United States District Court, M.D. Georgia, Macon Division
ORDER AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
pending before the Court is Plaintiff's motion to relate
(ECF No. 83), motion for leave to file a sur-reply brief (ECF
No. 97), motion for documents at government's expense
(ECF No. 98), motion to amend complaint (ECF No. 102), and
motion to correct certain filings (ECF No. 115). Also pending
before the Court is Defendants' motion for summary
judgment (ECF No. 86). Plaintiff's motion to relate,
motion for leave to file a sur-reply brief, motion for
documents at government's expense, and motion to amend
complaint are denied. Plaintiff's motion to correct
certain filings is granted. For the reasons stated above, it
is recommended that Defendants' motion for summary
judgment be granted. For the reasons discussed herein, it is
recommended that Defendants' motion for summary judgment
present action arises out of Plaintiff Darnell Nolley's
confinement in the Tier II Administrative Segregation Program
(“Tier II”) at Macon State Prison (“Macon
State”). Plaintiff filed this § 1983 action on
March 1, 2015. Compl. 7, ECF No. 1.
the case was initially dismissed, Plaintiff was granted leave
to file a post-judgment motion to amend his complaint.
Plaintiff's April 21, 2015 Amended Complaint (ECF No. 12)
is the controlling complaint of this case. Order 3, June 1,
2015, ECF No. 11. Pursuant to the ruling on Defendants'
pre-answer motion to dismiss (ECF No. 21), Plaintiff's
Fourteenth Amendment claim against Defendants in their
individual capacities for nominal damages is the only pending
claim. Order 4, Mar. 29, 2016, ECF No. 54.
was deposed (ECF No. 90) on September 12, 2016, and the
discovery period ended on September 21, 2016. Order 1, Aug.
22, 2016, ECF No. 80. Defendants filed the presently pending
motion for summary judgment (ECF No. 86) on October 21, 2016.
Plaintiff filed his response on December 19, 2016 (ECF No.
93) and Defendants filed a reply on January 26, 2017 (ECF No.
95). Defendant's motion is fully briefed and ripe for
the parties' full opportunity to participate in
discovery, the undisputed material facts are as follows.
Plaintiff was housed in the Tier II program at Macon State
from June 9, 2014 to May 26, 2015. Bobbitt Aff. ¶ 22,
ECF No. 88-1; Mot. for Summ. J. Attach. A-3.1 at 2, ECF No.
89-1. The purpose of Tier II is administrative segregation to
“protect staff, offenders, and the public from
offenders who commit [certain] actions, or who otherwise pose
a serious threat to the safety and security of the
intuitional operation.” Bobbitt Aff. ¶ 4; Nolley
Depo. at 56:18-57:21, ECF No. 90-1. The Tier II housing units
at Macon State are similar to general population housing
units, but have fewer furnishings. Pl.'s Decl. ¶ 32,
ECF No. 93-1; Nolley Depo. at 54:19-24. Macon State Tier II
inmates have access to indigent mail supplies similar to
general population inmates, and they are permitted to send
and receive letters. Nolley Depo. at 173:13-16, 174:1-7,
176:2-6. Visitation, with some restrictions, is permitted.
Pl.'s Decl. ¶ 12; Bobbitt Aff. ¶ 9. Tier II
inmates have access to the telephone on
weekends. Nolley Depo. at 168:9-25; Bobbit Aff.
¶ 9. Tier II inmates shower three times per week. Nolley
Depo. at 133:11-14; Bobbit Aff. ¶ 9. Some level of
out-of-cell recreation time is afforded Tier II
inmates. Bobbit Aff. ¶ 9; see
generally Nolley Depo. at 141-148.
Motion to Relate
filed a motion to consolidate (styled as a “Motion to
Relate”) Civil Action Nos. 5:15-cv-75-CAR and
5:15-cv-149-CAR, as both “revolve essentially around
Plaintiff's claims of denial of due process in connection
with his segregation/disciplinary proceedings and involve
several of the same defendants.” Mot. to Relate 1, ECF
No. 83. The Rule governing consolidation “is permissive
and vests a purely discretionary power in the district
court.” Young v. City of Augusta, 59 F.3d
1160, 1168 (11th Cir. 1995)(noting that “although
consolidation under Rule 42(a) may be warranted because of a
common issue of law or fact, it is not required.) The claims
are not duplicative and the parties differ in the two cases
Plaintiff wishes to consolidate. See Nolley v.
McLaughlin, 5:15-cv-149-CAR-CHW, ECF No. 108 at 8. Due
to the differences in parties and in procedural posture, and
the late stage of litigation, this Court exercises its
discretion and denies Plaintiff's motion to consolidate.
The cases shall proceed separately.
Motion for Leave to File a Sur-reply Brief
moves for leave to file a sur-reply in opposition of
Defendants' motion for summary judgment. That motion (ECF
No. 97) is denied. “A district court's decision to
permit the filing of a surreply is purely discretionary and
should generally only be allowed when a valid reason for such
additional briefing exists[.]” First Specialty Ins.
Corp. v. 633 Partners, 300 F. App'x 777, 788 (11th
Cir. 2008). M.D. Ga. Local R. 7.3.1 provides that
“[b]riefing of any motion or issue concludes when the
movant files a reply brief” and sur-reply briefs are
“not favored.” Plaintiff asserts that he should
be permitted to file a sur-reply brief to “make out
more fully his position as to why the factual allegations of
his complaint are sufficient to sustain a freestanding Eighth
Amendment claim[.]” Mot. for Leave to File Sur-reply
Br. 2, ECF No. 97. The Court has clearly- and
repeatedly-found that the only pending claim is a Fourteenth
Amendment Due Process Claim. Order 4, Mar. 29, 2016, ECF No.
54; Order 7, June 24, 2016, ECF No. 65. The Court finds the
issues actually pending to be adequately briefed and
additional briefing is not justified.
C.Motion for Documents at ...