Daker v. Davis

• Decision Date: 17 September 2021
• Docket Number: 7:19-CV-159 (WLS-TQL)
• Parties: WASEEM DAKER, Plaintiff, v. E. LEE DAVIS, et al, Defendants.
• Court: U.S. District Court — Middle District of Georgia

WASEEM DAKER, Plaintiff, v. E. LEE DAVIS, et al, Defendants.

No. 7:19-CV-159 (WLS-TQL)

United States District Court, M.D. Georgia, Valdosta Division

September 17, 2021

ORDER

W. LOUIS SANDS, SR., JUDGE

Before the Court is a Recommendation from United States Magistrate Judge Thomas Q. Langstaff, filed on July 7, 2020 (Doc. 12) Plaintiff's Objections to Judge Langstaff's Recommendation, filed on August 31, 2020 (Doc. 17) Plaintiff's Motion for Reconsideration - styled as an objection - to Judge Langstaff's denial of a previous motion for free copies of judicially noticed records and cases cited in the Magistrate Judge's Recommendation filed on August 31, 2020 (Doc. 18), and Plaintiff's two Motions to Expedite Consideration of Objections to Recommendation, filed on July 1, 2021 and August 30, 2021 respectively. (Docs. 20 and 21.) Judge Langstaff recommends dismissing without prejudice Plaintiff Waseem Daker's claims that the Defendants' refusal to tender the requested audio files violated the First Amendment, Fourteenth Amendment, and the Georgia Open Records Act O.C.G.A. §§ 50-18-72 to -77 (“ORA”).

Plaintiff objected to nearly the entirety of Judge Langstaff's Recommendation (Doc. 12) and filed a Motion for Reconsideration on August 13, 2020 (Doc. 18) - styled as an objection - to Judge Langstaff's August 13, 2020 order. (Doc. 16.) In the August 13, 2020 order Judge Langstaff denied Plaintiff's Motion for the Court to Provide Free Copies of Judicially Noticed Court Records and Copies of Cases. (Docs. 13 & 14.) Between Plaintiff's Objection and Motion for Reconsideration, Plaintiff raises five distinct objections. (Docs. 17 & 18.)^[1] For the reasons that follow, Plaintiffs Motion for Reconsideration (Doc. 18) is DENIED and Judge Langstaffs Recommendation (Doc. 12) is ACCEPTED and ADOPTED. Finally, Plaintiffs Motions to Expedite (Docs. 20 and 21) are DENIED as MOOT.

I. Standard of Review

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendation to which an objection is made. 28 U.S.C. § 636(b); Fed. R Civ. P. 72. If no timely objection is filed, the court considers the recommendation for clear error. Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006) (quoting the Fourth Circuit and stating, “Most circuits agree that ‘[i]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'”). In the present case Judge Langstaff granted an extension of an additional thirty (30) days to file an objection on August 13, 2020. (Doc. 16.) Plaintiff filed a timely objection to Judge Langstaffs Recommendation on August 31, 2020 (Doc. 17) and the above-mentioned Motion for Reconsideration - styled as an objection - on the same day. (Doc. 18.) Therefore, this Court will conduct a de novo review of the portions of the Recommendation (Doc. 12) to which Plaintiff objects. As Plaintiffs Motion for Reconsideration was filed after the objection and is styled as an objection, this Court exercises its discretion and reviews the Motion for Reconsideration as an objection and the issues objected to therein de novo.

The Prison Litigation Reform Act (“PLRA”) obligates the district courts to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34, 37 (2010); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are “held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Id. (internal quotation marks omitted). The Court shall dismiss a pro-se prisoner complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

As “[f]ederal courts are courts of limited jurisdiction” federal courts are only permitted to hear cases authorized by the Constitution or the laws of the United States. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court thus has an obligation to ensure that it has subject matter jurisdiction over each case or controversy that appears before it. See, e.g., Miccosukee Tribe of Indians of Fla. v. KrausAnderson Constr. Co., 607 F.3d 1268, 1273 (11th Cir. 2010). If, at any time, a federal court finds “that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ P. 12(h)(3). While Plaintiff should be given notice and an opportunity to respond where the Court intends to dismiss his claims for lack of jurisdiction, an evidentiary hearing is not required. Cf, e.g., Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1170 (11th Cir. 2011) (“When resolving factual disputes underlying a Rule 12(b)(1) motion, a court may consider oral evidence along with written, but an evidentiary hearing is not required.” (internal quotation marks omitted).

II. Factual Background

On August 6, 2019, Plaintiff Daker filed a request under Georgia's Open Records Act (“ORA”) O.C.G.A. §§ 50-18-70 et seq., seeking “[a] copy of all songs in rotation or on the playlist or in the song bank for the Valdosta State University radio station, WVVS, 90.9 FM, the ‘Voice of Valdosta State.'” (Doc. 11.) On August 9, 2019 Defendant Davis, the chief legal affairs officer of Valdosta State University (VSU), responded that he anticipated providing a response to Plaintiff by August 16, 2019. (Id.) On that date, Defendant Davis provided plaintiff with copies of the current playlists for WVVS. (Id.) In that response Defendant Davis stated that “'[i]t appears that you have requested copies of the song audio files themselves. These songs are protected under copyrights held be [sic] their respective owners, and we are not at liberty to make copies of them. The audio files can be made available for inspection by pre-arrangement with this office.'” (Id.) (alteration in original).

On August 21, 2019 Plaintiff sent another ORA request to Defendant Davis and VSU claiming that the song audio files were not exempt from disclosure for five reasons: (1) many of the songs were not actually copyrighted; (2) even if the songs were copyrighted, the ORA did not have a specific exemption for the copyrighted audio files at issue; (3) that the requested songs had been publicly released and were therefore not exempt from disclosure pursuant to O.C.G.A. § 50-18-72(a)(35); (4) that federal copyright law would not protect the audio files from copying because of the “fair use” doctrine; and (5) that because Plaintiff was incarcerated, in-person inspection of the audio files at issue could not serve as an adequate substitute for duplication of the files. (Id. at 6-8.) This is a consequence of incarceration which is not atypical.

On August 23, 2019, Defendant Davis responded to Plaintiff, reiterating his position that the “'audio files of songs played on WVVS[] are subject to federal copyright'” and thus VSU was “not at liberty to provide [Plaintiff] a copy of these and will not do so.'” (Id. at 8.) Plaintiff then filed the above-captioned action, contending that Defendants' refusal to provide him with copies of the requested songs violated Plaintiffs (1) First Amendment rights by impermissibly restricting the flow of information and ideas, (2) Plaintiffs Fourteenth Amendment rights by restricting Plaintiffs access to Government materials without due process, and (3) Georgia's Open Records Act by unlawfully denying Plaintiffs request. (Id.)

Plaintiff alleges Defendants' refusal to tender 4, 803 audio files in compliance with Plaintiffs first request constitutes “Counts #1-#4803, ” and Defendants' denial of Plaintiff s second request constitutes “Counts #4804-#9606.” (Id.) Plaintiff seeks a declaratory judgment stating that the songs requested are not copyrighted and that Plaintiffs intended use would qualify as “fair use” within the meaning of 17 U.S.C. § 107. (Id.) Plaintiff also asks this Court declare that that the materials sought are not protected under § 50-18-72(a)(35), and that Defendants' refusal of Plaintiff s...