Petition for Writ of Certiorari — Therian Cornelia Wimbush, Petitioner v. R. L. Conway, et al.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-13047-FF

THERIAN CORNELIA WIMBUSH,

Plaintiff - Appellant,

versus

R.L. (BUTCH) CONWAY,

Gwinnett County Jail,

SERGEANT THORNTON,

DEPUTY WHITE,

CAPTAIN THOMAS,

DEPUTY MYRON WALKER,

SERGEANT BARBER,

DEPUTY INNOCENT,

DEPUTY OBLEIN,

DEPUTY CULBRETH,

DEPUTY DAWN CLARK,

DEPUTY MARTIN CAMPBELL,

CAPTAIN SHAPIRO,

Defendants - Appellees,

MARK CAMPBELL et al.,

Defendants.

Appeal from the United States District Court

for the Northern District of Georgia

ON PETITIONS FOR REHEARING AND PETITION(S) FOR REHEARING EN BANC

BEFORE: MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no judge in regular active service on the Court

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having requested that the Court be polled on rehearing en banc. (FRAP 35) The Petition for

Rehearing En Banc is also treated as a Petition for Rehearing before the panel and is DENIED.

(FRAP 35, IOP2)

ENTERED FOR THE COURT:

UNITED

ORD-42

CIRCUIT JUDGE

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-13047

Non-Argument Calendar

D.C. Docket No. l:16-cv-00363-LMM

THERIAN CORNELIA WIMBUSH,

Plaintiff-Appellant,

versus

R.L. (BUTCH) CONWAY,

Gwinnett County Jail,

SERGEANT THORNTON,

DEPUTY WHITE,

CAPTAIN THOMAS,

DEPUTY MYRON WALKER,

SERGEANT BARBER,

DEPUTY INNOCENT,

DEPUTY OBLEIN,

DEPUTY CULBRETH,

DEPUTY DAWN CLARK,

DEPUTY MARTIN CAMPBELL,

CAPTAIN SHAPIRO,

Defendants-Appellees,

MARK CAMPBELL et al.,

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Defendants.

Appeal from the United States District Court

for the Northern District of Georgia

(April 11,2019)

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

Therian Cornelia Wimbush, a Georgia inmate, appeals pro se several orders

entered by the district court in an action she brought pursuant to 42 U.S.C. § 1983

to challenge the conditions of her confinement at the Gwinnett County Jail (the

“Jail”). Wimbush brings this appeal following a grant of summary judgment in

favor of the 12 defendants, Sheriff R. L. (Butch) Conway, Sergeant James

Thornton, Deputy Mark White, Captain Mark Thomas, Deputy Myron Walker,

Sergeant Kelvin Barber, Deputy Martine Innocent, Deputy Jeffrey Oblein, Deputy

Sean Culbreth, Deputy Dawn Clark, Deputy Martin Campbell, and Captain Myles

Shapiro (collectively, the “County Officers”). On appeal, Wimbush argues that the

district court erred by (1) dismissing, at the pleading stage, her “claims related to

punishment of a pretrial detainee and the named defendant perpetrators,” (2)

denying her emergency motion for injunctive relief, (3) denying her leave to

amend her complaint, (4) denying her request for appointment of counsel, (5)

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dismissing her mail policy and religious freedom claims for failure to exhaust

administrative remedies, and (6) granting defendants’ motion for summary

judgment on her claim that she was she was denied all contact with her co­

defendant husband and assessing costs against her. Appellant’s Br. at 5. After

careful review, we affirm.

I.

BACKGROUND

Wimbush was charged in Georgia state court with several counts of cruelty

to children. See Wimbush v. State, 812 S.E.2d 489, 499 (Ga. Ct. App. 2018).

While detained at the Jail awaiting trial, Wimbush filed a pro se complaint in

federal district court against various Jail officials, alleging that they violated her

constitutional rights as a pretrial detainee by, among other things, punishing her for

violating Jail rules; subjecting her to the Jail’s inmate mail policy, which limited

nonlegal mail to metered postcards; separating her in the Jail from her co­

defendant husband; and infringing upon her religious freedom. In sum, the

complaint alleged that more than 30 conditions of Wimbush’s confinement

amounted to unconstitutional punishment of a pretrial detainee. Wimbush

requested declaratory and injunctive relief, as well as monetary damages.

Before the complaint was served on the defendants, a magistrate judge

screened it pursuant to 28 U.S.C. § 1915A. The magistrate judge ordered

Wimbush to submit an amended complaint that complied with certain conditions

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set forth in the order. Specifically, the magistrate judge ordered her to allege

against the various defendants only claims related to events arising out of the same

transaction or occurrence. See Fed. R. Civ. P. 20(a)(2).1 Wimbush moved for

reconsideration, but the magistrate judge denied her motion and again ordered her

to amend her complaint pursuant to his earlier order.

Wimbush then filed an amended complaint in which she alleged many of the

same claims and listed as defendants not only the County Officers, but also other

officials and entities who are not parties to this appeal.2 Before service of process,

the magistrate judge screened Wimbush’s amended complaint pursuant to 28

U.S.C. § 1915A and issued a Report and Recommendation (“R&R”)

recommending that the district court dismiss the amended complaint without

prejudice for failure to comply with the court’s earlier order. Alternatively, the

magistrate judge recommended that the district court allow only two of Wimbush’s

claims to proceed and dismiss the rest for failure to state a claim. Over Wimbush’s

1 The magistrate judge also directed Wimbush, in amending her complaint, to comply

with several other conditions that are largely irrelevant to this appeal.

2 In her amended complaint, Wimbush named as defendants 35 county officials, along

with the Gwinnett County Sheriffs Department and the Jail. A magistrate judge later

recommended dismissing from the action these two entities and the 23 individuals other than the

County Officers, which the district court did. Although Wimbush argues on appeal that “[e]very

single defendant played a part in [her] punishment,” Appellant’s Br. at 10, this is no more than a

“passing reference[].” See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir.

2014). She fails to explain how each of the two entities and 23 individuals the district court

dismissed is responsible for her alleged mistreatment. Accordingly, she has abandoned any

argument that the district court erred in dismissing the Sheriffs Department, the Jail, and the 23

individual defendants. See id.

