BURROUGHS v. HILL

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION TORRES ANTWAN BURROUGHS, Plaintiff, CIVIL ACTION NO. v. 5:22-cv-00272-TES-ALS Warden BERRY, et al., Defendants.

ORDER

On February 6, 2025, the sole remaining Defendant in this action—Warden Berry—filed a Motion for Summary Judgment [Doc. 62]. The Court issued its usual Notice to Pro Se Party of Motion for Summary Judgment [Doc. 63] informing Plaintiff of his responsibility to respond to Warden Berry’s Motion—and the consequences of failing to do so. Plaintiff did not file a response. Instead, he filed multiple versions of the Court’s pre-trial order. On April 23, 2025, Judge Sheppard entered a Report and Recommendation (“R&R”) [Doc. 64] recommending that the Court grant Warden Berry’s Motion for Summary Judgment [Doc. 62]. Plaintiff responded by filing three documents. First, Plaintiff filed an “Appeal [of the] Report and Recommendation” [Doc. 65]. Second, he filed a Motion for Preliminary Injunction [Doc. 66]. And, finally, Plaintiff filed a Motion for Issuance of Subpoenas [Doc. 67]. Based on the timing of the filing (post-R&R) and the clear instructions regarding Plaintiff’s opportunity to object to the R&R, the Court CONSTRUES Plaintiff’s Appeal of the Report and Recommendation as Objections to

Judge Sheppard’s R&R. Therefore, as to the portions of the R&R to which Plaintiff objected, the Court reviews Judge Sheppard’s Recommendation de novo. See 28 U.S.C. § 636(b)(1). All other portions of the R&R are reviewed for clear error. Id.

Plaintiff argues in his Objections that he attempted to mail a response to Warden Berry’s summary-judgment motion, but the Court never received the filings. [Doc. 65]. However, Plaintiff’s exhibits show mailings sent from Savannah, Georgia to Unadilla,

Georgia. [Doc. 65-2]. Likewise, the tracking number Plaintiff provided shows a package that was also sent from Savannah to Unadilla. [Doc. 65]. Therefore, Plaintiff’s evidence does not show any attempt to mail documents to this Court. Even worse, Warden Berry’s summary-judgment Motion was filed on February 6, 2025. [Doc. 62]. But,

Plaintiff’s shipping receipts show a shipping date of January 27, 2025. [Doc. 65-2]; [Doc. 65-3]. Therefore, the exhibits could not have been responsive to Warden Berry’s Motion. Regardless, if Plaintiff intended to dispute Warden Berry’s Motion—or Judge

Sheppard’s R&R—he needed to make those arguments in his Objections. He didn’t. Accordingly, the Court reviews Judge Sheppard’s R&R for clear error and finds none.1 Having considered the Recommendation, the Court agrees with Judge

1 Even if the Court reviewed Judge Sheppard’s R&R de novo, the result would be the same. Plaintiff failed to show that Warden Berry was subjectively aware that his own conduct caused a substantial risk to Plaintiff. [Doc. 64, p. 6 (citing Wade v. McDade, 106 F.4th 1251, 1262 (11th Cir. 2024)]. Sheppard’s findings and conclusions. Therefore, the Court ADOPTS Judge Sheppard’s Recommendation [Doc. 64] and MAKES IT THE ORDER OF THE COURT.

Accordingly, the Court DISMISSES Plaintiff’s claims against Warden Berry.2 Because Warden Berry is the sole remaining Defendant, the Clerk of Court is DIRECTED to ENTER Judgment and CLOSE this case.

SO ORDERED, this 6th day of May, 2025.

S/ Tilman E. Self, III TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT COURT

2 Based on that ruling, the Court DENIES Plaintiff’s Motion for Preliminary Injunction [Doc. 66] and Motion for Issuance of Subpoena [Doc. 67] as moot.