Waseem Daker v. Neil Warren, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12296
Non-Argument Calendar
____________________
WASEEM DAKER,
Plaintiff-Appellant,
versus
NEIL WARREN,
Sheriff, Cobb County,
COBB COUNTY,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:10-cv-02084-WMR
____________________
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2 Opinion of the Court 20-12296
Before J ORDAN, ROSENBAUM , and J ILL PRYOR , Circuit Judges.
PER CURIAM:
Waseem Daker, a Georgia inmate and serial litigant, filed a
pro se lawsuit that brought claims under 42 U.S.C. § 1983 and the
Religious Land Use and Institutionalized Persons Act. 1 He alleged
that several policies of the detention center in which he was incar-
cerated violated his federal rights.
Crucially, the district court permitted Mr. Daker to proceed
in forma pauperis based on his assertion under oath that he is indi-
gent and unable to pay the filing fee. While the case was pending,
Mr. Daker filed several motions to recuse the district and magis-
trate judges. Before ruling on the merits of any of the recusal mo-
tions, and while an appeal of the magistrate judge’s order denying
two recusal motions was pending, the district court dismissed the
case pursuant to 28 U.S.C. § 1915(e)(2) because it determined that
Mr. Daker’s assertions of poverty were untrue.
On appeal, Mr. Daker argues that the district court abused
its discretion by (1) reassigning the case without ruling on the
recusal motion, (2) dismissing the case without ruling on his recusal
1 According to the district court, Mr. Daker has initiated over 250 federal civil
suits and appeals. Courts have repeatedly labeled Mr. Daker’s litigation tactics
as malicious, abusive, or vexatious. See D.E. 419 at 2 (collecting cases). For
our part, we have noted that Mr. “Daker is a serial litigant who has clogged
the federal courts with frivolous litigation.” Daker v. Comm’r., Ga. Dep’t Corr.,
820 F.3d 1278, 1281 (11th Cir. 2016).
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20-12296 Opinion of the Court 3
motion, (3) failing to recuse, and (4) dismissing the case. We agree
that the district court should have ruled on the recusal motion be-
fore dismissing the case, but we nevertheless affirm. The recusal
motion was meritless, and therefore the district court’s failure to
address it before dismissing the case was harmless error. We also
affirm the district court’s dismissal of the case under § 1915(e)(2)
because Mr. Daker’s allegations of poverty were untrue.
I
In his complaint, Mr. Daker alleged that Cobb County and
its sheriff violated his rights by denying him access to hardcover
books, preventing him from accessing the prison law library, and
preventing him from participating in religious services. Along with
the complaint, Mr. Daker filed an affidavit requesting to proceed in
forma pauperis, in which he stated “because of my poverty I am un-
able to pay the costs of said proceeding or to give security thereof.”
Mr. Daker stated that the only money he had received in the past
year was $1,000, and that he did not have any cash in a checking or
savings account. He also disclosed that he owned a house with a
mortgage and that he has “not had any income since January 2010
with which to make mortgage payments.” He claimed that he
bought his home for $395,000, had a $345,000 mortgage, and that
the home had lost value so he didn’t know if he had any equity in
the home at all.
In February and April of 2019, the district court issued or-
ders asking Mr. Daker to show cause why the case should not have
been dismissed because his assertion of poverty was untrue. The
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4 Opinion of the Court 20-12296
district court also allowed Cobb County and the sheriff to take dis-
covery relevant to Mr. Daker’s financial situation. Mr. Daker re-
sponded to these orders, alleging that since filing his complaint he
had sold his house and paid off his debts, with $36,000 left. He also
claimed that he did not have to list his annuity account because his
brother falsely told him that the account had been sold, and he did
not know the value of his other assets.
The magistrate judge issued a report recommending dismis-
sal and pointing to Mr. Daker’s continuing obligation to inform the
court of any change of circumstances that would render a conten-
tion meritless. The district court agreed and also found that Mr.
Daker’s contention that his financial status had recently changed
was “not accurate” because he owned his home and his annuity
account at the time that he filed his complaint. Before Mr. Daker
sold his home, he had equity in the house, and after selling, he had
that amount in cash. The district court determined that he did not
receive a recent windfall, but that he instead lied about the amount
of equity he had in his house. The district court ultimately dis-
missed the case pursuant to § 1915(e)(2).
