JOHNSON v. RAYNARD

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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WESLEY I. JOHNSON,

D.O.C. #055448,

Plaintiff,

vs. Case No. 4:23cv273-MW-MAF

OFFICER RAYNARD,

Defendant.

_________________________/

SECOND REPORT AND RECOMMENDATION

Plaintiff is a pro se prisoner incarcerated in the Florida Department of

Corrections. He is proceeding with in forma pauperis status, ECF Nos. 7-8,

and the operative pleading is his second amended complaint, ECF No. 11.

Plaintiff alleged that he suffered a hemorrhagic stroke while in his

dormitory at Gulf Correctional Institution. ECF No. 11 at 9. He was taken

to the infirmary, but the nurses said there was nothing wrong with him and

directed him to return to the dormitory. Id. Plaintiff says he could not

comply with that order because he was experiencing right side paralysis.

Id. He was then placed in a “strip cell,” unattended, for 8-10 hours. Id. at

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9-10. The next morning, Defendant Raynard1 and a nurse came into his

cell and ordered Plaintiff to get his “old ass up,” with the nurse again saying

there was nothing wrong with him.2 Id. at 10. Once again, Plaintiff said he

was “unable to move.” Id. Defendant Raynard then said he would get

Plaintiff up “and began stomping on the plaintiff’s right arm, leg, and

shoulder, ordering him to get up.” Id. Plaintiff then responded

inappropriately and disrespectfully, which allegedly led to Defendant

Raynard repeatedly punching Plaintiff in the face. Id. Plaintiff said he

“suffered contusions and lacerations to his right arm, right leg, right

shoulder and upper back, face, and head from beating” inflicted by the

Defendant. Id. Plaintiff claims the Defendant used unnecessary and

excessive force against him “while he was partially paralyzed and

incapable of offering any resistance which would have necessitated such

force.” Id. at 14. Plaintiff alleged in the complaint that he “exhausted his

1 Plaintiff sued three nurses (names unknown) as well. ECF No. 11. However,

Plaintiff subsequently voluntarily dismissed those Defendants from this case, see ECF

Nos. 45 and 47, leaving Officer Raynard as the sole Defendant.

2 To be clear, Plaintiff alleged that the incident happened in July 2022, ECF No. 11 at

9, but he has since clarified that the events at issue took place on June 11, 2022. ECF

No. 48 at 1; ECF No. 43 at 2.

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administrative remedies with respect to all claims and defendants, except

where doing so would have been fruitless.” Id. at 11.

After service of process, Defendant Raynard filed a motion to

dismiss, ECF No. 27, raising failure to exhaust administrative remedies as

required by 42 U.S.C. § 1997e(a), and Eleventh Amendment immunity as

to the claim against the Defendant in his official capacity. Specifically,

Defendant said that Plaintiff “made “no specific factual allegation of his

exhaustion” steps in the second amended complaint. Id. at 3. Defendant

then argued that Plaintiff did not complete any of the three-steps necessary

for exhaustion and his grievance record shows no grievances were filed

during the relevant time frame. Id. at 4.

Plaintiff responded to the motion to dismiss, ECF No. 29, by claiming

that inmates “must exhaust available remedies but need no exhaust

unavailable ones.” Id. at 1. Plaintiff said he attempted to exhaust

administrative remedies and filed multiple grievances but never received a

response. Id. at 2. He argued that the grievance process was not

available to him.

In ruling on the motion to dismiss, Defendant’s first argument was

rejected because a prisoner is not required to present factual allegations

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concerning exhaustion in the complaint. See Jones v. Bock, 549 U.S. 199,

127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007) (“We conclude that failure to

exhaust is an affirmative defense under the PLRA, and that inmates are not

required to specially plead or demonstrate exhaustion in their complaints.”).

Additionally, because the Court is required to accept Plaintiff’s version of

the facts as true when ruling on a motion to dismiss, and because Plaintiff

claimed that he did not have an available grievance process to exhaust, the

motion to dismiss was denied - without objection - as to the issue of

exhaustion. ECF Nos. 30, 31.

