Kister v. Robbins (INMATE 1)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JOHN ANDREW KISTER, )

)

Plaintiff, )

)

v. ) Case No. 2:20-cv-1070-ECM-CWB

) (WO)

LT. ROBBINS, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. Introduction1

John Andrew Kister, a pro se inmate, has filed a complaint under 42 U.S.C. § 1983

to challenge actions allegedly occurring at Bullock Correctional Facility. (Doc. 1 at pp. 4-6).

Named as defendants are Lt. Bryant Robbins and Warden Patrice Richie Jones. (Id.). Kister

alleges that he was assaulted by inmates on December 4, 2020 and that Lt. Robbins and

Warden Jones failed to protect him. (Id. at p. 5). Kister additionally alleges that Lt. Robbins

used excessive force against him, i.e., that Lt. Robbins “punched me several times” and “also

dragged and pushed me.” (Id.). Kister seeks $100,000.00 in monetary damages and placement

inside the RTU at Donaldson Correctional Facility or administrative segregation. (Id. at p. 6).

It is unclear whether Lt. Robbins and Warden Jones are sued in their individual or official

capacities.

1 References to documents filed in this action are designated as “Doc.” Page references are to the

electronic numbering affixed by the CM/ECF filing system and may not correspond to pagination

on the original version as presented for filing.

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Lt. Robbins and Warden Jones jointly filed an Answer and Special Report (Doc. 25)

regarding Kister’s claims, which was supplemented to include additional factual information.

(Docs. 56 & 58). After reviewing the information submitted by Lt. Robbins and Warden Jones,

the court directed Kister to file a written response supported by affidavits or other statements made

under penalty of perjury. (Doc. 59). Kister thereafter filed various responsive materials.

(Docs. 60, 61, & 62). Kister also has filed several other sworn statements and verified materials

over the course of this action. (Docs. 1, 1-1, 33, & 45).

The parties were previously given notice that “the court may at any time [after expiration

of the time for Kister to file a response] and without further notice to the parties (1) treat the special

report and any supporting evidentiary materials as a motion for summary judgment, and (2) after

considering any response …, rule on the dispositive motion in accordance with the law.”

(Doc. 59 at pp. 2-3). Pursuant to that disclosure, the undersigned will now treat the

Answer and Special Report as having presented arguments for summary judgment and will

recommend that summary judgment be granted in favor of Lt. Robbins and Warden Jones on all

claims.

II. Summary Judgment Standard

Summary judgment is appropriate when the moving party shows that there is no

genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a). A dispute “is ‘genuine’ if the record as a whole could lead a reasonable trier

of fact to find for the nonmoving party …. [A fact] is ‘material’ if it might affect the outcome of

the case under the governing law.” Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489,

1496 (11th Cir. 1996) (citation omitted).

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The party moving for summary judgment “always bears the initial responsibility of

informing the district court of the basis for the motion.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). That responsibility includes identifying the portions of the record illustrating the

absence of a genuine dispute of material fact. Id. Alternatively, a movant who does not have a

trial burden of production can simply assert that the nonmoving party “cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory

committee’s note (“Subdivision (c)(1)(B) recognizes that a party need not always point to specific

record materials. … [A] party who does not have the trial burden of production may rely on a

showing that a party who does have the trial burden cannot produce admissible evidence to carry

its burden as to the fact.”). Under either scenario, the burden then shifts to the nonmoving party

to establish that a genuine dispute of material fact exists as to each element of the underlying

claims. See Celotex Corp., 477 U.S. at 324; Fed. R. Civ. P. 56(c)(1)(A). To establish a genuine

dispute of material fact, the nonmoving party must produce evidence such that a reasonable

trier of fact could return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., Inc.,

276 F.3d 1275, 1279 (11th Cir. 2001). In determining whether a genuine dispute of material fact

exists, the court must view all of the evidence in a light most favorable to the nonmovant and

draw all justifiable inferences from the evidence in the nonmovant’s favor. McCormick v. City of

Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003); see also Fed. R. Civ. P. 56(a).