Throughout the litigation, Mr. Daker filed a number of
recusal motions. In September of 2018, Mr. Daker filed a first mo-
tion to recuse Judge Story, the district court judge originally as-
signed to the case. A few months later, in December of 2018, the
case was reassigned to a different district court judge, Judge Ray,
before Judge Story ruled on the recusal motion. Judge Ray denied
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20-12296 Opinion of the Court 5
the motion to recuse Judge Story as moot because he was no longer
involved in the case.
In April of 2019, Mr. Daker filed a motion to recuse Judge
Ray and to exceed the page limit, and the magistrate judge denied
the motion without prejudice. In June of 2019, Mr. Daker filed an-
other motion to recuse Judge Ray, which the magistrate judge de-
nied without prejudice for failure to attach a certificate of service.
Mr. Daker then filed, in October of 2019, two more motions
to recuse (his fourth and fifth)—one to recuse the magistrate judge
and another to recuse Judge Ray—alleging that the judges were bi-
ased against him based on rulings they made in another of his cases.
The magistrate judge denied these recusal motions as “prema-
turely filed[,]” noting that Mr. Daker filed these motions “in direct
disregard of the [district c]ourt’s [o]rder to file no further mo-
tions”—issued on August 16, 2019—until a specific issue (the dis-
trict court was concerned that some of Mr. Daker’s signatures were
forged) was resolved. D.E. 388 at 5. Mr. Daker objected to the
magistrate judge’s order denying the recusal motions, and Judge
Ray did not address his objections, construe them as an appeal, or
otherwise rule on his recusal motions.2
Perhaps fed up with the large number of filings, the magis-
trate judge ordered that no further motions be filed until Judge Ray
resolved whether Mr. Daker’s allegation of poverty in his IFP
2 A district court must liberally construe a pro se litigant’s filings. See Bilal v.
Geo Care, LLC, 981 F.3d 903, 911 (11th Cir. 2020).
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6 Opinion of the Court 20-12296
affidavit was untrue. Barred from filing another recusal motion,
Mr. Daker instead filed a motion for leave to file another motion to
recuse (his sixth) on February 24, 2020. That motion was never
ruled on. Judge Ray dismissed the case, without ruling on the ap-
peal of the magistrate judge’s order denying Mr. Daker’s fourth
and fifth recusal motions and without ruling on the motion for
leave to file a sixth motion to recuse.
II
We review a district court’s denial of a recusal motion for an
abuse of discretion. See In re Walker, 532 F.3d 1304, 1308 (11th Cir.
2008). We review the dismissal of the complaint under 28 U.S.C.
§ 1915(e)(2) for an abuse of discretion. Daker v. Comm’r, Ga. Dep’t
of Corr., 820 F.3d 1278, 1283 (11th Cir. 2016). We review the district
court’s factual findings for clear error. FN Herstal SA v. Clyde Armory
Inc., 838 F.3d 1071-1079-80 (11th Cir. 2016).
III
Mr. Daker argues that the district court abused its discretion
by failing to rule on the merits of several of his recusal motions.
We quickly dispose of his arguments relating to his first and third
recusal motions, which are meritless, and then we address his argu-
ment regarding the appeal of his fourth and fifth recusal motions,
which requires more discussion.
A
First, Mr. Daker argues that the district court erred by reas-
signing the case before first ruling on his first recusal motion. As
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20-12296 Opinion of the Court 7
noted, Mr. Daker filed a motion to recuse Judge Story, and a few
months later (before Judge Story ruled on the recusal motion) the
case was reassigned to Judge Ray because Judge Ray already had
two of Mr. Daker’s cases. After the reassignment, Judge Story had
no further connection with the matter, and therefore the motion
seeking Judge Story’s recusal was correctly denied as moot. Cru-
cially, Judge Story did not make any substantive or dispositive rul-
ings in the case before it was reassigned. The denial of this motion
was not an abuse of discretion. See In re BellSouth Corp., 334 F.3d
941, 949 (11th Cir. 2003) (holding that the district court did not err
by reassigning the case to another judge without first ruling on the
recusal motion and calling this the “functional equivalent of rec-
using”).
Mr. Daker also argues that the district court erred in denying
his June 2019 recusal motion without prejudice for failing to in-
clude a certificate of service. But the district court’s denial of the
June 2019 recusal motion was not an abuse of discretion. See Fed.
