Lester James Smith, Jr. v. D/W/S Dewberry, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10607
____________________
LESTER JAMES SMITH, JR.,
Plaintiff-Appellant,
versus
D/W/S DEWBERRY,
CAPT. SHROPSHIRE,
UNIT MANAGER AVERETT,
INMATE MYTON,
GUARD PIERRE, et al.,
Defendants-Appellees.
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2 Opinion of the Court 21-10607
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:16-cv-00293-LMM
____________________
Before GRANT, L UCK , and H ULL , Circuit Judges.
HULL, Circuit Judge:
On appeal, plaintiff Lester Smith, a Georgia prisoner,
contends the district court erred in granting summary judgment in
favor of defendants Anthony Dewberry, Ralph Shropshire, and
William Averett, all officials at Hays State Prison, on his claims for:
(1) failure to protect him from a knife attack by inmate Myton, in
violation of the Eighth Amendment; and (2) retaliation in violation
of the First Amendment. The magistrate judge recommended
granting summary judgment and informed Smith of the time
period for objecting to the report and recommendation (“R&R”)
and the consequences for failing to object. After Smith filed no
objections, the district court adopted the R&R and granted
summary judgment to the defendants.
A party waives the right to challenge on appeal the district
court’s order based on unobjected-to factual and legal conclusions
in a magistrate judge’s R&R. 11th Cir. R. 3-1. In the absence of a
proper objection, however, this Court “may review on appeal for
plain error if necessary in the interests of justice.”
Id. After review
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21-10607 Opinion of the Court 3
and with the benefit of oral argument, we conclude review for
plain error is necessary in the interests of justice.1 While Smith has
not shown plain error as to his First Amendment retaliation claim,
he has as to his Eighth Amendment failure-to-protect claim.
As to the Eighth Amendment claim, the R&R adopted by
the district court emphasized that two hours before Myton
attacked him, Smith told defendants Dewberry and Averett that
“Myton posed a threat to Muslim inmates” and that the defendants
“d[id] not recall any conversations with [Smith] about Myton or
[Smith’s] safety.” However, the summary judgment record
contains Smith’s explicit deposition testimony that: (1) he told
Dewberry and Averett about Myton’s having and displaying a knife
and threatening to hurt Smith specifically, plus inmate Simmons
and one other inmate, not Muslim inmates in the dorm generally;
and (2) they did nothing. Two hours later on the same day, Myton
stabbed Smith with a knife. It is well-settled that the district court
on summary judgment must view the evidence and draw all
1 In his notice of appeal, Smith alleged that he timely filed objections to the
R&R, but the district court never received them. Then Smith’s opening brief
(1) cited our Rule 3-1, (2) expressly pointed out that, when a party fails to file
objections to the R&R, we may “review for plain error if necessary in the
interests of justice,” and (3) argued that the district court had committed plain
error in ruling on the defendants’ summary judgment motion. In response to
the defendants’ assertion that Rule 3-1’s interests of justice exception should
not apply, Smith’s reply brief argued the interests of justice warranted plain
error review. In our view, Smith adequately requested plain error review
under Rule 3-1’s interests of justice exception.
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4 Opinion of the Court 21-10607
reasonable inferences in the light most favorable to the non-
moving party.
See Marbury v. Warden, 936 F.3d 1227, 1232 (11th
Cir. 2019). The district court did not do that here.2
Accordingly, we vacate the district court’s entry of summary
judgment to Dewberry and Averett on Smith’s Eighth Amendment
failure-to-protect claim and remand for the district court to
reconsider this claim, considering the record in the light most
favorable to Smith. We affirm the district court’s entry of
summary judgment (1) to Shropshire because he was unaware of
2 Under Northern District of Georgia Local Rule 56.1, where, as here, the non-
moving party has failed to properly respond to the moving party’s statement
of undisputed material facts, the district court may deem those facts admitted.
See N.D. Ga. Local Rule 56.1(B)(2)(a)(1)-(2). However, before granting
summary judgment, the district court also “must ensure that the motion itself
is supported by evidentiary materials” by “review[ing] the movant’s citations
to the record to determine if there is, indeed, no genuine issue of material
fact.”
Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008).
Here the defendants’ citations to the record plainly did not support
their statement of fact in paragraph 22 that Smith told them only that Myton
was threatening to hurt “some of my Muslim brothers.” Rather, the record
pages the defendants cited showed that Smith told Dewberry and Averett
about Myton’s having and displaying a knife and threatening to hurt Smith
specifically. What’s more, the defendants did not deny Smith’s version of
what he told them but said they did not recall “any conversations with Smith
regarding Myton, threats from Myton, or concerns for Smith’s safety prior to
the Incident.”
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21-10607 Opinion of the Court 5
Myton’s threat to Smith, and (2) to all defendants on Smith’s First
Amendment retaliation claim.3
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
3 The district court never addressed qualified immunity, and we decline to do
so in the first instance. We also conclude the district court did not abuse its
discretion in denying Smith’s motions to appoint counsel.
