Lester v. Georgia Department of Corrections et al

Filing 21

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Defendant's unopposed 18 MOTION for Summary Judgment. It is further RECOMMENDED that the Court DISMISS Plaintiff's 1 Complaint with prejudice, DIRECT the Clerk to C LOSE this case, and DENY Plaintiff in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 8/31/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/17/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

LAYTON LESTER,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-110

v.
OFFICER C. WILLIAMS,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Georgia State Prison in Reidsville, Georgia, filed a
42 U.S.C. § 1983 action, contesting certain conditions of his confinement. (Doc. 1.) On
September 12, 2016, Defendant Officer Curmit Williams (“Defendant”) filed a Motion for
Summary Judgment. (Doc. 18.) The Clerk of Court mailed a Notice to Plaintiff advising him
that Defendant filed a Motion for Summary Judgment and that a response must be filed by
October 6, 2016. (Doc. 19.) That Notice further advised Plaintiff that:
1.
If you do not timely respond to this motion . . . , the consequence may be
that the Court will deem the motion unopposed, and the Court may enter
judgment against you.
2.
If your opponent’s Statement of Material Facts sets forth facts supported
by evidence, the Court may assume that you admit all such facts unless you
oppose those facts with your own Statement of Material Facts which also sets
forth facts supported by evidence.
3.
If a summary judgment motion is properly supported, you may not rest
on the allegations in your [Complaint] alone.
(Id.) Plaintiff filed no Response to Defendant’s Motion for Summary Judgment, and the Court
received no indication this Notice or Defendant’s Motion was undeliverable. However, “the

district court cannot base the entry of summary judgment on the mere fact that the motion [is]
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)
(citation omitted). Specifically, the court “must still review the movant’s citations to the record
to determine if there is, indeed, no genuine issue of material fact.” Mann v. Taser Int’l, Inc., 588
F.3d 1291, 1303 (11th Cir. 2009) (citation omitted). Based on the reasons which follow, I
RECOMMEND the Court GRANT Defendant’s unopposed Motion for Summary Judgment,
DISMISS Plaintiff’s Complaint WITH PREJUDICE, and DIRECT the Clerk of Court to
CLOSE this case. In addition, I RECOMMEND the Court DENY Plaintiff leave to proceed in
forma pauperis on appeal.
BACKGROUND 1
Plaintiff alleges that Defendant, a correctional officer at Georgia State Prison, was
deliberately indifferent to his safety and serious medical needs on July 8, 2015. 2 (Doc. 1.) Prior
to this alleged incident of deliberate indifference, Plaintiff was being disruptive because prison
staff had not addressed an ant infestation in his cell. (Doc. 18-1, p. 1.) Specifically, Plaintiff
threw feces at officers, prevented officers from closing his tray flap, and tried to snatch an
officer’s pepper spray. (Doc. 18-1, p. 1.) During this outburst, another commotion arose in the
dormitory, and officers again failed to address Plaintiff’s request for pest control. Additionally,
another officer informed Plaintiff that he and his cellmate would have to wait to receive their

1

The recited allegations are taken from Plaintiff’s Complaint and Defendant’s Statement of Material
Facts. However, given that Plaintiff has not responded to Defendant’s Motion for Summary Judgment,
including Defendant’s Statement of Facts, the Court need not accept Plaintiff’s allegations as true.

2

Although Plaintiff alleges the incident occurred on July 9, 2015, the incident report reflects that the
incident occurred on July 8, 2015. (Doc. 18-6.)
2

lunch. (Id.) Plaintiff told the officer that he and his roommate would “tear up the cell” if they
did not receive their lunch.
When Plaintiff’s cellmate did not receive a food tray, Plaintiff and his cellmate “tore their
cell up” 3 and started a fire inside the cell between 5:00 p.m. and 5:25 p.m.

(Id.) After

discovering Plaintiff had set his cell on fire, an officer threw water under the door to extinguish
the flames. (Id. at p. 2.) When the fire continued to burn, another officer sprayed a fire
extinguisher toward the cell. Plaintiff and his cellmate then ran to the back of the cell to an open
window, which allowed for ventilation of the smoke fumes.

(Id.)

