Holmes v. Baxter et al

Filing 115

ORDER & REPORT AND RECOMMENDATIONS of the U.S. Magistrate Judge recommending that 101 MOTION to Dismiss filed by Baxter, 50 MOTION for Preliminary Injunction filed by Keiron Kenneth Holmes, Sr., 63 MOTION for Summary Judgment filed by Keiron Kenneth Holmes, Sr., 81 MOTION for Preliminary Injunction filed by Keiron Kenneth Holmes, Sr., should be DENIED. The Court DENIES 48 , 51 , 52 , 56 , 60 , 66 , 67 , 68 , 70 , 76 , 83 , and 113 . The Court DIRECTS the Clerk to TERMINA TE 72 , 104 , and 108 and to reconstrue these documents as responses. 82 , 87 , 89 , 91 , 97 , 99 , 109 are DISMISSED AS MOOT. Defendants obligations to respond to any of Holmes filings are STAYED pending their compliance with the direction on their Motion to Seal. (Objections to R&R due by 2/19/2024, Responses due by 2/20/2024.) Signed by Magistrate Judge Christopher L. Ray on 02/05/2024. (ek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
KEIRON KENNETH HOLMES,
SR.,
Plaintiff,
v.
SGT. BAXTER, et al.,
Defendants.

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CV422-227

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, filed this 42 U.S.C. § 1983 lawsuit while
housed at the Chatham County Detention Center as a pretrial detainee.
See doc. 1 at 6-8. Plaintiff’s Complaint was previously screened pursuant
to 28 U.S.C. § 1915A. See doc. 19 adopted by doc. 41. While many of
Holmes’ claims were dismissed, see doc. 41, the Court found that Plaintiff
had stated a claim for excessive force against Baxter, Willis, Fisher, and
Gardner. See doc. 19 at 7-8. Those defendants waived service, docs. 2528, and filed their Answer on February 28, 2023, doc. 32. The case has
since become bogged down in a procedural quagmire that the Court now
attempts to wade through.
PROCEDURAL HISTORY

The details of Holmes’ sole pending claim were described in this
Court’s prior Order. See doc. 19 at 7 (quoting doc. 1 at 6). Briefly, Holmes
alleges that during booking an officer placed a knee into his back while
he was “non-resistant,” and that, without provocation, he was “boxed” in
the head. Doc. 1 at 6. Holmes attempted to amend his claim, but his
attempt was stricken as procedurally improper. See docs. 43, 44; see also
doc. 41 (overruling Holmes’ objection and dismissing claims for his failure
to timely amend them).

He has filed a document, which the Clerk

docketed as a motion, again expressing his desire to add additional
defendants and allegations to his claim. See doc. 48.
Holmes also filed a Motion for Summary Judgment, doc. 63,
wherein he does not seek disposition on his claim by arguing that “there
is no genuine dispute as to any material fact” or even that he is “entitled
to judgment as a matter of law.” Compare doc. 63 with Fed. R. Civ. P. 56.
Rather, he reiterates his allegations that Defendants used unreasonable
force against him, and he asserts that Defendants destroyed evidence in
the form of body-worn camera footage. Doc. 63 at 1-2. He simultaneously
claims that the failure of Defendants to use body-worn cameras
constitutes a violation of prison policy, and that the footage from those
2

cameras would prove his claim. Id. at 2. Defendants responded to his
Motion asserting that qualified immunity entitles them to relief, doc. 711 at 3-18, and that Holmes’ allegations about the destruction of bodyworn footage constitute a separate claim that should be denied as an
improper attempt to amend. Id. at 19. Moreover, Defendants state that
the body-worn footage was provided, but that Plaintiff failed to timely
request any other footage and it was recorded over by more recent footage
around 25-36 days after it was recorded, as is prison policy. Id. They
provided the Court with the body-worn footage as an exhibit to their
response which was also served upon Holmes. Doc. 71-3.
Defendants simultaneously filed their own Motion for Summary
Judgment, doc. 72 and Motion to Seal medical records attached as
Exhibit C to their Motion for Summary Judgment, doc. 70.