The parties were then provided an opportunity to conduct discovery,

ECF No. 34, and at the conclusion of the discovery period, Defendant filed

a motion for summary judgment. ECF Nos. 36-37, 39. Defendant’s motion

does not address the merits of Plaintiff’s claims; instead, Defendant once

again raised the issue of exhaustion. Plaintiff was advised of his obligation

to respond to the motion, ECF No. 40, and Plaintiff responded by filing an

amended response in opposition to the motion, ECF No. 46, along with an

amended declaration, ECF No. 48.

The Court was then confronted with conflicting declarations. Plaintiff

presented evidence to show that he attempted to exhaust administrative

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remedies which were unavailable, and Defendant presented evidence to

show he did not. Therefore, an evidentiary hearing was held to resolve the

dispute as to exhaustion and determine the proper ruling on Defendant’s

motion for summary judgment. ECF Nos. 50-53. That is because the

issue of whether a prisoner failed “to properly exhaust available

administrative remedies under the PLRA should be treated as a matter in

abatement.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (cited in

Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008)). Such a

“defense is treated ‘like a defense for lack of jurisdiction,’ although it is not

a jurisdictional matter.” Bryant, 530 F.3d at 1374 (cited in Turner, 541 F.3d

at 1082). Notably, the Court is permitted to “make specific findings in order

to resolve the disputed factual issues related to exhaustion.” Turner, 541

F.3d at 1082 (citing Bryant, 530 F.3d at 1373–74, 1376).3

3 “Where exhaustion . . . is treated as a matter in abatement and not an adjudication

on the merits, it is proper for a judge to consider facts outside of the pleadings and to

resolve factual disputes so long as the factual disputes do not decide the merits and the

parties have sufficient opportunity to develop a record.” Bryant, 530 F.3d at 1376. See

also Springs v. Gielow, No. 3:14cv105-MCR-EMT, 2015 WL 1458273, at 28 (N.D. Fla.

Mar. 28, 2015) (citing Taylor v. Watkins, 623 F.3d 483 (7th Cir. 2010), and Smith v.

Wang, 452 F. App’x 292 (4th Cir. 2011) (unpublished)) (other citations omitted); see

also Davis v. Sknee, No. 7:16-CV-237, 2017 WL 11457295, at *2 (M.D. Ga. Dec. 7,

2017), report and recommendation adopted, 2018 WL 9986808 (M.D. Ga. Jan. 10,

2018).

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The evidentiary hearing was held on June 10, 2025. ECF No. 53.

Following the evidentiary hearing, the parties were permitted to file

supplemental evidence. ECF No. 54. At this point, all relevant evidence

has been submitted and the summary judgment motion is ready for a

ruling.

Standard of Review

“Because exhaustion of administrative remedies is a matter in

abatement and not generally an adjudication on the merits, an exhaustion

defense . . . is not ordinarily the proper subject for a summary judgment;

instead, it ‘should be raised in a motion to dismiss, or be treated as such if

raised in a motion for summary judgment.’” Bryant, 530 F.3d at 1374–75

(quotation omitted). “Where exhaustion—like jurisdiction, venue, and

service of process—is treated as a matter in abatement and not an

adjudication on the merits, it is proper for a judge to consider facts outside

of the pleadings and to resolve factual disputes so long as the factual

disputes do not decide the merits and the parties have sufficient

opportunity to develop a record.” 530 F.3d at 1376. There is no need for

“jury trials to resolve factual disputes over the preliminary issue of

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exhaustion” as the facts pertaining to exhaustion do not bear on the merits

of Plaintiff’s claim. Id. at 1376-77.

“The court shall grant summary judgment if the movant shows that

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). Summary

judgment is proper “after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The parties

were provided sufficient time to develop the record and provide all relevant

information to the Court and it is appropriate for this Court to act “as the

factfinder” in determining whether Plaintiff had access to the grievance

process to report his alleged physical abuse by Defendant Raynard. 530

F.3d at 1377.

An issue of fact is “material” if it could affect the outcome of the case.

Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th

Cir. 2004) (citations omitted). A party must show more than the existence

of a “metaphysical doubt” regarding the material facts, Matsushita Elec.

