Alturo Pasco v. Commissioner, Georgia Department of Corrections

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13442

Non-Argument Calendar

____________________

ALTURO PASCO,

Plaintiff-Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF

CORRECTIONS,

AUTRY SP WARDEN,

SERGEANT MARSHALL,

CAPTAIN ZIRKLE,

MR. BRYANT,

Food Services Director,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 1:21-cv-00004-LAG-TQL

____________________

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2 Opinion of the Court 23-13442

Before LUCK, LAGOA, and KIDD, Circuit Judges.

PER CURIAM:

Following the height of the COVID-19 pandemic, Georgia

prisoner Alturo Pasco filed suit against several Autry State Prison

officials, alleging that they were deliberately indifferent to inmate

health and safety and interfered with the practice of his religion.

The district court ultimately dismissed Pasco’s Religious Land Use

and Institutionalized Persons Act claim as moot and granted sum-

mary judgment to the prison officials on Pasco’s First and Eighth

Amendment claims. Pasco now appeals, challenging several of the

district court’s rulings. We now affirm the dismissal.

I. BACKGROUND

In January 2021, Pasco filed his pro se 42 U.S.C. § 1983 com-

plaint against Georgia Department of Corrections Commissioner

Timothy Ward and three Autry State Prison (“ASP”) officials: War-

den Darrin Myers, Sergeant Molly Marshall, and Captain Russell

Zirkle (collectively, the “Prison Officials”). Pasco asserted that the

conditions at ASP and the Prison Officials’ failure to implement

policies to mitigate the spread of the COVID-19 virus demon-

strated their deliberate indifference to inmate health and safety. He

additionally alleged that the Prison Officials interfered with his

practice of Islam by failing to ensure that he received Halal or ve-

gan meals while he was housed in medical isolation. Pasco further

asserted that Ramadan coincided with his time in medical isolation

between April and May 2020, and Sergeant Marshall, Captain

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23-13442 Opinion of the Court 3

Zirkle, and Warden Myers refused to serve him meals before sun-

rise and after sunset, which prevented him from breaking his fast.

When filing his complaint, Pasco also moved for appoint-

ment of counsel and alleged that he (1) was unable to afford an at-

torney, (2) needed assistance with his claims and locating wit-

nesses, and (3) had not received responses to counsel inquiries

made to civil rights organizations. Upon review of the complaint

and pending motion, a magistrate judge issued an “Order and Rec-

ommendation” (“O&R”). As relevant here, the magistrate judge

found that Pasco’s religious interference allegations could raise

claims under either the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”) or the First Amendment. While the mag-

istrate judge found that the First Amendment claims should be al-

lowed to proceed, he advised dismissal of any RLUIPA claims be-

cause Pasco’s release from medical isolation in June 2020 and sub-

sequent reception of dietary accommodations rendered injunctive

relief inappropriate. The magistrate judge also denied Pasco’s

counsel motion because the facts of his claim were “neither com-

plicated nor unusual,” the relevant law was “neither novel nor

complex,” and Pasco’s need to present witnesses was not an excep-

tional circumstance.

The magistrate judge also advised Pasco of his right to object

to the O&R within fourteen days and cautioned that failure to

timely object “waive[d] the right to challenge on appeal the district

judge’s order based on [unobjected-to] factual and legal conclu-

sions.” Pasco timely objected to the O&R, but only raised

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4 Opinion of the Court 23-13442

arguments relevant to the denial of his motion to appoint counsel.

While these objections were pending, Pasco successfully amended

his complaint to add ASP’s Food Services Director Bruce Bryant as

a defendant. Pasco also moved to compel discovery, indicating that

he had not received responses to discovery requests despite confer-

ring with opposing counsel via telephone. The magistrate judge

denied this motion but allowed for an extended discovery period

at the request of the Prison Officials.

In November 2021, the district judge adopted the O&R. The

court overruled Pasco’s objections and denied his counsel motion

without prejudice because he had (1) filed multiple “coherent”

pleadings, (2) successfully amended his complaint, (3) presented

“straightforward” First and Eighth Amendment claims, and (4) had

personal knowledge of the alleged events sufficient to present his

case without “significant investigation.” The court also adopted the

magistrate judge’s other determinations, including the recommen-

dation to dismiss Pasco’s RLUIPA claims without prejudice.