Holmes

failed to respond to their Motions, and the Court recommended that his
case be dismissed for failure to prosecute. Doc. 74 at 3; but see doc. 78.
Holmes filed a Motion to Produce Evidence, which the Court construed
as an attempt to prosecute, but the Court further required that he
substantively respond to the Motion for Summary Judgment. Doc. 78 at
2. He was warned in that Order that his failure to show cause would
3

result in a dismissal. Id. at 2-3. Holmes then filed a letter that does not
directly respond to either the Court’s Order or the Defendants’ Motion,
doc. 79, and an “Objection” to Defendants’ Motion for Summary
Judgment, doc. 80.
Holmes’ Objection claims that he has not received the Defendants’
response to his own Motion for Summary Judgment. Doc. 80 at 2. He
complains about the prison mail system and again seeks body-worn
camera footage. Id. at 1. He asks the Court for “another chance to
respond to the defendants response to [his] motion for summary
judgment to their motion for summary judgment.” Id. at 2. He also filed
a “Motion for Preliminary Injunction,” doc. 81, a document which he
entitled “Motion for Summary Judgment,” doc. 82, and a “Request for
Evidence,” doc. 83. Then, the Defendants filed a Brief in Opposition to
Holmes’ Motion at doc. 82. See doc. 85. It again includes, by way of
exhibit, the disputed body-worn footage as well as Holmes’ medical
record, excerpts from Holmes’ deposition, and Defendants’ affidavits. See
doc. 85, 85-1, 85-2, 85-3; see also doc. 85-4, 85-5, 85-6, 85-7, 85-8, 85-9, 8510, 85-11. Since this filing, Holmes has filed seven so-called Motions for
Summary Judgment, one Motion to Dismiss, and other miscellaneous
4

requests for responses. See docs. 87, 89, 91, 97, 99, 104, 108; see also doc.
109; and docs. 94, 96, 102, 106, 107, 110, 111, 112, and 113. Defendants
diligently filed Briefs in Opposition to the Motions for “Summary
Judgment” at docs. 87, 89, 91, 97, and 99. See docs. 93, 101. One of those
oppositions again contains Holmes’ medical records as exhibits. Docs. 932. Incorporated into one of their responses is a Motion to Dismiss, which
seeks dismissal based upon Holmes’ alleged failure to comply with the
Court’s prior Order to Show Cause. Doc. 101 at 2. The Defendants note
that even though Holmes clearly “received the Court’s prior Order,” as is
indicated by the fact that he “has filed numerous other untimely motions
for summary judgment,” Holmes has yet to substantively respond to their
Motion for Summary Judgment. Id. As to Holmes’ own filings, his own
motions for summary judgment are ripe for review by the Court.
DISCUSSION
The Court first addresses Holmes’ miscellaneous motions. Holmes
filed a document which ostensibly seeks permission to add defendants.
Doc, 48 at 1. However, it appears to constitute the amendment he wishes
to make, as it makes allegations and seeks relief regarding separate
issues.

See doc. 48 (alleging false imprisonment, cruel and unusual
5

punishment, and due process violations). He was previously warned that
he must seek leave from the Court or Defendants’ permission to amend
his Complaint. Doc. 44 at 3. To the extent it constitutes the filing of an
amended pleading, his Motion to add Defendants, doc. 48. is DENIED
because he did not follow this procedure.

To the extent it seeks

permission, it is denied because it appears to assert irrelevant and
frivolous claims against unrelated parties. See doc. 48 at 8 (seeking to
sue arresting officer and “all officers involved in criminal action case
#SPCR23-00742-J5 for violating [Holmes’] due process rights . . .,” as well
as D.A. Shalena Cook Jones, ADA Gabriel Justus, and Judge James
Bass).