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Indus. Co., LTD. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct.

1348, 1356, 89 L. Ed. 2d 538 (1986), and a “scintilla” of evidence is

insufficient. “Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no genuine issue for

trial.” Matsushita Elec. Indus. Co., 475 U.S. at 587 (internal quotation

marks omitted).

Record Evidence

Plaintiff had a stroke on June 11, 2022,4 and was, thereafter,

transported to the hospital where he remained for 4½ days. ECF No. 48 at

1. Plaintiff was returned to Gulf Correctional Institution only for a day and a

half before being transferred to the infirmary at Calhoun Correctional

Institution on June 17, 2022. Id. For the first week there, Plaintiff testified5

that he was “kept in bed” and continued to experience “mild paralysis” on

the right side. Id. at 2. Plaintiff however, testified in the hearing that he

writes with his left hand.

4 Plaintiff testified in the hearing that the date of the underlying incident was June

11th and not in July as alleged in the second amended complaint.

5 Plaintiff’s amended declaration, ECF No. 48, constitutes admissible testimony as

his statements were sworn under penalty of perjury. Id. at 2..

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On June 27, 2022, Plaintiff sent an inmate request to the warden,

seeking an extension of time to file a grievance concerning the June 11th

events. Id. at 2. He said that he did not request a specific length of time

for the extension, he merely advised that he was recovering from a stroke

and was in the infirmary. He received no response. Plaintiff testified in the

evidentiary hearing that he does not have a copy of that request because

such a request, as well as an informal grievance, is submitted on a single

sheet of paper. An inmate will only have a copy if the DOC responds.

Plaintiff said that he filed an informal grievance on July 23, 2022,

even though he had not received a response to his request for additional

time. ECF No. 48 at 2. During the hearing, Plaintiff explained that he

turned it in to the officer who was supervising the infirmary that day.

Plaintiff does not know the name of that officer as they rotated on a regular

basis. Plaintiff did not retain a copy, nor make himself an identical written

copy, of this informal grievance.

Plaintiff then submitted a second informal grievance on August 10,

2022. ECF No. 48 at 2. He testified that he did so in the same manner as

the first grievance - handing it to the supervising officer. Both of those

grievances were submitted while Plaintiff was housed at Calhoun C.I.

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Again, Plaintiff did not retain a copy, nor make himself an identical written

copy, of this informal grievance.

Plaintiff was transferred to Wakulla Correctional Institution Annex

later that same day, August 10th. ECF No. 48 at 2. While there, Plaintiff

testified that he filed two more informal grievances on August 24, 2022. Id.

Plaintiff said one grievance was addressed to the warden at Wakulla C.I.

where he was currently housed, and the other was addressed to the

warden at Gulf C.I. where the event occurred. Id. Plaintiff testified that

those grievances were placed in the grievance box by the chow hall.

Plaintiff did not retain a copy, nor make himself an identical written copy, of

either of those informal grievances. Id.

Plaintiff also testified that in his informal grievances, he complained

about being placed in isolation for about 10 hours after suffering a stroke

and that the next morning, Defendant Raynard came into his cell with a

nurse and physically attacked him for not getting up as directed. Plaintiff

said he also mentioned that he had previously requested an extension of

time. Further, as for the August 24th grievances, Plaintiff said he

mentioned that he had filed prior grievances but had not received a

response.

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Plaintiff acknowledged in the hearing that he had previously filed

grievances over the years, sometimes receiving a response and

sometimes not. He said if he did not get a response, he “mostly” just threw

them away and lost interest in pursuing them. He admitted awareness of

the grievance process - that if prison officials do not respond, he could

proceed to the next level or go to court.

