Greene v. Sheriff, Richmond County Jail

Filing 91

ORDER directing the plaintiff to file any opposition to deft's re 87 MOTION for Summary Judgment filed by White, Sean McKenzie, M. Cheatam, Coleman, N. Cowart, Roberts, Mitchell, Jenkins, N. Harrell, Grover Robinson , Ashley, Shelton, Geetings, Morrison, Fluellen, Matthys, Culyer, Gabreial, Daniels, Seymore. Response to the motion or informing the Court that he does not object must be filed no later than 1/24/25. Signed by Magistrate Judge Brian K. Epps on 1/3/25. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
BRANDON GREENE,

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Plaintiff,
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v.
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SEAN MCKENZIE; CPT. JENKINS;
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SGT. FLUELLEN; SGT. SEYMORE;
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CAPT. WHITE; LT. ASHLEY; SGT.
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ROBERTS; OFC. GROVER ROBINSON;
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OFC. GABREIAL; OFC. MORRISON; LT. )
M. CHEATAM; SGT. N. COWART;
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MAJOR MITCHELL; LT. SHELTON; SGT. )
GEETINGS; CPL. COLEMAN; CPL.
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CULYER; SGT. MATTHYS; CAPT.
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DANIELS; and LT. N. HARRELL,
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Defendants.
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CV 123-114

ORDER
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Plaintiff filed the above-styled civil action pursuant to 42 U.S.C. § 1983. According to
the Court’s July 16, 2024 Order lifting the discovery stay and setting deadlines for the case,
discovery closed November 7, 2024, and dispositive motions were due December 9, 2024.
(Doc. no. 80.) Defendants timely filed a motion for summary judgment. (Doc. no. 87.)
Plaintiff has filed a “Declaration Response to Defendants Summary Judgment,” in which he
argues Defendants filed their motion for summary judgment before Plaintiff could obtain
discovery and the restrictive conditions of his incarceration have made it impossible to obtain
evidence, conduct legal research, and understand how to conduct discovery. (Doc. no. 90.)

To the extent Plaintiff’s filing suggests he requires additional time, resources, or
accommodations for discovery, the Court declines to adopt such measures. Plaintiff has not
shown good cause for modifying the case deadlines to allow for the re-opening of discovery.
Under the Local Rules, a motion for extension of time must be filed prior to the expiration of
the discovery period. See Loc. R. 26.2. The Court lifted the discovery stay and set case
deadlines in its July 16, 2024 Order, and in the nearly five months discovery was open
thereafter, Plaintiff filed no motions concerning any challenges he faced engaging in
discovery, nor does he indicate he ever requested any discovery from defense counsel. (See
dkt.; doc. no. 90.) In fact, Plaintiff raised no issue whatsoever concerning discovery until filing
his Declaration Response, which was signed December 19, 2024, well past the November 7,
2024, discovery deadline. (Doc. no. 90.) Plaintiff’s filing explains the conditions of his
incarceration have hindered his efforts at obtaining discovery, but he does not identify any
specific problems at specific times that hindered his compliance with a November 7th deadline
that was set on July 16, 2024. Accordingly, Plaintiff does not demonstrate the requisite
diligence to establish good cause, and thus Court thus declines to re-open discovery. See
Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1232 (11th Cir. 2008)
(explaining the good cause standard “precludes modification [of the scheduling order] unless
the schedule cannot be met despite the diligence of the party seeking the extension”).
Moreover, to the extent Plaintiff suggests Defendants were responsible for his inability
to obtain necessary discovery, he provides no indication that he attempted to confer with
defense counsel to resolve any discovery disputes. Local Rule 26.5 requires Plaintiff to make

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a good faith effort to resolve any discovery dispute with opposing counsel. 1

