Opinion
4:22-cv-00088-CDL-MSH
06-15-2023
DENNIS DEMETRIUS SCOTT, Plaintiff, v. SHERMAN THOMAS, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendants' motion for summary judgment (ECF No. 29). For the reasons explained below, the Court RECOMMENDS that Defendants' motion be GRANTED.
BACKGROUND
Plaintiff Dennis Demetrius Scott, a prisoner at Valdosta State Prison, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 8). Plaintiff alleges Muscogee County Prison (“MCP”) officers Roderick Jones, Jamal Veals, Ethan Calvin, Caleb Stewart, Michael Syck, and Takota Harm (“Defendants”) violated his constitutional rights by using excessive force against him and by being deliberately indifferent to his serious medical needs during an incident that occurred while he was incarcerated at MCP. Compl. 3-6, ECF No. 1; Recast Compl. 6, EFC No. 8.
The Court received Plaintiff's complaint (ECF No. 1) on May 23, 2022. The Court granted Plaintiff's motion to amend his complaint, and he filed his recast complaint (ECF No. 8) on July 25, 2022. After a preliminary review, Plaintiff was allowed to proceed with his excessive force and medical treatment claims against Defendants Jones, Veals, Calvin, Stewart, Syck, and Harm. O. & R. 1-12, Aug. 15, 2022, ECF No. 11. Defendants filed their motion for summary judgment (ECF No. 29) on February 16, 2023. Plaintiff filed his response (ECF No. 37) on April 28, 2023. Defendants' motion is ripe for review.
DISCUSSION
Defendants move for summary judgment, arguing they are entitled to qualified immunity on Plaintiff's claims because (1) they acted within the scope of their discretionary authority, and (2) Plaintiff cannot demonstrate a constitutional violation or a violation of clearly established law. Defs.' Mem. in Supp. of Mot. for Summ. J. 3-13, ECF No. 29-1. The Court agrees Defendants are entitled to qualified immunity and recommends their motion for summary judgment be granted.
I. Summary Judgment Standard
Summary judgment may be granted only “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 law.” Fed.R.Civ.P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). If the movant meets this burden, the burden shifts to the party opposing summary judgment to go beyond the pleadings and present specific evidence showing there is a genuine issue of material fact, or that the movant is not entitled to judgment as a matter of law. Id. at 324-26. The evidence presented must consist of more than conclusory allegations. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
While the Court must view the facts in the light most favorable to the party opposing summary judgment, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Thus, “when uncontroverted video evidence is available, the court should view the facts in the light depicted by the video recording.” Mathis v. Adams, 577 Fed.Appx. 966, 968 (11th Cir. 2014) (per curiam). Where, as here, there is uncontroverted video evidence, the Court will rely on that evidence over unsubstantiated statements made by either party. See id. However, the Court will also consider Plaintiff's statements made in his verified complaint. See Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019) (stating a verified complaint, sworn responses, and affidavits should be treated as testimony for purposes of summary judgment). Thus, summary judgment can be denied based on a party's sworn testimony, if that testimony shows there are genuine issues of material facts. Id. at 1207 (citing Anderson, 477 U.S. at 248-49 and Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir. 2005)).
Plaintiff's recast complaint and response to Defendants' motion for summary judgment are verified because he signed them under penalty of perjury, expressing that the statements made are true and correct. Recast Compl. 7; Resp. to Defs.' Mot. for Summ. J. 5, ECF No. 37. What a Plaintiff claims under oath should be accepted as true at the summary judgment stage. See Sagesse v. Hill, No. 1:20-cv-238-AW-GRJ, 2022 WL 1721219, at *4 (N.D. Fla. Feb. 14, 2022) (accepting the plaintiff's statements made under oath as evidence able to defeat summary judgment on excessive force claim).
II. Undisputed Material Facts
Sometime in the early morning on January 3, 2022, MCP officers woke Scott up for a medical appointment. Defs.' Statement of Material Facts (“SMF”) ¶ 3, ECF No. 29-2; Pl.'s Decl. 1, ECF No. 37-1. Scott attempted to refuse the appointment, but eventually got up and walked to the medical area. Id. Defendants state Scott became “verbally abusive” and “hostile” with the medical staff, Defs.' SMF ¶ 4, but Scott avers he calmly refused treatment and left the medical area. Pl.'s Decl. 1. After leaving the medical area, Scott walked through the South Pod and headed back towards his housing unit. Defs.' SMF ¶ 5; Pl.'s Decl. 1-2; South Pod Tower Door 2 Video, at 4:14:18.