Pasco thereafter filed several motions, including a second

motion to compel discovery and a second motion for appointment

of counsel, both of which were denied, as well as a motion to ex-

ceed the limit on requests for production, which was granted.

The Prison Officials then moved for summary judgment on

the remaining claims, providing numerous pieces of evidence and

asserting several arguments, including their entitlement to quali-

fied immunity. Once Pasco responded to the motion and supplied

his own supporting evidence, the magistrate judge issued a report

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23-13442 Opinion of the Court 5

and recommendation (“R&R”) finding that summary judgment for

the Prison Officials was appropriate.

The magistrate judge explained that COVID-19 posed an ob-

jectively substantial risk of serious harm, but Commissioner Ward

and Warden Myers responded reasonably to that risk by imple-

menting multiple mitigating procedures. The magistrate judge

noted that the impossibility of implementing social distancing in a

prison and the danger of infectious diseases did not establish that

Commissioner Ward and Warden Myers had been subjectively

reckless, and Pasco’s contraction of the virus “c[ould not] alone es-

tablish a culpable state of mind on behalf of” the Prison Officials.

As to Pasco’s First Amendment claims, the magistrate judge

found that, even viewing the facts in the light most favorable to

Pasco, he “did not suffer more than a temporary or insubstantial

burden on his First Amendment rights” because he did not estab-

lish that Sergeant Marshall denied him meals “on a significant num-

ber of occasions,” and the isolated acts alleged did not create a sub-

stantial burden on his religious freedom. The magistrate judge fol-

lowed similar reasoning to recommend granting summary judg-

ment as to Pasco’s claim that his meals were not distributed in a

manner such that he could observe Ramadan. The magistrate

judge also recommended summary judgment to the extent Pasco

pursued a supervisory liability theory, as he failed to establish that:

(1) Bryant or Warden Myers personally delivered his meals,

(2) there was widespread abuse of dietary policies, or (3) Bryant

and Warden Myers personally caused the alleged constitutional

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6 Opinion of the Court 23-13442

deprivations. Finally, the magistrate judge concluded that because

there was “no constitutional violation based on the facts provided,”

the Prison Officials were entitled to qualified immunity. In con-

cluding the R&R, the magistrate judge again notified the parties of

their right to object within fourteen days and warned that failure

to object “waive[d] the right to challenge on appeal the district

court’s order based on unobjected-to factual and legal conclu-

sions.”

Pasco objected to the R&R and opposed several aspects of

the magistrate judge’s analyses of the evidence and relevant

caselaw. Pasco did not, however, challenge the magistrate judge’s

determination as to qualified immunity.

The district judge adopted the R&R in full and entered judg-

ment in favor of the Prison Officials. The court engaged in a de

novo review of the challenged portions of the record before over-

ruling Pasco’s objections and further noted that it found no clear

error in the unobjected-to portions of the R&R. Pasco now ap-

peals. 1

1 The Prison Officials suggest that Pasco’s notice of appeal is invalid because

his wife signed it instead of him. However, they abandoned any such argu-

ment by raising it in only a footnote of their brief. See Sapuppo v. Allstate Florid-

ian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014); see also Cote v. R.J. Reynolds

Tobacco Co., 909 F.3d 1094, 1109 n.8 (11th Cir. 2018). And, in any event, Federal

Rule of Civil Procedure 11(a)’s signature requirement is not jurisdictional.

Becker v. Montgomery, 532 U.S. 757, 764–65 (2001).

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II. STANDARD OF REVIEW

We review the district court’s refusal to appoint counsel for

abuse of discretion. Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir.

1999). Mootness “is a question of law that we review de novo.”

Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir.

2007). We likewise generally review a district court’s grant of sum-

mary judgment de novo. Holloman v. Mail-Well Corp., 443 F.3d 832,

836 (11th Cir. 2006).

