Michael Freeman v. Deputy Warden Sample et al

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 18-12649
Non-Argument Calendar
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D.C. Docket No. 7:16-cv-00120-WLS-TQL

MICHAEL FREEMAN,

Plaintiff-Appellant,

versus

DEPUTY WARDEN SAMPLE,
Irwin County Detention Center,
WARDEN BENNETTE,
Irwin County Detention Center,
CAPTAIN AKERS,
Irwin County Detention Center,

Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Georgia
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(May 12, 2020)
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Before GRANT, HULL, and MARCUS, Circuit Judges.
PER CURIAM:
Michael Freeman, a federal prisoner proceeding pro se, appeals the district
court’s entry of summary judgment in favor of the defendants in his civil rights
lawsuit, in which he alleged that the defendants refused to accommodate his
Islamic dietary needs and refused to permit him to observe Ramadan. Freeman
also challenges the district court’s denial of his motions for the appointment of
counsel and to compel discovery, and the court’s order striking his second response
to the defendants’ motion for summary judgment. After a careful review of the
record and the parties’ briefs, we affirm.
I.
While incarcerated at Irwin County Detention Center (ICDC) in Ocilla,
Georgia, Freeman submitted several request and grievance forms declaring that he
was Muslim and requesting kosher meals and permission to observe Ramadan.
Assistant Jail Administrator Renee Sample denied his requests, explaining that
Freeman had not stated a religion that observed Ramadan or required a special diet
when he arrived at the jail. Captain Akers answered one of Freeman’s grievances,
referring Freeman to Sample’s earlier response.
Angela Foster, an ICDC grievance officer, also responded to one of
Freeman’s grievances, stating that Freeman had identified his religion as “Yaweh”
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on his first admission to ICDC and had stated at the time of his current admission
that he was Christian. She advised Freeman that he could change his religious
designation if he wished.
According to Sample, Foster told her that Freeman had stopped claiming to
be a member of Church Yaweh after Foster informed him that followers of that
religion did not require a special diet. Foster also said that she had spoken to
Freeman about changing his religious designation and he had laughed about it and
treated the forms to change his religion as a joke. Sample added a note to Foster’s
response, telling Freeman that she had contacted a Claiborne County facility where
Freeman had been incarcerated on three previous occasions, and administrators
there had verified that, on each occasion, Freeman was “only on a pork free diet no
religion.” Sample advised Freeman that ICDC’s normal meals were pork free and
should accommodate his dietary needs. Freeman alleged that he wrote to Warden
Bennette to appeal Sample’s decision but did not get a response.
Freeman filed suit in federal district court pursuant to 42 U.S.C. § 1983,
claiming that the defendants’ refusal to provide kosher meals and permit him to
observe Ramadan violated his rights under the First Amendment’s Free Exercise
and Establishment Clauses, the Fourteenth Amendment’s Equal Protection Clause,
the Religious Freedom Restoration Act (RFRA), and the Religious Land Use and
Institutionalized Persons Act (RLUIPA). He alleged that he suffered loss of sleep,
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weight loss, hunger pains, dizziness, increased agitation, anxiety, and depression,
and he sought monetary damages and declaratory and injunctive relief. While his
action was pending, Freeman was transferred from ICDC to federal prison.
The parties filed cross-motions for summary judgment. The district court
denied Freeman’s motion and granted summary judgment in favor of the
defendants, finding that (1) the defendants, as state employees, are not subject to
RFRA, (2) Freeman’s RLUIPA claims failed because monetary damages are not
available against the defendants under RLUIPA, and Freeman’s request for
injunctive relief was moot because of his transfer to another facility; (3) Freeman
had presented no evidence that the defendants intentionally discriminated against
him on the basis of his race or nationality in violation of the Fourteenth
Amendment; (4) to the extent that Freeman raised an Eighth Amendment claim in
his summary judgment motion, his claim that the defendants failed to
accommodate his religious dietary needs arose under the First Amendment, not the
Eighth; and (5) the defendants were entitled to qualified immunity on Freeman’s
First Amendment claim, because they reasonably believed that his professed
religious beliefs were not sincerely held and the refusal to accommodate an
insincere religious belief did not violate any clearly established right.
On appeal, Freeman challenges the district court’s rulings on several
procedural motions, and he argues that the district court erred in rejecting his
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Eighth Amendment claim and determining that the defendants were entitled to
qualified immunity on his First Amendment free exercise claim. We consider each
ruling in turn. But we note that, in his opening brief on appeal, Freeman does not
make any argument challenging the district court’s conclusions regarding his
claims under the Fourteenth Amendment, RFRA, or RLUIPA. “[P]assing
references” to an issue in an appellant’s opening brief are not enough to bring the
issue before this Court on appeal, and while we read pro se submissions liberally,
we will not consider arguments raised by a pro se appellant for the first time in his
reply brief. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81, 683
(11th Cir. 2014); Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). We
therefore affirm without discussion the district court’s judgment on those claims.
See Sapuppo, 739 F.3d at 683.
II.
We review the district court’s rulings on Freeman’s motions for the
appointment of counsel and to compel discovery and on the defendants’ motion to
strike for abuse of discretion. See Josendis v. Wall to Wall Residence Repairs,
Inc., 662 F.3d 1292, 1306 (11th Cir. 2011); Van Poyck v. Singletary, 11 F.3d 146,
148 (11th Cir. 1994).