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objections, the district court adopted the R&R’s alternative recommendation,

modifying it slightly. The court allowed three of her claims to proceed, including

the claims that (1) she was denied all contact with her co-defendant husband, (2)

her incoming nonlegal mail was limited to postcards (“mail policy claim”), and (3)

her rights to religious freedom were violated when the defendants accused her of

misusing her prayer rug and ordered her to provide doctrinal support for her fast

(“religious freedom claim”). The court dismissed her remaining claims pursuant to

28 U.S.C. § 1915A(b)(l) for failure to state a claim.

The County Officers filed a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6) seeking, among other things, dismissal of Wimbush’s

mail policy and religious freedom claims for failure to exhaust her administrative

remedies. Before the court ruled on this motion, Wimbush filed an “Emergency

Motion for Injunction,” alleging that officials were preventing her from using the

law library and requesting that the court enjoin the officials from restricting her

access. The magistrate judge issued another R&R recommending that the district

court deny Wimbush’s emergency motion for injunction and grant the County

Officers’ motion to dismiss. Wimbush objected. Before the district court ruled on

her objections, Wimbush filed a combined motion for leave to amend her

complaint for a second time and for appointment of counsel. The district court

overruled Wimbush’s objections, adopted the R&R, denied her emergency motion

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for an injunction, dismissed her mail policy and religious freedom claims, and

denied her combined motion for leave to amend and for appointment of counsel.

Following discovery, the County Officers moved for summary judgment on

Wimbush’s claim that she was she was denied all contact with her co-defendant

husband. The magistrate judge issued an R&R recommending that the County

Officers’ motion for summary judgment be granted (“Summary Judgment R&R”).

Wimbush did not immediately object. Noting the absence of any objections, the

district court adopted the Summary Judgment R&R, granted summary judgment to

the County Officers on that claim, and entered a final judgment. The court also

taxed the County Officers’ costs against Wimbush.3

Before the district court granted summary judgment and entered final

judgment, Wimbush had delivered to prison officials for mailing two additional

filings. In one, Wimbush objected to the magistrate judge’s Summary Judgment

R&R. In the other, Wimbush again moved for leave to amend and for appointment

of counsel. In support, Wimbush argued, in part, that she wished to add multiple

claims, including her previously dismissed mail policy claim, for which she alleged

she had, by then, “fully exhausted her administrative remedies.” Doc. 83 at 8.4

3 Although Wimbush argues on appeal that the district court erred in assessing

“attorney’s fees” against her, Appellant’s Br. at 5, the district court in fact only taxed her with

the County Officers’ costs.

4«

Doc. #” refers to the numbered entry on the district court’s docket.

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She also argued that she was not legally trained and needed the assistance of

counsel. Before the district court could address either filing, Wimbush delivered to

prison officials for mailing a motion for reconsideration of the court’s order

adopting the Summary Judgment R&R, arguing that she had timely filed both her

objections and her second combined motion for leave to amend and for

appointment of counsel.

The district court granted Wimbush’s motion to reconsider. After reviewing

the Summary Judgment R&R de novo, the court adopted it over Wimbush’s

objections. The court also denied her second combined motion for leave to amend

and for appointment of counsel.

This is Wimbush’s appeal.

II.

STANDARDS OF REVIEW

We review de novo a district court’s sua sponte dismissal of a claim

pursuant to 28 U.S.C. § 1915A(b)( 1), Leal v. Ga. Dep’t of Corr., 254 F.3d 1276,

1278-79 (11th Cir. 2001). “We review a district court’s interpretation of the . . .

exhaustion requirement de novo.” Whatley v. Smith, 898 F.3d 1072, 1082 (11th

Cir. 2018) (emphasis added). “However, we review the district court’s factual

findings on the issue of exhaustion for clear error.” Id. We review de novo a

district court’s grant of a summary judgment motion. Ellis v. England, 432 F.3d

1321, 1325 (11th Cir. 2005).

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We review for abuse of discretion a district court’s denial of a motion for a

preliminary injunction, Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247

(11th Cir. 2016), denial of a motion for leave to amend, Long v. Satz, 181 F.3d

1275, 1278 (11th Cir. 1999), denial of a motion for appointment of counsel, Bass v.

Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999), and award of costs to a prevailing

party. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 619-20 (11th Cir. 2000).

III.

DISCUSSION

Wimbush appeals several of the district court’s orders. Specifically, she

argues that the district court erred by (1) “dismissing [pursuant to 28 U.S.C.

§ 1915A(b)(l)] [her] claims related to punishment of a pretrial detainee and the

named defendant perpetrators,” (2) denying her emergency motion for injunctive

relief, (3) denying her leave to amend her complaint, (4) denying her request for

appointment of counsel, (5) dismissing her mail policy and religious freedom

claims for failure to exhaust administrative remedies, and (6) granting defendants’

motion for summary judgment on her claim that she was she was denied all contact

with her co-defendant husband, as well as assessing against her the defendants’

attorney’s fees. Appellant’s Br. at 5. In addition to rebutting Wimbush’s

arguments, the County Officers argue that we should hold her in contempt of court,

strike her brief, and dismiss her appeal because her brief was untimely filed and

failed to comply with aspects of Federal Rules of Appellate Procedure 28(a) and

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32(a). We disagree with the County Officers’ contention that Wimbush’s brief was

untimely.5 And to the extent she has violated Rule 28(a) or Rule 32(a), which

respectively govern the content and format of appellate briefs, we exercise our

discretion to consider her brief on its merits.6 We will next address each of

Wimbush’s arguments in turn.

A.

Wimbush Has Abandoned Her Argument that the District Court Erred

in Dismissing Her Claims Related to Punishment as a Pretrial Detainee.

The district court, pursuant to 28 U.S.C. § 1915A(b)(l), dismissed for failure

to state a claim all but three of the amended complaint’s claims alleging unlawful

punishment of a pretrial detainee. We review de novo a district court’s sua sponte

5 To the extent Wimbush untimely filed her brief, we sua sponte grant her leave to file

out of time. Further, in arguing that Wimbush’s brief was untimely filed, the County Officers

also argue that she failed to serve them with a designation of the parts of the record that she

intended to include in her appendix to her brief and that she failed to file an appendix. But this

Court does not require an appellant to serve an appellee with a designation of parts of the record

to be included in the appendix. Compare Fed. R. App. P. 30(b)(1) (requiring the appellant to

serve the appellee with such a designation in the absence of an agreement with the appellee),

with 11th Cir. R. 3 0-1 (a) (“Other than FRAP 30(a)(1), the requirements in FRAP 30 do not apply

in this circuit.”). And, under this Court’s local rules, Wimbush, an incarcerated pro se party, was

not required to file an appendix. See 11th Cir. R. 30-1(d) (“[A]n incarcerated pro se party is not

required to file an appendix.”).

6 We decline to hold Wimbush in contempt of court. Further, we sua sponte exercise our

discretion to accept Wimbush’s brief despite its deficiencies because she is pro se and because

the brief sufficiently identifies the issues she raises on appeal. See West v. Peoples, 589 F.

