MAESTREY v. JOHNSON et al
Filing
97
ORDER DENYING 87 Plaintiff's Motion for Summary Judgment; GRANTING 91 Defendants' Motion for Summary Judgment; and DENYING 94 Plaintiff's Motion for Default Judgment. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 2/13/2020. (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MICHAEL ALFRED MAESTREY,
Plaintiff,
v.
Warden GLEN JOHNSON, et al.,
Defendants.
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ORDER
Pending before the Court is Defendants’ motion for summary judgment (ECF No.
91) and Plaintiff’s motions for summary judgment and default judgment (ECF Nos. 87,
94). For the reasons explained below, Defendants’ motion judgment (ECF No. 91) is
GRANTED, and Plaintiff’s motions (ECF Nos. 87, 94) are DENIED.
PROCEDURAL BACKGROUND
On February 2, 2017, Plaintiff filed a complaint (ECF No. 1) under 42 U.S.C § 1983
against Defendant Johnson, Warden of Dooly State Prison (“DSP”), and Defendant
Bryson, former Commissioner of the Georgia Department of Corrections (“GDC”). 1 On
August 14, 2017, Plaintiff filed a recast complaint (ECF No. 12), adding Defendant
Dozier—who, at the time of filing, was Commissioner of GDC—and asserting a violation
of his rights under the First Amendment Free Exercise Clause and the Religious Land
1
“Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed on the
date it is delivered to prison authorities for mailing.” United States v. Glover, 686 F.3d
1203, 1205 (11th Cir. 2012) (citation and internal quotation marks omitted). “Unless there
is evidence to the contrary, like prison logs or other records, we assume that a prisoner’s
motion was delivered to prison authorities on the day he signed it.” Id.
Use and Institutionalized Persons Act (“RLUIPA”). 2 After a preliminary review of Plaintiff’s
recast complaint, these claims were allowed to proceed for further factual development.
Order 2, Nov. 19, 2018, ECF No. 36. On July 26, 2019, the Court denied Defendants’
motion to dismiss (ECF No. 32) these claims, but limited Plaintiff’s possible monetary
recovery to nominal damages for his First Amendment free-exercise claim. Order 1-2,
ECF No. 65. It also dismissed his claim for injunctive relief except as to Dozier. 3 Id. at 2.
Defendants answered (ECF No. 80) on August 9, 2019. The Court received Plaintiff’s
motion for summary judgment (ECF No. 87) on November 8, 2019, and his motion for
default judgment (ECF No. 94) on December 30, 2019. Defendants moved for summary
judgment (ECF No. 91) on December 30, 2019. The Court notified Plaintiff of Defendants’
motion for summary judgment and informed him that he must file a response within thirty
days. Order 3, Dec. 30, 2019, ECF No. 92. Plaintiff failed to respond. These motions
are ripe for review.
DISCUSSION
I.
Defendants’ Motion for Summary Judgment
Defendants move for summary judgment, contending: 1) Plaintiff cannot show a
First Amendment or RLUIPA violation, 2) Defendants cannot be held liable in their
2
Plaintiff originally asserted other claims, but only his First Amendment free-exercise and
RLUIPA claims remain pending.
3
Defendants indicate Dozier has been replaced as Commissioner of GDC by Timothy
Ward, and that—under Rule 25(d) of the Federal Rules of Civil Procedure—he should be
automatically substituted as Defendant with respect to the First Amendment free-exercise
and RLUIPA claims for injunctive relief. Defs.’ Mot. for Summ. J. 1 n.1, ECF No. 91. The
Court agrees and DIRECTS the Clerk to add Timothy Ward, in his official capacity, as a
defendant in this action.
2
supervisory capacities, and 3) Defendants are entitled to qualified immunity. 4 Defs.’ Br.
in Supp. of Mot. for Summ. J. 5-15, ECF No. 91-1.
Because Plaintiff fails to show a
First Amendment or RLUIPA violation, the Court agrees that Defendants are entitled to
summary judgment. As alternative and additional grounds, the Court finds Plaintiff has
failed to establish supervisory liability as to Bryson and Dozier and that Bryson, Dozier,
and Johnson are entitled to qualified immunity on Plaintiff’s First Amendment freeexercise claim for nominal damages.
A.
Summary Judgment Standard
Summary judgment may be granted only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). In determining whether a genuine dispute of material fact
exists to defeat a motion for summary judgment, the evidence is viewed in the light most
favorable to the party opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255
(1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at
248. A factual dispute is genuine if the evidence would allow a reasonable jury to return
a verdict for the nonmoving party. Id.
