Daker v. Chief Legal Affairs Officer

1

WASEEM DAKER, Plaintiff-Appellant, v. CHIEF LEGAL AFFAIRS OFFICER, VALDOSTA STATE UNIVERSITY, VALDOSTA STATE UNIVERSITY, A Comprehensive University of the University System of Georgia, BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, Defendants-Appellees.

No. 21-14102

United States Court of Appeals, Eleventh Circuit

March 2, 2023

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:19-cv-00159-WLS-TQL

Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM:

Waseem Daker, a Georgia prisoner proceeding pro se, appeals the district court's sua sponte dismissal of his amended complaint. The district court liberally construed the amended complaint as asserting claims under 42 U.S.C. § 1983, as well as statelaw claims under Georgia's Open Records Act, O.C.G.A. §§ 50-1870 et seq. The district court dismissed the claims, concluding that Daker failed to state a claim for relief under § 1983 and that it lacked subject-matter jurisdiction to review the state-law claims. Daker then filed a motion under Federal Rule of Civil Procedure 59(e) to vacate the district court's order dismissing his claims, which the court denied.

On appeal, Daker argues that the district court erred in dismissing his claims and in denying his Rule 59(e) motion. After careful consideration, we conclude that the district court did not err in dismissing Daker's claims and that we lack appellate jurisdiction to review the denial of the Rule 59(e) motion. Accordingly, we affirm in part and dismiss in part.

I.

This case arises out of records requests that Daker submitted under Georgia's Open Records Act. We begin by reviewing the relevant portions of the Act. We then discuss Daker's requests and the litigation that followed.

A.

In the Open Records Act, the Georgia "General Assembly declare[d] that there is a strong presumption that public records should be made available for public inspection without delay." O.C.G.A. § 50-18-70(a). The Act directs that "[a]ll public records shall be open for personal inspection and copying, except those which by order of a court of this state or by law are specifically exempted from disclosure." Id. § 50-18-71(a). It defines "public record" to include

all documents, papers, letters, maps, books, tapes photographs, computer based or generated information, data data fields, or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency or when such documents have been transferred to a private person or entity by an agency for storage or future governmental use.

Id. § 50-18-70(b)(2).

Upon receipt of an open records request, an agency^[1] generally must "produce for inspection" responsive records within "three business days of receipt of a request." Id. § 50-18-71(b)(1)(A). When an agency is unable to make the records available within this timeframe, it must "provide the responsive records or access thereto as soon as practicable." Id. "At the time of inspection, any person may make photographic copies or other electronic reproductions of the records using suitable portable devices brought to the place of inspection." Id. § 50-18-71(b)(1)(B). In some circumstances, "an agency may, in its discretion, provide copies of a record in lieu of providing access to the record." Id.

In response to a request, an agency "may impose a reasonable charge for the search, retrieval, redaction, and production" of records. Id. § 50-18-71(c)(1). When an agency provides copies of a record in lieu of providing access to the record, it may "charge a fee for the copying." Id. § 50-18-71(c)(2). The Act sets forth the maximum that the agency may charge for providing such copies. Id..

A party who believes that an agency wrongfully denied a records request may bring an action "against persons or agencies having custody of records open to the public . . . to enforce compliance with the provisions" of the Act. Id. § 50-18-73(a). If a court finds that the person or agency "acted without substantial justification," it may award the plaintiff "reasonable attorney's fees." Id. § 50-18-73(b). If the court finds that the person or agency "negligently violate[d]" the Act, it may impose a civil penalty.^[2] Id. § 50-18-74(a); see Cardinale v. Keane, 869 S.E.2d 613, 647-49 (Ga.Ct.App. 2022) ("[T]he award of a civil penalty under the Open Records Act is a matter committed to a trial court's discretion.").

B.