Holmes must file suit separately to assert unrelated claims

against unrelated parties. See Federal Rules of Civil Procedure 15, 18(a),
& 20(a)(2)(A); Smith v. Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th
Cir. 2014) (“District courts have unquestionable authority to control their
own dockets” and enjoy “broad discretion in deciding how best to manage
the cases before them.”) (quotations and citations omitted). However, he
is forewarned that, under the Prison Reform Litigation Act, a prisoner’s
case may be dismissed at any time if it is frivolous or malicious, fails to
state a claim, or seeks monetary relief from a defendant immune from
6

such relief. 28 U.S.C. § 1915(e)(2)(B); Joseph v. State Mut. Life Ins. Co.
of Am., 196 F. App’x 760, 760–61 (11th Cir. 2006); see also Heck v.
Humphrey, 512 U.S. 477 (1994) (Civil rights claims are barred under the
Heck doctrine when they necessarily challenge the validity of a
conviction). In any event, to the extent he sought permission to amend
the present complaint in his Motion to Add Defendants, doc. 48, that
permission is not given because his proposed amendment would be futile.
Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir.1999) (Denial
of leave to amend is justified by futility when the “complaint as amended
is still subject to dismissal.”)
Holmes has also filed two Motions requesting “preliminary
injunctions.” Docs. 50 & 81. His first Motion for Preliminary Injunction
seeks an injunction on the “grounds of defendants admitting in the
disposition [sic] . . . that they dispose[d] of CCDC booking area footage.”
Doc. 50. He also seeks an injunction because of delays in mail. Id. His
second Motion for Preliminary Injunction seeks to amend his Complaint
to add unsupported claims regarding false imprisonment and violations
of the prison’s policies.

See doc. 81.

7

It does not seek any specific

injunctive relief, but only vaguely references claims he is “planning on
bringing” against unnamed parties. Id. at 1.
Before a District Court may enter a preliminary injunction, the
moving party must demonstrate (1) a substantial likelihood of success on
the merits; (2) that irreparable injury will be suffered unless the
injunction issues; (3) the threatened injury to the movant outweighs
whatever damage the proposed injunction may cause the opposing party;
and (4) if issued, the injunction would not be adverse to the public
interest. Four Seasons Hotels And Resorts, B.V. v. Consorcio Barr, S.A.,
320 F.3d 1205, 1210 (11th Cir. 2003) (internal citations omitted). It is an
“extraordinary and drastic remedy.” Id. Holmes’ two motions do not
come close to meeting this heavy burden. See docs. 50 & 81. He has not
asked for specific relief, and he does not state allegations suggesting that
an order is necessary to prevent irreparable injury which would outweigh
any harm caused by the order granting injunctive relief. See generally
id. The Court RECOMMENDS that these requests be DENIED. Docs.
50, 81.
Holmes has also filed a flurry of motions related to discovery. See
docs. 51, 52, 60, 66, 67, 68, 76, & 83. His document titled “Identification
8

Interrogatory” appears to be his attempt to serve interrogatories on the
defendants. See doc. 51; see also, e.g. Fed. R. Civ. P. 33; doc. 19 at 32. He
was expressly instructed that his “[d]iscovery materials should not be
filed routinely with the Clerk of Court[.]” Doc. 19 at 32 (emphasis in
original). There is no indication that he seeks any relief from the Court,
so the Motion is DISMISSED as moot. Doc. 51.
Holmes’ filing at docket entry 52 is less straight forward. It is
styled as “A Motion for Production of Documents,” doc. 52 at 1, but
appears to seek to add claims against Defendant Baxter, seeks copies of
documents from the Court, and seeks an “order” for “the defendants to
provide him with certain documents. Id. at 1-2. To the extent Holmes
seeks to amend his claims against Baxter, like his prior attempts
discussed above, his request does not comply with Federal Rule 15 and is
DENIED.