4
Defendants also move for summary judgment on Plaintiff’s claim for injunctive relief,
contending his request for all GDC prisons to provide vegan meals is not narrowly drawn
or the least intrusive means to correct the violation of a federal right. Defs.’ Mot. for Summ
J. 15, ECF No. 91. However, assuming this is true, it is not grounds for granting summary
judgment. If Plaintiff established a constitutional violation, he would not be foreclosed
from injunctive relief. See Thomas v. Hutcheson, No. 6:14-cv-16, 2015 WL 4378278, at
*15 (S.D. Ga. July 15, 2015) (recommending denial of summary judgment on the grounds
that proposed relief was not narrowly tailored or the least intrusive means to correct
violation).
3
The party seeking summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks
omitted). If the movant meets this burden, the burden shifts to the party opposing
summary judgment to go beyond the pleadings and present specific evidence showing
that there is a genuine issue of material fact, or that the movant is not entitled to judgment
as a matter of law. Id. at 324–26. This evidence must consist of more than conclusory
allegations. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary
judgment must be entered “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
B.
Plaintiff’s Failure to Respond
Plaintiff did not respond to Defendants’ motion for summary judgment or their
statement of facts despite the Court’s notice of his need to do so. Order 1-3, Dec. 30,
2019. The Local Rules of the United States District Court for the Middle District of Georgia
(hereinafter “Local Rules”) provide:
The respondent to a motion for summary judgment shall attach to the
response a separate and concise statement of material facts, numbered
separately, to which the respondent contends there exists a genuine dispute
to be tried. Response shall be made to each of the movant’s numbered
material facts. All material facts contained in the movant’s statement which
are not specifically controverted by specific citation to particular parts of
materials in the record shall be deemed to have been admitted, unless
otherwise inappropriate.
M.D. Ga. L. R. 56. The Court, however, “cannot base the entry of summary judgment on
4
the mere fact that the motion was unopposed, but, rather, must consider the merits of the
motion.” United States v. One Piece of Real Property Located at 5800 SW 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). In considering the merits of a motion
for summary judgment, even an unopposed motion, a court must, at least, “review all of
the evidentiary materials submitted in support of the motion for summary judgment.” Id.
at 1101-02. In other words, the court cannot simply accept the facts stated in a moving
party’s statement of material facts as true, but must also review the movant’s citations to
the record and confirm that there are no issues of material fact. Id. at 1103 n.6.
C.
Factual Background
Plaintiff’s claims arise from his incarceration at Calhoun State Prison (“CSP”)
between July 10, 2016, and November 17, 2016, and DSP between November 17, 2016,
and November 16, 2017. Movement History 3, ECF No. 91-6. Plaintiff practices Orthodox
Christianity, which he describes as following the original version of the King James Bible.
Pl.’s Dep. 41:4-17, ECF No. 91-3. Under his belief system, Plaintiff is prohibited from
“eat[ing] things containing blood of animals.” Recast Compl. 6, ECF No. 12. This includes
the internal organs of an animal, such as the liver, along with dairy products and eggs.
Pl.’s Dep. 51:22-52:3, 57:8-17. Plaintiff’s beliefs also prohibit him from eating pork. Id.
at 55:17-20. He is, however, allowed to eat the flesh of animals, meaning he can eat
beef, chicken, and fish. Id. at 52:15-21, 56:19-24, 9:1-3.
While Plaintiff was incarcerated at CSP and DSP, he was, at times, served food
prohibited by his religious beliefs without being provided substitutes. Id. at 125:2-9. The
menus at the two facilities were basically the same with some variations. Id. at 105:1725. Specifically, CSP and DSP served liver once or twice per month at dinner. Id. at
5
74:1-7, 118:17-22, 119:22-25. On these occasions, they also served mashed potatoes
or rice, along with cookies and greens. Pl.’s Dep. 120:17-21. As Plaintiff’s beliefs barred
him from eating liver, however, he would ask for a no-liver tray, which did not include a
substitute for the liver or doubled portion of rice or other vegetable. Id. at 121:6-18, 124:6125:11. Additionally, when the prison served eggs, Plaintiff did not receive a substitute
for the eggs. Id. at 123:5-11. Finally, Plaintiff could not drink milk, though he did have
access to juice or water. Id. at 123:12-24.