Defendants state Scott behaved in a “hostile manner” towards officers as he walked through the South Pod, Defs.' SMF ¶ 5, but Scott claims there was not “any type of acknowledgement” between him and the officers. Pl.'s Decl. 2. The South Pod Tower video shows that Officer Veals rose from his desk, directed Scott to stand by the wall, and the two engaged in conversation. South Pod Tower Door 2 Video, at 4:14:20-35. Shortly thereafter, a second officer joined the discussion, and the three men conversed for several seconds. Id. at 4:14:35-4:15:18. A third, fourth, and fifth officer approached. Id. at 4:15:15-30. After more conversation, Scott was instructed to “cuff up,” turned to face the wall, and placed his hands on the wall above his head. Id. at 4:15:45; Defs.' SMF ¶ 5; Recast Compl. 5. One of the officers tapped Scott's arm and clearly indicated his intent to handcuff him. South Pod Tower Door 2 Video, at 4:15:50-4:16:00. Officer Veals grabbed Scott under his arms. Id. at 4:16:00-03. Scott claims Officer Veals “suddenly, unprovokingly [sic], and with malice intentions, shove[d him] hard in the back.” Scott Decl. 3. However, the video evidence clearly contradicts his description.
The Court is not required to accept Scott's unsubstantiated claim because it is directly contradicted by the video evidence. Scott, 550 U.S. at 379-80; Mathis, 577 Fed.Appx. at 968.
The video evidence shows that, after Officer Veals grabbed Scott under his arms, Scott turned and threw a punch at Officer Veals. South Pod Tower Door 2 Video, at 4:16:04. All the officers then converged on Scott. Id. at 4:16:05. Officer Syck discharged a container of pepper spray, most of which appeared to hit the wall behind Scott. Id. at 4:16:05-07. The officers continued to struggle with Scott until they were able to bring him to the ground. Id. at 4:16:10. The struggle continued as Scott resisted being handcuffed. One officer held Scott's leg while Officer Jones got on top of Scott to place handcuffs on his wrists. Id. at 4:16:25-35. With Scott partially under control, several of the officers backed away from the scuffle. Id. at 4:16:45-55. Once Scott was cuffed, the officers stood up, and Scott remained laying on the ground until he sat up on his own. Id. at 4:17:254:18:20. After Scott sat on the ground for about a minute, the officers helped him stand up and escorted him out of the South Pod. Id. at 4:19:00-4:19-20.
Aside from the clear video evidence, Scott's and Defendants' accounts of the details of the interaction differ. Defendants state they struggled to handcuff Scott because of his “enormous size and strength” and his continued resistance. Defs.' SMF ¶ 7. While Scott disputes this, Pl.'s Resp. ¶ 7; ECF No. 37, the video shows he is a large man, and he strongly resisted the officers' attempts to handcuff him. South Pod Tower Door 2 Video, at 4:16:00-4:16:30. Scott avers he was punched, kicked, and “wantonly and maliciously” beaten, all while lying in a surrendering position on the ground. Pl.'s Decl. 3. Defendants maintain that Scott continued to resist their efforts to handcuff him, and Officer Jones “administered three to four upper body blows to try to quell Scott's resistance,” but no further force was used. Defs.' SMF ¶ 9.
While Defendants state Scott continued to resist while on the ground, Scott claims he “la[id] prone surrendering.” Pl.'s Resp. ¶ 9. Defendants state it took a second discharge of pepper spray by Officer Syck to subdue Scott to the point he could be handcuffed. Def.'s SMF ¶ 10. Further, Defendants state Scott hit his head against the concrete floor as he went to the ground, Def.'s SMF ¶ 8, but Scott insists he fell on top of two officers and was struck multiple times in the head. Pl.'s Resp. ¶¶ 8-9. This portion of the video footage is partially obstructed by the wall; however, it is clear the officers continued to struggle to handcuff Scott for several seconds after he went to the ground. South Pod Tower Door 2 Video, at 4:16:10-45.
