The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CASEY RAFEAL TYLER, )
)
Plaintiff, )
)
v. ) 1:17CV1142
)
KATY POOLE, et al., )
)
Defendants. )
ORDER
This matter is before this court for review of the
Memorandum Opinion and Recommendation (“Recommendation”) filed
on February 14, 2020, by the Magistrate Judge in accordance with
28 U.S.C. § 636(b). (Doc. 31.) In the Recommendation, the
Magistrate Judge recommends that Defendants’ motion for summary
judgment, (Doc. 19), be denied with regard to Plaintiff’s
condition-of-confinement claims and granted with regard to all
other claims. The Recommendation was served on the parties to
this action on February 14, 2020. (Doc. 32.) Defendants and
Plaintiff filed objections. (Docs. 34, 35.) Plaintiff also filed
a response, (Doc. 36), to Defendants’ objections.
This court is required to “make a de novo determination of
those portions of the [Magistrate Judge’s] report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.” Id.
The court has appropriately reviewed the portions of the
Magistrate Judge’s report to which Defendants and Plaintiff
objected and has made a de novo determination which is in accord
with the Magistrate Judge’s report.
The parties’ objections require further discussion on the
part of the court.
Defendants object to the Magistrate Judge’s recommendation
that summary judgment be denied as to Plaintiff’s Eighth
Amendment claim. (Doc. 34 at 2.) Notably, however, Defendants do
not object to the Magistrate Judge’s finding that Defendants
failed to place the Eighth Amendment condition-of-confinement
claim at issue for purposes of summary judgment. The Magistrate
Judge found that “Defendants have submitted nothing to the
record regarding the conditions Plaintiff actually faced, or the
state of mind of the relevant Defendants,” (see generally id.;
Doc. 31 at 13), and Defendants have not objected to that
finding.
A district court is only required to review de novo those
portions of the report to which specific objections have been
made. See 28 U.S.C. § 636(b)(1). “It does not appear that
Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or
any other standard, when neither party objects to those
findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985).
Defendants object to the Recommendation by arguing that
Plaintiff has failed to present “any credible evidence that he
either suffered serious or significant physical or emotional
injury or substantial risk of such.” (Doc. 34 at 3.) While it is
quite possibly correct that Plaintiff did not suffer serious or
significant injury, neither party has submitted evidence by
affidavit or otherwise to address the conditions of confinement
or any injury.
Although no evidence has been presented, Plaintiff alleges
in his complaint that he was in placed in cell restriction and
on January 17, 2015, declared a medical emergency seeking
treatment for exhaustion. (Doc. 2 at 6-7.)1 According to the
complaint, Plaintiff required hospitalization for intravenous
treatment for dehydration. (Id.) In the absence of any facts
submitted by affidavit or otherwise, this court is not able to
say whether these medical conditions were significant, caused by
1 All citations in this Order to documents filed with the
court refer to the page numbers located at the bottom right-hand
corner of the documents as they appear on CM/ECF.
prison conditions, or caused by Plaintiff’s hunger strike.
Plaintiff’s claims may be outlandish from Defendants’
perspective, but in the absence of any facts submitted in
accordance with summary judgment requirements, see Fed. R. Civ.
P. 56(c)(1), and the absence of either objection or argument as
to the Magistrate Judge’s finding as to Defendant’s failure to
submit information in the record, this court declines to
overrule the Magistrate Judge as to Plaintiff’s Eighth Amendment
claim.
Although Defendants did not object to the Magistrate
Judge’s findings and this court is not able to find the
Recommendation clearly erroneous as to those findings to which
objection is not made, the procedural posture of this case is,
at a minimum, troubling. Defendants filed their motion for
summary judgment on June 21, 2019. (Doc. 19.) The Clerk issued
Plaintiff a Roseboro notice advising Plaintiff of his right to
respond. (Doc. 21.) That notice contained the following
language: “Your failure to respond or, if appropriate, to file
affidavits or evidence in rebuttal within the allowed time may
cause the court to conclude that the defendant(s)’ contentions
are undisputed and/or that you no longer wish to pursue the
matter.” (Id. at 1.) LR 7.3(k) provides:
The failure to file a brief or response within the
time specified in this rule shall constitute a waiver
of the right thereafter to file such brief or
response, except upon a showing of excusable
neglect. . . . If a respondent fails to file a
response within the time required by this rule, the
motion will be considered and decided as an
uncontested motion, and ordinarily will be granted
without further notice.
Further, LR 56.1(d) states:
In a responsive brief the opposing party may,
within 30 days after service of the summary judgment
motion and brief, set out the statements required by
LR 7.2(a)(1)-(3) and also set out the elements that
the claimant must prove (with citations to supporting
authority), and either identify any element as to
which evidence is insufficient (and explain why the
evidence is insufficient), or point to specific,
authenticated facts existing in the record or set
forth in accompanying affidavits that show a genuine
issue of material fact, or explain why some rule of
law (e.g., an applicable statute of limitations) would
defeat the claim. The failure to file a response may
cause the Court to find that the motion is
uncontested.
LR 56.1(d)(emphasis added). Plaintiff did not file a response to
Defendants’ motion for summary judgment in spite of the warning
of the Roseboro letter.2
2 Plaintiff argues that his appeal was his response to the
“Roseboro letter.” (Doc. 35 at 1.) Plaintiff made a choice to
file a notice of appeal to the Fourth Circuit rather than
respond in this court to the motion for summary judgment.
