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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10695
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-00459-CAR-MSH
WASEEM DAKER,
Petitioner-Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
ROBERT JONES,
General Counsel,
WARDEN,
DEPUTY WARDEN,
JAMES MCMILLAN,
Unit Manager,
JOHN YOUNG,
LAW LIBRARIAN, et al.,
Respondents-Appellees.
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No. 17-12184
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-00459-CAR-MSH
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WASEEM DAKER,
Petitioner-Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
ROBERT JONES,
General Counsel,
WARDEN,
DEPUTY WARDEN,
JAMES MCMILLAN,
Unit Manager, et al.,
Respondents-Appellees.
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Appeals from the United States District Court
for the Middle District of Georgia
________________________
(April 6, 2021)
Before NEWSOM, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Waseem Daker, a Georgia prisoner, proceeds pro se in this consolidated
appeal arising from a complaint brought under
42 U.S.C. § 1983 against seven
defendants: the Georgia Department of Corrections (“GDC”); the Commissioner of
the GDC; the director of the GDC’s legal office; and four employees of the Georgia
Diagnostic and Classification Prison (“GDCP”) (collectively “the Defendants”).
Daker challenges two district court orders: one denying multiple motions for
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injunctive relief, and the other dismissing his complaint with prejudice for failing to
comply with a court order. Liberally construing Daker’s arguments on appeal, he
challenges those two orders on four grounds: (1) the district court erred by denying
his motions for injunctive relief regarding court access as moot; (2) the district court
abused its discretion by denying him leave to amend his complaint; (3) the district
court abused its discretion by dismissing his amended complaint with prejudice for
failing to comply with a court order; and (4) the district court erred by dismissing
his amended complaint before ruling on his motion to appoint counsel or holding an
evidentiary hearing as ordered by the writ of mandamus we issued. We address each
of Daker’s arguments in turn.
I.
We review the district court’s grant or denial of a preliminary injunction for
abuse of discretion. Horton v. City of St. Augustine,
272 F.3d 1318, 1326 (11th Cir.
2001). In reviewing the district court’s entry of a preliminary injunction, we review
historical findings of fact for clear error and constitutional facts and conclusions of
law de novo. Bloedorn v. Grube,
631 F.3d 1218, 1229 (11th Cir. 2011). The grant
or denial of a permanent injunction is subject to the same review as that of a
preliminary injunction. Simmons v. Conger,
86 F.3d 1080, 1085 (11th Cir. 1996).
A district court’s mootness determination is reviewed de novo, and any related
findings of fact for clear error. Keohane v. Sec’y, Fla. Dep’t of Corr.,
952 F.3d 1257,
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1265 n.2 (11th Cir. 2020). “[A] legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will not be addressed.” Access
Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (counseled
action); see also Irwin v. Hawk,
40 F.3d 347, 347 n.1 (11th Cir. 1994) (pro se action).
A federal court has no authority to issue opinions on moot questions or
abstract propositions, or to declare principles or rules of law that cannot affect the
matter at issue in the case before it. Harrell v. Fla. Bar,
608 F.3d 1241, 1265 (11th
Cir. 2010); Brooks v. Ga. State Bd. of Elections,
59 F.3d 1114, 1118 (11th Cir.
1995). Thus, “[a]ny decision on the merits of a moot case or issue would be an
impermissible advisory opinion.” Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t
of Health & Rehabilitative Servs.,
225 F.3d 1208, 1217 (11th Cir. 2000). “A case
becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of
Article III—when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Atheists of Fla., Inc. v. City of
Lakeland,
713 F.3d 577, 593-94 (11th Cir. 2013) (quotation marks omitted).
Here, Daker is mistaken that the district court denied all his motions for
preliminary injunctive relief concerning “court access”—which included motions
regarding access to a law library, legal materials, and a photocopier—as moot. The
magistrate judge recommended that Daker’s motions for preliminary injunctive
relief concerning access to a law library and photocopier be denied because the
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district court had previously denied motions seeking the same relief. Daker has
abandoned any argument that the district court erred by adopting that portion of the
report and recommendation. See Irwin,
40 F.3d at 347 n.1.
We further conclude that the district court properly denied as moot Daker’s
motions regarding access to legal materials. The magistrate judge limited his inquiry
to Daker’s access to the legal materials necessary to conduct discovery and prepare
for the evidentiary hearing in this case. Daker conceded that the Defendants had
complied with the magistrate judge’s order to grant him access to those materials.
Accordingly, as limited by the magistrate judge, Daker’s motions regarding access
to legal materials no longer presents a “live” issue. See Atheists of Fla., Inc., 713
F.3d at 593-94. Additionally, Daker has abandoned on appeal the argument that the
magistrate judge’s order was too limited. See Irwin,
40 F.3d at 347 n.1.
Accordingly, we affirm as to this issue.
II.
We generally review the denial of a motion to amend a complaint for an abuse
of discretion but review questions of law de novo. Williams v. Bd. of Regents of
Univ. Sys. of Ga.,
477 F.3d 1282, 1291 (11th Cir. 2007).
Federal Rule of Civil Procedure 15(a)(1) states that:
A party may amend its pleading once as a matter of course within: (A)
21 days after serving it, or (B) if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive
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pleading or 21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1). In all other cases, “a party may amend its pleading only
with the opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
A district court can grant leave to amend subject to reasonable conditions
and limitations to avoid prejudice to the opposing party. Garfield v. NDC Health
Corp.,
466 F.3d 1255, 1271 (11th Cir. 2006). A district court does not abuse its
discretion by ruling on a motion to amend even if the plaintiff had the right to amend
his complaint as a matter of course because, by filing a motion to amend, the
plaintiff “waive[s] the right to amend as a matter of course and . . . invite[s] the
District Court to review [his] proposed amendments.” Coventry First, LLC v.
