate judge determined that count one against defendant
Willoughby, which was based on Willoughby’s February 2017
denial of Daker’s ORA request, was time-barred because Daker
filed the complaint in May 2020, outside the relevant two-year
statute of limitations. The magistrate judge further concluded that
Daker failed to state an access to court claim against any defendant
because he failed to allege or show an actual injury that resulted
from the defendants’ actions—such as a missed filing deadline or
an inability to present claims because he lacked the requested files.
Finally, the magistrate judge recommended the dismissal of
Daker’s state law claims for lack of diversity jurisdiction.
In response, Daker filed a first amended complaint (which
provided some of the missing details from the original complaint
concerning the files) along with his objections to the magistrate
judge’s report and recommendation (“R&R”). He alleged that the
1 The PLRA provides that when a prisoner in a civil action “seeks redress from
a governmental entity or officer or employee of a governmental entity,” the
district court shall review the complaint and shall “dismiss the complaint, or
any portion” 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 immune for such relief.” 28 U.S.C. § 1915A(a)–(b).
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police executed several search warrants on his home in connection
with the 2012 case and seized numerous items, including his
personal computer. During the 2012 trial, Daker, who represented
himself pro se with standby counsel, requested permission to
inspect his seized laptop to obtain files relevant to his defense.
Initially, the agreement was that an assistant district attorney and
the state’s investigator would sit with Daker while he copied the
files and make a list of every file he copied “to make sure that he
[did] not get the pornography, the escape books, the killing, the
bomb books, and all the other things that [were] on there” that
could be a threat to jail security. However, halfway through the
copying of the files, the State suggested that instead of making a
handwritten list of the files, it should get a copy of the files on the
USB drive. Daker objected, arguing that giving the State a copy of
the files would force him to “disclose trial strategy and work
product” and “consent to a search of his computer without a
warrant.” The trial court ruled that Daker could only access the
files if he provided a copy to the State.
According to Daker, in 2017, he filed a state habeas action
that included three claims related to the copying of the files and the
trial court’s ruling, but he was unable to support these claims
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because the Cobb defendants denied, ignored, or otherwise did not
respond to his numerous requests for access to the copied files. 2
The amended complaint also included three additional
claims. Specifically, he alleged in Claims 6 and 7 that he sent two
ORA requests for “all digital data” obtained from his property in
the possession of the district attorney’s office, which the defendants
either failed to timely respond to or ignored. He alleged in Claim
8 that he requested the return of all property seized from him
during his prior trials, but the police refused to release the property
without authorization from the district attorney’s office, which he
alleged violated the Fifth Amendment Takings Clause and the
Fourteenth Amendment Due Process Clause. Finally, Daker
argued that all of his claims were timely.
In his objections to the R&R, Daker alleged in relevant part
that the magistrate judge (1) failed to construe the factual
allegations in the light most favorable to him as required by
§ 1915A; (2) erred in finding that the complaint was filed in May
2020, as opposed to January 2020; (3) erred in considering the
2 Daker referred to the following claims from his 2017 state habeas petition:
(1) “that the trial court acted as a ‘surrogate prosecutor’ . . . throughout the
trial in general and in ruling on this matter in particular”; (2) the requirement
that he “could only have access to the files if he also provided them to the State
forced him to disclose trial strategy and work product” in violation of the Fifth,
Sixth, and Fourteenth Amendments; and (3) the requirement that he give the
State access to the files violated his Fourth Amendment right to be free from
unreasonable search and seizure and his Sixth Amendment right to
compulsory process.
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statute of limitations defense sua sponte and in holding that Count
One (related to the February 2017 denial of his ORA request) was
time-barred; and (4) erred in concluding that his pro se complaint,
when construed liberally, failed to state an access to courts claim.
He also asserted that his amended complaint set forth additional
facts in support of his access to court claims.