According to the opinion of the Fourth Circuit, Plaintiff
appealed the orders denying his motion for appointment of
counsel and the granting of an extension of time to file
dispositive motions, (Doc. 26 at 2), matters that had nothing to
do with his failure to respond to the motion for summary
judgment. The Magistrate Judge did not issue a ruling until well
after the Fourth Circuit issued its judgment and mandate. (See
Docs. 27, 28, 31.) Plaintiff did not respond to the motion for
summary judgment.
Plaintiff’s failure to file a response resulted in, inter
alia, Plaintiff’s failure to respond to Defendants’ argument
that the Eighth Amendment claim was subject to dismissal. (See
Doc. 20 at 15-18.) Furthermore, the failure to respond could,
and arguably should, result in Defendants’ motion for summary
judgment being decided as an uncontested motion. See LR 7.3(k)
and 56.1(d). If the rules are to be fairly applied, as they
should be, then Plaintiff’s failure to respond is arguably as
significant a failing as Defendants’ failure to place any facts
at issue in the Eighth Amendment claim.
In light of Plaintiff’s failure to respond in any fashion
to Defendants’ motion for summary judgment, this court finds as
an initial matter that Plaintiff has waived the right to file an
objection. Plaintiff has filed a number of cases in this court
and has responded to at least one motion for summary judgment
previously. (See, e.g., Tyler v. Hooks, 1:17CV833 (Docs. 7, 8).)
Because Plaintiff is clearly aware of the duty to respond and
the consequences for failing to do so, this court finds his
objections should be overruled for that reason alone.
Plaintiff’s objections are therefore overruled.
Nevertheless, this court will briefly review the objections
on the merits considering the Fourth Circuit’s “strong policy
that cases be decided on the merits,” United States v. Shaffer
Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993).
Plaintiff has introduced new arguments and evidence as part
of his objections to the Recommendation.3 Plaintiff first objects
to the Magistrate Judge’s Recommendation that summary judgment
be granted in favor of Defendants with regard to Plaintiff’s
First Amendment claims. (Doc. 35 at 1-10.) Plaintiff argues
that: (1) the Faith Group Affiliation Declaration Form that
Scotland Correctional Institution (“Scotland”) requires for an
inmate to change his religious affiliation impermissibly
constitutes an investigation of “the Church” and inmates’
religious sincerity; (2) a desire to limit overflow in corporate
worship services and preventing inmates from attending for
reasons other than worshipping, rather than safety, are the real
3 The evidence introduced by Plaintiff are three documents
labeled Exhibits 17, 17-A, and 101. (Doc. 35 at 14–16.) Exhibit
17 is a list of instructions for completion of Faith Group
Affiliation Declaration Forms. (Id. at 14.) Exhibit 17-A is an
unmarked Faith Group Affiliation Declaration Form for Scotland
Correctional Institution. (Id. at 15.) Exhibit 101 is an Inmate
Information Request Form in which Plaintiff seeks to attend a
church or bible study service and is denied by a Scotland
Correctional Institution chaplain because only Christian or
Hebrew Israelite practitioners were approved to attend Christian
services and Plaintiff was listed as a Jewish practitioner. (Id.
at 16.)
objectives of Scotland’s policy; and (3) those objectives are
constitutionally illegitimate.4 (Id. at 3, 6–8.)
None of Plaintiff’s First Amendment arguments have merit.
Even if they did have merit, however, Defendants would be
entitled to qualified immunity because it is not a clearly
established constitutional right for an inmate to attend a
corporate worship service of a group with whom he is not
affiliated.
Plaintiff also, for the first time, raises arguments
elaborating his claims under the Fourteenth Amendment Equal
Protection and Due Process clauses. (Id. at 11–12.)
Specifically, Plaintiff argues that (1) he was entitled to a
hearing before being deprived of the right to attend a corporate
worship service for a religion with which he was not affiliated;
and (2) the policy of permitting only prisoners affiliated with
a religion to attend that religion’s corporate religious
services constitutes unlawful discrimination. (Id.) These
arguments are without merit. However, even if they did have
4 Plaintiff also argues that Defendant Poole lacked the
authority to implement the Scotland policy regarding attendance
at corporate worship services and that the policy contradicts
the policy of the North Carolina Department of Public Safety.
(Doc. 35 at 2.) This argument is without merit, as the scope of
Defendant Poole’s authority and whether the North Carolina
Department of Public Safety’s policy contradict and supersedes
Scotland’s is irrelevant to Plaintiff’s First Amendment claims.
merit, Defendants would be entitled to qualified immunity
because the rights asserted by Plaintiff are not clearly
established.
The court finds Plaintiff’s objections do not change the
substance of the United States Magistrate Judge’s
Recommendation, (Doc. 31), and the court therefore adopts the
Recommendation.
IT IS THEREFORE ORDERED that the Magistrate Judge’s
Recommendation, (Doc. 31), is ADOPTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment, (Doc. 19), is GRANTED IN PART AND DENIED IN PART. The
motion is DENIED with regard to Plaintiff’s condition-of-
confinement claims and GRANTED with regard to all other claims.
This the 31st day of March, 2020.
*
HW Uisan Gober.
United States District Ju
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