III. Facts

Kister claims that he was assaulted by inmates at Bullock Correctional Facility on

December 4, 2020 and that Lt. Robbins and Warden Jones failed to protect him. (Doc. 1 at p. 5).

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He more specifically alleges that he was “struck from behind on my head with a metal cane

[and] was also struck several times on my right arm and hand.” (Id.; see also Doc. 1-1).

An inmate Body Chart created on December 14, 2020 at 6:59 a.m. did show “healing,

crusted abrasions” on Kister’s parietal skull and right forearm with “no redness, drainage,

tenderness noted.” (45-1 at p. 1). Kister later submitted a sick call request on March 1, 2021

complaining that a lump on his head remained “tender” from the December 4, 2020 incident.

(Doc. 33-1 at p. 1; Doc. 45-3 at p. 1). A progress report from March 3, 2021 reflects that

Kister continued to have a painful lump on the left side of his head, which he attributed to the

December 4, 2020 incident. (Doc. 45-2 at p. 1). The progress report further reflects that Kister

complained of right-side shoulder pain that had persisted for a month but that he reported not

recalling how the injury occurred. (Id.). A subsequent progress note from a March 5, 2021

evaluation reflects that Kister again complained at that time of “right shoulder pain” and “left side

scalp soreness.” (Doc. 33-1 at p. 2).

Kister asserts that when he reported the attack, Lt. Robbins “put me right back into the

RTU, albeit in a different dorm - which means nothing as the dorms intermingle several times a

day.” (Doc. 1 at p. 5). Kister additionally claims that “Lt. Robbins hit me, pushed me, and pulled

me towards the RTU dorms” (Doc. 62 at p. 1), that “Lt. Robbins moved the prisoner who hit me

with the metal lamp onto the bunk directly below mine” (Id.), and that Warden Jones “condones

violence by prisoners and her staff, as neither were punished for this incident” (Id. at p. 2).

In response, Lt. Robbins has stated under oath that “I have never been made aware that any

inmate or officer intended to attack Kister” and that “I never placed my hands or any equipment

on inmate Kister.” (Doc. 58-2 at p. 2). Warden Jones likewise has stated under oath that she

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has seen “no objective factual evidence to indicate any substantial risk of serious harm that

exist[ed] to inmate Kister ... [nor did she have] knowledge of any threat to inmate Kister at any

time.” (Doc. 58-1 at pp. 2-3: “Kister did not tell me or any other ADOC official that other inmates

posed any harm to his safety on or around December 4, 2020, or before or after the attack.”).

IV. Discussion

A. Eleventh Amendment immunity bars Kister’s damages claims against

Lt. Robbins and Warden Jones in their official capacities.

Lt. Robbins and Warden Jones are entitled to absolute immunity against any claims Kister

might be asserting against them in their official capacities. Official capacity suits are “in

all respects other than name, ... treated as a suit against the entity.” Kentucky v. Graham,

473 U.S. 159, 166 (1985). As such, a state employee may not be sued in his official capacity

unless the state has waived its Eleventh Amendment immunity, see Pennhurst State School &

Hospital v. Halderman, 465 U.S. 89, 100 (1984), or Congress has abrogated the immunity, see

Seminole Tribe v. Florida, 517 U.S. 44, 59 (1996). With specific respect to the type of claims

now being asserted by Kister, it has been recognized that “Alabama has not waived its

Eleventh Amendment immunity in § 1983 cases, nor has Congress abrogated it.” Holmes v. Hale,

701 F. App’x 751, 753 (11th Cir. 2017) (citing Carr v. City of Florence, Ala., 916 F.2d 1521,

1525 (11th Cir. 1990)). Accordingly, Lt. Robbins and Warden Jones are both entitled to

sovereign immunity as to any claims for monetary damages against them in their official

capacities. See, e.g., Selensky v. Alabama, 619 F. App’x 846, 849 (11th Cir. 2015) (“[T]he

Eleventh Amendment prohibits federal courts from entertaining suits by private parties against

States and their agencies [or employees].”); Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1277

(11th Cir. 1998) (holding that state officials sued in their official capacities are protected under

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the Eleventh Amendment from suit for damages); Edwards v. Wallace Cmty. Coll., 49 F.3d 1517,

1524 (11th Cir. 1995) (holding that damages are unavailable from state official sued in his official

capacity).

