                                                        [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________          FILED
                                                     U.S. COURT OF APPEALS
                                  No. 09-12141         ELEVENTH CIRCUIT
                                                       FEBRUARY 24, 2010
                              Non-Argument Calendar
                                                            JOHN LEY
                            ________________________
                                                             CLERK

                       D. C. Docket No. 05-00188-CV-CAR-5

EDWARD STALEY,


                                                            Plaintiff-Appellant,

                                          versus

BRIAN OWENS,
Commissioner, G.D.C.,
FREDRICK HEAD,
Warden, Autry State Prison,
JANE DOE,
Sgt., Autry State Prison, 1st Shift,
JANE DOE, II,
Autry State Prison, 2nd Shift,
LATOYA KING,
Control Room Officer,


                                                       Defendants-Appellees,

RAYMOND HEAD,
Manager of Inmate Affairs Unit, et al.,

                                                                   Defendants.
                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                         _________________________

                                 (February 24, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

      Edward Staley, a Georgia prisoner proceeding pro se, appeals the district

court’s grant of summary in favor of defendants Fredrick Head, warden of Autry

State Prison, James E. Donald, Commissioner for Georgia Department of

Corrections, and Latoya King, a correctional officer at Autry State Prison, in his 42

U.S.C. § 1983 action, alleging that the defendants were deliberately indifferent to a

substantial risk of harm to him from another inmate, in violation of the Eighth

Amendment. On appeal, Staley first argues that the district court abused its

discretion by construing a letter sent to the defendants as new discovery, rather

than a Fed. R. Civ. P. 37 discovery dispute letter. Second, Staley argues that the

district court erred in treating Defendants Donald and Head as movants for

summary judgment. Third, Staley argues that the district court abused its

discretion in allowing Defendant King to file a motion for summary judgment out

of time. Finally, Staley argues that the district court erred by granting summary

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judgment to the defendants because there was a genuine issue of material fact, and

the district court failed to consider the record.



                                      I. Discovery

      Staley argues that the magistrate judge erred by construing his discovery

letter as new discovery, rather than a Fed. R. Civ. P. 37 discovery dispute letter.

      We review a district court’s discovery decisions for abuse of discretion.

Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir.

2003). “This means that a district court is allowed a range of choice in such

matters, and we will not second-guess the district court’s actions unless they reflect

a clear error of judgment.” Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th

Cir. 2006) (quotation marks omitted). Furthermore, we will not overturn a

discovery ruling unless the appellant demonstrates that it resulted in substantial

harm to his case. Iraola & CIA, 325 F.3d at 1286.

      It was not error to construe Staley’s letter as a request for new discovery.

Although his intent may have been to clarify his previous requests, that was not the

operative effect of the actual requests in his letter. Defendants properly responded

or objected to Staley’s first set of interrogatories. The operative effect of Staley’s

letter was to place requests before the defendants that were clearly beyond the



                                            3
scope of his initial interrogatories. More importantly, Staley has not demonstrated

that the ruling resulted in substantial harm to his case. There is no indication that

had his letter been treated as a discovery dispute letter instead of a request for new

discovery he would now be in possession of information that would affect the

summary judgment ruling in this case. Because Staley has failed to show the

magistrate court’s construction of the letter was clearly erroneous or that the

court’s discovery decision resulted in substantial harm to his case, he has failed to

demonstrate an abuse of discretion.1



                         II. Proper Movants for Summary Judgment

       Staley next argues that the district court erred by finding that Defendants

Donald and Head were movants for summary judgment because their counseled

motion stated that “Defendants Hall, Perry, and Lace move this Court to grant

summary judgment in their favor.”

       Staley has failed to demonstrate that the typographical error in one portion


       1
         Staley also claims (1) that the magistrate judge violated Fed. R. Civ. P. 72(a) by treating
his objection to the ruling as a motion for reconsideration instead of an objection to be heard
before the district court and (2) the district court misapplied that same rule by not initially ruling
on his objection. Defendants concede that the pursuant to Fed. R. Civ. P. 72(a), Staley’s
objection should have been referred to and ruled on by the district court. However, any technical
misstep does not alter our ultimate disposition of the issue. In response to a motion for
reconsideration, the district court ultimately found that Staley was due no relief under Fed. R.
Civ. P. 72(a) because the magistrate judge’s decision was not clearly erroneous, the proper
standard under Rule 72(a).