Doc. 52, in part.

His request that the Court send him

documents is likewise DENIED. Doc. 52, in part. He is not entitled to
free copies of court documents. See Jackson v. Fla. Dept. of Fin. Servs.,
479 F. App’x 289, 293 (11th Cir. 2012).

Finally, his request that the

defendants provide him with particular documents appears to be a
request for production of documents. See doc. 52 at 2; see also, e.g. Fed.
9

R. Civ. P. 34. As with his interrogatories, these discovery requests are
not properly filed with the Court. See doc. 19 at 32. His request that the
defendants produce documents is, therefore, DISMISSED. Doc. 52, in
part.
Holmes next asks for a copy of his “disposition held on 04-26-2023.”
Doc. 60. The Court presumes he means a copy of the transcript from his
deposition. See, e.g., doc. 72-3 (discussing Holmes’ “deposition transcript
dated April 26, 2023”). Although Holmes is proceeding in forma pauperis,
neither the Court nor the Defendants are required to cover the cost of
discovery, including the cost of any deposition transcripts. See Easley v.
Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014); see also, e.g., Cargill
v. Ala. Dept. of Corr., 2021 WL 11152964, at *2 (M.D. Ala. Dec. 15, 2021)
(discussing indigent defendant’s obligation to cover costs of pretrial
discovery, and collecting cases). He also indicated in a later submission
that he “received the transcripts from the [deposition] on 04-26-2023.”
Doc. 67 at 1. His request for a copy of the deposition transcript is,
therefore, DENIED. Doc. 60.
Holmes next asks for the Defendants to produce documents and
body-worn camera footage, claiming he has made requests and the
10

Defendants “have yet to send requested information to [him].” Doc. 66;
see also doc. 67. He also asks for “more time with discovery due to
defendants failing to provide [him] with vital documents[.]” Doc. 68.
Defendants respond that “they have timely and completely responded to
all of Plaintiffs discovery requests . . . .” Doc. 69 at 3. Holmes does not
meaningfully dispute this contention and has made no suggestion that
he has conferred in good faith or made any other attempt to resolve a
discovery dispute in accordance with this Court’s Local Rules. See S.D.
Ga. L. Civ. R. 26.5. Although proceeding pro se, Holmes is required to
follow the relevant rules. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989). His motions are, therefore, DENIED. Docs. 66, 67, 68. Likewise,
his “Motion for the Production of Evidence,” doc. 76, and “Request for
Evidence,” doc. 83, construed as more improper attempts to obtain
discovery, are DENIED.
Holmes has also moved for entry of default. Doc. 56. His argument
in support of his “Request for Entry of Default” is patently false. See id.
at 3 (the defendants . . . has not filed or served an answer . . .); see also
doc. 32 (Defendants’ Answer). Defendants have not “failed to plead or

11

otherwise defend.” Fed. R. Civ. P. 55(a). Holmes’ request for entry of
default is, therefore, DENIED. Doc. 56.
The Court now assesses the pending dispositive motions.
Defendants have filed one Motion for Summary Judgment and

an

accompanying Motion to Seal, docs. 70, 72, as well as one Motion to
Dismiss, doc. 101. Holmes has filed nine documents which are captioned
as motions for summary judgment. See docs. 63, 82, 87, 89, 91, 97, 99,
104, 108. However, it is apparent that at least some of these documents
are responses to motions or briefs filed by the Defendants or seek to allege
different claims altogether. As discussed above, after Holmes failed to
respond to Defendants’ Motion for Summary Judgment, the Court
ordered Holmes to show cause. Even though he showed cause for the
delay citing mail issues, doc. 80, he still has not filed a document clearly
labeled as a “response” to their Motion. The Court charitably construes
two of Holmes’ filings as responses, given their explicit reference to items
filed by Defendants.

Docs. 104, 108.

The Clerk is DIRECTED to

TERMINATE these “Motions” and construe them as responses, docs.
104, 108.