GDC offers inmates two means for requesting modification of their diet. First,
inmates may submit a special religious request form at their institution. Johnson Decl. ¶¶
6-12 and Attach. B-2, ECF No. 91-4. Second, inmates may request transfer to one of ten
Georgia prisons offering the “Alternative Entrée Program,” which provides vegan meals.
Pataluna Decl. ¶¶ 10-12, ECF No. 91-5. In 2016 and 2017, GDC had the capacity to
serve any inmate requesting the Alternative Entrée menu at one of the ten facilities. Id.
¶ 24. Even though he is not a vegan or vegetarian, Plaintiff testified that he completed
special religious request forms at CSP and DSP for a vegan tray, but they were ignored.
Pl.’s Dep. 53:3-10, 130: 10-20, 152:9-10. He did not request a transfer to a facility
offering a vegan tray because he feared for his safety due to threats from gang members
and because the only facility he knew that offered the vegan option—Valdosta State
Prison—is a close-security prison; Plaintiff is a medium-security inmate. Id. at 145:13147:13. He did not ask to be transferred to a medium-security facility offering vegan
options, though he did ask if there were other facilities, and a CSP deputy warden told
him that he did not know. Id. at 147:17-148:3.
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D.
First Amendment and RLUIPA Claims
1.
Legal Standards
The First Amendment, as applied to the states through the Due Process Clause of
the Fourteenth Amendment, provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I.
“To establish a violation of his [or her] right to free exercise, [a plaintiff] must first establish
that a state actor imposed a ‘substantial burden’ on his practice of religion.” Wilkinson v.
GEO Grp., Inc., 617 F. App’x 915, 917 (11th Cir. 2015) (per curiam) (citing Church of
Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1549 (11th Cir.1993)).
The prisoner’s beliefs must be sincere, meaning they are “truly held and are religious in
nature.” Williams v. Sec’y for Dep’t. of Corr., 131 F. App’x 682, 685 (11th Cir. 2005) (per
curiam). Prison officials may limit a prisoner’s free exercise of sincerely held religious
beliefs if such “limitations are ‘reasonably related to legitimate penological interests.’”
Johnson v. Brown, 581 F. App'x 777, 780 (11th Cir. 2014) (per curiam) (quoting O’Lone
v. Estate of Shabazz, 482 U.S. 342, 349 (1987)).
RLUIPA requires the government to justify any substantial burden on a prisoner’s
religious exercise by demonstrating a compelling governmental interest. See Smith v.
Allen, 502 F.3d 1255, 1266 (11th Cir. 2007), abrogated on other grounds by Sossamon
v. Texas, 563 U.S. 277 (2011). “To establish a prima facie case under section 3 of
RLUIPA, a plaintiff must demonstrate 1) that he engaged in a religious exercise; and 2)
that the religious exercise was substantially burdened.” Smith v. Governor for Ala., 562
F. App’x 806, 813 (11th Cir. 2014) (per curiam) (citation and internal quotation marks
omitted). Once a Plaintiff makes such a showing, “the burden then shifts to the defendant
7
to prove the challenged regulation is the least restrictive means of furthering a compelling
governmental interest.” Smith v. Owens, 848 F.3d 975, 979 (11th Cir. 2017)
2.
Plaintiff’s Religious Exercise Was Not Substantially Burdened
Defendants do not dispute—for purposes of their motion—that Plaintiff’s religious
beliefs are sincere. Defs.’ Br. in Supp. of Mot. for Summ. J. 7. They also do not ask the
Court to decide whether prison policies were reasonably related to a legitimate
penological interest or the least restrictive means of furthering a compelling state interest.
Id. Instead, Defendants contend that Plaintiff’s religious rights were not substantially
burdened. Id.
The Eleventh Circuit has “applied similar definitions of ‘substantial burden’ when
assessing claims under both RLUIPA and the Free Exercise Clause.”
Robbins v.
Robertson, 782 F. App’x 794, 802 n.5 (11th Cir. 2019) (citing Midrash Sephardi, Inc. v.
Town of Surfside, 366 F.3d 1214, 1226 (11th Cir. 2004)). “[A]n individual’s exercise of
religion is ‘substantially burdened’ if a regulation completely prevents the individual from
engaging in religiously mandated activity, or if the regulation requires participation in an
activity prohibited by religion.” Midrash, 366 F.3d at 1227. It means “more than an
inconvenience on religious exercise” but instead is “akin to significant pressure which
directly coerces the religious adherent to conform his or her behavior accordingly.” Id.
Under this definition, the Court concludes that Plaintiff’s religious exercise has not been
substantially burdened.