App’x 923, 930 n.8 (11th Cir. 2014) (unpublished) (citing Allstate Ins. Co. v. Swann, 27 F.3d

1539, 1542 (11th Cir. 1994)) (“Since West is pro se, and since his brief, liberally construed, both

sufficiently identifies the issues on appeal and contains assertions of district court error, we

decline to find that West has waived and/or abandoned his arguments on appeal by failing to

comply with Rule 28’s requirements.”); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.4

(11th Cir. 2003) (exercising discretion to consider a counseled party’s brief despite its failure to

comply with Fed. R. App. P. 28(a)(9)(A)); see also Fed. R. App. P. 32(e) (“By local rule or order

in a particular case, a court of appeals may accept documents that do not meet all the form

requirements of this rule . . . .”).

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dismissal of a claim pursuant to § 1915A(b)(l). Leal, 254 F.3d at 1278-79. Under

§ 1915A(b)(l), a district court must dismiss a case where a pretrial detainee seeks

redress from the government if the complaint fails to state a claim on which relief

may be granted. 28 U.S.C. § 1915A(b)(l). The same standards that apply to a

dismissal under Federal Rule of Civil Procedure 12(b)(6) apply to a dismissal

under § 1915A(b)(l). See Jones v. Bock, 549 U.S. 199, 215-16 (2007).

The Fourteenth Amendment’s Due Process Clause prohibits state officials

from punishing a pretrial detainee “‘prior to an adjudication of guilt in accordance

with due process of law.’” Jacoby v. Baldwin Cty., 835 F.3d 1338, 1344 (11th Cir.

2016) (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). But officials may

“‘subject [a pretrial detainee] to the restrictions and conditions of [a] detention

facility so long as those conditions and restrictions do not amount to punishment or

otherwise violate the Constitution.’” Id. at 1344-45 (quoting Bell, 441 U.S. at 53637). “Whether a condition of pretrial detention amounts to punishment turns on

whether the condition is imposed for the purpose of punishment or whether it is

incident to some legitimate government purpose.” Id. at 1345 (alteration adopted)

(internal quotation marks omitted). “Restraints that are reasonably related to the

institution’s interest in maintaining jail security do not, without more, constitute

unconstitutional punishment, even if they are discomforting and are restrictions

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that the detainee would not have experienced had [s]he been released while

awaiting trial.” Bell, 441 U.S. at 540.

Wimbush argues the district court erred when it dismissed most of the

claims in her amended complaint alleging unlawful pretrial punishment, allowing

only three to proceed.7 Specifically, she contends that the dismissed claims should

“have been allowed to proceed and in reference to all defendants, as all of their

actions, regardless of other constitutional right violations, deprived [her] of her

right to be free from punishment prior to an adjudication of guilt, [or] a valid

conviction, by a competent court with jurisdiction.” Appellant’s Br. at 10. The

County Officers respond that we lack jurisdiction to entertain this argument

because the district court order dismissing these claims was a nonfinal,

nonappealable order.

We have jurisdiction to consider Wimbush’s argument concerning the

claims alleging unconstitutional punishment of a pretrial detainee because the

district court entered a final judgment after granting summary judgment. By

entering a final judgment, the district court rendered appealable all earlier orders

that produced the judgment. Akin v. PAFEC Ltd., 991 F.2d 1550, 1563 (11th Cir.

7 It is unclear from the amended complaint whether Wimbush intended each event

alleged therein to support a separate claim for relief, or whether she intended each event to

support a single claim of unlawful pretrial punishment. We treat the dismissed allegations as

independent claims alleging unlawful pretrial punishment because Wimbush in her brief refers to

the dismissed allegations as separate claims, and because the district court appeared to treat them

that way.

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1993) (“When a district court enters a final judgment, all prior non-final orders and

rulings which produced the judgment are merged into the judgment and subject to

review on appeal.” (internal quotation marks omitted)).

But we cannot conclude, on the grounds Wimbush urges, that the district

court erred in dismissing the claims alleging that she was unlawfully punished as a

pretrial detainee. Although the complaint alleged that more than 20 events

occurring while Wimbush was detained at the Jail amounted to unconstitutional

punishment of a pretrial detainee, she does not specifically address any of these

allegations in her brief. Rather, she argues generally that all the alleged events

constituted prohibited punishment. By failing to specifically address in her brief

any of the claims she seeks to revive on appeal, Wimbush has abandoned her

arguments for reversing the district court’s dismissal of these claims. See Sapuppo

v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“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.”).8 Accordingly, we affirm the district court’s dismissal of the

claims alleging unconstitutional pretrial punishment.

8 Wimbush states in her brief that “she was falsely imprisoned in the . . . Jail as a direct

consequence of unlawful actions taken by the Courts.” Appellant’s Br. at 9. Aside from its

conclusory nature, this allegation does not appear in the amended complaint and therefore

provides no basis to vacate the district court’s dismissal of the claims alleging unlawful pretrial

punishment.

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B.

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Wimbush’s Emergency Motion for Injunctive Relief Is Moot.

The district court denied Wimbush’s emergency motion for injunctive relief

after concluding that she sought injunctive relief as to a claim for denial of access

to the courts, which was unrelated to the claims that were proceeding before the

court. The court further concluded that Wimbush had failed to exhaust her

administrative remedies for this claim and that it lacked merit. We review for

abuse of discretion a district court’s denial of a motion for a preliminary

injunction. Wreal, LLC, 840 F.3d at 1247.

Wimbush argues that the district court should not have denied her emergency

motion for injunctive relief because Thomas retaliated against her after she sought

legal redress against Thomas, Conway, and the Gwinnett County Sherriff s Office.

According to Wimbush, Thomas ordered various deputies to deny her access to

notaries, “the right to research for the underlying case,” and the opportunity to work

on any “legal ventures” except her criminal case. Appellant’s Br. at 11.

Before addressing Wimbush’s argument, we first consider whether her

appeal of the district court’s denial of her emergency motion for injunction is

moot. “Although the parties did not raise any question about mootness, we have

an [independent] obligation to notice and decide mootness issues.” United States

v. Secy, Fla. Dep’t ofCorr., 778 F.3d 1223, 1226 (11th Cir. 2015). An issue

becomes moot “when the issue [] . . . [is] no longer live or the parties lack a legally

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cognizable interest in the outcome.” BankWest, Inc. v. Baker, 446 F.3d 1358, 1364

(11th Cir. 2006) (internal quotation marks omitted). When we determine that an

issue raised on appeal is moot, we must dismiss the appeal as to that issue because

“[a]n appellate court simply does not have jurisdiction under Article III [of the

United States Constitution] to decide questions which have become moot by reason

of intervening events.” Id. at 1363-64 (internal quotation marks omitted). A

request for injunctive relief relating to conditions of confinement at a given

institution becomes moot once the person raising the request has been transferred

to another institution. See Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir.

1988) (concluding that an incarcerated person’s “claims for injunctive and

declaratory relief relating to the conditions of’ confinement at a correctional

facility became moot once the person was transferred to another facility).