R. Civ. P. 5(d)(1)(B)(i) (dictating that a paper that is not served by
“filing it with the court’s electronic-filing system” must contain a
certificate of service). See also Standing Order No. 19-01 (N.D. Ga.
Apr. 15, 2019).
B
Finally, Mr. Daker argues that the district court ( Judge Ray)
abused its discretion by dismissing the case without first ruling on
the appeal of the magistrate judge’s order denying his fourth and
fifth recusal motions. Although we agree that the district court
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8 Opinion of the Court 20-12296
should have ruled on the appeal before dismissing the case, we nev-
ertheless affirm because the district court’s error was harmless—
i.e. it did not affect any of Mr. Daker’s substantive rights. See 28
U.S.C. § 2111.
1
“Ordinarily, a judge should not delay ruling on a motion to
recuse, grant a motion to dismiss, and then reject the recusal mo-
tion as moot.” 13D Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 3550 (3d ed. 2023 Update). See also Cochran v.
U.S. Securities & Exchange Comm’n, 20 F.4th 194 (5th Cir. 2021)
(“Given that disqualification disputes concern the basic integrity of
a tribunal, they must be resolved at the outset of the litigation.”);
Daker v. Toole, 736 F. App’x 234, 236 (11th Cir. 2018) (unpublished)
(denying the motion to recuse as moot after dismissing the action
is error). A district court is generally required to rule on the recusal
motion before dismissing the case because, if it turns out that
recusal is warranted, the district court is generally not permitted to
take further action concerning the merits. See In re BellSouth Corp.,
334 F.3d at 949 (explaining that, after triggering 28 U.S.C. § 455(b),
the judge was prohibited from making further substantive rulings);
United States v. Moody, 977 F.2d 1420, 1423 (11th Cir. 1992) (a district
court judge who has recused may “perform ministerial acts” that
do not have “any implication concerning the merits of the case”).
Here, the district court dismissed the case while Mr. Daker’s
appeal of his fourth and fifth recusal motions was pending. Dis-
missing a case under § 1915(e)(2) is not simply a ministerial act.
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20-12296 Opinion of the Court 9
Rather it is an “exercise of substantive authority.” Moody, 977 F.2d
at 1423. We therefore conclude that the district court abused its
discretion in dismissing the case prior to ruling on the pending
recusal motion. But, as discussed below, we nevertheless affirm.
The district court’s error was harmless because the recusal motions
lacked merit.
2
The federal harmless error statute, 28 U.S.C. § 2111, requires
“the court [to] give judgment after an examination of the record
without regard to errors or defects which do not affect the substan-
tial rights of the parties.” Errors only “affect a substantial right of
a party if they have ‘substantial influence’ on the outcome of a case
or leave ‘grave doubt’ as to whether they affected the outcome of
a case.” United States v. Frazier, 387 F.3d 1244, 1268 n. 20 (11th Cir.
2004) (en banc). See also Stansell v. Revolutionary Armed Forces of Co-
lombia, 45 F.4th 1340, 1349 (11th Cir. 2022) (affirming on an issue,
despite possible errors because “appellants have failed to identify
any real harm or prejudice”).
Because Mr. Daker’s fourth and fifth motions to recuse
lacked merit, the district court’s error in dismissing the case before
ruling on the appeal of those motions was harmless. Generally, a
district court judge must recuse if he or she has “personal bias or
prejudice concerning a party.” 28 U.S.C. § 455(b)(1). It is well es-
tablished that merely ruling against a litigant in a case is not suffi-
cient to warrant dismissal. See In re Evergreen Sec., Ltd., 570 F.3d
1257, 1274 (11th Cir. 2009) (“Challenges to adverse rulings are
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10 Opinion of the Court 20-12296
generally grounds for appeal, not recusal.”); Jaffe v. Grant, 793 F.2d
1182, 1189 (11th Cir. 1986) (“a motion for recusal may not ordinar-
ily be predicated upon the judge’s rulings in the same or a related
case”); United States v. Meester, 762 F.2d 867, 884 (11th Cir. 1985) (the
allegation of bias must be “personal as opposed to judicial in na-
ture”).
In his fourth and fifth motions, Mr. Daker moved to recuse
Judge Ray because of his previous adverse rulings—specifically his
ruling issuing a permanent injunction and imposing sanctions in
another case. See Daker v. Deal, Case No. 1:18-CV-05243, D.E. 35,
D.E. 57 (N.D. Ga. Aug. 26, 2019). The injunction prevented Mr.
