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Gandy v. Gramiak

United States District Court, S.D. Georgia, Waycross Division

March 7, 2019

KASIM GANDY, Plaintiff,
TOM GRAMIAK, et al., Defendants.



         This matter comes before the Court on Defendants' April 13, 2018 Motion for Summary Judgment, doc. 88, as supplemented, doc. 92. Based on the reasons which follow, I RECOMMEND the Court GRANT Defendant's unopposed Motion, DISMISS Plaintiff's Complaint, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff in forma pauperis status on appeal.


         Plaintiff, who is currently incarcerated at Ware State Prison in Waycross, Georgia, filed this 42 U.S.C. § 1983 action on June 9, 2016, to contest certain conditions of his confinement. Doc. 1. Plaintiff's procedural due process claims against Defendants Brooks, Steedley, Lowe, Cox, and Gramiak are currently pending before this Court. Doc. 65 at 11, 13; Doc. 68 at 1-2. Plaintiff entered Tier II segregation upon his arrival to Ware State Prison on May 7, 2015, and remained there for around two years. Doc. 1-1 at 3; Doc. 92-1 at 2, 13. Plaintiff argues that Ware State Prison officials violated his rights by placing him in Tier II administrative segregation, even though he did not meet the criteria for Tier II placement set forth Ware State Prison's Standard Operating Procedures (“SOP”). Doc. 25 at 12. According to Plaintiff, Defendants entirely failed to conduct an initial placement hearing or subsequent 90-day assignment reviews, denying Plaintiff an opportunity to appeal the placement decision.[2] Doc. 1-1 at 3. Plaintiff also argues, after an altercation with another inmate, Defendants violated his due process rights by requiring he complete phase one of the Tier II program again without a hearing or further review. Id. at 11.

         In their Motion, Defendants assert summary judgment should be granted because Plaintiff cannot sustain his Fourteenth Amendment claims against them. Doc. 88-1. Defendants also argue they are entitled to qualified immunity. Doc. 88-1 at 16-17. In support of their Motion, Defendants submit the following documents: (1) a statement of material facts, doc. 88-2; (2) the Affidavit of Tom Gramiak, doc. 92-1;[3] (3) copies of incident reports and grievances involving Plaintiff, doc. 88-4; (4) SOP IIB09-0003, doc. 88-5; (5) SOP IIB09-0001, doc. 88-6; (6) the Affidavit of William Steedley, doc. 88-7; (7) the Affidavit of Kimberly Lowe, doc. 88-8; (8) the Affidavit of Nathan Brooks, doc. 88-9; and (9) the Affidavit of Kenny Cox, doc. 88-10.

         On April 13, 2018, the same day Defendants filed their Motion for Summary Judgment, the Clerk of Court mailed Plaintiff a Notice advising him that Defendants filed a Motion for Summary Judgment and that a response must be filed by May 4, 2018. Doc. 89. That Notice further advised Plaintiff that:

1. If you do not timely respond to this motion . . ., the consequence may be that the Court will deem the motion unopposed, and the Court may enter judgment against you.
2. If your opponent's Statement of Material Facts sets forth facts supported by evidence, the Court may assume that you admit all such facts unless you oppose those facts with your own Statement of Material Facts which also sets forth facts supported by evidence.
3. If a summary judgment motion is properly supported, you may not rest on the allegations in your [Complaint] alone.


         On April 27, 2018, Plaintiff filed a motion for extension of time. Doc. 91. Plaintiff asked for a 21-day extension, stating that he required “more time” to “collect supporting information and affidavits in preparation for” his Response. Doc. 91 at 1. This Court granted Plaintiff's extension and required Plaintiff file his Response by June 29, 2018. Doc. 95. The Court cautioned: “If Plaintiff fails to file an appropriate Response, the Court will presume that Plaintiff does not oppose Defendants' Motion for Summary Judgment.”[4] Id. at 2. On July 2, 2018, Plaintiff filed a second motion requesting an extension to “acquire necessary documents and affidavits from other prisoners.” Doc. 96. This Court, on January 28, 2019, allowed Plaintiff “an additional 30 days to file any desired response, including supporting documentation, to Defendants' motion for summary judgment.”[5] Doc. 100 at 3. The Clerk mailed this Order to Plaintiff at Ware State Prison, and the Court received no indication this Order, the Clerk's Notice, or Defendants' Motion were undeliverable. Plaintiff has not filed a response to Defendants' Motion for Summary Judgment. Thus, the Defendants' Motion, as supplemented, docs. 88, 92, is unopposed. See Local R. 7.5 (“Failure to respond within the applicable time period shall indicate that there is no opposition to a motion.”).


         Summary judgment “shall” be granted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law. See Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). The moving party must identify the portions of the record which establish that there are no “genuine dispute[s] as to any material fact and the movant is entitled to judgment as a matter of law.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). “A dispute about a material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. However, there must exist a conflict in substantial evidence to pose a jury question.” Hall v. Sunjoy Indus. Grp., Inc., 764 F.Supp.2d 1297, 1301 (M.D. Fla. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989)).

         When, as here, the nonmoving party would have the burden of proof at trial, the moving party may obtain summary judgment by showing that the record lacks evidence to support the nonmoving party's case or that the nonmoving party would be unable to prove his case at trial. See id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In determining whether a summary judgment motion should be granted, courts must consider all reasonable inferences which can be drawn from the record in the light most favorable to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 630 F.3d 1346, 1353 (11th Cir. 2011). However, to rebut the moving party's claims, the nonmoving party must provide evidence “beyond the pleadings.” Celotex, 477 U.S. at 324 (“Rule 56(e) permits a proper summary ...

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