12

Liberally construed, Holmes’ first Motion for Summary Judgment
comes close to making a spoliation argument, asserting that because
Defendants did not retain more video footage, he should be granted
summary judgment.

Doc. 63.

However, the allegation is vague,

conclusory, and unsupported. See id. at 1 (referring generally to “camera
footage”). Defendants have explained, through sworn affidavits, that
some camera footage was recorded over in the normal course of business
after Holmes failed to timely request it. Doc. 71-1 at 19 (citing doc. 71-3
at 41-42; doc. 71-3 at 44-45). They have provided Holmes with other
footage.

Id.

Holmes has offered nothing to controvert Defendants’

evidence of his lack of timely request, but instead offers vague,
conclusory,

and

unsupported

arguments

that

Defendants

are

“withholding evidence” or sending “falsified documents.” See, e.g., doc.
76.

Defendants’ Response to Holmes’ second Motion for Summary

Judgment begins by making clear that Holmes has been shown body
camera footage upon which Defendants rely. Doc. 85 at 1. Indeed, his
deposition reflects a contemporaneous viewing.

See doc. 71-3 at 22.

While Holmes generally argues “Defendants” have “thrown away”
evidence, presumably the video footage, he does not offer any support for
13

the idea that the existing defendants had any control over the footage.
There is no evidence of bad faith on behalf of the Defendants, and
therefore Holmes’ construed spoliation argument fails. See, e.g., Watson
v. Edelen, 76 F. supp. 3d 1332, 1350 (N.D. Fla. Jan. 5, 2015) (no evidence
of bad faith where prisoner’s “evidence fails to show that any named
Defendant actually destroyed [videos] or was privy to the destruction”);
Diaz v. Carnival Corp., 2021 WL 3932631, at *2 (S.D. Fla. May 25, 2021)
(even where elements of spoliation claim are met, sanctionable spoliation
occurs only where the “absence of that evidence is predicated on bad
faith,” such as where a party purposely loses or destroys relevant
evidence.) (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997))
(adverse inference from party’s failure to preserve evidence must be
predicated on bad faith) (citations omitted).

Therefore, the Court

RECOMMENDS that Holmes’ Motion be DENIED, doc. 63, as Holmes
is not entitled to judgment as a matter of law based on his spoliation
argument or otherwise.
Most of Holmes’ remaining Motions for Summary Judgment, docs.
82, 87, 89, 91, 97, and 99, are duplicative of his first and do not seek
summary adjudication based upon any legal grounds. Rather, Holmes
14

seeks again and again to incorporate new facts or allegations into his
original Complaint, or to refute the Defendants’ position based on the
same pseudo-spoliation argument. Indeed, he never appears to tie facts
to law to argue his claim. By way of quick summary, Holmes’ second
Motion for Summary Judgment, doc. 82 makes a nonsensical argument
regarding discovery responses, and his third Motion for Summary
Judgment, doc. 87, alleges that Defendants used “defective” and false
material. His fourth Motion for Summary Judgment, doc. 89, appears to
reply to Defendants’ Response, doc. 85, to his second Motion for Summary
Judgment, doc. 82, and it disputes “falsified” discovery responses. His
fifth Motion for Summary Judgment, doc. 91, repeats these claims but
additionally attempts to seek relief on a claim regarding his mail and
violation of policy relevant to video footage recording, claims that have
not been properly asserted in this case. His sixth Motion for Summary
Judgment, doc. 97, is virtually nonsensical.