Defendant approached

Plaintiff’s cell approximately 15 to 20 minutes later. 4 (Id.) At approximately 5:30 p.m., Plaintiff
was moved to a strip cell and detained there until 1:30 a.m. the next morning. (Id. at p. 1.)
Plaintiff alleges he experienced sneezing, headaches, and shortness of breath following
his exposure to fire extinguisher fumes. 5 Plaintiff contends he was denied medical attention
immediately after officers sprayed his cell with a fire extinguisher and following his transfer to
the strip cell. (Doc. 1, p. 7.) Plaintiff eventually received treatment on July 20, 2015, when he
complained of headaches and a congested nose. (Doc. 18-1, p. 3.) Medical personnel diagnosed
Plaintiff with recurring allergic rhinitis and sinusitis and prescribed Zyrtec and nasal spray. (Id.)
Plaintiff continued to seek medical attention for similar issues until May 24, 2016. (Id. at pp. 3–
4.) However, Plaintiff no longer seeks treatment for his breathing issues. (Id.)
3

According to Plaintiff’s deposition testimony, the inmates ripped their bed frames and mattresses apart.
(Doc. 18-7, p. 10.)

4

Plaintiff contends Defendant was “constantly coming to the cell door opening the top flap window
stating ‘now look at your stupid ass can’t even breath [sic],’ ‘dumb muthafucker [sic],’ and laughing.”
(Doc. 1, p. 7.) Defendant, however, contends he “never laughed at or taunted [Plaintiff] for being unable
to breathe.” (Doc. 18-5, p. 4.)

5

To be clear, Plaintiff does not allege that he suffered any injury due to smoke inhalation or from
exposure to the fire he started in his cell. Instead, Plaintiff claims his injuries occurred because officers
sprayed his cell with a fire extinguisher. (Doc. 1, pp. 6–7; Doc. 18-7, p. 12.)
3

DISCUSSION
Defendant asserts that Plaintiff has not presented sufficient evidence to sustain his Eighth
Amendment claims. (Doc. 18-2, p. 7.) Additionally, Defendant maintains Plaintiff’s claims for
monetary damages are barred by the Prison Litigation Reform Act because Plaintiff did not
suffer any more than a de minimis injury as a result of Defendant’s actions. (Id. at p 11.)
Defendant also asserts he is entitled to qualified immunity. (Id. at p. 12.) In moving for
summary judgment, Defendant relies on his Statement of Material Facts, a copy of the transcript
from Plaintiff’s deposition, Plaintiff’s medical records, an incident report, and two declarations
sworn under penalty of perjury.
As set forth below, the undersigned agrees that Plaintiff fails to establish a genuine
dispute of material fact as to his claims, and Defendant’s Motion is due to be granted as a result.
I.

Standard of Review
Summary judgment “shall” be granted if “the movant shows that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute about a material fact is genuine and summary judgment is
inappropriate if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. However, there must exist a conflict in substantial evidence to pose a jury
question.” Hall v. Sunjoy Indus. Grp., Inc., 764 F. Supp. 2d 1297, 1301 (M.D. Fla. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989)).
The moving party bears the burden of establishing that there is no genuine dispute as to
any material fact and that he is entitled to judgment as a matter of law. See Williamson Oil Co.,
Inc. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party

4

must identify the portions of the record which establish that there are no “genuine dispute[s] as to
any material fact and the movant is entitled to judgment as a matter of law.” Moton v. Cowart,
631 F.3d 1337, 1341 (11th Cir. 2011). When the nonmoving party would have the burden of
proof at trial, the moving party may discharge his burden by showing that the record lacks
evidence to support the nonmoving party’s case or that the nonmoving party would be unable to
prove his case at trial. See id. (citing Celotex v. Catrett, 477 U.S. 317, 322–23 (1986)). In
determining whether a summary judgment motion should be granted, a court must view the
record and all reasonable inferences that can be drawn from the record in a light most favorable
to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cty., 630 F.3d
1346, 1353 (11th Cir. 2011).
II.

Deliberate Indifference to Safety Claim
Plaintiff’s deliberate indifference to safety claims give rise to discussion of the Eighth

Amendment’s proscription against cruel and unusual punishment, which imposes a constitutional
duty upon prison officials to take reasonable measures to guarantee the safety of prison inmates.
“‘To show a violation of [his] Eighth Amendment rights, [a p]laintiff must produce sufficient
evidence of (1) a substantial risk of serious harm; (2) the defendants’ deliberate indifference to
that risk; and (3) causation.’” Smith v. Reg’l Dir. of Fla. Dep’t of Corr., 368 F. App’x 9, 14
(11th Cir. 2010) (quoting Purcell ex rel. Estate of Morgan v. Toombs Cty., 400 F.3d 1313, 1319
(11th Cir. 2005)). “To be deliberately indifferent a prison official must know of and disregard
‘an excessive risk to inmate health or safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.’” Id. (quoting Purcell, 400 F.3d at 1319–20). Whether a substantial risk of serious
harm exists so that the Eighth Amendment might be violated involves a legal rule that takes form