Daker from filing any new lawsuit without first posting a $1,500.00
contempt bond. See id at D.E. 57. The bond requirement ensures
that if any of Mr. Daker’s future filings are deemed frivolous or
duplicative, the court may impose contempt sanctions against Mr.
Daker to be paid from the bond. In the event that Mr. Daker can-
not afford the bond, he may move for modification, so long as his
modification motion includes “a comprehensive accounting of his
assets and [an] affirm[ation] that the accounting is true under pen-
alty of perjury.” Id. Mr. Daker cannot base his recusal motion on
the district court’s imposition of this injunction, and therefore his
recusal motion would fail.
Mr. Daker points to an “exception” to the general rule that
a ruling cannot form the basis of a recusal motion, which occurs
when “such pervasive bias and prejudice is shown by otherwise ju-
dicial conduct as would constitute bias against a party.” Jaffe, 793
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20-12296 Opinion of the Court 11
F.2d at 1189. This exception only applies in “rare cases.” Loranger
v. Stierheim, 10 F.3d 776, 780 (11th Cir. 1994). For the exception to
apply, the adverse rulings must “stem from an extra-judicial
source” and show a sufficiently “pervasive bias” to necessitate
recusal. Id. at 780–81.
For example, in United States v. Holland, 655 F.2d 44, 47 (5th
Cir. 1981), the former Fifth Circuit held that the district judge
should have recused under § 455 due to the judge’s judicial actions.
The judge increased the defendant’s sentence after remarking that
the defendant had “broken faith” with the district court by appeal-
ing an adverse ruling. The grounds for this ruling—a district
court’s displeasure at the defendant challenging his rulings—
stemmed from an “extra judicial source.” Id.
Here, Mr. Daker does not point to any adverse ruling that
rises to the level of “pervasive bias.” Although admittedly restric-
tive, the injunction requiring Mr. Daker to post a contempt bond at
the outset of any future litigation is restrictive for good reason. Mr.
Daker has been repeatedly recognized as a serial litigator who has
filed more than 250 federal lawsuits, many of which have been dis-
missed as frivolous. See, e.g., Daker v. Dozier, Case No. 5:17-CV-
0025-CAR, 2017 WL 3037420 at *1 (M.D. Ga. July 18, 2017); Daker
v. Bryson, Case No. 6:16-CV-57, 2017 WL 1053082, *6 (S.D. Ga. Mar.
20, 2017). Given Mr. Daker’s history, issuing a permanent injunc-
tion such as this one is not so egregious to suggest pervasive bias.
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12 Opinion of the Court 20-12296
Nor has Mr. Daker shown that Judge Ray’s grounds for the impos-
ing of the injunction stem from an extra judicial source.3
IV
Mr. Daker also argues that the district court erred in dismiss-
ing the case pursuant to 28 U.S.C. § 1915(e)(2), which requires the
district court to dismiss a case any time if it discovers the plaintiff’s
allegation of poverty is untrue.
As we have explained, Mr. Daker claimed indigence under
penalty of perjury in his sworn affidavits. The district court subse-
quently issued two show cause orders requiring Mr. Daker to
demonstrate why this matter should not be dismissed due to his
false assertions of poverty. In response, Mr. Daker asserted that his
financial status had changed since he filed this action because he
sold his home and paid off his debts. He also asserted that he did
not list his annuity account because he did not know its status at
the time that he filed suit.
After considering his responses, the district court adopted
the magistrate judge’s report and recommendation, dismissing Mr.
Daker’s case. See D.E. 419 at 4. The district court found that Mr.
Daker’s assertions that he was indigent and that his financial
3 The appropriate way to challenge a district court’s adverse rulings, like the
order imposing the permanent injunction, is by filing an appeal, which Mr.
Daker did. See Daker v. Gov. of Ga., 2022 WL 1102015 (11th Cir. Apr. 13, 2022).
We held on appeal that imposition of this injunction “[t]o curb [Mr.] Daker’s
abusive filings” was not an abuse of discretion. Id. at *1–2.
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20-12296 Opinion of the Court 13
condition had changed since filing the lawsuit were untrue. See
D.E. 419 at 6. Mr. Daker “did not receive a windfall.” Id. He owned
his home and his annuity account at the time that he filed his com-
plaint, and his assertions of poverty “were and remain untrue.” Id.