Plaintiff

previously received instructions about this requirement. (See doc. no. 16, p. 9.) The duty-toconfer prerequisite is not an empty formality and failure to comply with the good faith effort
and certification requirements of Federal Rule 37(a)(1) and Local Rule 26.5 warrants denial of
discovery motions. See Merritt v. Marlin Outdoor Advert. Ltd., CV 410-053, 2010 WL
3667022, at *4 (S.D. Ga. Sept. 15, 2010); Holloman v. Mail-Well Corp., 443 F.3d 832, 844
(11th Cir. 2006) (affirming denial of discovery motion based on “a failure to work with the
defendants in good faith” during discovery process). Failure to confer with Defendants will
not be considered a good faith effort to attempt to resolve a dispute. See Whitesell Corp. v.
Electrolux Home Prods., Inc., CV 103-050, 2015 WL 5316591, at *5 (S.D. Ga. Sept. 10, 2015)
(collecting cases); Curry v. Day, CV 114-173, doc. no. 23, pp. 2-3 (S.D. Ga. Apr. 15, 2015)
(applying good faith requirement in prisoner plaintiff case). In sum, Plaintiff has failed to
demonstrate he made a good faith effort to resolve any discovery dispute with defense counsel
prior to presenting his concerns to the Court. Thus, to the extent his Declaration Response
seeks the Court’s intervention to assist with his attempts at obtaining discovery, such a request
is denied.
Nevertheless, the Court is not unmindful of the burdens facing incarcerated litigants in
the prosecution of their case. The Court notes that Plaintiff’s Declaration Response primarily
focused on his difficulties with discovery and did not respond to the substance of Defendants’
summary judgment motion. (Compare doc. no. 90, with doc. no. 87.) Therefore, the Court

Local Rule 26.5 provides, in relevant part: “Fed. R. Civ. P. 26(c) and 37(a)(1) require a party
seeking a protective order or moving to compel discovery to certify that a good faith effort has been made
to resolve the dispute before coming to court.”
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grants an extension of time through and including January 24, 2025, for Plaintiff to file any
additional response to Defendants’ motion for summary judgment. To make sure Plaintiff
fully understands the ramifications of Defendants’ motion should he not file an additional
response, the Court will now reiterate to Plaintiff the consequences of a motion for summary
judgment. 2
Once a motion for summary judgment is filed, the opponent should be afforded a
reasonable opportunity to counter the affidavits of the movant. Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985). The reasonable opportunity encompasses not only time to
respond, but notice and an explanation of rights that may be lost if a response is not filed. Id.
Summary judgment should be granted “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). The party seeking summary judgment always bears the initial responsibility
of informing the court of the basis for its motion, and demonstrating that there is an absence
of any dispute as to a material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
Also the moving party may be granted summary judgment if they show the Court that there is
an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). If the moving party makes this showing, then they are entitled to a
judgment as a matter of law because the non-moving party has failed to make a sufficient
showing on an essential element of his case with respect to which he has the burden of proof.
Id.

Plaintiff was first informed of the consequences of a summary judgment motion in the Court’s
October 2, 2023 Order. (Doc. no. 16, p. 10.)
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This Court in ruling on a summary judgment motion must determine whether under the
governing law there can be but one reasonable conclusion as to the verdict. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Moreover, a mere existence of a scintilla of
evidence in support of Plaintiff’s position is not sufficient to defeat a summary judgment
motion; there must be evidence on which the jury could reasonably find for Plaintiff. See id.
at 252. All reasonable doubts, however, must be resolved in favor of the party opposing
summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602
(5th Cir. Unit B Sept. 1981). 3 When, however, the moving party’s motion for summary
judgment has pierced the pleadings of the opposing party, the burden then shifts to the
opposing party to show that a genuine issue of fact exists. This burden cannot be carried by
reliance on the conclusory allegations contained within the complaint. Morris v. Ross, 663
F.2d 1032, 1033 (11th Cir. 1981).
Should Plaintiff not express opposition to Defendants’ motion, the consequences are
these: Any factual assertions made in the affidavits of the party moving for summary judgment
will be deemed admitted by this Court pursuant to Loc. R. 7.5 and Fed. R. Civ. P. 56 unless
Plaintiff contradicts the movant’s assertions through submission of his own affidavits or other
documentary evidence, and the motion for summary judgment will be granted on the grounds
that said motion is unopposed. See Loc. R. 7.5.
Accordingly, the Court ORDERS Plaintiff to file any opposition to Defendants’ motion
for summary judgment, with appropriate supporting affidavits, or to inform the Court of his

In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all Fifth Circuit
decisions that were handed down prior to the close of business on September 30, 1981. 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).
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decision not to object to Defendants’ motion, by no later than January 24, 2025. To ensure
that Plaintiff’s response is made with fair notice of the requirements of the summary judgment
rule, the Court INSTRUCTS the CLERK to attach a copy of Fed. R. Civ. P. 56 to the copy
of this Order that is served on Plaintiff.
SO ORDERED this 3rd day of January, 2025, at Augusta, Georgia.

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