Holmes claims this

document is “an argument and not a complaint” but it appears to reassert
his claims that his rights were violated “with the defendants defense to
[his] complaint.” Doc. 97 at 1. Holmes directs the Court to review all
documents ever filed with the courts involving himself and others. Id. In
15

his seventh Motion for Summary Judgment, doc. 99, Holmes makes
arguments relevant to the violation of CCDC policy, discovery disputes,
falsified material, and claims that he has not received unspecified
materials. Doc. 99 at 1-9. Given the nature of these filings which are all
duplicative of his original Motion, doc. 63, and do not, in fact, seek
summary disposition but rather confusingly make discovery requests or
seek to amend the Complaint, they are DISMISSED AS MOOT based
upon this Court’s prior orders and the present recommendation. Docs.
82, 87, 89, 91, 97, 99.

Additionally, in his Motion to “dismiss” the

Defendants’ brief, Holmes disputes the date upon which he was served
Defendants’ combined Response, doc. 101, to his fourth, fifth, sixth, and
seventh Motions for Summary Judgment. See doc. 109. He also argues
that the responsive pleading was made “defective” when it was “written
on” after its delivery. Id. He claims that, because of the discrepancy and
defectiveness, Defendants’ brief in response to his fourth, fifth, sixth, and
seventh Motions for Summary Judgment should be dismissed. Given the
termination of his duplicative Motions, this request is DISMISSED.
Doc. 109.

16

Next, the Court has reviewed the Defendants’ Motion to Dismiss
and Motion for Summary Judgment. Docs. 72, 101. Their Motion to
Dismiss, doc. 101, argues that Holmes has failed to comply with a court
order because he has not responded to this Court’s Order to Show Cause
why he failed to timely respond to the Defendants’ Motion for Summary
Judgment. Doc. 101 at 2-3. Holmes did show cause for failing to respond
to the Defendants’ motion, citing prison mail issues. Docs. 79, 80. His
explanation is satisfactory, and he does not appear to be in violation of
Court Order. The Court Recommends that this request be DENIED 1
because Holmes has not failed to show cause to the Court, even though
he has continued to fail to file any rule-complaint response to Defendants’
motion. See doc. 80. Holmes also did not file a Statement of Material
Facts controverting the Defendant’s own. See S.D. Ga. L. Civ. R. 56.1.
(“[I]n addition to the Parties’ briefs, there “shall be annexed to the motion
a separate, short, and concise statement of the material facts as to which
it is contended there exists no genuine dispute to be tried as well as any

The Defendants’ Motion to Dismiss was contained within their Brief in opposition,
doc. 101, and does not appear on the docket as awaiting Court disposition. However,
the Court construes Defendants’ Request as a formal motion, independent of the brief
and DIRECTS the Clerk to mark it ripe for disposition by the District Judge.

1

17

conclusions of law thereof.”).

However, this deficiency need not be

considered at this time, for the reasons that follow.
The Defendants’ Motion for Summary Judgment remains to be
addressed, doc. 72, as well as their contemporaneously filed Motion to
Seal, doc. 70. The Defendants have filed their Motion to Seal alleging
that the records “obviously contain sensitive, privileged material,” albeit
material which Holmes has placed in the center of this dispute. Doc. 70
at 2-3. They assert that the medical records, “while privileged, contain
information from various medical professionals as to his alleged medical
conditions following the incident.” Id. at 3. Defendants submitted the
attachments it seeks to seal to the Court for review pursuant to Local
Rule 79.7. Although Holmes has not responded to the Motion, the Court
reviewed the Defendants’ motion along with the exhibits to be sealed and
determined that, at least in its present form, the motion must be denied.
The Eleventh Circuit has explained that “[t]he operations of the
courts and the judicial conduct of judges are matters of utmost public
concern and the common-law right of access to judicial proceedings, an
essential component of our system of justice, is instrumental in securing
the integrity of the process.” Romero v. Drummond Co., 480 F.3d 1234,
18