Wimbush sought injunctive relief relating to the conditions of her

confinement at the Jail, but she has since been transferred to a state prison. Her

request for injunctive relief is therefore moot. See Spears, 846 F.2d at 1328. As

we lack jurisdiction to review the denial of her emergency motion for injunctive

relief, we dismiss that portion of her appeal.9

9 The County Officers argue that we must dismiss as untimely Wimbush’s appeal of the

district court order denying her emergency motion for injunctive relief because she failed to

appeal within 30 days of the date when the order was entered. We decline to address this

argument because of our conclusion that we lack jurisdiction to entertain Wimbush’s appeal as to

this issue due to mootness.

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C.

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The District Court Did Not Abuse Its Discretion In Denying Wimbush

Leave to Amend.

The district court twice denied Wimbush leave to amend her complaint. The

district court first denied her leave to amend because it concluded that her attempt

to amend her complaint to add a claim of denial of access to the courts would be

futile as it was unrelated to the claims on which the court had allowed her to

proceed. The district court again denied Wimbush leave to amend her complaint

for several reasons, including because it again determined that she sought to add a

claim that was unrelated to the only claim on which she was then proceeding, the

claim that she was separated from her co-defendant husband.

We generally review for abuse of discretion a district court’s denial of a

motion for leave to amend. Long, 181 F.3d at 1278. Although a district court

“should freely give leave [to amend] when justice so requires,” Fed. R. Civ. P.

15(a), “a motion to amend may be denied on numerous grounds such as undue

delay, undue prejudice to the defendants, and futility of the amendment,” Mann v.

Palmer, 713 F.3d 1306, 1316 (11th Cir. 2013) (internal quotation marks omitted).

A district court does not abuse its discretion by “denying] a motion for leave to

amend following the close of discovery, past the deadline for amendments and past

the deadline for filing dispositive motions.” Lowe’s Home Ctrs., Inc., v. Olin

Corp., 313 F.3d 1307, 1315 (11th Cir. 2002).

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Wimbush argues on appeal that she sought to amend her complaint for two

reasons: (1) to show that she exhausted her administrative remedies after she filed

her first amended complaint and (2) because “she was deprived of her first

amendment as a matter of right solely due to the forced, limited amendment by the

Magistrate [Judge] in the pleading stage of the case.” Appellant’s Br. at 11.

Wimbush further states that she unsuccessfully moved the district court for

appointment of counsel to help her prepare a second amended complaint. We

conclude that Wimbush has abandoned her argument that the district court erred in

denying her motion for leave to amend by failing to address any of the grounds on

which the district court based its decision.

In arguing that the district court erred in denying her leave to amend her

complaint, Wimbush explains why she moved in the district court for leave to

amend her complaint but fails to explain why she thinks the district court

erroneously denied her motion. The only authority she cites in the section of her

brief devoted to this issue is Rule 15’s instruction that a district court “should

freely give leave [to amend] when justice so requires,” Fed. R. Civ. P. 15(a).

Wimbush has thus abandoned any argument that the district court erred in denying

her motion for leave to amend by failing to “advanc[e] any arguments or cit[e] any

authorities to establish that [the district court’s ruling] w[as] error.” See Sapuppo,

739 F.3d at 681. Accordingly, we affirm the district court’s denial of the motion.

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D.

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The District Court Did Not Abuse Its Discretion In Denying Wimbush’s

Request for Counsel.

The district court twice denied Wimbush’s motion for appointment of

counsel. The district court denied Wimbush’s first request for counsel because it

concluded that she had demonstrated her ability to prosecute the case and no

exceptional circumstances existed to justify the appointment of counsel. The

district court provided no explanation for its denial of Wimbush’s second request.

We review a refusal to appoint counsel for abuse of discretion. See Bass,

170 F.3d at 1319. Appointment of counsel in a civil case is not a constitutional

right and is justified only in exceptional circumstances. Id. at 1320. Exceptional

circumstances exist “where the facts and legal issues are so novel or complex as to

require the assistance of a trained practitioner.” Fowler v. Jones, 899 F.2d 1088,

1096(11th Cir. 1990).

Wimbush argues that the district court should have appointed counsel to

represent her because she was not educated in the law, familiar with litigation, or

able to effectively research and because she was indigent as a result of her

incarceration. The County Officers respond that appointing counsel in a civil

action is warranted only in exceptional circumstances, and that there is no evidence

of exceptional circumstances here. The County Officers have the better side of this

argument.

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Here, by the time she filed her first motion to appoint counsel, Wimbush had

demonstrated to the district court that she had the ability to file multiple intelligible

and coherent filings with the court. And her only claim that remained after the

district court denied her first motion to appoint counsel, the claim challenging her

separation from her co-defendant husband, presented no novel or complex legal

issue. See Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003) (explaining that a

prison regulation restricting an inmate’s access to intimate association will be

sustained so long as the “challenged regulation[ ] bear[s] a rational relation to

legitimate penological interests”). We therefore conclude that the district court did

not abuse its discretion in denying either of Wimbush’s motions for appointment of

counsel. See Bass, 170 F.3d at 1320 (concluding “no exceptional circumstances

that would require the appointment of counsel” existed for plaintiffs challenging

conditions of confinement because “[t]he core facts of the case . . . [we]re not in

dispute, and their legal claims . . . [we]re straightforward”).

E.

The District Court Did Not Err in Dismissing Wimbush’s Mail Policy

and Religious Freedom Claims for Failure to Exhaust Administrative

Remedies.

The district court dismissed Wimbush’s mail policy and religious freedom

claims for failure to exhaust administrative remedies after overruling her

objections that the Jail failed to provide a grievance or other administrative review

process to her and that there were only two levels to the grievance process. “We

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review a district court’s interpretation of the . .. exhaustion requirement de novo.”

Whatley, 898 F.3d at 1082 (emphasis added). “However, we review the district

court’s factual findings on the issue of exhaustion for clear error.” Id. “For all

other facts, we accept as true the facts pleaded in [the] complaint and draw all

reasonable inferences in [the plaintiffs] favor.” Id.

A convicted prisoner has a First Amendment right to communicate by mail

with family and friends, see Perry v. Sec ’y, Fla. Dep’t of Corr., 664 F.3d 1359,

1363 (11th Cir. 2011), and to freely exercise her religion, O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987). “[W]hen a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).10

Although “[c]laims involving the mistreatment of. . . pretrial detainees in custody

are governed by the Fourteenth Amendment’s Due Process Clause instead of the

Eighth Amendment’s Cruel and Unusual Punishment Clause, which applies to such

claims by convicted prisoners[,] ... the applicable standard is the same, so

10 The Turner inquiry involves four factors: (1) whether there is a “valid, rational

connection between the regulation and the legitimate governmental interest put forward to justify

it”; (2) “whether there are alternative means of exercising the right that remain [available]”; (3)

whether and the extent to which accommodation of the asserted right will affect facility staff,

detainees, and “the allocation of prison resources generally”; and (4) whether “the absence of

ready alternatives is evidence of the reasonableness of a prison regulation,” or “the existence of

obvious, easy alternatives [is] evidence that the regulation is not reasonable.” Turner, 482 U.S.

at 89-90 (internal quotation marks omitted).

