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

USCA11 Case: 21-10607 Date Filed: 06/06/2022 Page: 1 of 9

[DO NOT PUBLISH]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, LUCK, and HULL, 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 LUCK, J., Concurring in part and dissenting in part 1

LUCK, 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 LUCK, 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 LUCK, 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 LUCK, 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.