Scott's description of the events following the initial struggle also differs materially from Defendants' version. Scott states he was handcuffed behind his back and placed in a shower cell where he was forced to stand for over three hours while bleeding and struggling to breathe due to the pepper spray and blood clogging his nostrils. Pl.'s Decl. 3. He further claims he was not offered any medical assistance, water, or food during this period. Id. Defendants state the officers attempted to escort Scott to medical, but he refused all treatment. Defs.' SMF ¶ 11. Defendants further state they took Scott to the shower cell and had a nurse come down and evaluate him, but he continued to refuse medical assistance. Id.
The video evidence supports Defendant's version of events. Once Scott was taken to a shower cell, he talked through the door with a nurse. Handheld Video 1, at 0:00-47; Handheld Video 2, at 0:00-47; Scott Video 6, at 7:32:30-7:32:43. The nurse asked Scott if he was okay, and he replied, “Besides being beat up and cut up by the cops, yeah.” Handheld Video 1, at 00:00-00:10. The nurse asked to look at the cut on his face and asked him if he would cooperate so he could be brought down to medical. Id. at 00:10-16. Scott replied, “No, I don't want to come to medical.” Id. at 00:15-20. He stated, “I'm good, ma'am. I don't want to be bothered; I just want to go to my cell.” Id. at 00:35-42. The nurse told him if he changed his mind, he could come to medical later. Id. at 00:40-46. Because Scott's claim he was not offered any medical assistance after the incident is directly refuted by the video evidence, the Court is not required to accept it as true. Scott, 550 U.S. at 379-80; Mathis, 577 Fed.Appx. at 968.
III. Excessive Force
Scott alleges Defendants violated his constitutional rights when they used excessive force by “wantonly beating” him. Recast Compl. 6. Defendants argue the officers were entitled to use reasonable force to secure Scott's arrest because he initiated the altercation when he threw a punch and because he continuously resisted Defendants' attempts to handcuff him. Defs.' Mem. in Supp. of Mot. for Summ. J. 1-2, ECF No. 29-1. The Court agrees with Defendants and finds they are entitled to summary judgment on this ground.
A. Excessive Force Standard
The Eighth Amendment protects individuals against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 101-04 (1976). To establish a defendant violated a prisoner's Eighth Amendment right, the plaintiff must show (1) “the alleged wrongdoing is objectively harmful enough to establish a constitutional violation,” and (2) “the officials acted with a sufficiently culpable state of mind.” Hudson v. McMillian, 503 U.S. 1, 7-8 (1992) (internal quotation marks and citation omitted). “Whether an Eighth Amendment constitutional violation for excessive force occurred “ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id. at 6 (internal quotation marks and citation omitted).
In the custodial context, the Court determines if force used was excessive by evaluating:
(1) the extent of injury; (2) the need for application of force; (3) the
relationship between that need and the amount of force used; (4) any efforts made to temper the severity of a forceful response; (5) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of facts known to them.Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999) (internal quotation marks and citation omitted). The Court must consider that “corrections officers must balance the need ‘to maintain or restore discipline' through force against the risk of injury to inmates.” Hudson, 503 U.S. at 6.
B. Defendants' Motion
Defendants argue the indisputable video evidence shows they did not violate Scott's constitutional rights. Defs.' Mem. in Supp. of Mot. for Summ. J. 5. Defendants maintain they used only the force necessary to handcuff Scott after he instigated a physical altercation and resisted the officers' efforts to handcuff him. Id. at 5-10. The Court agrees.
1. Objectively Reasonable Force
In the custodial context, a court must consider that “officials confronted with a prison disturbance must balance the threat unrest poses to inmates, prison workers, administrators, and visitors against the harm may suffer if guards use force.” Hudson, 503 U.S. at 6. Further, their decisions are often made “in haste, under pressure, and frequently without the luxury of a second chance.” Id. (citing Whitley v. Albers, 475 U.S. 312, 320 (1986)). The use of some force is usually justified when it is necessary to restore order and when a prisoner repeatedly refuses to obey a prison officer's order. See Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990) abrogated on other grounds by Williams v. Radford, 64 F.4th 1185 (11th Cir. 2023); see also Pearson v. Taylor, 665 Fed.Appx. 858, 864 (11th Cir. 2016) (per curiam) (“Officers are not required to convince every prisoner that their orders are reasonable and well-thought out before resorting to force.”). In such a case, the “core judicial inquiry” is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6.