5

through its application to facts. However, “simple negligence is not actionable under § 1983,
and a plaintiff must allege a conscious or callous indifference to a prisoner’s rights.” Smith, 368
F. App’x at 14. In other words, “to find deliberate indifference on the part of a prison official, a
plaintiff inmate must show: (1) subjective knowledge of a risk of serious harm; (2) disregard of
that risk; (3) by conduct that is more than gross negligence.” Thomas v. Bryant, 614 F.3d 1288,
1312 (11th Cir. 2010). A prison official must be faced with a known risk of injury that rises to
the level of a “strong likelihood rather than a mere possibility” before his failure to protect an
inmate can be said to constitute deliberate indifference. Brown v. Hughes, 894 F.2d 1533, 1537
(11th Cir. 1990).
Like any deliberate indifference claim, a plaintiff must satisfy both an objective and a
subjective inquiry. Chandler v. Crosby, 379 F.3d 1278, 1289–90 (11th Cir. 2004). Under the
objective component, a plaintiff must prove the condition he complains of is sufficiently serious
to violate the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 8 (1992). As for the
subjective component, “the prisoner must prove that the prison official acted with ‘deliberate
indifference.’” Miller v. King, 384 F.3d 1248, 1260–61 (11th Cir. 2004) (quoting Farmer v.
Brennan, 511 U.S. at 837). To prove deliberate indifference, the prisoner must show that the
prison official “‘acted with a sufficiently culpable state of mind’” with regard to the serious
prison condition at issue. Id. (quoting Chandler, 379 F.3d at 1289–90).
Defendant first asserts Plaintiff has not produced sufficient evidence to prove his
exposure to fire extinguisher fumes created a substantial risk of serious harm. (Doc. 18-2, p. 10–
11.) Next, Defendant asserts he did not know of or disregard any risk of serious harm to
Plaintiff. Specifically, Defendant avers the fumes in Plaintiff’s cell were clear when he returned
to the cell after the fire was extinguished and that Plaintiff did not complain about the fire

6

extinguisher fumes or appear to have any difficulty breathing. (Id. at p. 11.) Defendant further
argues that Plaintiff fails to show his medical condition is causally connected to any exposure to
fire extinguisher fumes. Specifically, Defendant avers Plaintiff’s respiratory condition pre-dated
his exposure to fire extinguisher fumes and that his condition did not worsen following the
exposure. Finally, Defendant maintains Plaintiff’s injuries were de minimis. (Id.)
The undisputed evidence before the Court shows that Plaintiff did not face a substantial
risk of serious harm as a result of being exposed to fire extinguisher fumes inside his cell. As an
initial matter, the record evidence establishes prison staff eliminated any immediate threat to
Plaintiff’s safety by spraying his cell with a fire extinguisher, as Plaintiff had set his cell on fire.
(Doc. 18-5, p. 3.) Furthermore, Plaintiff presents no evidence that the concentration of fire
extinguisher fumes or the amount of time he was exposed to those fumes was unsafe. To the
contrary, the evidence of record shows that Plaintiff had no difficulty breathing, and he suffered
no adverse reaction to fumes while confined to his cell. For example, instead of requesting
medical attention after prison staff sprayed his cell, Plaintiff complained to officers that his
cellmate did not receive a food tray.

(Doc. 18-7, p. 12.)

Furthermore, when Defendant

approached Plaintiff’s cell after the fire was extinguished, Plaintiff asked Defendant “what’s up,
what you want,” instead of expressing any concern for his safety or indicating that he could not
breathe. Accordingly, Plaintiff’s behavior following his exposure to fire extinguisher fumes
shows that he did not face any substantial risk of serious harm, much less one of which
Defendant could have been aware. Moreover, even assuming Plaintiff had a serious medical
need and defendant deliberately ignored that need, there is no evidence that Plaintiff’s injuries
were caused by Defendant’s actions

7

Consequently, because Plaintiff has failed to present evidence creating any genuine
dispute of material fact as to whether he objectively faced a substantial risk of serious harm, he
cannot sustain this claim against Defendant. 6
III.