1245 (11th Cir. 2007) (internal quotation marks omitted) (quoting
Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978), and Chi.
Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir.
2001)). “[T]he common-law right of access includes the right to inspect
and copy public records and documents.” Chi. Tribune Co., 263 F.3d at
1311 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)
(referencing specifically the right to inspect and copy “judicial records
and documents.”)). “Material filed in connection with any substantive
pretrial motion, unrelated to discovery, is subject to the common law
right of access.” Romero, 480 F.3d at 1245. The Eleventh Circuit recently
reaffirmed this standard, finding that the public right of access is
presumed for “judicial records,” which include “documents filed with
pretrial motions that require judicial resolution of the merits of an
action.” Callahan v. United Network for Organ Sharing, 17 F.4th 1356,
1363 (11th Cir. 2021) (internal citation and quotations omitted). The
documents Defendants submitted in support of its Motion for Summary
Judgment are judicial records.
A party can overcome the common-law right of access by a showing
of good cause. Callahan, 17 F.4th at 1363. A good cause determination
19

“requires balancing the asserted right of access against the other party’s
interest in keeping the information confidential.” Romero, 480 F.3d at
1246 (internal quotation marks and alterations omitted) (quoting Chi.
Tribune Co., 263 F.3d at 1309). In weighing these competing interests,
the Court considers “a number of important questions,” which the
Eleventh Circuit discussed in Callahan:
[W]hether allowing access would impair court functions or
harm legitimate privacy interests, the degree of and
likelihood of injury if made public, the reliability of the
information, whether there will be an opportunity to respond
to the information, whether the information concerns public
officials or public concerns, and the availability of a less
onerous alternative to sealing the documents. Concerns about
trade secrets or other proprietary information, for example,
can overcome the public interest in access to judicial
documents. Indeed, a court should consider whether the
records are sought for such illegitimate purposes as to
promote public scandal or gain unfair commercial advantage.
Callahan, 17 F.4th at 1363 (internal quotation marks and citations
omitted). The decision of whether good cause exists rests with the sound
discretion of the district court judge, is based on the “nature and
character of the information in question,” and “should be informed by a
sensitive appreciation of the circumstances that led to the production of
the particular document in question.” Chi. Tribune Co., 263 F.3d at 1311

20

(quoting Nixon, 435 U.S. at 603) (internal quotation marks and
alterations omitted), 1315.
Defendants have not provided any information sufficient to show
good cause to seal the exhibits to its Motion for Summary Judgment.
Other than generally referencing the existence of medical information,
the Motion does not identify, by reference or otherwise, what might be
found in the exhibits which should exempt the information from being in
the public domain. See generally doc. 70. Additionally, the Defendants
have not shown why redaction of any of the records would not accomplish
its goals. See Fed. R. Civ. P. 5.2(a). In short, the Defendants’ motion is
insufficient. Therefore, it is DENIED. Doc. 70
These materials will be returned to Defendants who are
DIRECTED, no later Monday, February 12, 2024, to either: (1) file a
renewed Motion to Seal if they believe they can make the requisite
showing; (2) file the exhibits “in the normal course,” given Holmes’
apparent lack of disagreement; or (3) seek leave of Court to file the
documents in a redacted version. See S.D. Ga. L.R. 79.7(c). Upon their
compliance with this direction, the Court will be able to take up their
motion for Summary Judgment which relies upon the now unavailable
21

Exhibit C. As well, since the Court is unable to fully consider their
Motion for Summary Judgment pending their compliance with the above
directions

regarding

Exhibit

C,

the

Clerk

is

DIRECTED

to

TERMINATE it. Doc. 72. Defendants are DIRECTED to resubmit
their Motion for Summary Judgment, along with their compliance with
the direction above regarding Exhibit C, no later than February 12, 2024.
Finally, Holmes recently filed a “Request for Response” to his
Motions for Summary Judgment, wherein he seeks a copy of Defendants’
Motion for Summary Judgment, “a response to [his] response to notice of
deficiency,” and a response from Defendants’ on his second and third
motions for summary judgment, docs. 63 and 82. See doc. 113. The Court
emphasizes to Holmes that service is effectively made by mailing the
pleading to the person’s last known address, in which event service is
complete upon mailing. Fed. R. Civ. P. 5(b)(c). Therefore, by mailing
these items, the Defendants have satisfied their burden. In this case, the
Court is mindful of the obligation to liberally construe pro se pleadings,
but “pro se litigants are required to comply with applicable procedural
rules.” Ramchandani v. Sanghrajka, 2022 WL 16549470, at *1 (11th Cir.