The district court overruled Daker’s objections, adopted
the R&R, and dismissed the complaint without prejudice. In doing
so, the district court considered the allegations in Daker’s first
amended complaint. 3 The district court did not address the statute
of limitations issue. Instead, the court concluded that, regardless
of whether the claims were timely, Daker failed to state a viable
access to courts claim. The district court explained that, even
though Daker generally asserted that his lack of access to the files
prevented him from supporting certain claims, he failed to describe
what information was in those files or how that information would
have helped him support those claims. 4 As a result, his claim that
3 The district court noted that Daker failed to sign the first amended
complaint, making it “a legal nullity,” but because the failure to sign was a
curable defect, the court still considered the allegations in the first amended
complaint.
4 The district court noted that the files were originally Daker’s and he
downloaded the files and gave them to the State, and, therefore, “he must have
at least a general idea of what files the jump drive contained.” Accordingly,
the district court determined that Daker’s “failure to provide even the slightest
description of what information in those files would have helped him in his
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“he suffered an actual injury in the pursuit of habeas corpus relief
because he was prevented from presenting his claims [was] entirely
speculative.” Finally, the district court concluded that there being
no diversity jurisdiction, it lacked jurisdiction over the state law
claims.5
Daker subsequently filed a motion to vacate the district
court’s order under Federal Rule of Civil Procedure 59(e), arguing
that the district court committed various errors in dismissing his
complaint. A few weeks later, he filed a supplemental Rule 59(e)
motion, in which he requested the opportunity to again amend his
complaint, and he argued that the district court erred in dismissing
his complaint without first providing him with notice and an
opportunity to respond. He attached a copy of his proposed second
amended complaint. The district court denied Daker’s initial Rule
59(e) motion, concluding that Daker “failed to demonstrate that he
[was] entitled to the relief he [sought].” It then denied the
supplemental Rule 59(e) motion, concluding that Daker was not
entitled to relief and that leave to amend was futile. In doing so,
the district court considered Daker’s second amended complaint
state habeas corpus action renders his access-to-courts claim[s] incomplete and
unavailing”—particularly in light of Daker’s lengthy history of frivolous
litigation.
5 Daker states that he is not challenging the diversity jurisdiction ruling on
appeal.
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and again concluded that he failed to state a viable access to courts
claim. Daker appealed to this Court.
During the pendency of his appeal, the Supreme Court of
Georgia affirmed the grant of state habeas relief on Daker’s claim
that the trial court erroneously denied him his constitutional right
to appellate counsel in his initial pro se appeal. Allen v. Daker, 858
S.E.2d 731, 735 (Ga. 2021). Thus, the Court remanded the case to
the state habeas court with instruction to “grant relief to Daker in
the form of a second, out-of-time direct appeal so that he may start
the post-conviction process anew in the trial court.” Id.II. Discussion
A. Whether the district court judge and magistrate
judge erred in failing to sua sponte recuse
themselves
Daker argues that the district court judge and magistrate
judge abused their discretion by failing to recuse themselves sua
sponte under 28 U.S.C. § 455(a). He notes that almost a year after
the district court’s rulings in this case, both the district court judge
and magistrate judge recused themselves from several of Daker’s
other cases. 6 He maintains that because of the subsequent
6 Specifically, the district court judge granted Daker’s recusal motion in
another case and recused himself from five of Daker’s pending actions, stating
while the undersigned has always acted his best to make the
correct decision on the seemingly endless motions that Daker
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recusals, the district court’s order here should be vacated and the
case remanded and assigned to new judges.
Although Daker argues that the judges abused their
discretion in failing to sua sponte recused themselves, when, as
here, a plaintiff raises a recusal issue for the first time on appeal, we
review for plain error only. Curves, LLC v. Spalding Cnty., Ga.,
685 F.3d 1284, 1287 n.2 (11th Cir. 2012); Hamm v. Members of Bd.
of Regents of State of Fla., 708 F.2d 647, 651 (11th Cir. 1983). “Plain
error review is an extremely stringent form of review,” and the
plaintiff has the burden to show that (1) an error occurred (2) that
the “error was plain” (3) that it affected the
plaintiff’s substantial rights and (4) “not correcting the error would
files in all his cases, the undersigned acknowledges that he has
become fatigued by the sheer volume of Daker’s litigious and
vexatious case filings, as well as Daker’s tendency to cast
repeated aspersions on the integrity of this Court whenever an
adverse ruling is made. Thus, to avoid any question as to the
undersigned’s impartiality going forward in any of Daker’s
pending cases, a change seems to be prudent here.