B. Kister has failed to demonstrate a genuine dispute of material fact as to

his claims against Lt. Robbins and Warden Jones for deliberate indifference.

Officials responsible for prison inmates may be held liable under the Eighth Amendment

for acting with “deliberate indifference” toward an inmate’s health and safety when the official

knows that the inmate faces “a substantial risk of serious harm” and yet disregards the risk by

failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825, 828 (1994).

“It is not, however, every injury suffered by one prisoner at the hands of another that translates

into constitutional liability for prison officials responsible for the victim’s safety.” Id. at 834.

A constitutional violation occurs only “when a substantial risk of serious harm, of which the

official is subjectively aware, exists and the official does not respond reasonably to the risk.”

Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003), abrogated in part on other grounds by

Randall v. Scott, 610 F.3d 701 (11th Cir. 2010).2

“[D]eliberate indifference describes a state of mind more blameworthy than negligence,”

and ordinary lack of care for a prisoner’s health or safety will not support an Eighth Amendment

2 “Within [a prison’s] volatile community, prison administrators are to take all necessary steps to

ensure the safety of ... the prison staffs and administrative personnel. ... They are [also] under an

obligation to take reasonable measures to guarantee the safety of the inmates themselves.” Hudson

v. Palmer, 468 U.S. 517, 526-27 (1984) (internal quotation marks omitted). Nonetheless, the

Eleventh Circuit has consistently stressed that a “prison custodian is not the guarantor of a

prisoner’s safety.” Popham v. City of Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990); Purcell

ex rel. Estate of Morgan v. Toombs County, Ga., 400 F.3d 1313 (11th Cir. 2005) (same). “Only

[a] prison official’s deliberate indifference to a known, substantial risk of serious harm to an inmate

violates the Eighth Amendment.” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014)

(internal quotation marks and citation omitted).

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claim. Farmer, 511 U.S. at 837. “In order to state a § 1983 cause of action against prison officials

based on a constitutional deprivation [under the Eighth Amendment], there must be at least some

allegation of a conscious or callous indifference to a prisoner’s rights, thus raising the tort to a

constitutional stature.” Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir. 1982). The law is

settled that both objective and subjective elements are necessary. Caldwell v. Warden, FCI

Talladega, 748 F.3d at 1090, 1099 (11th Cir. 2014).

With respect to the objective element, an inmate must show that “an objectively substantial

risk of serious harm … exist[ed].” Marsh v. Butler County, Ala., 268 F.3d 1014, 1028-29

(11th Cir. 2001), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

“The known risk of injury must be a strong likelihood, rather than a mere possibility before a [state

official’s] failure to act can constitute deliberate indifference.” Brown v. Hughes, 894 F.2d 1533,

1537 (11th Cir. 1990) (internal quotation marks and citations omitted). “Merely negligent failure

to protect an inmate from attack does not justify liability under section 1983.” Id. As to the

subjective element, “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 … .”

Farmer, 511 U.S. at 837-38 (internal quotation marks omitted). A defendant’s subjective

knowledge of the risk must be specific to that defendant because “imputed or collective knowledge

cannot serve as the basis for a claim of deliberate indifference.” Burnette v. Taylor, 533 F.3d 1325,

1331 (11th Cir. 2008) (“Each individual Defendant must be judged separately and on the basis of

what that person [knew at the time of the incident].”). And finally, “once it is established that the

official is aware of this substantial risk, the official must react to this risk in an objectively

unreasonable manner.” Marsh, 268 F.3d at 1028-29. In sum, a prison official cannot be held liable

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under the Eighth Amendment unless there is an objectively substantial risk of serious harm to an

inmate, the prison official had subjective knowledge of the risk, and despite such knowledge the

prison official consciously disregarded the risk. Farmer, 511 U.S. at 837 (“[A]n official’s failure

to alleviate a significant risk that he should have perceived but did not, while no cause for

commendation, cannot under our cases be condemned as the infliction of punishment.”); Campbell

v. Sikes, 169 F.3d 1353, 1364 (11th Cir. 1999) (citing Farmer, 511 U.S. at 838) (“Proof that the

defendant should have perceived the risk, but did not, is insufficient.”); Cottrell v. Caldwell,