22

Oct. 31, 2022) (citing Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.
2007)).
However, given the Court’s disposition on Defendants’ Motion to
Seal and its impact upon their Motion for Summary Judgment,
Defendants must serve Holmes with their Motion for Summary
Judgment upon refiling it. See Fed. R. Civ. P. 5. Given the discrepancies
before the Court regarding service of items such as this, Defendants are
free to file upon the docket their certification of service upon refiling and
serving, and they are encouraged to hand deliver their Motion to the
extent reasonable. See Fed. R. Civ. P. 5(b)(2)(A). Holmes may refute such
certification only by sworn declaration. His confusion with the Court’s
procedure, further unsworn assertions of lack of service, and complaints
regarding prison mail procedure will not suffice to overcome his burden
to respond. Therefore, doc. 113 is DENIED.
Holmes may object to this Court’s Recommendation that his
original Motion be denied, as described below, but he is instructed that
further filing of frivolous motions for summary judgment will not
be tolerated. Such motions will be construed as relevant to their true
nature, and they may be summarily terminated if they continue to seek
23

relief based upon moot issues, meritless and previously asserted
arguments, or irrelevant factual claims.

Defendants’ obligations to

respond to any of Holmes’ filings are STAYED pending their compliance
with the direction on their Motion to Seal. See, e.g., Clinton v. Jones,
5209 U.S. 681 (1997) (discussing district court’s “broad discretion to stay
proceedings as an incident of its power to control its own docket.”).2
CONCLUSION
For all the foregoing reasons, it is RECOMMENDED that
Defendant’s Motion to Dismiss, doc. 101, be DENIED. It is further
RECOMMENDED that Holmes’ Motions for Preliminary Injunction and
first Motion for Summary Judgment, docs. 50, 63, 81 be DENIED. The
Court DENIES docs. 48, 51, 52, 56, 60, 66, 67, 68, 70, 76, 83, and 113.
The Court DIRECTS the Clerk to TERMINATE docs. 104 and 108, and
to reconstrue these documents as responses (specifically, these
documents explicitly respond to doc. 85 and to some degree, doc. 72). The
filings at docs. 82, 87, 89, 91, 97, 99, and 109, are all duplicative of doc.

They may, if they wish, respond to any Objection made by Holmes to this Court’s
recommendations regarding the dispositive motions at issue, and they may object as
described herein, but they are not required to respond to other filings until they have
complied with the instructions related to their Motion to Seal and Motion for
Summary Judgment.
2

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63 and they are therefore DISMISSED AS MOOT. Further, the Clerk
is DIRECTED to TERMINATE doc. 72.
This Report and Recommendation (R&R) is submitted to the
district court judge assigned to this action, pursuant to 28 U.S.C. §
636(b)(1)(B) and this Court’s Local Rule 72.3. Within 14 days of service,
any party may file written objections to this R&R with the Court and
serve a copy on all parties.

The document should be captioned

“Objections to Magistrate Judge’s Report and Recommendations.” Any
request for additional time to file objections should be filed with the Clerk
for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp.,

25

648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
App’x 542, 545 (11th Cir. 2015).
SO ORDERED and REPORTED and RECOMMENDED, this
5th day of February, 2024.

_______________________________
__
_______________
_ _____
____
_ _____
________
____
_ ___
CHRISTOPHER
C
CH
R STO
RI
OPH
P ER L. RAY
MAGISTRATE JUDGE
UNITED STATES
STATE
ES MAGISTRA
SOUTHERN DISTRICT OF GEORGIA

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