                                                  4
of the defendants’ motion for summary judgment otherwise harmed his case.

Although one sentence in the body of the motion referred to Defendants Hall,

Perry, and Lacy, the motion was entitled “Defendants Donald and Head’s Motion

for Summary Judgment.” Moreover, the defendants supported their motion with

filings entitled “Defendants Donald and Head’s Statement of Facts as to which

There Is no Genuine Issue to be Tried” and “Defendants Donald and Head’s

Memorandum of Law in Support of Motion for Summary Judgment.” Finally, the

magistrate judge issued an order entitled “Order Directing Response to Motion for

Summary Judgment,” in which he notified Staley that defendants Donald and Head

had filed a motion seeking summary judgment. Staley was clearly notified of the

proper movants and his later filings demonstrate that he understood that he was

responding to a motion on behalf of Defendants Donald and Head. Because Staley

has failed to show that he was harmed by the typographical error in the defendants’

motion for summary judgment, he has failed to show that the district court erred in

finding Defendants Donald and Head to be movants for summary judgment.



                 III. Out-of-Time Motion for Summary Judgment

      Staley next argues that the district court committed reversible error by

granting Defendant King’s motion for leave to file an out-of-time motion for



                                          5
summary judgment because King did not show “excusable neglect,” as required

under Fed. R. Civ. P. 6(b)(2).2

       Rule 6(b)(1)of the Federal Rules of Civil Procedure provides that, when a

party files a motion after the time for doing so expires, a court may, for good

cause, extend the time “if the party failed to act because of excusable neglect.”

Fed. R. Civ. P. 6(b)(1)(B). The term “excusable neglect” appears in a number of

procedural rules. The Supreme Court has identified four factors to guide courts in

determining whether excusable neglect has occurred: “‘the danger of prejudice to

the [other party], the length of the delay and its potential impact on judicial

proceedings, the reason for the delay, including whether it was within the

reasonable control of the movant, and whether the movant acted in good faith.’”

Walter v. Blue Cross & Blue Shield United of Wis., 181 F.3d 1198, 1201 (11th

Cir. 1999) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 395, 113 S.Ct. 1489, 1498 (1993)). “In Pioneer, the Supreme Court

accorded primary importance to the absence of prejudice to the nonmoving party

and to the interest of efficient judicial administration in determining whether the

district court had abused its discretion.” Cheney v. Anchor Glass Container Corp.,


       2
        Appellant’s brief refers to Fed. R. Civ. P. 6(b)(2). Rule 6(b)(2) states that the a court
cannot extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).
None of those rules are implicated in this case. However, appellant’s continued references to
“excusable neglect” indicate that he intended to invoke the requirements of Rule 6(b)(1)(B).

                                                 6
71 F.3d 848, 850 (11th Cir. 1996). We have held that a district court may consider

an untimely motion for summary judgment if doing so is in the interest of judicial

economy. See Thomas v. Kroger Co., 24 F.3d 147, 149 (11th Cir. 1994)

(affirming district court’s decision to consider motion for summary judgment filed

24 days after the filing deadline).

      Staley has not demonstrated that the decision to allow King to file her

motion for summary judgment after the deadline had passed was an abuse of

discretion. First, Staley has failed to demonstrate that he suffered any prejudice or

harm. In fact, the magistrate judge granted Staley additional time to respond to the

motion. Second, the length of the delay was relatively short. The initial filing

deadline was June 2, 2008. King filed her motion June 20, 2008, a delay of less

than 3 weeks. Third, as noted by the magistrate judge’s order, allowing the out-of-

time motion was in the interest of the judicial economy. Finally, Staley has failed

to demonstrate that King was not acting in good faith. Given that Staley has not

suffered any prejudice from the out-of-time filing, King proceeded in good faith,

and allowing the out-of-time filing is in the interest of efficient judicial

administration, it was not an abuse of discretion to permit King to file her summary

judgment motion after the deadline had passed.