85 F.3d 1480, 1491 (11th Cir. 1996) (same).

Here, Kister alleges that Lt. Robbins and Warden Jones failed to protect him from an

inmate assault at Bullock Correctional Facility. Based upon a careful review of all evidence in the

record, the undersigned concludes that Kister has failed to present evidence that either Lt. Robbins

or Warden Jones was aware that he was at substantial risk of suffering serious harm from an inmate

assault on or leading up to December 4, 2020. There simply is no evidence of any advance warning

such that the assault reasonably could have been anticipated or prevented. Nor is there any

evidence of an extended altercation that could have been stopped. Under the circumstances

presented, the undersigned therefore concludes that summary judgment is due to be granted

in favor of Lt. Robbins and Warden Jones on Kister’s claims for deliberate indifference. See

Johnston v. Crosby, 135 F. App’x 375, 377 (11th Cir. 2005).

C. Kister has failed to demonstrate a genuine dispute of material fact as to

his claim against Lt. Robbins for excessive force.

Claims of excessive force are governed by the Eighth Amendment’s proscription against

cruel and unusual punishment. See Campbell, 169 F.3d at 1374. Just as with claims for deliberate

indifference, claims asserting an Eighth Amendment excessive force violation include both

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subjective and objective components. Hudson v. McMillian, 503 U.S. 1, 8 (1992). With respect

to the objective component, a plaintiff must show that “the alleged wrongdoing was objectively

harmful enough to establish a constitutional violation.” Id.; see also id. at pp. 9-10 (“The

Eighth Amendment’s prohibition of cruel and unusual punishments necessarily excludes from

constitutional recognition de minimis uses of physical force, provided that the use of force is not

of a sort repugnant to the conscience of mankind.”) (internal quotations and citations omitted);

Sims v. Artuz, 230 F.3d 14, 22 (2nd Cir. 2000) (“‘Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.’”)

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). The subjective component

requires that “officials act[ed] with a sufficiently culpable state of mind.” Id. (internal quotations

omitted). To establish the subjective element, a plaintiff must demonstrate the “necessary level of

culpability, shown by actions characterized by wantonness.” Sims, 230 F.3d at 21.

The Eleventh Circuit has summarized the excessive force standard as follows:

Under the Eighth Amendment, force is deemed legitimate in a custodial setting as

long as it is applied “in a good faith effort to maintain or restore discipline [and not]

maliciously and sadistically to cause harm.” Whitley v. Albers, 475 U.S. 312, 320-

21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quoting Johnson v. Glick, 481 F.2d

1028, 1033 (2nd Cir.1973)); see also Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct.

995, 117 L.Ed.2d 156 (1992). To determine if an application of force was applied

maliciously and sadistically to cause harm, a variety of factors are considered

including: “the need for the application of force, the relationship between that need

and the amount of force used, the threat reasonably perceived by the responsible

officials, and any efforts made to temper the severity of a forceful response.”

Hudson, 503 U.S. at 7-8, 112 S.Ct. 995; see also Whitley, 475 U.S. at 321, 106 S.Ct.

1078; Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996). From consideration

of such factors, “inferences may be drawn as to whether the use of force could

plausibly have been thought necessary, or instead evinced such wantonness with

respect to the unjustified infliction of harm as is tantamount to a knowing

willingness that it occur.” Whitley, 475 U.S. at 321, 106 S.Ct. 1078 (quoting

Johnson, 481 F.2d at 1033).

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Skrtich v. Thornton, 280 F.3d 1295, 1300-1301 (11th Cir. 2002); see also Hall v. Santa Rosa Corr.

Inst., 403 F. App’x 479, 481 (11th Cir. 2010) (citing Campbell, 169 F.3d at 1375). Under this

analysis, a plaintiff may avoid summary judgment “only if the evidence viewed in the light

most favorable to him goes beyond a mere dispute over the reasonableness of the force used

and will support a reliable inference of wantonness in the infliction of pain.” Brown v. Smith,

813 F.2d 1187, 1188 (11th Cir. 1987).

The Eleventh Circuit has further stated that “[w]hen evaluating whether the force used was

excessive, we give broad deference to prison officials acting to preserve discipline and security.”