Plaintiff is not a vegetarian or vegan, and there are relatively few foods served by
GDC that he cannot eat. He does not eat pork, but GDC has not served pork since 2008.
Pataluna Decl. ¶ 14. All of the meats served at GDC facilities consist of chicken, beef,
8
turkey, or fish, none of which are prohibited by Plaintiff’s beliefs. 5 Id. ¶ 15; Pl.’s Dep.
52:20-21, 56:19-24, 90:1-3. Liver is the only meat GDC serves which Plaintiff cannot eat,
and while it was previously served twice per month, now it is only served once per month.
Pl.’s Dep. 74:2-7.
Plaintiff also cannot eat eggs, but his deposition testimony was
inconsistent as to how often they were served. At one point, he said four to five days per
week, but in response to specific questions, he only identified three days per week. Id.
at 76:7-13, 91:16-17, 91:19-92:3, 99:8-9. The GDC menu for 2016 and 2017 indicates
prisons served eggs two to three times per week, along with other items. Pataluna Decl.
Attach. C-1. In addition, Plaintiff can eat the grits or biscuit served with the eggs. Pl.’s
Dep. 76:19-77:16. Moreover, instead of milk, Plaintiff has the option of drinking water or
juice, though he does not “mess with” the juice because he does not know what it
contains. Id. at 94:2-8, 123:12-23.
Also, the burden on Plaintiff’s religious exercise was lessened for at least a portion
of his confinement because he made a “lot of money” and did not rely on the prison chow
hall for food. Id. at 101:18-102:4; see Benning v. Georgia, 845 F. Supp. 2d 1372, 138081 (M.D. Ga. 2012) (concluding that requiring inmate to purchase a depilatory from inmate
commissary did not substantially burden his religious exercise). Further, Plaintiff received
5
Plaintiff contends a meat shank served by GDC contained liver. Pl.’s Dep. 106:24107:8, 120:3-16, ECF No. 91-3. He offers nothing to support this assertion, however,
beyond statements by unidentified kitchen workers. Id. This is inadmissible hearsay—
not reducible to admissible form at trial—which the Court cannot consider when ruling on
a motion for summary judgment. See Pritchard v. Southern Co. Servs., 92 F.3d 1130,
1135 (11th Cir. 1996) (finding statements of unknown co-workers to be inadmissible
hearsay); Funderburk v. Fannie Mae, No. 1:13-CV-01362-LMM, 2015 WL 11216690, at
*3-5 (N.D. Ga. Nov. 16, 2015) (finding statement by unidentified employee of defendants
to be inadmissible hearsay where plaintiff failed to lay proper foundation for admission of
evidence).
9
a diabetic food tray which provided him additional food. Id. at 111:14-24, 114:6-115:11,
115: 23-25, 116:3-24, 117:20-118:12. Hence, while Plaintiff alleges that the lack of
substitute items for the liver and dairy products reduced his caloric intake and nutrition,
he fails to present evidence that this minor inconvenience had any appreciable impact on
his overall nutritional health. See Pennick v. DeHaven, No. 3:18-cv-05434-BHS-DWS,
2019 WL 5085871, at *4 (W.D. Wash. July 25, 2019) (“The denial of two to four eggs per
week while receiving a minimum of 2,700 calories per day does not demonstrate Plaintiff
was forced to choose between [an] adequately nutritious diet and one which comports
with his religious beliefs.”). Finally, Plaintiff did not request a transfer to one of ten prisons
that offer vegan meals. 6
According to Johnson, “almost all inmates” at DSP who
requested the Alternative Entrée Program were transferred. Johnson Decl. ¶ 14. Under
these circumstances, Plaintiff fails to show his religious exercise was substantially
burdened, and Defendants are entitled to summary judgment.
E.
Supervisory Liability
In the alternative, Bryson and Dozier are entitled to summary judgment because
6
Plaintiff testified that he did not request a transfer to Valdosta State Prison, which serves
vegan meals, for fear of his safety and because it is a close-security prison. Pl.’s Dep.
147:6-20. Plaintiff’s contention that transfer to a prison serving vegan meals would
endanger his safety is speculative. Moreover, he recently asserted that even if there are
medium security prisons offering vegan meals, there is “no penological interest in offering
some offenders restricted vegan entrees at certain [GDC] facilities while at the same time
denying some offenders (such as Plaintiff) restricted vegan entrees at certain other
facilities.” Pl.’s Mot. for Summ. J. 4, ECF No. 87. However, vegan trays are limited to
certain prisons because they require separate kitchens for preparation. Pataluna Decl. ¶
11, ECF No. 91-5. While Plaintiff has a right to food consistent with his religious beliefs,
he is not entitled to dictate the particular prison at which he is served.