The Campbell factors lean heavily in favor of Defendants and tend to show they did not violate Scott's constitutional rights. The first factor, the extent of injury, favors Defendants. Scott claims he suffered a “cut/gash” above his eye, which caused his left eye to swell shut, and that he struggled to breathe due to the pepper spray, blood, and snot clogging his nostrils. Recast Compl. 6; Pl.'s Decl. 3. However, in the video, Scott told the nurse he was fine and adamantly refused any medical treatment. Handheld Video 1, at 00:00-00:46. The second and third factors, the need for application of force and the relationship between that need and the amount of force used, both lean heavily in favor of Defendants. Scott instigated the incident by throwing a punch at Officer Veals and resisted the officers' attempts to subdue and handcuff him. South Pod Tower Door 2 Video, at 4:16:00-4:17:00. Thus, some level of force became necessary to defuse the situation, and the “force [used] was applied in a good-faith effort to maintain or restore discipline[.]” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (internal quotation marks and citation omitted).
The indisputable video evidence clearly shows Scott initiated the physical altercation when he turned and threw a punch at Officer Veals. South Pod Tower Door 2 Video, at 4:16:04. All of Defendants' actions thereafter were objectively reasonable reactions to Scott's use of force and his continued resistance of their efforts to handcuff him. See Oliver v. Warden, 761 Fed.Appx. 960, 965 (11th Cir. 2019) (per curiam) (finding officers were justified in using some force to restrain an inmate when he “resisted physically the officers' efforts to restrain him” and displayed “aggressive and combative behavior”). Moreover, Defendants ceased using force once Scott was subdued, and did not use any more force than was necessary to diffuse the situation. See Sanks v. Williams, 402 Fed.Appx. 409, 412-13 (11th Cir. 2010) (per curiam) (affirming summary judgment for officer who used “limited force in order to subdue [the plaintiff] and to regain control of a threatening situation”). Given Scott's aggressive resistance and the officers' limited use of force, Scott cannot show “the complained of force was out of proportion to the legitimate need for force” or that it was excessive in violation of the Eighth Amendment. Oliver, 751 Fed.Appx. at 965.
IV. Deliberate Indifference
Scott further claims the officers who witnessed the incident and allegedly refused him medical treatment were deliberately indifferent to his medical needs. Recast Compl. 6. However, because the video evidence clearly shows Scott was offered medical assistance and he refused, Defendants are entitled to summary judgment on this claim.
A. Deliberate Indifference Standard
The Eighth Amendment prohibits “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Moreover, “federal and state governments . . . have a constitutional obligation to provide minimally adequate medical care to those whom they are punishing by incarceration.” Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991). An official acts with deliberate indifference when he or she “knows of and disregards an excessive risk to inmate health and safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
To show prison officials were deliberately indifferent to a prisoner's serious medical needs, “a plaintiff must satisfy both an objective and a subjective inquiry.” Farrow v. West, 320 F.3d 1235, 1243. As to the objective component, the plaintiff must provide evidence of an “objectively serious medical need.” Id. The subjective inquiry may be met by showing “that the prison official acted with an attitude of ‘deliberate indifference' to that serious medical need.” Id. (citing Farmer, 511 U.S. at 834). To prove the subjective component of a deliberate indifference claim, “a plaintiff must establish that the defendant (1) had subjective knowledge of a risk of serious harm, (2) disregarded that risk, and (3) acted with more than gross negligence.” Wade v. McDade, 67 F.4th 1363, 1373-74 (11th Cir. 2023).
1. Serious Medical Need
“A serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Dang ex rel. Dang v. Sheriff, 871 F.3d 1272, 1280 (11th Cir. 2017) (internal quotation marks and citation omitted). Further, “the medical need must be one that, if left unattended, poses a substantial risk of serious harm.” Id. (internal quotation marks and citation omitted). Even assuming the injuries Scott alleges- including a cut, swollen, and bleeding eye and difficulty breathing due to pepper spray- are an objectively serious medical need, Scott cannot prove Defendants had subjective knowledge of a risk to his health and disregarded that risk by acting with more than gross negligence. Wade, 67 F.4th at 1373-74. Without proving these elements, his deliberate indifference claim is subject to summary judgment. Id.