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decisional law involving prison inmates applies equally to cases involving . . .

pretrial detainees.” Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996).

Under the Prison Litigation Reform Act, “[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). A district court must follow the two-step process we described in

Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008), to determine whether

dismissal of a complaint for failure to exhaust is proper. First, the district court

“looks to the factual allegations in the defendant’s motion to dismiss and those in

the plaintiffs response, and if they conflict, [the court] takes the plaintiffs version

of the facts as true.” Id. “If the defendants can establish failure to exhaust based

on the plaintiff’s allegations, dismissal of the complaint is appropriate.” Whatley,

898 F.3d at 1082. Second, if the district court cannot decide the exhaustion issue

at step one of the Turner analysis, then “the district court must make specific

findings in order to resolve the disputed factual issues related to exhaustion.” Id.

(internal quotation marks omitted). “After making specific findings of fact, the

district court then decides whether under those findings the prisoner has

exhausted . . . available administrative remedies.” Id. (internal quotation marks

omitted). The defendant bears the burden of showing that the plaintiff has not

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properly exhausted her administrative remedies. Id. If a district court finds that a

plaintiff has failed to exhaust administrative remedies, then the court must dismiss

the suit. Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004).

Wimbush argues on appeal that she was not required to exhaust her

administrative remedies because there were no administrative remedies available to

her. She contends in the alternative that “as a precautionary measure, [she] did

complete all levels of the grievance procedure for all claims prior to departing from

the [Jail].” Appellant’s Br. at 13. Thus, according to Wimbush, “she was not

required to exhaust any administrative remedy,” but to the extent she was so

required, “she did exhaust all administrative remedies and was denied the

opportunity to amend her complaint to reflect such.” Id. We are unpersuaded by

Wimbush’s arguments.11

A review of the district court’s decision indicates that it resolved the

exhaustion issue at the second Turner step by considering evidence in the record

beyond the County Officers’ motion and Wimbush’s objections. The district court

cited as support for its finding that administrative remedies were available to

Wimbush an affidavit from Mark Thomas, a Captain in the Gwinnett County

11 The County Officers argue that we lack jurisdiction to consider Wimbush’s appeal of

the dismissal of her mail policy and religious freedom claims because the district court order

dismissing the claims was a nonfinal, nonappealable order. But again, we have jurisdiction to

consider this aspect of Wimbush’s appeal because the district court’s entry of final judgment

rendered appealable all earlier orders that produced the judgment. See Akin, 991 F.2d at 1563.

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Sherriff s Office who is responsible for “overseeing all daily administrative

functions [at] the Jail.” Doc. 49-1

2. Thomas testified that the Jail provides a

three-step grievance process, that Wimbush filed dozens of grievances, that she

failed to file a grievance “concerning her claim that her incoming nonlegal mail is

limited to postcards,” and that, for her religious freedom claim, Wimbush failed to

“avail herself of step three of the grievance process, which is the grievance

appeal.” Doc. 49-1 fflf 5-8. Based on this evidence, we conclude that the district

court did not clearly err in finding that a grievance process was available to

Wimbush. See Whatley, 898 F.3d at 1082-83 (“If the district court’s account of the

evidence is plausible in light of the record viewed in its entirety, we may not

reverse it. . . .” (alteration adopted) (internal quotation marks omitted)). As for

Wimbush’s argument that she should have been allowed leave to amend her

complaint to properly allege that she exhausted all administrative remedies, which

she requested in her second motion to amend, we earlier concluded that she has

abandoned her argument that the district court erred in denying that motion. Thus,

we affirm the district court’s dismissal of Wimbush’s mail policy and religious

freedom claims for failure to exhaust.

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Wimbush Has Abandoned Her Arguments that the District Court

Erred in Granting Summary Judgment to the Defendants and Assessing

Costs Against Her.

The district court granted the County Officers summary judgment on

Wimbush’s claim that she was she was denied all contact with her co-defendant

husband; the court also taxed the County Officers’ costs against her.

We review de novo a district court’s order granting a summary judgment

motion. Ellis, 432 F.3d at 1325. A pretrial detainee has a First Amendment right

to intimate association, although this right is more limited than it is outside the

confinement context. Overton, 539 U.S. at 131; see also Cottrell, 85 F.3d at 1490.

A condition of confinement that limits intimate association will withstand

constitutional challenge so long as the challenged regulation is rationally related to

a legitimate penological interest. Overton, 539 U.S. at 132.

We review for abuse of discretion a district court’s award of costs to a

prevailing party. W&O, Inc., 213 F.3d at 619-20. A district court may generally

award a prevailing party costs pursuant to Federal Rule of Civil Procedure 54(d).

Id. at 620. An award of costs is not the same as an award of attorney’s fees. See

generally Fed. R. Civ. P. 54.

Here, although Wimbush argues that the district court erred in granting the

County Officers summary judgment, her argument consists solely of a statement of

the applicable standard of review, without any supporting argument. By failing to

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provide any supporting argument, Wimbush has abandoned her arguments on

appeal that the district court erred in granting summary judgment to the County

Officers and in assessing their costs against her. See Sapuppo, 739 F.3d at 681.

We therefore affirm the district court on these issues.

IV.

CONCLUSION

For the foregoing reasons, we affirm the district court in all respects.

AFFIRMED.

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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

For rules and forms visit

www.cal I .uscourts.gov

David J. Smith

Clerk of Court

April 11,2019

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 17-13047-FF

Case Style: Therian Wimbush v. R.L. Conway, et al

District Court Docket No: l:16-cv-00363-LMM

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system,

unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this

day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing .

en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for

rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules.

Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and

an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all

persons and entities listed on all certificates previously filed by any party in the appeal. See 11 th Cir. R. 26.1 -1. In

addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for

rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on

the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for

writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or

cja_evoucher@cal 1.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, costs taxed against the appellant.

Please use the most recent version of the Bill of Costs form available on the court's website at www.cal 1 .uscourts.gov.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature

block below. For all other questions, please call Janet K. Mohler. FF at f404J 335-6178.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Djuanna Clark

Phone#: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

Case l:16-cv-00363-LMM Document 88 Filed 05/30/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

THERIAN WIMBUSH,

Plaintiff,

PRISONER CIVIL RIGHTS

42U.S.C. § 1983

v.

R. L. BUTCH CONWAY; et al.,

Defendants.