Deliberate Indifference to Medical Needs Claim
Plaintiff’s claims relating to his respiratory complications and the treatment therefor also

give rise to a discussion of the Eighth Amendment. The Eighth Amendment’s proscription
against cruel and unusual punishment imposes a constitutional duty upon prison officials to take
reasonable measures to guarantee the safety of prison inmates. This duty to safeguard also
embodies the principle expressed by the Court in Estelle v. Gamble, 429 U.S. 97, 104 (1976),
forbidding prison officials from demonstrating deliberate indifference to the serious medical
needs of inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994). However, “not every claim by
a prisoner that he has not received adequate medical treatment states a violation of the Eighth
Amendment.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quoting Estelle, 429
U.S. at 105). Rather, “an inmate must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d
1176, 1186 (11th Cir. 1994).
To prevail on a deliberate indifference claim, a prisoner must demonstrate “(1) a serious
medical need; (2) the defendant’s deliberate indifference to that need; and (3) causation between
that indifference and the plaintiff’s injury.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th
Cir. 2010). A medical need is serious if it “‘has been diagnosed by a physician as mandating
treatment or [is] one that is so obvious that even a lay person would easily recognize the

6

Because no genuine dispute of material fact exists as to the objective prong of Plaintiff’s deliberate
indifference claim, it is unnecessary to fully address the parties’ contentions regarding the subjective
prong and the causation element of Plaintiff’s claim. However, Plaintiff fails to meet those elements as
well.
8

necessity for a doctor’s attention.’” Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007)
(quoting Hill, 40 F.3d at 1187) (emphasis supplied). As for the subjective component, the
Eleventh Circuit has consistently required that “a defendant know of and disregard an excessive
risk to an inmate’s health and safety.” Haney v. City of Cumming, 69 F.3d 1098, 1102 (11th Cir.
1995).

Under the subjective prong, an inmate “must prove three things: (1) subjective

knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than
[gross] negligence.” Goebert, 510 F.3d at 1327.
“The meaning of ‘more than gross negligence’ is not self-evident[.]” Id. In instances
where a deliberate indifference claim turns on a delay in treatment rather than the type of
medical care received, the factors considered are: “(1) the seriousness of the medical need; (2)
whether the delay worsened the medical condition; and (3) the reason for the delay.” Id. “When
the claim turns on the quality of the treatment provided, there is no constitutional violation as
long as the medical care provided to the inmate is ‘minimally adequate.’” Blanchard v. White
Cty. Det. Ctr. Staff, 262 F. App’x 959, 964 (11th Cir. 2008) (quoting Harris, 941 F.2d at 1504).
“Deliberate indifference is not established where an inmate received care but desired different
modes of treatment.” Id.
Defendant argues that Plaintiff did not have an objectively seriously medical need
because “he never passed out from exposure to the fire extinguisher,” “only experienced
sneezing, headaches, and shortness of breath,” and did not complain about any medical issues
when the fire extinguisher fumes abated. (Doc. 18-2, p. 7.) Defendant further argues that, to the
extent Plaintiff was injured at all, these injuries were de minimis. As to whether Defendant
exhibited deliberate indifference, Defendant avers he had no knowledge of any injury to Plaintiff
because he “never heard Plaintiff complain about smoke or the fire extinguisher and never saw

9

or heard anything indicating he could not breathe.” (Id. at p. 9.) To the extent Defendant was
aware of any medical need, Defendant maintains he “never laughed at or taunted Plaintiff for
being unable to breathe” and, therefore, did not deliberately disregard Plaintiff’s medical needs. 7
(Id.) Finally, Defendant argues that, “even assuming that Plaintiff could show an objectively
serious medical need and deliberate indifference to such a need by [Defendant]”, Plaintiff has
failed to present evidence as to causation. Specifically, Defendant contends “the undisputed
evidence shows that any symptoms Plaintiff experienced [following his exposure to fire
extinguisher fumes] were caused by his pre-existing allergic rhinitis[.]” (Id.)
Plaintiff has submitted no evidence supporting his claim that he had a serious medical
need. However, Plaintiff testified during his deposition that he and his cellmate stood at the back
of the cell near an open window to breathe immediately after officers released fire extinguisher
fumes into his cell. 8 (Doc. 18-7, p. 12.) Shortly thereafter, Plaintiff flagged down another
officer and complained that the cell had been sprayed with a fire extinguisher and that his
cellmate had not received his food.

(Id. at p. 11.)