Mr. Daker could argue that his access to liquid assets changed—
before selling his house, he had equity in his house, and after sell-
ing, he had cash—but the IFP determination is not based on a
party’s access to cash. Id. at 6.
Mr. Daker argues that he is not required to report any
change in his finances, and if he is, he did not know of the require-
ment. He is mistaken, see Attwood v. Singletary, 105 F.3d 610, 612
(11th Cir. 1997), and misses the point. The district court found that
his original assertion in his IFP affidavit was untrue at the time it
was made, and therefore any change in financial status is irrelevant.
See D.E. 419 at 6. Mr. Daker does not argue that this finding of fact
was clearly erroneous, and we do not believe it to be so.
The district court detailed the reasons why Mr. Daker’s alle-
gations of poverty were untrue, detailing sources of income that
he failed to disclose in his IFP affidavit, such as the annuity contract.
See D.E. 419 at 3. It cited several other district courts that had de-
nied him leave to proceed IFP because his assertions of poverty
were untrue. See Daker v. Robinson, Case No. 12-CV-00118, D.E. 3
(N.D. Ga. Feb. 9, 2012) (denying request for IFP status because Mr.
Daker’s affidavits “indicate that he has over $50,000 in net assets”);
Daker v. Dawes, Case No. 1:12-CV-00119, D.E. 3 (N.D. Ga. Feb. 9,
2012) (denying IFP status and noting that “[a]lthough [Mr.] Daker
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14 Opinion of the Court 20-12296
was granted permission to proceed IFP in an earlier case, see Daker
v. Warren” (i.e. this case), his “earlier-filed IFP affidavit concealed his
true, substantial net worth”).
Further demonstrating Mr. Daker’s ability to pay the filing
fee, the district court highlighted seven cases in which he paid the
entire filing fee after he was denied IFP status, and these fees from
the seven cases totaled $3,220. See D.E. 419 at 11 n.3. And it also
pointed to another court that dismissed Mr. Daker’s cases because
his allegation of poverty was untrue. See Daker v. Deal, Case No.
1:14-CV-3856, D.E. 8 (N.D. Ga. May 25, 2015) (finding that “his al-
legation of poverty remains untrue” and dismissing the case pursu-
ant to § 1915(e)(2)(A)). Indeed, in Daker v. Head, we affirmed the
dismissal of Mr. Daker’s case pursuant to § 1915(e)(2)(A) based on
his untruthful assertions regarding his financial status in the IFP af-
fidavits that he filed in that case. See Daker v. Head, 2022 WL
2903410, *5 (11th Cir. Jul. 22, 2022).
It is true that not every minor inaccuracy in an IFP affidavit
should be considered a false allegation of poverty so as to preclude
in forma pauperis status and dismissal of the complaint. “For exam-
ple, a petitioner who states he has only $20.00 is not appreciably
less indigent if it is subsequently established that he has $20.30.”
Camp v. Oliver, 798 F.2d 434, 438 n.3 (11th Cir. 1986). Rather, the
purpose of § 1915 is to “weed out the litigant who falsely under-
states his net worth in order to obtain in forma pauperis status to
which he is not entitled.” Id. Mr. Daker appears to be such a liti-
gant, as shown by his repeated ability to pay the filing fee in other
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20-12296 Opinion of the Court 15
cases after his request for IFP status is denied. Moreover, a court
may dismiss a case “for even minor misrepresentations on his IFP
affidavit if he has a history of misrepresenting his indigency[,]” and
we have already held that Mr. Daker’s “history of misleading courts
and pursuing vexatious litigation tactics was sufficient for the court
to find bad faith[.]” Head, 2022 WL 2903410 at *3-4 (citing Camp,
798 F.2d 437–38).4
V
We affirm the district court’s order dismissing Mr. Daker’s
case pursuant to § 1915(e).
AFFIRMED.
4 Mr. Daker also argues that the district court erred by failing to provide him
with copies of the documents that it judicially noticed (namely, orders from
other litigations involving Mr. Daker) and the cases that it cited. This argu-
ment lacks merit. See Colbert v. Beto, 439 F.2d 1130, 1131 (5th Cir. 1971) (“an
indigent [person] does not have a federally-protected right to a free copy of his
transcript or other court records merely to search for possible error”). Addi-
tionally, the district court determined that Mr. Daker is not indigent, and he
therefore has the financial means to obtain copies of cases on his own. See
D.E. 419 at 8.
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