Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nolley v. Nelson

United States District Court, M.D. Georgia, Macon Division

August 23, 2017

DARNELL NOLLEY, Plaintiff,
v.
CYNTHIA NELSON, et al., Defendants.

          ORDER AND RECOMMENDATION

          STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE

         Presently 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 be granted.

         BACKGROUND

         The 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.

         Though 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.

         Defendant 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 review.

         After 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.[1] 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.[2] Bobbit Aff. ¶ 9; see generally Nolley Depo. at 141-148.

         DISCUSSION

         I. Plaintiff's Motions

         A. Motion to Relate

         Plaintiff 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.

         B. Motion for Leave to File a Sur-reply Brief

         Plaintiff 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.