2. Subjective Knowledge
First, Scott cannot show Defendants were subjectively aware of a risk of serious harm to him. Mere speculation as to each defendant's subjective knowledge of the alleged extent of Scott's injuries and his need for medical attention cannot support a deliberate indifference claim. See, e.g., Ireland v. Prummell, 53 F.4th 1274, 1296 (11th Cir. 2022) (finding the plaintiff did not state a deliberate indifference claim when he offered “only speculation” as to officers' knowledge of his medical condition). To be found liable for deliberate indifference to inmate health and safety, a prison official “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; Wade, 67 F.4th at 1373-75. Scott has not shown Defendants knew he needed medical attention; therefore, he cannot prove subjective awareness by merely stating what Defendants might have inferred.
3. Disregard of Risk
More significantly, Scott's claim fails because, despite his allegations, the undisputed video evidence clearly shows he was offered medical evaluation and treatment and adamantly refused it. See Handheld Video 1, at 0:00-47. As discussed, the Court is not required to accept Scott's statements when they are clearly controverted by video evidence. Scott, 550 U.S. at 379-80; Mathis, 577 Fed.Appx. at 968. Scott had every right to refuse any medical assistance offered to him, but he “cannot refuse medical treatment and then complain about the consequences that result from his refusal.” Palmer v. Hemphill, No. 2:10-cv-163-FtM-36DNF, at *4, 2011 WL 2648604 (M.D. Fla. July 6, 2011); see also Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (finding officials were not deliberately indifferent when they offered medical treatment, but the plaintiff refused it). Thus, the indisputable video evidence contradicts Scott's claim and shows Defendants did not disregard any potential need for medical assistance.
4. More than Gross Negligence
Finally, Scott cannot show Defendants “acted with more than gross negligence.” Wade, 67 F.4th at 1373-74. Acting with more than gross negligence is “the equivalent of recklessly disregarding a substantial risk of serious harm to the inmate.” Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (internal quotation marks and citation omitted). Defendants did not disregard Scott or his injuries. Instead, they repeatedly offered him medical assistance, which he refused. In sum, even if Scott's injuries were sufficiently serious, he has not met his burden to show Defendants were subjectively aware of or deliberately indifferent to his needs.
V. Qualified Immunity
Qualified immunity acts as a shield for government officials from liability for acts committed during their discretionary duties, “unless their conduct violates a clearly established statutory or constitutional right.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). “The purpose of qualified immunity is to allow officials to carry out discretionary duties without the chilling fear of personal liability or harrassive litigation[.]” McCollough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009). “In order to receive qualified immunity, an official must first establish that he was acting within the scope of his discretionary authority when the alleged wrongful acts occurred.” Id. (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
Once the defendant shows he was acting within his discretionary authority, the burden shifts to the plaintiff to establish that qualified immunity does not apply. Lee, 284 F.3d at 1194; Courson v. McMillian, 939 F.2d 1479, 1488-89 (11th Cir. 1991). It is undisputed in this case that Defendants were acting within the scope of their discretionary duties and pursuant to the performance of those duties in their interaction with Scott. See Glasscox v. City of Argo, 903 F.3d 1207, 1213 (11th Cir. 2018); see also Johnson v. Fee, 838 Fed.Appx. 394, 398 (11th Cir. 2020) (finding prison officers were acting within the scope of their discretionary authority considering the “general nature” of their actions) (citing Estate of Cummings v. Davenport, 906 F.3d 934, 940 (11th Cir. 2018)). Thus, the burden shifts to Scott to show Defendants are not entitled to qualified immunity. To meet his burden, Scott must plead “facts showing (1) that the official[s] violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Wood v. Moss, 572 U.S. 744, 745 (2014) (internal quotation marks and citation omitted); see also Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Courts should use their discretion in determining which prong of the qualified immunity inquiry to address first. Pearson, 555 U.S. at 232; McCullough, 559 F.3d at 1205.
Scott cannot show Defendants violated his Eighth Amendment rights, and he has not met his burden to establish Defendants are not entitled to the protection of qualified immunity. For the reasons discussed above, Defendants' actions did not amount to excessive force in violation of the Eighth Amendment. Further, Defendants were not deliberately indifferent to Scott's medical needs following the incident. Because they were acting within the scope of their discretionary duties and there was no constitutional violation, Defendants are entitled to qualified immunity and their motion for summary judgment should be granted.
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that Defendants' motion for summary judgment (ECF No. 29) be GRANTED. Pursuant to 28 U.S.C § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance 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 unobjected-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. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.