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                               IV. Summary Judgment

      Staley argues that the district court erred in determining that he had not

demonstrated a substantial risk of harm because he had not notified the defendants

in advance of his fear of Inmate Brown—the inmate who assaulted him. He asserts

specifically that Defendant King showed deliberate indifference by: (1) allowing

the floor officer to leave the cell block, which was a violation of written policy and

resulted in the cell block being unsupervised at the time of the assault; (2) taking

no action for the three to four minutes during which Staley was spit on by Inmate

Brown and was calling for help; and (3) failing to stop the physical assault by

Inmate Brown. He asserts that Defendant Head showed deliberate indifference by:

(1) having knowledge of the widespread thefts and assaults at the prison, but

failing to do anything to stop them; and (2) failing to transfer Staley to a different

prison after the assault, but rather, placing Staley back in general population, which

resulted in him being robbed and threatened. He asserts that Defendant Donald

failed to classify and segregate prisoners properly based on age and

“incorrigibility,” in violation of O.C.G.A. § 42-5-52(a), thus resulting in an inmate

like Brown being housed with an inmate like Staley. Staley also argues that the

court committed reversible error in granting summary judgment because the court

plagiarized the defendants’ statement of facts, failed to consider and review the



                                           8
record, and failed to draw factual inferences in Staley’s favor.

         We review pro se pleadings liberally, holding them to a less stringent

standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160

(11th Cir. 2003). We review de novo the district court’s grant of summary

judgment, applying the same standard as the district court and viewing all evidence

and factual inferences reasonably drawn from the evidence in the light most

favorable to the non-moving party. Burton v. Tampa Hous. Auth., 271 F.3d 1274,

1276-77 (11th Cir. 2001). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c).

         In a motion for summary judgment, the moving party must first “identify

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.” Fitzpatrick v. City of

Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (quotation marks and alterations

omitted). Once the moving party has properly supported its motion for summary

judgment, the burden shifts to the non-moving party to come forward with specific



                                            9
facts showing that there is a genuine issue for trial. Id. at 1116. “[M]ere

conclusions and unsupported factual allegations are legally insufficient to defeat a

summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.

2005). This Court may affirm the district court’s decision on any ground

supported by the record. Parks v. City of Warner Robins, Ga., 43 F.3d 609, 613

(11th Cir. 1995).

      In Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 1974 (1994), the

Supreme Court held that “[a] prison official’s ‘deliberate indifference’ to a

substantial risk of serious harm to an inmate violates the Eighth Amendment.”

“[P]rison officials have a duty to protect prisoners from violence at the hands of

other prisoners.” Id. at 833, 114 S. Ct. at 1976 (quotation marks and alterations

omitted). A constitutional violation occurs “when a substantial risk of serious

harm, of which the official is subjectively aware, exists and the official does not

respond reasonably to the risk.” Marsh v. Butler County, 268 F.3d 1014, 1028

(11th Cir. 2001) (en banc) (quotation marks and alteration omitted). In order to

prove a claim of deliberate indifference in violation of the Eighth Amendment, the

plaintiff must show that: (1) there was substantial risk of serious harm (the

objective component); (2) the defendants acted with deliberate indifference to that

risk (the subjective component); and (3) the defendants’ wrongful conduct caused



                                          10
the injury. See Carter v. Galloway, 352 F.3d 1346, 1350 (11th Cir. 2003). A

substantial risk to a prisoner’s safety may arise not only out of his individual

situation, but out of an environment of longstanding and pervasive attacks to which

all prisoners in his situation are exposed, and it may come from single or multiple

sources. See Farmer, 511 U.S. at 842-43, 114 S. Ct. at 1981-82. Nevertheless, a

defendant may avoid liability by showing that: (1) he was unaware of the

underlying facts indicating a substantial risk; (2) he “believed (albeit unsoundly)

that the risk to which the facts gave rise was insubstantial or nonexistent”; or (3) he

“responded reasonably to the risk, even if the harm ultimately was not averted.”