John Alan McManes testified at the hearing as well. Mr. McManes is

the chief of policy management and inmate appeals for the Department of

Corrections. He explained the grievance process and testified that a

record of all grievances are maintained in the Department’s system. He

said there were no grievances logged or created about the incident. The

only grievance filed close in time to the incident was an informal grievance

on September 23, 2022, and that was about a classification matter. ECF

No. 39-1 at 3. That grievance was denied. On October 4, 2022, Plaintiff

filed an informal grievance about a tablet issue. Id. That grievance was

approved. Id. Plaintiff filed another informal grievance on October 10,

2022, about inmate banking, and that grievance was denied. Id. Between

September 2022 and 2023, Plaintiff filed 19 informal grievances, 6 of which

were approved. ECF No. 39-1 at 3-4. Although the evidence revealed

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Plaintiff had filed formal grievances and grievance appeals, none were filed

between June and December 2022. ECF No. 39-1 at 6, 8.

Mr. McManes testified that Department rules require the collection of

grievances from all areas of an institution, Monday through Friday.

Grievances are either placed in secured locked boxes, or staff collect

grievances in segregated housing units and in the infirmary. McManes

also said that they highly discourage inmates from handing grievances to

security staff to keep the grievance process as secure as possible.

Plaintiff, however, testified that the person he gave his grievance to while

he was in the infirmary at Calhoun C.I. was the officer in charge and not an

official collecting grievances.

Plaintiff was asked why he could not have filed his informal grievance

on June 27th instead of requesting an extension of time. He said that he

was not sure how he “wanted to word it.” He also said that he hoped the

request for the extension of time would stop the clock, although he knew

there was a time limit for filing the grievance. Plaintiff also acknowledged

that he filed four informal grievances and never filed a formal grievance.

He testified that he did not believe he would get a response because the

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issue concerned an officer. He said he could not figure out what else to do,

so he decided to file this case because he could not force a response.

Notably, Plaintiff also testified in the hearing that he sent handwritten

copies of his last two informal grievances to F.D.L.E. and asked the agency

to hold the records for him as proof that he had filed. However, Plaintiff

said that when he requested a copy later after filing this suit, he was told

that he had to pay to receive public records. Plaintiff said he lacked the

financial resources to pay so he could not obtain the copy of his grievance,

but he did say that he had a copy of the letter from F.D.L.E. in his cell.6

Following the hearing, Defendant filed an amended status report

which advised that counsel contacted FDLE in an effort to obtain a copy of

Plaintiff’s request for copies. A public records search was undertaken, but

no records were located to confirm a request was received from Plaintiff or

that a request for payment was sent to Plaintiff. ECF No. 57 at 2.

Plaintiff did not submit any additional supplementary evidence.

However, in reviewing this case, the Court has located several letters

6 At the conclusion of the evidentiary hearing, the parties were informed that they

could present additional supplemental evidence. In particular, Plaintiff was directed to

search his cell and provide the copy of the letter from FDLE which would substantiate

his testimony and the Court could determine that Plaintiff’s grievance raised the issue of

Defendant’s alleged conduct.

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which Plaintiff attached to his initial complaint, ECF No. 1, filed on June 28,

2023. One letter was sent by Plaintiff to the attention of the “I.G. Office”

[Inspector General’s Office of the Florida Department of Corrections]. ECF

No. 1 at 8. The other letter was directed to the attention of the F.D.L.E.

ECF No. 1 at 9. In both letters, Plaintiff said that he wrote to them last year

about an incident in which he “was the victim of a battery” by a correctional

officer. Id. at 8-9. He requested to know if the investigation had been

completed and, if possible, could he receive a copy of the results and the

case number. Id. Both letters have a DOC stamp which reveals they were

provided to prison staff to mail for Plaintiff on June 1, 2023. Id.

Plaintiff received responses from the Inspector General’s Office.

ECF No. 1 at 10-11. The first letter was dated June 6, 2023, and said that

it appeared Plaintiff was making a public records request and that such

requests must first be directed to Plaintiff’s classification officer. Id. at 10.

Further, Plaintiff must demonstrate “exceptional need” for the information

which must also be “otherwise unavailable.” Id. The second letter was

dated June 13, 2023, and was substantially the same, also from the

Inspector General’s Office. Id. at 11.

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Analysis

In enacting the Prison Litigation Reform Act [PLRA], Congress

mandated that “[n]o action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” 42 U.S.C. §

1997e(a). The exhaustion requirement of § 1997e(a) is mandatory.