Pearson v. Taylor, 665 F. App’x 858, 863 (11th Cir. 2016) (citing Bennett v. Parker, 898 F.2d

1530, 1533 (11th Cir. 1990)); Hudson, 503 U.S. at 7 (holding that courts are to “give a wide range

of deference to prison officials acting to preserve discipline and security.”). And correctional

officers generally are authorized to use force when a prisoner “fails to obey an order.” Pearson,

665 F. App’x at 864 (“Officers are not required to convince every prisoner that their orders are

reasonable and well-thought out before resorting to force.”) (internal citation omitted); Bennett,

898 F.2d at 1533 (“Prison guards may use force when necessary to restore order and need not wait

until disturbances reach dangerous proportions before responding.”).

Kister alleges that Lt. Robbins used excessive force when he “hit me, pushed me, and

pulled me towards the RTU dorms” following the December 4, 2020 incident. (Doc. 62 at p. 1).

However, Kister acknowledges that he “refused to return to the RTU dorms.” (Id.). Such an

admitted refusal to follow a direct command weighs in favor of Lt. Robbins’s alleged application

of force. Sears v. Roberts, 922 F.3d 1199, 1209 (11th Cir. 2019) (“Given Sears’ admitted failure

to obey commands and his resistance to being handcuffed, some use of force was necessary to

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maintain or restore order.”). Moreover, the court is left to speculate at the specifics of the alleged

use of force—as Kister merely states that “Lt. Robbins hit me, pushed me, and pulled me towards

the RTU dorms.” (Id.). Kister does not provide any evidence that Lt. Robbins did more than was

necessary to maintain or restore discipline; he has not presented any evidence of conduct that rose

to the level of “wantonness in the infliction of pain” or that would elevate his claim “beyond a

mere dispute over the reasonableness of the force used.” See Brown, 813 F.2d at 1188.

The court also must consider the absence of serious injury suffered by Kister. See Miles v.

Jackson, 757 F. App’x. 828 (11th Cir. 2018). The inmate Body Chart from December 14, 2020

showed only “healing, crusted abrasions” to Kister’s parietal skull and right forearm with

“no redness, drainage, tenderness noted.” (45-1 at p.1). Kister later reported on March 1, 2021

that the lump on his head remained “tender” (Doc. 33-1 at p. 1 and Doc. 45-3 at p. 1), but an

x-ray of Kister’s skull taken on March 5, 2021 showed “no fractures” (Doc. 33-1 at p. 4). And

although a progress note dated March 3, 2021 reflects that Kister complained of right-side shoulder

pain that had persisted for a month, Kister apparently reported that he could not remember how he

injured his shoulder. (Doc. 45-2 at p. 1). In total, Kister received only acetaminophen (Id.) and

meloxicam (Doc. 33-1 at p. 2) for his complaints. Such an absence of serious injury weighs against

a finding of excessive force under the circumstances of this case. See Miles, 757 F. App’x at 830

(finding no “serious injury” when the plaintiff’s only treatment was Tylenol).

Even construed most favorably to Kister, the record evidence would not support a finding

of excessive force under the circumstances presented. Lt. Robbins therefore is entitled to summary

judgment on Kister’s claim for excessive force in violation of the Eighth Amendment. See Whitley,

475 U.S. at 320-21; Hudson, 503 U.S. at 8; Skrtich, 280 F.3d at 1300-1301.

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D. Kister’s supervisory capacity claims are not viable.

Kister asserts that Warden Jones “condones violence by prisoners and her staff, as neither

were punished for this incident.” (Doc. 62 at p. 2). To the extent Kister is attempting to allege

that Warden Jones is liable in her supervisory position for the actions or omissions of her

subordinates based on a theory of respondeat superior, such a claim must fail. The law is well

established that supervisory officials cannot be held vicariously liable in § 1983 actions.