See Bass v. Perrin,
170 F.3d 1312, 1320 (11th Cir. 1999).
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21-10607 L UCK , J., Concurring in part and dissenting in part 1
L UCK , Circuit Judge, concurring in part and dissenting in part:
I agree with the majority opinion that the district court did
not err in granting summary judgment for the prison officials on
Lester Smith’s First Amendment retaliation claim and did not
abuse its discretion in denying Smith’s motions to appoint counsel.
But I respectfully dissent from the part of the majority opinion re-
versing the summary judgment for the prison officials on Smith’s
Eighth Amendment failure-to-protect claim. Smith waived his
right to challenge on appeal the summary judgment on this claim
because he didn’t object to the factual and legal conclusions in the
magistrate judge’s report and recommendation.
See 11th Cir. R. 3-
1 (“A party failing to object to a magistrate judge’s findings or rec-
ommendations contained in a report and recommendation in ac-
cordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right to challenge on appeal the district court’s order based on un-
objected-to factual and legal conclusions if the party was informed
of the time period for objecting and the consequences on appeal
for failing to object.”);
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248,
1257 (11th Cir. 2017) (“Pursuant to 11th Cir. R. 3-1, a party who
fails to object to a magistrate judge’s findings or recommendations
in an R&R ‘waives the right to challenge on appeal the district
court’s order based on unobjected-to factual and legal conclusions,’
provided the party was given proper notice of the objection time
period and the consequences of failing to do so, as was the case
here.”),
abrogated on other grounds by Bostock v. Clayton
County, 140 S. Ct. 1731 (2020).
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2 L UCK , J., Concurring in part and dissenting in part 21-10607
There’s a “rarely” applied exception to our waiver rule
where, “if necessary in the interests of justice,” we will review a
waived objection for plain error.
See 11th Cir. R. 3-1 (“In the ab-
sence of a proper objection, however, the court may review on ap-
peal for plain error if necessary in the interests of justice.”);
Evans,
850 F.3d at 1257 (“Consequently, we will only review a waived ob-
jection, for plain error, if necessary in the interests of justice. Re-
view for plain error rarely applies in civil cases.” (citation and quo-
tation omitted)). But the rare exception doesn’t apply here because
Smith didn’t argue in his initial brief that reviewing his waived ob-
jections was necessary and in the interests of justice. “We have
long held that an appellant abandons a claim when he either makes
only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority,”
Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014), as Smith did
in the one-sentence-drive-by in the standard of review section of
his brief. And “mak[ing] some arguments and cit[ing] some author-
ities in [his] reply brief . . . come[s] too late.”
Id. at 683. In any
event, like in
Evans, review is not necessary and in the interests of
justice.
See Evans, 850 F.3d at 1250–52, 1257–58 (refusing to apply
the rare exception to the plaintiff’s retaliation claim even though
she was denied equal work and pay, harassed, and physically as-
saulted and battered because of her gender nonconformity and sex-
ual orientation and even though an amicus brief timely raised ob-
jections to dismissing the retaliation claim and the objections were
before the district court).
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21-10607 L UCK , J., Concurring in part and dissenting in part 3
Even if the rare exception applied, Smith has not met the
heightened civil plain error standard.
See id. at 1257 (Even when
plain error review applies to a waived objection, “we require a
greater showing of error than in criminal appeals.”). “Under
the civil plain error standard, we will consider an issue not raised
in the district court if it involves a pure question of law, and if re-
fusal to consider it would result in a miscarriage of justice.”
Burch
v. P.J. Cheese, Inc., 861 F.3d 1338, 1352 (11th Cir. 2017) (quotation
omitted).
First, there was no procedural error. The district court re-
viewed the record as we directed it do when a party doesn’t comply
with Northern District of Georgia local rule 56.1—it reviewed the
summary judgment movant’s “citations to the record to determine
if there is, indeed, no genuine issue of material fact.”
See Reese v.
Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008) (“[A]fter deeming the
movant’s statement of undisputed facts to be admitted pursuant to
Local Rule 56.1, the district court must then review the movant’s
citations to the record to determine if there is, indeed, no genuine
issue of material fact.” (quotation omitted)). We know the district
court complied with
Reese and reviewed the citations to the record
because the district court told us that it determined the prison offi-
cials’ record citations supported the admitted facts. Second,
Smith’s Eighth Amendment claim does not involve a pure question
of law—as the majority opinion explains, there’s a factual dispute
about what happened. And third, refusing to consider Smith’s fail-
ure-to-protect claim will not result in a miscarriage of justice.
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4 L UCK , J., Concurring in part and dissenting in part 21-10607
Smith cannot show that any violation of his Eighth Amendment
rights was clearly established as he was required to do to overcome
the prison officials’ qualified immunity. It cannot be a miscarriage
of justice to grant summary judgment on a claim to which the
prison officials are immune.
I would affirm the summary judgment for the prison officials
on Smith’s Eighth Amendment failure-to-protect claim.
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