10
Plaintiff fails to establish supervisory liability. 7 “Supervisory officials cannot be held liable
under § 1983 for unconstitutional acts by their subordinates based on respondeatsuperior or vicarious-liability principles.” Piazza v. Jefferson Cty., Ala., 923 F.3d 947, 957
(11th Cir. 2019). Instead, a Plaintiff must show that the supervisor personally participated
in the alleged unconstitutional conduct or that there is a causal connection between a
supervisor’s actions and the alleged constitutional violation. Cottone v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003). Such showing may be established when: 1) there is “a
history of widespread abuse that puts the responsible supervisor on notice of the need to
correct the alleged [violation], and he fails to do so,” 2) a “supervisor’s custom or policy
results in deliberate indifference to constitutional rights,” or 3) “facts support an inference
that the supervisor directed the subordinates to act unlawfully” or knew they “would act
unlawfully and failed to stop them from doing so.” Id.
Plaintiff has not presented evidence that Bryson and Dozier personally participated
in the alleged constitutional violation or that there was a causal connection between their
actions and the violation. At his deposition, Plaintiff testified his claims against them are
based on their position as current and former Commissioners of GDC and their institution
of policies that violated his rights. Pl.’s Dep. 161:6-14. Plaintiff, however, has not
identified policies that violate his rights. Instead, the evidence shows GDC has policies
allowing inmates to obtain vegan meals—the Alternative Entrée Program and the special
7
Defendants mention Ward in their argument on supervisory liability. Defs’ Br. in Supp.
of Mot. for Summ J. 11, ECF No. 91-1. Because he is only a defendant in his official
capacity as to Plaintiff’s claims for prospective injunctive relief, however, he is not entitled
to summary judgment on this ground. See Quintanilla v. Bryson, 730 F. App’x 738, 748
(11th Cir. 2018) (citing Luckey v. Harris, 860 F.2d 1012, 1015 (11th Cir. 1988) (per curiam)
(reversing district court dismissal of claim against Commissioner of GDC in his official
capacity).
11
religious accommodation request. Pataluna ¶¶ 22-23. Plaintiff did not request a transfer
to a prison offering the Alternative Entrée menu, and he alleges his requests for special
religious accommodation at CSP and DSP were ignored. Pl.’s Dep. 147:6-13, 148:20152:10. However, he has not shown that his failure to obtain an accommodation resulted
from a widespread abuse in response to such requests or that Bryson and Dozier directed
CSP and DSP officials to act unlawfully—or even knew they did so. Therefore, they are
entitled to summary judgment on this additional ground. 8
F.
Qualified Immunity
Additionally, Bryson, Johnson, and Dozier are entitled to qualified immunity on
Plaintiff’s First Amendment free-exercise claim for nominal monetary damages.9
“Qualified immunity offers complete protection for government officials sued in their
individual capacities as long as their conduct violates no clearly established statutory or
constitutional rights of which a reasonable person would have known.” Oliver v. Fiorino,
586 F.3d 898, 904 (11th Cir. 2009). A defendant seeking qualified immunity must show
that at the time of the alleged wrongful acts, “he was acting within the scope of his
discretionary authority.” Id. at 905. Once this is established, “the burden then shifts to
the plaintiff to show that the grant of qualified immunity is inappropriate.” Id. To do so, a
plaintiff must “demonstrate: first, that the facts when viewed in a light most favorable to
8
Johnson is not entitled to summary judgment on this ground. Although Plaintiff testified
that he named him as a defendant because he was the Warden and “head honcho,”
Plaintiff also stated he spoke with Johnson who told him to just not eat. Pl.’s Dep. 154:12157:3. Therefore, he has presented evidence Johnson personally participated in the
alleged constitutional violation.
9
Ward is not entitled to qualified immunity on Plaintiff’s claims against him for injunctive
relief because qualified immunity is only a defense against personal liability for monetary
damages. Ratliff v. DeKalb Cty., Ga., 62 F.3d 338, 340 n.4 (11th Cir. 1995).
12
the plaintiff establish a constitutional violation; and, second, that the illegality of the
officer’s actions was clearly established at the time of the incident.” Id. (internal quotation
marks omitted).
There is no dispute that Defendants were acting within the scope of their
discretionary authority.