Alexander v. Hawk, 159 F.3d 1321, 1324-26 (11th Cir. 1998); Bryant, 530

F.3d at 1374, n.10. Courts lack discretion to waive this requirement or

provide continuances of prisoner litigation in the event that a claim has not

been exhausted prior to filing. Alexander, 159 F.3d at 1325; see also

Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)

(holding that “the PLRA’s exhaustion requirement applies to all inmate suits

about prison life, whether they involve general circumstances or particular

episodes, and whether they allege excessive force or some other wrong”);

Brown v. Sikes, 212 F.3d 1205, 1207-08 (11th Cir. 2000).

A prisoner must comply with the process set forth and established by

the State’s grievance procedures. See Miller v. Tanner, 196 F.3d 1190,

1193 (11th Cir. 1999). Thus, § 1997e(a) of the PLRA requires “proper

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exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 2387

(2006) (concluding that “proper exhaustion” means complying with the

specific prison grievance requirements, not judicially imposed

requirements); Jones, 549 U.S. at 218, 127 S. Ct. 910 (quoted in Parzyck

v. Prison Health Servs., Inc., 627 F.3d 1215, 1217-18 (11th Cir. 2010)

(“Compliance with prison grievance procedures, therefore, is all that is

required by the PLRA to ‘properly exhaust.’”)).

Plaintiff is housed within the Florida Department of Corrections which

has an administrative grievance program, FLA. ADMIN. CODE R. 33-103.

The Department’s process outlines that an inmate must proceed through a

three-step grievance process, and that process imposes certain time limits.

Rule 33-103.011 requires that an informal grievance “[m]ust be received

within 20 days of when the incident or action being grieved occurred unless

the inmate” has obtained approval for an extension of time.7 FLA. ADMIN.

7 The Rule shows an inmate may submit a written request “for a 45 day extension to

file an informal grievance about being physically restrained during pregnancy, labor or

post-partum recovery pursuant to rule 33-602.211, F.A.C.” FLA. ADMIN. CODE R. 33-

103.011(1)(a). The request mst be submitted on an Inmate Request form must be

“received within 20 days of the application of restraints.” Id. The Rule states that an

extension will “be granted when it is clearly demonstrated by the inmate to the

satisfaction of the reviewing authority . . . that it was not feasible to file the grievance

within the relevant time periods and that the inmate made a good faith effort to file in a

timely manner.” FLA. ADMIN. CODE R. 33-103.011(2). While it is clear that inmates can

request an extension of time, it is not clear that a request would be granted unless

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CODE R. 33-103.011(1)(a). A formal grievance “[m]ust “be received no later

than 15 calendar days from . . . [t]he date on which the incident or action

being grieved occurred if an informal grievance was not filed . . . .” FLA.

ADMIN. CODE R. 33-103.011(1)(b). A grievance appeal “[m]ust be received

within 15 calendar days from the date the response to the formal grievance

is returned to the inmate.” FLA. ADMIN. CODE R. 33-103.011(1)(c).

In this case, it is clear that Plaintiff did not proceed through the three

steps of the grievance process. Even accepting Plaintiff’s version of facts

as true, Plaintiff only contends that he attempted to file four informal

grievances to which he received no response. Plaintiff never took the

additional step of filing a formal grievance (or appeal if that were denied).

Plaintiff’s incident occurred on June 11, 2022. Pursuant to the rules

of the Department, Plaintiff should have submitted an informal grievance

within 20 calendar days, or by July 1, 2022. Plaintiff did not do so. Had

Plaintiff submitted an informal grievance instead of a request for an

extension of time on June 27th, he would have submitted a timely

grievance. Plaintiff did not do so, however, but - accepting his testimony as

true and credible - Plaintiff waited until July 23, 2002, to submit his first

related to restraint during pregnancy, labor, or post-partum recovery.

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informal grievance. A grievance submitted on July 23 would be 42 days

after the incident and such a grievance would have been denied as

untimely.