While incarcerated at the Valdosta State Prison, Daker sent a records request to Valdosta State University, a public university in Georgia. He requested copies "of all songs in rotation or on the playlist or in the song bank" of the university's radio station. Doc. 11 at ¶ 14 (internal quotation marks omitted).^[3]

Eschol Lee Davis, Jr., the school's chief legal affairs officer, responded to Daker's request. Davis sent Daker copies of the radio station's written playlists. Davis also treated the request as seeking "copies of the song audio files themselves." Id. at ¶ 16. Davis responded that the university would make the audio files "available for inspection" with a pre-arranged appointment. Id. But he stated that the university would not make copies of the audio files for Daker because the audio files were "protected under copyrights held [by] their respective owners." Id.

Upon receiving Davis's response, Daker submitted a second request, again seeking copies of "all songs in rotation or on the playlist or in the song bank" for the university's radio station. Id. at ¶ 17. He wrote that because he was incarcerated and unable to come to Davis's office, "inspection in person is not an adequate substitute for copying or duplication." Id. at ¶ 23 (emphasis in original). He demanded that the university "copy or duplicate" the requested audio files. Id. Daker also maintained that, regardless of whether the songs have been copyrighted, the university was required to provide him with copies under the Open Records Act. He also asserted that many of the songs played on the radio station "have not been copyrighted." Id. at ¶ 19 (emphasis omitted).

Davis responded to Daker's second request. Again, he refused to provide Daker with copies of the requested audio files. Davis stated that the audio files of the songs were "subject to federal copyright." Id. at ¶ 24.

Daker, proceeding pro se, then filed this lawsuit in federal district court against Davis, the university, and the Board of Regents of the University System of Georgia (collectively the "defend-ants").^[4] In the amended complaint, Daker set forth the history of the records requests in which he sought audio files of 4,803 songs. He claimed that the defendants violated the Open Records Act when, after each of his records requests, they refused to provide him with "a copy of each of the 4,803 songs." Id. at ¶¶ 29, 32.

In the amended complaint, Daker claimed that the defendants were liable under 42 U.S.C. § 1983 because the withholding of the audio files violated the First and Fourteenth Amendments to the Constitution. He sought a declaration that the defendants' refusal to provide copies of the audio files violated the Constitution and the Open Records Act. He requested an injunction requiring the defendants to provide him a copy of each requested song. He also demanded nominal, compensatory, and punitive damages as well as $9,600,000 in civil penalties under the Open Records Act.

A magistrate judge conducted an initial screening of Daker's amended complaint and recommended dismissal.^[5] The magistrate judge determined that Daker failed to state a claim for relief under § 1983 because his allegations did not establish any violation of the First or the Fourteenth Amendment.

The magistrate judge liberally construed Daker's amended complaint as raising state-law claims under Georgia's Open Records Act. The magistrate judge recommended that the district court dismiss these claims for lack of subject matter jurisdiction because they did not arise under federal law and there was no complete diversity of the parties.

Daker objected to the magistrate judge's recommendation. He argued that the allegations in his amended complaint were sufficient to state a claim that the defendants had violated the First and Fourteenth Amendments. He also asserted that the court had subject matter jurisdiction over his state-law claims because the defendants would be raising a defense to those claims based on federal copyright law.

The district court overruled Daker's objections and adopted the magistrate judge's recommendation. The district court determined that Daker failed to state a claim that the defendants violated the First or the Fourteenth Amendment. And the district court concluded that it lacked subject matter jurisdiction over Daker's statelaw claims.

After the district court entered this order, Daker filed a notice of appeal as well as a motion under Federal Rule of Civil Procedure 59(e) to vacate the district court's order. The district court denied the motion. Daker did not file a new or amended notice of appeal after the district court entered the order denying his Rule 59(e) motion.

II.

"A district court's decision to dismiss for failure to state a claim under 28 U.S.C. § 1915A is reviewed de novo[.]" Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). "A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief." Jones v. Bock, 549 U.S. 199, 215 (2007).

We review de novo questions regarding a district court's subject matter jurisdiction. Absolute Activist Value Master Fund Ltd. v. Devine, 998 F.3d 1258,...