Moreover, even assuming Plaintiff has established a
constitutional violation, he has not shown that such right was clearly established. In 2016
and 2017, “as a general matter, a reasonable government official would have known” that
Plaintiff had a “right to a diet consistent with [his] sincere religious beliefs.” Watkins v.
Haynes, No. CV 212-050, 2013 WL 1289312, at *13 (S.D. Ga. Mar. 27, 2013). However,
“[t]he inquiry into whether a right was clearly established ‘must be undertaken in light of
the specific context of the case, not as a broad general proposition.’” Id. (quoting Saucier
v. Katz, 533 U.S. 194, 201 (2001)).
Here, the issue is whether, in 2016 and 2017, an inmate—with relatively modest
dietary restrictions—had a clearly established right to substitute menu items on the days
when prohibited food was served with other, non-prohibited food. The Court can find no
case directly on point, and established law at the time indicated that a substantial burden
must constitute “more than an inconvenience on religious exercise.” Midrash, 366 F.3d,
at 1227.
Thus, Bryson, Dozier, and Johnson could have reasonably believed—
considering Plaintiff’s modest dietary restrictions—that CSP and DSP’s menu options
were lawful. Therefore, they are entitled to qualified immunity.
13
II.
Plaintiff’s Motions
A.
Motion for Summary Judgment
Plaintiff has also moved for summary judgment (ECF No. 87). This motion is
denied for three reasons. First, the Court concludes that no genuine issue of material
fact remains and that Defendants are entitled to judgment as a matter of law. Second,
even if the Court denied Defendants’ summary judgment motion, there would at least be
a genuine dispute of material fact as to whether Plaintiff’s exercise of religion was
substantially burdened. Third, Plaintiff failed to comply with the Local Rules’ requirement
that movants attach a “separate and concise” statement of material facts—separately
numbered with specific citations to the record—to which he “contends there is no genuine
dispute to be tried.” 10 M.D. Ga. L. R. 56. Although courts liberally construe pro se
pleadings, pro se litigants are not excused from procedural rules. McNeil v. United States,
508 U.S. 106, 113 (1993)).
B.
Motion for Default Judgment
Plaintiff moves for default judgment on the ground that Defendants’ response to
his motion for summary judgment was untimely. Pl.’s Mot. for Default J. 1-5, ECF No.
10
This is not a minor omission, as such rules are “designed to help the court identify and
organize the issues in the case.” See Mann v. Taser Intern., Inc., 588 F.3d 1291, 1303
(11th Cir. 2009) (noting plaintiff’s failure to properly respond to defendants’ statement of
material facts was “not a mere technicality”); see also Reese v. Herbert, 527 F.3d 1253,
1268 (11th Cir. 2008) (observing that the local rule “protects judicial resources by making
the parties organize the evidence rather than leaving the burden upon the district judge”
(internal quotation marks omitted)). By failing to comply with this rule, Plaintiff has left
this Court to guess as to which particular facts in the record he contends there is no
dispute. Plaintiff’s “reiteration of his claims” and “summary conclusions” are insufficient
to support a motion for summary judgment. Trainer v. Jones, No. 1:04-CV-180-WLS,
2009 WL 901490, at *2 (M.D. Ga. Mar. 31, 2009).
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94. There is no dispute that Defendants failed to timely respond to Plaintiff’s motion.
However, the Court has discretion to consider an untimely response and to extend the
time to respond to motions even after the time has expired. See Arnold v. Bunn, No.
1:03-CV-0087-CAP, 2013 WL 12099356, at *8 (N.D. Ga. Mar. 29, 2013) (citing Fed. R.
Civ. P. 6(b)(1)). The Court did so in this case. Text-only Order, Dec. 9, 2019, ECF No.
89.
Additionally, even if Defendants had failed to respond entirely, Plaintiff would not
be entitled to summary judgment on this ground. Trs. of the Cent. Pension Fund of the
Int’l Union of Operating Eng’rs and Participating Emp’rs v. Wolf Crane Serv., Inc., 374
F.3d 1035, 1040 (11th Cir. 2004) (per curiam) (stating summary judgment “cannot be
granted as a sanction for merely failing” to respond to a motion for summary judgment).
The Court must still consider the merits of the motion. Id. at 1039. The Court has
considered the merits of Plaintiff’s motion for summary judgment and denied it. This
motion is denied as well.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (ECF No.
91) is GRANTED and Plaintiff’s motions for summary judgment and default judgment
(ECF Nos. 87, 94) are DENIED.
SO ORDERED, this 13th day of February, 2020.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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