Daker v. Warren, No. 1:14-cv-03180-SDG, Doc. 155 at 2–3 (N.D. Ga. Mar. 30,
2022).
Similarly, the magistrate judge granted Daker’s motion for recusal in another
one of his cases, stating “[o]ut of an abundance of caution and for the reasons
stated by [the district court judge], I will also RECUSE from the three pending
actions listed in the caption and any Daker matters that are reopened or filed
in the future.” Daker v. Keaton, No. 1:16-cv-03745-SDG, Doc. 73 at 3 (N.D.
Ga. Mar. 31, 2022).
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seriously affect the fairness of the judicial proceeding.” Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999).
Section 455 of Title 28 of the United States Code sets forth
two conditions for recusal. 28 U.S.C. § 455(a)–(b). Subsection (a)
provides that “[a]ny justice, judge, or magistrate judge of the
United States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.” Id. § 455(a). The
question for purposes of § 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, and any doubts
must be resolved in favor of recusal.” United States v. Patti, 337
F.3d 1317, 1321 (11th Cir. 2003) (internal citations and quotations
omitted).
Second, under subsection (b), a judge must recuse himself
“[w]here he has a personal bias or prejudice concerning a
party . . . .” 28 U.S.C. § 455(b)(1); see also Patti, 337 F.3d at 1321(explaining that recusal under subsection (b) is mandatory once it
is established that any of the enumerated circumstances in (b)
exist). “The bias or prejudice must be personal and extrajudicial; it
must derive from something other than that which the judge
learned by participating in the case.” United States v. Amedeo, 487
F.3d 823, 828 (11th Cir. 2007) (quotations omitted). Importantly,
“opinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current . . . [or] prior
proceedings, do not constitute a basis for a bias or partiality motion
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unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Liteky v. United States,
510 U.S. 540, 555 (1994). Absent 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 has not shown that any error—much less plain
error—occurred when the judges failed to sua sponte recuse
themselves in this case. Daker’s sole contention in support of
recusal is that both the magistrate judge and the district court judge
have since recused themselves in other cases brought by Daker.
But “a judge’s rulings in the same or a related case may not serve
as the basis for a recusal motion.” McWhorter, 906 F.2d at 678.
Furthermore, we note that their subsequent recusals in other cases
stemmed from Daker’s own recusal motions (which he did not file
in this case), and there is no evidence of persuasive bias or prejudice
on the part of either judge. And nothing in either judge’s recusal
statement in those cases or their conduct in this case would cause
an objective, disinterested lay observer to question the judges’
impartiality in the instant case. Patti, 337 F.3d at 1321.
Accordingly, Daker failed to show plain error and is not entitled to
relief on this claim.
B. Whether the district court erred in dismissing the
complaint
Daker argues that the magistrate judge and district court
erred in construing the facts and inferences against him and
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concluding that he failed to state a viable access to courts claim. 7
He also argues that the district court erred in dismissing the
complaint because he did not receive the proper notice and
opportunity to respond prior to the dismissal. 8 Finally, Daker
argues that the district court erred in failing to consider and address
the three new claims in his first amended complaint.
“A district court’s decision to dismiss for failure to state a
claim under 28 U.S.C. § 1915A is reviewed de novo, taking the
allegations in the complaint as true.” Boxer X v. Harris, 437 F.3d
1107, 1110 (11th Cir. 2006). The same standards that apply to a
dismissal under Federal Rule of Civil Procedure 12(b)(6) apply to
dismissals under § 1915A. Leal v. Ga. Dep’t of Corr., 254 F.3d 1276,
1278–79 (11th Cir. 2001).