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A.
“A plaintiff in a civil case has no constitutional right to counsel.” Bass v.
Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). The appointment of counsel is “a
privilege that is justified only by exceptional circumstances, such as where the
facts and legal issues are so novel or complex as to require the assistance of a
trained practitioner.” Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987).
Here, Freeman failed to show the existence of exceptional circumstances
warranting the appointment of counsel. His legal claims and the facts that he
alleged to support them were relatively straightforward, and Freeman—with the
benefit of the district court’s broad reading of his pro se pleadings—was able to
adequately describe his claims and the relief that he sought. Freeman’s chief
argument is that he needed an attorney to help him conduct discovery and gather
evidence, but the record shows that Freeman was able to serve and pursue
discovery on his own, including filing two motions to compel discovery—one of
which was granted. Accordingly, the district court did not abuse its discretion in
denying Freeman’s motion for the appointment of counsel.
B.
Freeman argues that the district court abused its discretion in denying his
second motion to compel discovery. In that motion, Freeman asserted that the
defendants had not produced all documents relating to rules and policies governing
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inmate participation in Ramadan and the jail’s kosher diet, and had failed to
produce copies of his written request forms and communications to Deputy
Warden Sample and Warden Bennette. The defendants responded that they had
produced all responsive documents in their possession. They represented that they
did not have copies of Freeman’s communications because the custom at the time
of his detention was for the administrator to write a response on the inmate’s
request form and return the original document to the inmate. And they stated that
they had produced a demographic breakdown of the participants in Ramadan rather
than a list of the inmates’ names because many of the participants were
immigration detainees and ICDC did not have permission from the Department of
Homeland Security to disclose their names.
District courts have broad discretion under Federal Rule of Civil Procedure
26 to compel or deny discovery. Josendis, 662 F.3d at 1306. Under “the abuse of
discretion standard, we will leave undisturbed a district court’s ruling unless we
find that the district court has made a clear error of judgment, or has applied the
wrong legal standard.” Id. at 1307 (citation omitted). Freeman has not met that
standard here. The defendants represented that they had fully complied with
Freeman’s discovery requests and Freeman did not provide any basis for the
district court to conclude that additional responsive documents had been destroyed
or withheld. Under the circumstances, the court’s decision was within the “broad
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‘range of choice’ open to the district court” in ruling on a motion to compel.
Holloman v. Mail-Well Corp., 443 F.3d 832, 844 (11th Cir. 2006).
C.
Freeman also takes issue with the magistrate judge’s order striking his
supplemental response to the defendants’ motion for summary judgment. Freeman
initially filed a separate nine-page response to the defendants’ argument that he
had not exhausted available administrative remedies, along with a motion for leave
to exceed the 20-page limit for responsive pleadings set by local rules. The
magistrate judge granted his motion in part, stating that Freeman could file an
additional 20-page brief. Freeman then filed a 26-page response, which the
defendants moved to strike. The magistrate judge granted the defendants’ motion
and struck the 26-page brief on the ground that it violated the court’s order to limit
his supplemental response to 20 pages, but granted Freeman additional time to file
a response in compliance with the order. Freeman complied within the time
provided.
Freeman argues that the magistrate judge should have shown him additional
leniency as a pro se litigant and considered his 26-page brief, rather than making
him file a shorter one. He contends that because the defendants’ exhaustion
arguments could have been made in a motion to dismiss, the court should not have
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counted his initial nine-page brief as part of his summary judgment response. We
are not persuaded.
Although courts “are to give liberal construction to the pleadings of pro se
litigants, ‘we nevertheless have required them to conform to procedural rules.’”
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). The magistrate judge
allowed Freeman a total of 29 pages for his response brief, nine pages over the
limit set by the local rules. See M.D. Ga. L.R. 7.4. And when Freeman filed a
response brief that exceeded even this allowance, the magistrate judge gave him
additional time to file a substitute brief. Requiring Freeman to comply with the
court’s order setting a generously expanded page limit was well within the court’s
broad discretion in such matters.
III.
Turning to Freeman’s substantive claims, Freeman argues that the district
court erred in determining that (1) his allegation that he was denied a kosher diet
did not state a claim for deliberate indifference to a serious medical need in
violation of the Eighth Amendment; and (2) the defendants were entitled to
qualified immunity on his First Amendment free exercise claim.
A.
The Eighth Amendment’s prohibition of “cruel and unusual punishments”
imposes an affirmative obligation to provide prison inmates with medical
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treatment. Estelle v. Gamble, 429 U.S 97, 103–04 (1976). A prison official’s
“deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.”
Id. at 104 (internal citation omitted). To prevail on a § 1983 claim for such a
violation, a prisoner “must show: (1) a serious medical need; (2) a defendant’s
deliberate indifference to that need; and (3) causation between that indifference
and the plaintiff’s injury.” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir.
2016).
Reading his complaint broadly, Freeman claimed that he lost weight and
suffered hunger pains and anxiety because he was not served a kosher diet and was
not able to eat all of the food provided to him. These allegations do not state a
claim under the Eighth Amendment because even if accepted as true, they do not
establish that Freeman had a serious medical need that the defendants deliberately
failed to address. See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir.
2009) (“A serious medical need is ‘one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.’” (citation omitted)). Freeman
does not allege that the defendants failed to provide edible meals, or that he had
any medical condition that required a kosher diet. Instead, he alleged that he
refused to eat some of the food provided because it was not prepared in accordance
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with his religious beliefs. The district court correctly interpreted this claim as
arising under the First Amendment, not the Eighth.
B.
We review the district court’s ruling on a motion for summary judgment on
qualified immunity grounds de novo, “applying the same legal standards that
governed the district court.” Feliciano v. City of Miami Beach, 707 F.3d 1244,
1247 (11th Cir. 2013). Summary judgment is appropriate where “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).
Qualified immunity shields government officials performing discretionary
functions “from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To receive
qualified immunity, a defendant must first prove that he was acting within the
scope of his discretionary authority when the relevant conduct took place.
Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir. 2019). Here, the parties do
not dispute that the defendants were acting within the scope of their discretionary
authority when they denied Freeman’s dietary requests.
“Once it has been determined that the official was acting within his
discretionary duties, the burden shifts to the plaintiff to show (1) that the official
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violated a constitutional right and (2) that the right was clearly established at the
time of the alleged violation.” Id. “Somewhat more concretely, whether an
official protected by qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639
(1987) (internal citations omitted). In other words, government officials will be
shielded by qualified immunity “as long as their actions could reasonably have
been thought consistent with the rights they are alleged to have violated.” Id. at
638.
The Free Exercise Clause of the First Amendment “requires government
respect for, and noninterference with, the religious beliefs and practices of our
Nation’s people.” Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). To plead a valid
free exercise claim, a plaintiff “must allege that the government has impermissibly
burdened one of his ‘sincerely held religious beliefs.’” Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1294 (11th Cir. 2007) (citation omitted). In the RLUIPA context,
the Supreme Court has noted that “prison officials may appropriately question
whether a prisoner’s religiosity, asserted as the basis for a requested
accommodation, is authentic.” Cutter, 544 U.S. at 725 n.13.
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Here, it was objectively reasonable for the defendants to conclude that
Freeman’s claim to the Muslim faith was not authentic, and that denying his
request for kosher meals therefore did not burden one of his “sincerely held
religious beliefs.” When they denied his requests, the defendants were aware that
ICDC’s computerized intake forms indicated that Freeman’s religion was recorded
as Christian on each of his seven admissions to ICDC, including the admission at
issue. They had also received information from an ICDC grievance officer that
Freeman had falsely claimed to be a member of another religion (Church Yaweh)
in an effort to get a special religious diet, and that when Freeman was asked about
changing his religious designation at ICDC, he had laughed and treated the forms
to change his religion as a joke.
1
Finally, they had received information from
another jail facility where Freeman had been housed on several occasions,
indicating that he had never informed anyone at that facility that he was Muslim or
that he required a special religious diet.
Because it was reasonable for the defendants to believe that Freeman’s claim
to religious beliefs requiring a kosher diet was in sincere, it was also reasonable for