See, e.g., Belcher v. City of Foley, 30 F.3d 1390, 1396-97 (11th Cir. 1994). As explained by the

United States Supreme Court:

… Government officials may not be held liable for the unconstitutional conduct

of their subordinates [or co-workers] under the theory of respondeat superior [or

vicarious liability] … . A public officer or agent is not responsible for the

misfeasances or position wrongs, or for the nonfeasances, or negligences, or

omissions of duty, of the subagents or servants or other persons properly

employed [alongside,] by or under him, in the discharge of his official duties.

Because vicarious liability is inapplicable to … § 1983 suits, a plaintiff must plead

that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (internal quotation marks, citation, and parentheses

omitted); see also Cottone, 326 F.3d at 1360 (holding that “supervisory officials are not liable

under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior

or vicarious liability”); Marsh, 268 F.3d at 1035 (holding that a supervisory official “can have no

respondeat superior liability for a section 1983 claim”); Gonzalez v. Reno, 325 F.3d 1228, 1234

(11th Cir. 2003) (concluding supervisory officials are not liable on the basis of respondeat superior

or vicarious liability); Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (holding that

42 U.S.C. § 1983 does not allow a plaintiff to hold supervisory officials liable for the actions of

their subordinates under either a theory of respondeat superior or vicarious liability).

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Liability could attach to Warden Jones only if she “personally participate[d] in the alleged

unconstitutional conduct or [if] there is a causal connection between [her] actions … and the

alleged constitutional deprivation.” Cottone, 326 F.3d at 1360; see also Iqbal, 556 U.S. at 677

(“Absent vicarious liability, each Government official, his or her title notwithstanding, is only

liable for his or her own misconduct.”). Based upon a careful review of the record, it is clear that

Warden Jones neither participated in nor had direct involvement with the underlying events. (See

Doc. 58-1). To establish a sufficient causal connection without direct participation, a plaintiff

must present sufficient evidence of either “a history of widespread abuse [that] put[] [the

defendants] on notice of the need to correct the alleged deprivation, and [they] fail[ed] to do so”

or “a … custom or policy [that] result[ed] in deliberate indifference to constitutional rights, or ...

facts [that] support an inference that the supervisor directed the subordinates to act unlawfully or

knew that the subordinates would act unlawfully and failed to stop them from doing so.” Cottone,

326 F.3d at 1360 (internal punctuation and citations omitted). After extensive review of the

pleadings and evidentiary materials, the undersigned concludes that Kister has failed to present

any evidence in that regard. Accordingly, summary judgment is due to be granted in favor of

Warden Jones on any claims asserting respondeat superior/vicarious liability.

V. Conclusion

For all of these reasons, it is the RECOMMENDATION of the Magistrate Judge that:

1. the defendants’ Answer and Special Report (Doc. 25), which is construed as a

motion for summary judgment, be granted;

2. summary judgment be entered in favor of Lt. Robbins and Warden Jones on all

claims; and

3. this case be dismissed with prejudice in its entirety.

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It is ORDERED that any objections to this Recommendation must be filed by

January 5, 2024. An objecting party must identify the specific portion of any factual findings or

legal conclusions to which objection is made and must describe in detail the basis for the

objection(s). Frivolous, conclusive, or general objections will not be considered.

After receiving all objections, the District Judge will conduct a de novo review of the

findings or recommendations to which objection is made. The District Judge may accept,

reject, or modify the Recommendation or may refer the matter back to the Magistrate Judge with

instructions for further proceedings. See 28 U.S.C. § 636(b)(1)(C). A party shall be deemed to

have waived the right to challenge on appeal a District Judge’s order to the extent it is based upon

unobjected-to findings or recommendations. The court on appeal may review unobjected-to

factual and legal conclusions only for plain error if necessary in the interests of justice. See

11th Cir. R. 3-1. No party may appeal this Recommendation directly to the United States

Court of Appeals for the Eleventh Circuit. A party may appeal only from a final judgment

ultimately entered by the District Judge.

DONE this the 22nd day of December 2023.

(hir

WA

CHAD W. BRYAN

UNITED STATES MAGISTRATE JUDGE

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