We construe pro se pleadings liberally, but we will not
“serve as de facto counsel” or “rewrite an otherwise deficient
pleading in order to sustain an action.” Campbell v. Air Jamaica
Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014) (quotations omitted).
We may affirm on any ground supported by the record, regardless
7 Daker also takes issue with the magistrate judge’s statute of limitations
determination. Because the district court did not adopt the timeliness
determination in dismissing the complaint, we do not address this issue.
8 Daker argues that the district court erred in concluding that the first
amended complaint was a legal nullity because he did not sign it. We find it
unnecessary to reach this issue because the district court expressly stated that,
notwithstanding this determination, it still considered the allegations in the
first amended complaint.
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of whether that ground was relied upon or even considered below.
Kernel Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).
As an initial matter, Daker was not entitled to notice and an
opportunity to respond prior to the dismissal of his complaint.
Under § 1915A, the district court was authorized to sua
sponte dismiss Daker’s amended complaint “as soon as practicable
after docketing” based solely on the allegations in his complaint
and without the consideration of additional arguments. See 28
U.S.C. § 1915A(a)–(b). Additionally, we note that Daker had the
opportunity to object to the magistrate judge’s R&R before the
district court entered its order, which is sufficient to satisfy due
process. See Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th
Cir. 2001) (holding no due process violation where district court
sua sponte dismissed complaint under § 1915(e)(2)(B)(ii) for failure
to state a claim because plaintiff had an opportunity to file
objections to the R&R before the district court issued its decision).
Now we turn to the substance of Daker’s complaint. Taking
the complaint as true and construing all reasonable inferences in
Daker’s favor, he failed to state a viable access to courts claim
because he failed to show an actual injury. Specifically, in order to
assert a claim arising from the denial of access to the courts, a
prisoner “must first establish an actual injury.” Barbour v. Haley,
471 F.3d 1222, 1225 (11th Cir. 2006) (citing Lewis v. Casey, 518 U.S.
343, 349–50 (1996)). “Actual injury may be established by
demonstrating that an inmate’s efforts to pursue a nonfrivolous
claim were frustrated or impeded by . . . an official’s action.” Id.USCA11 Case: 21-10614 Document: 25-1 Date Filed: 02/10/2023 Page: 15 of 18
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Thus, “[t]o prevail, a plaintiff must provide evidence of such
deterrence, such as a denial or dismissal of a direct appeal, habeas
petition, or civil rights case that results from actions of prison
officials. Wilson v. Blankenship, 163 F.3d 1284, 1290–91 (11th Cir.
1998). Additionally, “a litigant asserting an access claim must also
prove that he has a colorable underlying claim for which he seeks
relief.” Barbour, 471 F.3d at 1226. “Thus, the plaintiff must identify
within his complaint, a nonfrivolous, arguable underlying claim.”
Id. (quotation omitted).
Daker asserted that the files he requested from the Cobb
defendants were necessary to support three of the allegations from
his 2017 state habeas petition. 9 However, nowhere in his initial,
first or second amended complaint did he describe what
information was in those files or how that information would have
aided in support of his three state habeas claims that: (1) “the trial
court acted as a ‘surrogate prosecutor’ . . . throughout the trial in
general and in ruling on this matter in particular”; (2) the
requirement that he “could only have access to the files if he also
provided them to the State forced him to disclose trial strategy and
work product” in violation of the Fifth, Sixth, and Fourteenth
9 Daker did not explain in his initial or first amended complaint why he no
longer had the files. However, for the first time in the second amended
complaint that Daker included with his supplemental Rule 59(e) motion, he
explained that he no longer has the files because his standby counsel did not
“preserve” the USB drive that the files were on, and, therefore, he needed the
files from the Cobb defendants.
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Amendments; and (3) the requirement that he give the state access
to the files violated his Fourth Amendment right to be free from
unreasonable search and seizure and his Sixth Amendment right to
compulsory process. Thus, he failed to satisfy all of the
requirements for establishing an actual injury. Nor did he provide
any information that tended to demonstrate that these underlying
claims were colorable. Barbour, 471 F.3d at 1226.