CIVIL ACTION NO.

1:16-CV-0363-LMM

ORDER

On May 2, 2017, having received no objections to the Magistrate Judge’s

Report and Recommendation (“R&R”) [78], the Court entered an Order [80] adopting

the R&R, denying Plaintiffs Motion for Default Judgment [71] and Motion to

Dismiss Defendants’ Motion for Summaryjudgment [76], and granting Defendants’

Motion for Summary Judgment [72].

This matter is now before the Court on

Plaintiffs Motion for Reconsideration [86], Objections to the R&R [84], and Motion

for Leave to Amend Complaint and for Assistance of Counsel [83]. In her Motion for

Reconsideration, Plaintiff asserts that she received the R&R on April 19, 2017, and

she submitted her Objections on April 30, 2017, less than fourteen days thereafter.

For good cause shown, Plaintiffs Motion for Reconsideration [86] is GRANTED,

and the Court will now consider her Objections to the R&R.

AO 72A

(Rev.8/82)

Case l:16-cv-00363-LMM Document 88 Filed 05/30/17 Page 2 of 4

In reviewing a Magistrate Judge’s Report and Recommendation, the district

court “shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1). “Parties filing objections to a magistrate’s report and recommendation

must specifically identify those findings objected to. Frivolous, conclusive, or general

objections need not be considered by the district court.” United States v. Schultz. 565

F.3d 1353, 1361 (1 1th Cir. 2009) (per curiam) (quoting Marsden v. Moore. 847 F.2d

1536, 1548 (1 1th Cir. 1988)) (internal quotation marks omitted). Absent objection,

the district judge “may accept, reject, or modify, in whole or in part, the findings and

recommendations made by the magistrate judge,” 28 U.S.C. § 636(b)(1), and “need

only satisfy itself that there is no clear error on the face of the record in order to accept

the recommendation,” Fed. R. Civ. P. 72, advisory committee note, 1983 Addition,

Subdivision (b). Further, “the district court has broad discretion in reviewing a

magistrate judge’s report and recommendation” - it “does not abuse its discretion by

considering an argument that was not presented to the magistrate judge” and “has

discretion to decline to consider a party’s argument when that argument was not first

presented to the magistrate judge.” Williams v. McNeil. 557 F.3d 1287, 1290-92

(11th Cir. 2009).

2

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Case l:16-cv-00363-LMM Document 88 Filed 05/30/17 Page 3 of 4

Plaintiff first objects to the denial of her Motion for Default Judgment, arguing

that Defendants have not filed responses in their individual capacities as the “County

Attorney is only authorized to represent defendants in their official capacity.”

However, Plaintiff provides no legal support for this specious argument, and the Court

agrees with the Magistrate Judge’s finding that Plaintiffs Motion for Default

Judgment should be denied because Defendants timely filed their answer.

.

Plaintiff next objects to the Magistrate Judge’s conclusion that her claims for

injunctive and declaratory relief are moot due to her transfer to a state penitentiary.

Plaintiff notes that she has been returned to the Gwinnett County Jail and is once again

subject to the Jail’s inmate separation policies and practices. Nevertheless, Plaintiffs

challenge to those policies and practices fail on the merits for the reasons discussed

in the R&R.

Plaintiff further challenges the R&R’s Statement of Facts. Although Plaintiff

had an opportunity to respond to Defendants’ Statement of Undisputed Material Facts,

she failed to do so. Accordingly, the Magistrate Judge correctly deemed those facts

admitted. See LR 56.1B(2W2\ NDGa: Reese v. Herbert. 527 F.3d 1253.1269 (11th

Cir. 2008).

3

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Case l:16-cv-00363-LMM Document 88 Filed 05/30/17 Page 4 of 4

Lastly, Plaintiff seeks to amend her complaint to add additional claims. Her

request to amend fails for the reasons stated in footnotes two and three of the R&R.

Furthermore, to the extent that Plaintiff raises new arguments not presented to the

Magistrate Judge, the Court declines to consider them. See Williams. 557 F. 3d at

1291-92 (“[Requiring the district court to consider new arguments raised in the

objections effectively would eliminate efficiencies gained through the Magistrates Act

Having conducted a careful review of the R&R and Plaintiffs Objections

thereto, the Court finds that the Magistrate Judge’s factual and legal conclusions were

correct and that Plaintiffs Objections have no merit. Therefore, the Court ADOPTS

the R&R and DENIES Plaintiffs Motion for Leave to Amend Complaint and for

Assistance of Counsel [83].

The Clerk is DIRECTED to close this case.

IT IS SO ORDERED this

, 2017.

day of

mi

LEIGH MARTIN m! Y

UNITED STATES DISTRICT JUDGE

4

AO 72A

(Rev.8/82)

Case l:16-cv-00363-LMM Document 80 Filed 05/02/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

THERIAN WIMBUSH,

Plaintiff,

v.

CIVIL ACTION NO.

i:i6-CV-363-LMM-RGV

R.L. BUTCH CONWAY, et ai,

Defendants.

ORDER

This matter is before the Court on the Magistrate Judge’s Report and

Recommendation (“R&R”) [78]. No objections have been filed in response to the

R&R. Therefore, in accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the

Federal Rules of Civil Procedure, the Court has reviewed the R&R for clear error

i

and finds none. Accordingly, the Court ADOPTS the R&R as the opinion of the

Court. Plaintiffs Motion for Default Judgment [71] and Motion to Dismiss

Defendants’ Motion for Summary Judgment [76] are DENIED, and Defendants’

Motion for Summary Judgment [72] is GRANTED. The Clerk is DIRECTED to

!

CLOSE this case.

IT IS SO ORDERED this 2nd day of May, 2017.

4m.Hi

Leigh Martin May y

United States District Judge

Case l:16-cv-00363-LMM Document 78 Filed 04/14/17 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

THERIAN WIMBUSH,

Plaintiff,

PRISONER CIVIL RIGHTS

42 U.S.C. § 1983

v.

R L (BUTCH) CONWAY, Gwinnett

County Jail; et al.,

Defendants.

CIVIL ACTION NO.

1:16-CV-0363-LMM-RGV

FINAL REPORT AND RECOMMENDATION

This case is proceeding on plaintiff Therian Wimbush’s (“plaintiff’) claim that,

while incarcerated in the Gwinnett County Jail (the “Jail”), she was denied all contact

with her husband, who was also an inmate in the Jail. [Doc. 7 at 5-6, 11; Doc. 64].

This matter is now before the Court on plaintiffs motion for default judgment, [Doc.