III. DISCUSSION

A. The District Court Did Not Abuse Its Discretion in Denying Pasco

Appointment of Counsel

Appointment of counsel in a civil case is “a privilege justified

only by exceptional circumstances, such as the presence of facts

and legal issues which are so novel or complex as to require the

assistance of a trained practitioner.” Kilgo v. Ricks, 983 F.2d 189, 193

(11th Cir. 1993) (citation modified). In making this determination,

courts should consider:

(1) the type and complexity of the case; (2) whether

the plaintiff is capable of adequately presenting his

case; (3) whether the plaintiff is in a position to ade-

quately investigate the case; (4) whether the evidence

‘will consist in large part of conflicting testimony so

as to require skill in the presentation of evidence and

in cross examination’; and (5) whether the appoint-

ment of counsel would be of service to the parties

and the court ‘by sharpening the issues in the case,

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8 Opinion of the Court 23-13442

shaping the examination of witnesses, and thus short-

ening the trial and assisting in a just determination.’

DeJesus v. Lewis, 14 F.4th 1182, 1204 (11th Cir. 2021) (quoting Ulmer

v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)).

Pasco has not shown that his case presented any of these

“exceptional circumstances.” While he asserts that he raised com-

plex and “high-stakes” legal issues, his complaint and response to

the Prison Officials’ motion for summary judgment properly iden-

tified the applicable legal standards and analyzed whether the facts

of his case satisfied those elements. He also successfully pleaded

multiple claims that avoided dismissal, amended his complaint to

add a party, requested discovery from opposing counsel, obtained

evidence to support his allegations, and pursued several motions

and objections throughout his case. Pasco also could not show that

counsel would have been helpful to assist in deciphering conflicting

evidence, as the magistrate judge and district judge accepted the

truth of Pasco’s allegations but nonetheless concluded that the

facts did not give rise to a constitutional deprivation.

In short, we cannot say that Pasco needed “help in present-

ing the essential merits of his . . . position[s] to the [lower] court.”

Kilgo, 983 F.2d at 193. We therefore conclude that the district court

did not abuse its discretion in denying Pasco appointment of coun-

sel.

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B. The District Court Did Not Err in Failing To Evaluate Pasco’s Pur-

ported Equal Protection Claim

Pasco next argues that the facts of his complaint “clearly

support” an Equal Protection claim, and the district court erred by

failing to liberally construe his filing and consider the merits of this

purported claim. However, Pasco did not raise this argument be-

low, and we need not consider it on appeal in the first instance. See

Finnegan v. Comm’r of Internal Revenue, 926 F.3d 1261, 1271–72 (11th

Cir. 2019); see also Roy v. Ivy, 53 F.4th 1338, 1351 (11th Cir. 2022)

(“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 refusal to consider it would result in a miscarriage of justice.”

(citation modified)).

While Pasco is correct that pro se pleadings are held to a less

strict standard than those drafted by counsel, pro se litigants are

still required to follow procedural rules. Roy, 53 F.4th at 1346.

Pasco’s complaint did not mention the Equal Protection Clause or

include any allegations that the Prison Officials treated Muslim in-

mates differently than inmates of other faiths. See Sweet v.

Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318–19 (11th Cir. 2006) (outlin-

ing the elements of an Equal Protection claim). Pasco also never

requested to amend his complaint to add such allegations and failed

to present to the lower court any alleged error in evaluating the

content of his complaint when objecting to either the O&R or

R&R. See Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014)

(“If parties hope to preserve a claim, argument, theory, or defense

on appeal, they must first clearly present it to the district court, that

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is, in such a way as to afford the district court an opportunity to

recognize it and rule on it.” (citation modified)); see also 11th Cir.

R. 3-1.

We therefore decline to construe Pasco’s complaint to allege

a violation of the Equal Protection Clause and find no error in the

district court’s failure to evaluate such a claim.

C. Pasco Waived the Ability To Challenge the Dismissal of His RLUIPA

Claim

Pasco additionally argues that the district court erroneously

dismissed his RLUIPA claim. But Pasco did not include a challenge

to the magistrate judge’s recommendation to dismiss any RLUIPA

claim in his objections to the O&R, despite being warned of the

consequences of failing to do so. Pasco has therefore waived his

right to challenge the unobjected-to findings and conclusions relied

upon by the district court in dismissing his RLUIPA claim. See 11th

Cir. R. 3-1; Roy, 53 F.4th at 1346.