Moreover, Daker cannot show an actual injury because the
Supreme Court of Georgia has granted him a belated direct appeal
and instructed that the postconviction process will begin anew in
state court. Thus, he cannot show that the Cobb defendants’
actions have impeded or otherwise led to the denial or dismissal of
his habeas claims because the state postconviction process is
beginning anew. Wilson, 163 F.3d at 1290–91.
Likewise, Daker cannot show that the district court erred in
failing to address his three new claims in the first amended
complaint. Claims 6 and 7 were denial of access to courts claims
based on Daker’s requests in 2020 for copies of the files from the
Cobb defendants. As discussed above, Daker failed to state a viable
access to courts claim.10 Accordingly, the district court did not err
in dismissing the complaint for failure to state a claim.
10 As for Claim 8, it does not appear that the district court addressed Daker’s
claim that the defendants violated the Fifth Amendment Takings Clause and
the Fourteenth Amendment due process clause when they denied his request
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C. Whether the district court erred in denying the
motion to amend the first amended complaint
Daker argues that the district court erred in denying his
motion for leave to amend his first amended complaint because
motions for leave to amend a complaint should be granted
liberally. 11
Generally, we review a district court’s decision to deny a
motion to amend for an abuse of discretion. Marrache v. Bacardi
to return property seized in relation to his 2012 trial. Nevertheless, we need
not remand because it is plain from the face of his complaint that Daker failed
to state a claim. It is not clear that the Takings Clause applies to seizures of
property pursuant to lawful search warrants in criminal actions. See, e.g.,
Johnson v. Manitowoc Cnty., 635 F.3d 331, 336 (7th Cir. 2011) (“[T]he Takings
Clause does not apply when property is retained or damaged as the result of
the government’s exercise of its authority pursuant to some power other than
the power of eminent domain.”); AmeriSource Corp. v. United States, 525
F.3d 1149, 1153 (Fed. Cir. 2008) (“Property seized and retained pursuant to the
police power is not taken for a ‘public use’ in the context of the Takings
Clause.”). But in any event, Daker merely asserted that he requested return
of all the property seized in relation to his criminal case, the defendants denied
his request, and that this this denial violated the Fifth and Fourteenth
Amendment. But “the pleading standard Rule 8 announces . . . demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). Daker’s sparse
allegations, without more, are insufficient to state a Takings Clause or a due
process claim.
11 Daker also argues that the district court judge should have sua sponte
recused himself prior to ruling on his supplemental Rule 59(e) motion and
motion to amend. This argument fails because, as discussed above, there was
no basis for recusal.
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U.S.A., Inc., 17 F.4th 1084, 1092 (11th Cir. 2021). “But we will
review de novo an order denying leave to amend on the grounds
of futility, because it is a conclusion of law that an amended
complaint would necessarily fail.” Id. (quotation omitted).
Federal Rule of Civil Procedure 15 provides that “[a] party
may amend its pleading once as a matter of course,” but any
amendment after that requires the written consent of the other
party “or the court’s leave.” Fed. R. Civ. P. 15(a)(1)–(2). It also
provides that “[t]he court should freely give leave when justice so
requires.” Id. Rule 15(a)(2). However, a court may deny leave to
amend the complaint “when such amendment would be futile.”
Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004).
An amendment is futile when the complaint as amended would
still be subject to dismissal. Id.The district court did not err in denying Daker’s motion for
leave to amend because amendment was futile. Once again, Daker
did not explain in his second amended complaint how the files
related to or would otherwise help him support his three state
habeas claims. Moreover, he cannot show actual injury because
even though those habeas claims were initially denied, he has since
been granted a belated direct appeal and the state habeas process is
beginning anew. Accordingly, the second amended complaint was
still subject to dismissal, and the district court properly concluded
that amendment was futile. Id.AFFIRMED.