The evidence is undisputed that Plaintiff did not file a proper

grievance within the relevant time frame. At best, Plaintiff filed a request

for extension of time within the grievance period. Moreover, even if this

Court were to consider the informal grievances to have been timely filed,

Plaintiff did not exhaust all three steps of the grievance process as

required. That conclusion necessarily means that Plaintiff did not exhaust

administrative remedies.

Notably, at the motion to dismiss stage of this litigation, Plaintiff said

he attempted to exhaust administrative remedies but claimed the grievance

process was not “available” to him. It is true that the exhaustion

requirement of the PLRA “hinges on the ‘availab[ility]’ of administrative

remedies: An inmate . . . must exhaust available remedies, but need not

exhaust unavailable ones.” Ross v. Blake, 578 U.S. 632, 642, 136 S. Ct.

1850, 1858, 195 L. Ed. 2d 117 (2016). In other words, courts must apply

the grievance statute “to the real-world workings of prison grievance

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systems.” Ross, 578 U.S. at 643, 136 S. Ct. at 1859. In light of the

evidence submitted, however, Plaintiff’s argument must be rejected.

Plaintiff is aware of the grievance process and the steps which must

be taken. He presented no evidence that any prison official thwarted or

otherwise prevented him from filing a grievance. Instead, the evidence

shows only that Plaintiff delayed filing his informal grievance. Since

Plaintiff was physically able to request an extension of time, he could have

submitted his informal grievance at that time. He failed to present any

legitimate reason for not doing so.

One additional point is worth noting. Even under Plaintiff’s version of

the facts, it does not appear that Plaintiff gave his grievance to the

appropriate prison official when he was in the infirmary. The evidence

revealed that a specific prison official is tasked with collecting grievances

from prisoners in areas where the prisoner cannot physically put a

grievance in the secured box. Plaintiff gave his grievance to a supervisor,

not the grievance official. Even if one accepts that Plaintiff provided an

informal grievance, his failure to deliver it to the right official may explain

why Plaintiff did not receive a response to his informal grievance, even

though it was submitted belatedly 42 days after the incident.

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Moreover, the Department’s Rules state that “expiration of a time limit

at any step in the process shall entitle the complainant to proceed to the

next step of the grievance process.” FLA. ADMIN. CODE R. FLA. ADMIN. CODE

R. 33-103.011(4). “If this occurs, the complainant must clearly indicate this

fact when filing at the next step.” Id. If the time limit expires at the central

office level of review, that is, a grievance appeal, the inmate “shall be

entitled to proceed with judicial remedies as he would have exhausted his

administrative remedies.” Id. Plaintiff admits that he never filed a formal

grievance or grievance appeal seeking review of any of his informal

grievances.

Had Plaintiff properly submitted a timely informal grievance, he could

have filed a grievance appeal after the expiration of the 15-day response

time. If no response was received to that grievance, Plaintiff could have

then filed an appeal at the central office level of review. However, Plaintiff

is not permitted to skip steps in the grievance process and then proceed

with judicial remedies. Therefore, because Plaintiff did not exhaust

available administrative remedies, Defendant’s motion for summary

judgment, ECF No. 36, should be granted and this case closed.

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RECOMMENDATION

In light of the foregoing, it is respectfully RECOMMENDED that

Defendant Raynard’s motion for summary judgment, ECF No. 36, be

GRANTED and this case be closed because Plaintiff did not exhaust

administrative remedies as required by 42 U.S.C. § 1997e(a).

IN CHAMBERS at Tallahassee, Florida, on July 21, 2025.

S/ Martin A. Fitzpatrick

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Within fourteen (14) days after being served with a copy of this

Report and Recommendation, a party may serve and file specific written

objections to these proposed findings and recommendations. Fed. R.

Civ. P. 72(b)(2). A copy of the objections shall be served upon all other

parties. A party may respond to another party’s objections within

fourteen (14) days after being served with a copy thereof. Fed. R. Civ.

P. 72(b)(2). Any different deadline that may appear on the electronic

docket is for the Court’s internal use only and does not control. If a

party fails to object to the Magistrate Judge’s findings or

recommendations as to any particular claim or issue contained in this

Report and Recommendation, that party waives the right to challenge on

appeal the District Court’s order based on the unobjected-to factual and

legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

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