71], defendants’ motion for summary judgment, [Doc. 72], and plaintiffs motion to

dismiss defendants’ motion for summary judgment, [Doc. 76], which is construed as

a response in opposition to defendants’ motion for summary judgment. Because

defendants timely filed their answer, see [Doc. 50], it is RECOMMENDED that

plaintiffs motion for default judgment, [Doc. 71], be DENIED. Additionally, for the

reasons that follow, it is RECOMMENDED that defendants’ motion for summary

A0 72A

(Rev.8/82)

Case l:16-cv-00363-LMM Document 78 Filed 04/14/17 Page 2 of 11

judgment, [Doc. 72], be GRANTED and that plaintiff s motion to dismiss defendants ’

motion for summary judgment, [Doc. 76], be DENIED.

I. STATEMENT OF FACTS

Plaintiff alleges that Sergeant James Thornton, “using the jail’s practice of

limiting associations of inmates, implemented a ‘separation’ between” plaintiff and

her co-defendant husband on June 28,2014. [Doc. 7 at 5]. Plaintiff further states that

in November 2015, Deputy Mark White “entered further instructions on [her]

associations profile that [she could not] have any contact with [her] husband, who is

also an inmate, not even through regular mail.” [Id.]. Plaintiff also asserts that

Captain Mark A. Thomas, Deputy Sheriff Myron Walker, and Sergeant Kelvin Barber

refused to mail “legal mail” that plaintiff addressed to her pro se inmate husband.

[Id],

Finally, plaintiff contends that Deputy Martine Innocent wrote “NO

CONTACT” on a postcard that plaintiff received from her husband and that Deputies

Jeffery T. Oblein and Sean T. Culbreth have “very diligently enforce[d] the

1 These facts are drawn from defendants’ statement of undisputed material facts,

[Doc. 77], and are supported by the record as indicated. Because plaintiff failed to

respond to defendants’ statement of undisputed material facts, they are deemed

admitted. See LR 56.1B(2)a(2), NDGa; Reese v. Herbert, 527 F.3d 1253,1269 (11th

Cir. 2008).

2

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Case l:16-cv-00363-LMM Document 78 Filed 04/14/17 Page 3 of 11

‘separation’” between plaintiff and her husband while plaintiff is in the courtroom.

[Id at 6, 11].

The Jail has a female cell block that houses only female inmates and a male cell

block that houses only male inmates. [Doc. 73-1 TJ 4]. The cell blocks are designed

to separate the female inmates from the male inmates by sight and sound. [IdJ. This

separation of female and male inmates is a policy and practice of the Gwinnett County

Sheriffs Office to maintain the safety and security of both inmates and jail officials

inside the Jail. [Id ]f 5]. The Sheriffs Office also has an informal policy and practice

of keeping co-defendant inmates from associating with each other in the Jail when

asked to do so by the Gwinnett County District Attorney’s Office, both to prevent the

co-defendant inmates from collaborating and to ensure the integrity of the judicial

process. [Id. f 6]. The District Attorney’s Office asked jail officials to keep plaintiff

from associating with her co-defendant inmate husband, and, in accordance with the

policies and practices of the Sheriffs Office, plaintiff was denied all physical contact

with her husband while they were both inmates at the Jail. [Id Tf 7].

The Jail’s inmate mail policy provides that “[ijnmate to inmate mail must be on

a metered postcard.” [Id ^ 8, Ex. A § VI.C]. Inmates further are not allowed to send

fellow inmates “regular mail,” which is considered to be correspondence in an

3

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Case l:16-cv-00363-LMM Document 78 Filed 04/14/17 Page 4 of 11

envelope, and any postcard addressed to an inmate from another inmate that is not

metered will not be delivered.

[Doc. 73-1

9].

This inmate to inmate mail

correspondence rule stems from safety and security concerns of jail officials. [IdJ.

The Jail’s inmate mail policy also provides that “[l]egal mail shall be delivered

to the inmate unopened,” and further that

[a]ll legal mail shall be opened and inspected in the inmate’s presence.

When inspecting legal mail, the unit deputy shall check the legal

documents to ensure contraband has not been concealed in the envelope.

The inspection of all legal documents shall be conducted in the inmate’s

presence. Staff members shall not read or censor inmates’ legal

correspondence.

rid. T( 10, Ex. A § VIII.C], In November 2016, Deputy James Wilson delivered an

unopened package of legal correspondence from plaintiff to her co-defendant inmate

husband. [Doc. 73-l^Jll]. Deputy Wilson opened the package to inspect the legal

documents in the presence of plaintiffs husband and then handed the entire package

to him. [IdJ. Plaintiff was transferred from the Jail to Arrendale State Prison on

February 3, 2017. [Id. H 131.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “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

4

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law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial

burden of demonstrating that no genuine dispute as to any material fact exists.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party’s burden may

be discharged by “‘showing’ - that is, pointing out to the district court - that there is

an absence of evidence to support [an essential element of] the nonmoving party’s

case.” Id. at 325. In determining whether the moving party has met this burden, the

district court must “view the evidence and all factual inferences ... in the light most

favorable to the party opposing the motion.” Burton v. City of Belle Glade, 178 F.3d

1175, 1187 (11th Cir. 1999) (citation omitted).

Once the moving party has adequately supported its motion, the nonmovant

then has the burden of showing that summary judgment is improper by coming

forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmovant may not rest upon

mere allegations or denials contained in his pleadings. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986). Additionally, “[t]he mere existence of a scintilla of

evidence in support of the [nonmovant’s] position” is insufficient to defeat summary

judgment. Id at 252. Rather, the court must determine “whether reasonable jurors

5

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could find by a preponderance of the evidence that the plaintiff is entitled to a

verdict.” Id.

III. ANALYSIS

Defendants argue that they are entitled to summary judgment on the grounds

that: (1) plaintiffs demand for a temporary restraining order and injunctive relief is

now moot because she is no longer incarcerated in the Jail; and (2) the Jail’s policies

and practices of separating male and female inmates, keeping co-defendant inmates

separated from each other, and limiting the types of mail that inmates may send to one

another should be afforded deference because they are reasonably related to the

legitimate government objectives of maintaining the safety and security of inmates and

jail officials and of preventing co-defendants from collaborating. [Doc. 72-1 at 9-15].

In her construed response in opposition to defendants’ motion, plaintiff argues, in

pertinent part, that defendants had no jurisdiction or authority to implement or enforce

these policies and practices and further seeks leave to amend her complaint to add

claims that these policies and practices violated her due process and equal protection

rights and confirm a conspiracy against her,2 and she further asserts that she has been

2 Plaintiffs request to amend her complaint fails for several reasons. First,

plaintiff has not filed a motion to amend her complaint, but only made the request in

her response opposing defendants’ motion for summary judgment. See Chavis v.

6

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Case l:16-cv-00363-LMM Document 78 Filed 04/14/17 Page 7 of 11

kidnaped and falsely imprisoned because the Superior Court of Gwinnett County

lacked jurisdiction to execute her sentence which was entered on the docket two days

after she filed a notice of appeal of her convictions.3 [Doc. 76].