1
Freeman denies that he ever claimed to be a member of Church Yaweh or that he laughed about
changing his religious designation or treated the forms as a joke. But he does not contest
Sample’s testimony that Foster told her that Freeman did those things—and indeed, one of the
request forms that Freeman submitted as evidence contains a statement by Foster referencing his
earlier short-lived affiliation with Church Yaweh. Even if Foster’s statements to Sample were
not true, Sample could reasonably have believed the information she received from her
subordinate, and the protection of qualified immunity extends to “mistakes in judgment, whether
the mistake is one of fact or one of law.” Butz v. Economou, 438 U.S. 478, 507 (1978).
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them to conclude that denying his requests for kosher meals did not violate his
First Amendment free exercise rights. The district court did not err in granting
summary judgment for the defendants on qualified immunity grounds. See
Anderson, 483 U.S. at 640–41.
IV.
For the reasons discussed above, the district court did not abuse its discretion
in denying Freeman’s motions for the appointment of counsel and to compel
discovery, or in granting the defendants’ motion to strike Freeman’s second
response to their motion for summary judgment. The district court also correctly
construed Freeman’s claim that the defendants failed to accommodate his religious
dietary needs as arising under the First Amendment, rather than the Eighth
Amendment, and correctly determined that the defendants were entitled to
qualified immunity on that claim. We therefore affirm.
AFFIRMED.
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