Nonetheless, we may review waived objections “for plain er-

ror if necessary in the interests of justice.” 11th Cir. R. 3-1. But even

assuming Pasco meets this standard or has otherwise preserved his

arguments for our review, we conclude that he cannot show re-

versible error. See Roy, 53 F.4th at 1351; Smith v. Marcus & Millichap,

Inc., 106 F.4th 1091, 1099 (11th Cir. 2024) (stating that “review for

plain error rarely applies in civil cases,” and “even when it does, we

require a greater showing of error than in criminal appeals” (cita-

tion modified)).

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To the extent Pasco sought monetary damages against the

Prison Officials in their individual capacities, RLUIPA does not per-

mit this relief. See Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007),

abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011).

The doctrine of sovereign immunity similarly bars any claim for

monetary damages brought against the Prison Officials in their of-

ficial capacities. Sossamon, 563 U.S. at 285–89, 293. Thus, Pasco

could seek only injunctive relief against the Prison Officials under

RLUIPA. However, his allegations no longer present a live contro-

versy to which a court could give meaningful injunctive relief, as

Pasco has been transferred to a different prison, and he has indi-

cated that he has received the appropriate dietary and meal-time

accommodations since leaving ASP’s medical isolation. See Friends

of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th

Cir. 2009). Pasco likewise has not alleged that his case falls within

an exception to the mootness doctrine, and the extraordinary cir-

cumstances surrounding the COVID-19 pandemic’s coincidence

with Ramadan in 2020 undermine any reasonable expectation

Pasco would be subjected to similar treatment in the future. See

Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1342–43 (11th Cir. 2014).

We therefore cannot say that the district court erred in dis-

missing any RLUIPA claim raised by Pasco.

D. Pasco Waived His Challenges To The District Court’s Resolution Of

His First And Eighth Amendment Claims

Finally, Pasco challenges the grant of summary judgment to

the Prison Officials on his First and Eighth Amendment Claims.

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12 Opinion of the Court 23-13442

However, Pasco “must convince us that every stated ground for the

judgment against him is incorrect,” and he has waived review of an

essential finding that the district court adopted in resolving these

claims. Sapuppo, 739 F.3d at 680.

In this case, the magistrate judge found not only that no gen-

uine issue of material fact existed with respect to the essential ele-

ments of Pasco’s First and Eighth Amendment claims, but also that

the Prison Officials were entitled to qualified immunity because no

constitutional violation had been established. See Gilmore v. Ga.

Dep’t of Corr., 144 F.4th 1246, 1258 (11th Cir. 2025) (en banc). Pasco

did not challenge the magistrate judge’s qualified immunity deter-

mination in his objections to the R&R, despite being notified of the

consequences of failing to object to these findings, and the district

judge adopted the R&R in full. As such, Pasco has waived the right

to challenge the qualified immunity conclusion relied upon by the

district judge in granting summary judgment to the Prison Offi-

cials. See 11th Cir. R. 3-1.

Pasco has not argued on appeal that review of this finding

for plain error is necessary in the interests of justice. See id.; Smith,

106 F.4th at 1099 (stating that the “rare exception” of plain error

review does not apply where the appellants do not “argue in their

initial brief that reviewing their waived objections was necessary

and in the interests of justice” (citation modified)). Indeed, Pasco

fails to make any challenge to the qualified immunity determina-

tion in his initial brief. It is well established that issues not raised in

the initial brief on appeal are deemed abandoned. See Sapuppo,

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739 F.3d at 680–81; Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008). While Pasco briefly addresses this argument in his reply

brief, we have long held that an issue may not be raised for the first

time in an appellate reply brief. See Sapuppo, 739 F.3d at 683; Timson,

518 F.3d at 874. As such, we conclude that Pasco failed to properly

challenge the lower court’s determination that qualified immunity

shielded the Prison Officials from liability on his First and Eighth

Amendment claims, and he needed to prevail on this issue to obtain

reversal. Cf. United States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014).

“When an appellant fails to challenge properly on appeal

one of the grounds on which the district court based its judgment,

he is deemed to have abandoned any challenge of that ground, and

it follows that the judgment is due to be affirmed.” Sapuppo,

739 F.3d at 680. Accordingly, we affirm the district court’s entry of

summary judgment in favor of the Prison officials.

IV. CONCLUSION

We AFFIRM the district court’s judgment entered in favor

of the Prison Officials.