A.

Injunctive and Declaratory Relief

“Absent class certification, an inmate’s claim for injunctive and declaratory

relief under [42 U.S.C.] § 1983 generally becomes moot once the inmate is

transferred.” Clas v. Torres, 549 F. App’x 922, 923 (11th Cir. 2013) (per curiam)

(citation omitted). There is a “narrow exception for actions that are capable of

Clayton Cty. Sch. Dist., 300 F.3d 1288,1291 n.4 (11th Cir. 2002) (an issue first raised

in response to a summary judgment motion, where the plaintiff did not seek to amend

his complaint, is not properly before the court). Also, plaintiff has offered no

explanation for not previously asserting these claims as “the basic facts giving rise”

to these new claims were available when plaintiff filed both her original and amended

complaints. Jameson v. Arrow Co.,75F.3d 1528,1535 (11th Cir. 1996). Finally, the

discovery period has closed and her request to amend to add these new claims made

in response to defendants’ motion for summary judgment is due to be denied for undue

delay. Id

3 This claim is unrelated to the claim on which plaintiff is proceeding and, thus,

may not be joined in this action. See Bolick v. Fagan, No. 5:15-CV-211 -CAR-MSH,

2015 WL 3952861, at *2 (M.D. Ga. June 29, 2015) (“A plaintiff may set forth only

related claims in one civil rights complaintf, and] may not join unrelated claims and

various defendants ....”). Moreover, to the extent that plaintiff is challenging the fact

of her imprisonment, such claims may only be brought in a habeas corpus petition.

Preisser v. Rodriguez, 411 U.S. 475, 500 (1973). Accordingly, plaintiffs request to

amend to add this claim is also due to be denied.

7

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Case l:16-cv-00363-LMM Document 78 Filed 04/14/17 Page 8 of 11

repetition yet evading review[, which] applies only in the exceptional circumstance

in which the same controversy will recur and there will be inadequate time to litigate

it prior to its cessation.” A1 Najjar v. Aschcroft, 273 F.3dl330,1339 (11th Cir. 2001)

(per curiam) (citation omitted). Because plaintiff “is no longer in the custody of

county jail officials, the most that can be said for [her] standing is that if [she] is

released from prison, is convicted of another crime and is incarcerated in the ... Jail,

[she] might again be subject to [the alleged constitutional deprivation].” Dudley v.

Stewart, 724 F.2d 1493, 1494 (11th Cir. 1984), abrogated on other grounds, San din

v. Conner, 515 U.S. 472, 484 (1995). “The remote possibility that an event might

recur is not enough to overcome mootness, and even a likely recurrence is insufficient

if there would be ample opportunity for review at that time.” A1 Najjar, 273 F.3d at

1336. Because this is not a class action and because plaintiff has been transferred

from the Jail to a state penitentiary, her claims for injunctive and declaratory relief are

due to be denied as moot.4 Clas, 549 F. App’x at 924.

4 Plaintiff contends that she is scheduled to return to the Gwinnett County Jail,

where her husband is still detained, for an April 26, 2017, bond hearing. [Doc. 76 at

3]. Even assuming that plaintiff will once again be subject to the Jail’s inmate

separation policies and practices and that her claims for injunctive and declaratory

relief are not moot, her challenge to those policies and practices fails on the merits for

the reasons discussed in section III.B.

8

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B.

Jail’s Inmate Separation Policies and Practices

Pre-trial detainees have a First Amendment right to communicate with family

and friends. Abdoulaye v. Brown, No. 1:07-CV-3071-WCO, 2010 WL 3768031, at

*5 (N.D. Ga. Sept. 17,2010). Jail restrictions on an inmate’s ability to contact friends

and family are subject to the reasonableness test set forth in Turnery. Saflev. 482 U.S.

78(1987). Abdoulaye, 2010 WL 3768031, at *5 (citing Pope v. Hightower, 101 F.3d

1382, 1384-85 (11th Cir. 1996)). In Turner, the Supreme Court established the

following four factors for evaluating the reasonableness of a prison regulation:

(1) whether “there [is] a ‘valid, rational connection’ between the prison regulation and

the legitimate governmental interest put forward to justify it”; (2) “whether there are

alternative means of exercising the right that remain open to prison inmates”; (3) “the

impact accommodation of the asserted constitutional right will have on guards and

other inmates, and on the allocation of prison resources generally”; and (4) “the

existence of obvious, easy altematives[, which] may be evidence that the regulation

is not reasonable, but is an ‘exaggerated response’ to prison concerns.” 482 U.S. at

89-90. Courts generally defer to the judgment ofjail and prison authorities in setting

policies and practices for their inmates. Shaw v. Murphy, 532 U.S. 223,229 (2001).

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Here, the undisputed evidence shows that, at the request of the Gwinnett County

District Attorney’s Office, the Gwinnett County Sheriffs Office denied plaintiff all

physical contact with her co-defendant husband while they were both inmates at the

Jail. [Doc. 73-1 f 7]. This was done to prevent plaintiff and her co-defendant inmate

husband from collaborating and to ensure the integrity of the judicial process. [Id

If 6]. This legitimate penological purpose justified the restrictions on plaintiffs

constitutional right to have contact with her husband. See Smith v. Gray, No. 1:04CV-118 (WLS), 2007 WL 891518, at *2-3 (M.D. Ga. Mar. 21, 2017), report and

recommendation adopted, at * 1. The undisputed evidence also shows that plaintiff

was not denied “all” contact with her husband as they were permitted to send metered

postcards to one another and furthermore that jail staff delivered legal mail from

plaintiff to her co-defendant inmate husband. [Doc. 73-1 Tf 8, 10-11, Ex. A §§ VI.C

and VIII.C]. Plaintiff has provided no record or legal citations to support her

argument that defendants had no jurisdiction or authority to implement or enforce

these policies and practices, and the undisputed evidence shows otherwise.

Accordingly, there is no genuine issue for trial and the undisputed facts establish that

defendants acted within their broad discretion to limit plaintiffs contact with her co-

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defendant inmate husband and that the restrictions placed on that contact were

reasonably related to legitimate penological purposes.

IV. CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED that plaintiff s motion for

default judgment, [Doc. 71], be DENIED, that defendants’ motion for summary

judgment, [Doc. 72], be GRANTED, and that plaintiffs motion to dismiss

defendants’ motion for summary judgment, [Doc. 76], be DENIED.

The Clerk is DIRECTED to terminate the referral to the Magistrate Judge.

SO RECOMMENDED, this 14th day of APRIL, 2017.

6* l/rTLUjAA

A

RUSSELL G. VINEYARD

UNITED STATES MAGISTRATE JUDGE

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