When Defendant came by his cell

approximately 15 to 20 minutes later, Plaintiff asked Defendant “what’s up, what you want.”
(Id.) Defendant testified that “he never observed that [Plaintiff] could not breathe or had any
other serious medical need.” (Doc. 18-5, p. 4.)
Even construing these facts in the light most favorable to Plaintiff, the nonmoving party,
Plaintiff has not shown that he had a serious medical need following his exposure to fire
7

Plaintiff testified in his deposition that Defendant “kept constantly coming back to the window laughing
talking about look at this dumb motherfucker, now you can’t breathe[.]” (Doc. 18-7, p. 12.) Defendant,
however, contends he “never laughed at or taunted [Plaintiff] for being unable to breathe.” (Doc. 18-5,
p. 4.) As discussed herein, the Court need not reach the issue of whether Plaintiff has created a genuine
dispute of material fact as to the subjective component of his claim with this statement he attributes to
Defendant because the Plaintiff failed to create a genuine dispute as to the objective component.
8

However, Plaintiff does not indicate whether his difficulty breathing was attributable to smoke or to fire
extinguisher fumes.
10

extinguisher fumes. Despite Plaintiff’s claims he had to run to the back of his cell to breathe, his
deposition testimony reveals that he was able to speak to officers who walked by and felt well
enough to complain that his cellmate had not received a food tray. In addition, Plaintiff testified
that the open window in his cell allowed for ventilation. (Doc. 18-7, p. 11.) Moreover, as
opposed to requesting medical attention when Defendant approached his cell, Plaintiff asked
Defendant “what’s up, what you want.”
Based upon this evidence, Plaintiff was not only able to breathe after his exposure to fire
extinguisher fumes, but he was capable of carrying on conversations with multiple officers and
demanding that he and his cellmate receive lunch.

Moreover, Defendant declared in his

Affidavit that Plaintiff “was not taken to medical because he had no complaints of injuries”
following his exposure to fire extinguisher fumes. (Doc. 18-5, p. 4.) Corroborating Defendant’s
declaration, Plaintiff averred during his deposition that he first requested medical attention later
that night when he drafted grievances regarding the incident. (Doc. 18-7, p. 14.) Therefore, the
evidence of record, including Plaintiff’s deposition testimony, contradicts Plaintiff’s allegation
that he could not breathe following his exposure to fire extinguisher fumes or that he had any
other serious medical need. 9 Accordingly, Plaintiff fails to create a genuine dispute as to any
material fact regarding the first element of his deliberate indifference claim. 10 As a result,
Plaintiff cannot sustain this claim against Defendant. Therefore, the Court should GRANT
summary judgment in favor of Defendant and DISMISS Plaintiff’s Eighth Amendment claims.
It is unnecessary to address the remaining grounds of Defendant’s Motion.
9

In addition, Dr. Dean Broome, a medical doctor at Georgia State Prison, stated in his Affidavit that
Plaintiff did “not suffer[] any injury as a result of being in his cell when a fire extinguisher was sprayed
outside the cell door.” (Doc. 18-3, p. 3.)

10

Even if Plaintiff had established that he had a serious medical need, he does not establish that
Defendant was aware of that need, that Defendant exhibited deliberate indifference to that need, or that
Defendant’s deliberate indifference caused Plaintiff any injury.
11

III.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 11

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. See Fed. R. App. R. 24(a)(1)(A) (“A party who was
permitted to proceed in forma pauperis in the district-court action, . . ., may proceed on appeal in
forma pauperis without further authorization, unless the district court—before or after the notice
of appeal is filed—certifies that the appeal is not taken in good faith[.]”) (italics supplied). An
appeal cannot be taken in forma pauperis if the trial court certifies, either before or after the
notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3). Good
faith in this context must be judged by an objective standard. Busch v. Cty. of Volusia, 189
F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to
advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the factual allegations are clearly
baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327
(1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma
pauperis action is frivolous and, thus, not brought in good faith, if it is “without arguable merit
either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v.
United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Defendant’s Motion for Summary Judgment, the Court
should DENY Plaintiff in forma pauperis status on appeal, as there are no non-frivolous issues to
raise on appeal, and any appeal would not be taken in good faith.

11

A Certificate of Appealability (“COA”) is not required to file an appeal in a Section 1983 action. See
Fed. R. App. P. 3 & 4; Morefield v. Smith, No. 607CV010, 2007 WL 1893677, at *1 (S.D. Ga. July 2,
2007) (citing Mathis v. Smith, No. 05-13123-A (11th Cir. Aug. 29, 2005) (unpublished)).
12

CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Defendant’s
unopposed Motion for Summary Judgment. (Doc. 18.) I also RECOMMEND that the Court
DISMISS Plaintiff’s Complaint WITH PREJUDICE, DIRECT the Clerk of Court to CLOSE
this case, and DENY Plaintiff in forma pauperis status on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

13

judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO REPORTED and RECOMMENDED, this 17th day of August, 2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

14