McCarty,
605 F.3d 865, 869-70 (11th Cir. 2010).
Here, Daker’s arguments that he was denied leave to amend are meritless
because he was granted leave to amend. Furthermore, the district court had
discretion to limit Daker’s amended complaint given that several of his proposed
amendments concerned separate incidents at a different facility in a different
district. See Garfield, 466 F.3d at 1271. Daker’s arguments that his first four
motions to amend were never ruled on or that he was denied his right to leave as a
matter of course are also without merit. The magistrate judge made clear at both
the status conference and in his order that Daker’s amended complaint would
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supersede all of his previously filed amendments and motions to amend, not just
the three specifically cited to in his order. Lastly, the magistrate judge did not abuse
his discretion by ruling on Daker’s first motion to amend, as Daker waived his right
to amend as a matter of course by moving to amend his complaint. See Coventry
First, LLC,
605 F.3d at 869-70. Accordingly, we affirm as to this issue.
III.
A district court can dismiss a case sua sponte under Fed. R. Civ. P. 41(b) if
the plaintiff fails to comply with a court order. Betty K Agencies, Ltd. v. M/V
MONADA,
432 F.3d 1333, 1337 (11th Cir. 2005). We review for abuse of
discretion a district court’s dismissal under Rule 41(b).
Id.
We review dismissals with prejudice more strictly than dismissals without
prejudice because dismissal with prejudice is “a sanction of last resort, applicable
only in extreme circumstances.” Zocaras v. Castro,
465 F.3d 479, 483 (11th Cir.
2006) (quotation marks omitted). Dismissal with prejudice is proper only when:
“(1) a party engages in a clear pattern of delay or willful contempt . . . and (2) the
district court specifically finds that lesser sanctions would not suffice.” Betty K
Agencies, Ltd.,
432 F.3d at 1337-38 (quotation marks omitted). A finding that
lesser sanctions will not suffice may be implicit. Zocaras,
465 F.3d at 484. A
dismissal with prejudice under Rule 41(b) “upon disregard of an order, especially
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where the litigant has been forewarned, generally is not an abuse of discretion.”
Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989).
We conclude that the district court did not abuse its discretion by dismissing
Daker’s complaint with prejudice under Rule 41(b). See Betty K Agencies, Ltd.,
432 F.3d at 1337. Daker made no attempt to comply with the court order limiting
his amended complaint to the original defendants and claims, nor did he attempt to
partially comply with that order. See Moon,
863 F.2d at 837. Moreover, he
engaged in a pattern of delay or willful contempt by filing a voluminous amended
complaint and several motions to supplement it. See Betty K Agencies, Ltd.,
432
F.3d at 1337-38. Specifically, Daker filed an amended complaint raising over 50
claims against 60 defendants after a court order limiting him to 3 claims and 7
defendants, and rather than allow the district court to take action, Daker continued
to make filings to the point where the district court allowed the Defendants to stop
replying to his pleadings. Under those “extreme circumstances,” the district court
did not abuse its discretion by dismissing Daker’s amended complaint with
prejudice. See Zocaras,
465 F.3d at 483. Lastly, despite Daker’s argument to the
contrary, the district court did find that lesser sanctions would not suffice. In any
event, the record supports an implicit finding that lesser sanctions would not
adequately address Daker’s blatant disregard of a court order or his excessive,
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vexatious filings. See Zocaras,
465 F.3d at 484. Accordingly, we affirm as to this
issue.
IV.
We review the denial of a motion for appointment of counsel in a civil case
for abuse of discretion. Bass v. Perrin,
170 F.3d 1312, 1320 (11th Cir. 1999). We
may affirm the judgment of the district court on any ground supported by the
record, regardless of whether that ground was relied upon or even considered by
the district court. Kernel Records Oy v. Mosley,
694 F.3d 1294, 1309 (11th Cir.
2012).
Appointment of counsel in a civil case is not a constitutional right and is only
justified in exceptional circumstances, including where the facts and legal issues are
so novel or complex as to require the assistance of a trained practitioner. Fowler v.
Jones,
899 F.2d 1088, 1096 (11th Cir. 1990). Under the law of the case doctrine,
both district and appellate courts are generally bound to follow a prior appellate
decision in the same case. Thomas v. United States,
572 F.3d 1300, 1303 (11th Cir.
2009).
We conclude that the district court did not abuse its discretion by denying
Daker’s motion for appointment of counsel. See Bass, 170 F.3d at 1320. Daker had
no constitutional right to counsel in this civil case, and there were not exceptional
circumstances warranting appointment of counsel. See Fowler,
899 F.2d at 1096.
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Nor did the district court err in cancelling the evidentiary hearing, as the
reason for that hearing became moot when Daker dismissed his amended complaint.
See Kernel Records Oy, 694 F.3d at 1309. Specifically, that dismissal rendered moot
the issue of whether his claims had merit. See Atheists of Fla., Inc., 713 F.3d at 593-
94. Accordingly, we affirm both of the district court’s orders and the dismissal of
Daker’s amended complaint with prejudice.
AFFIRMED.
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