Id. at 844, 114 S. Ct. at 1982-83.

      In Carter, we affirmed the district court’s grant of summary judgment for

defendants where the plaintiff, who suffered an attack by a cellmate, established

that the defendants knew his cellmate was a “problem inmate” with a

well-documented history of prison disobedience and was prone to violence. 352

F.3d at 1349. We noted that the plaintiff had not indicated that the cellmate had

made a clear threat or that he was afraid of the cellmate, and we held that a

defendant’s “mere awareness of [an inmate’s] generally problematic nature” does

not amount to knowledge of a substantial risk. Id. at 1349-50. “The known risk of

injury must be a strong likelihood, rather than a mere possibility[,] before a guard’s



                                           11
failure to act can constitute deliberate indifference.” Brown v. Hughes, 894 F.2d

1533, 1537 (11th Cir. 1990) (quotation marks omitted).

      “It is well established in this Circuit that supervisory officials are not liable

under § 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003) (quotation marks omitted). Supervisory liability under § 1983

occurs only when “the supervisor personally participates in the alleged

unconstitutional conduct or when there is a causal connection between the actions

of a supervising official and the alleged constitutional deprivation.” Id. The

necessary causal connection can be established “when a history of widespread

abuse puts the responsible supervisor on notice of the need to correct the alleged

deprivation, and he fails to do so.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th

Cir. 1999). Alternatively, a causal connection may be established when a

supervisor’s improper custom or policy results in deliberate indifference to

constitutional rights. Id.

      Staley’s only allegation against Defendant Donald is that he failed to

properly segregate prisoners in violation of O.C.G.A. § 42-5-52, which provides

for the classification and separation of inmates with respect to “age, first offenders,

habitual criminals and incorrigibles, diseased inmates, mentally diseased inmates,



                                           12
and those having contagious, infectious, and incurable diseases.” According to

Staley, Donald’s violation of the statute caused his exposure to Brown, which in

turn, caused his injuries. Staley has failed to demonstrate that Donald adopted a

policy in violation of O.C.G.A. § 42-5-52. There is no indication that housing

Staley with an inmate such as Brown violates the statute. Moreover, there is no

indication that the general housing policy in the prison resulted in deliberate

indifference to constitutional rights, as is necessary to impute supervisory liability

to Donald.

      Staley alleges that Defendant Head exhibited deliberate indifference by

failing to respond to the assaults and thefts at the prison and by placing Staley back

in general population after he was assaulted. Based on the record, Staley’s

discussion with Defendant Head focused mainly on the problem of theft in the

prison. Nothing in that discussion indicates that Staley was alerting Head to a

substantial risk of serious violence either generally or specific to Staley or that

Head understood the discussion as such. To the extent Staley argues supervisory

liability based on a “history of widespread abuse” at the prison, he has failed to

establish such a pattern existed. On that point, Staley presents his own statement

and that of two other inmates. At most, those statements establish that several

isolated assaults or thefts may have occurred over an eight year period at the



                                           13
prison. That is not sufficient evidence to establish that there was a history of

widespread abuses that supervisors failed to reasonably respond to. Turning to

Staley’s allegation that Head was deliberately indifferent in placing him back in the

general population after his assault and thus exposing him to theft and threats,

Staley has produced no evidence indicating that, in the wake of his assault, he was

exposed to a substantial risk of serious harm or that Head was aware of any

substantial risk to him and ignored it. Moreover, it is unclear exactly what injury

Staley complains of in relation to being placed back in the general population.

Finally, Staley concedes that the day after he returned to the general population he

stated a fear of harm, at which point he was put into protective custody.

      Staley alleges that Defendant King exhibited deliberate indifference through

her inadequate supervision or control of the floor officer at the time of the assault

and her failure to respond to the assault. First, it is clear that King, in the control

room, had no control over the floor officer’s actions. Therefore, to the extent that

Staley looks to premise liability of King’s failure to control the floor officer, that

theory must fail. Furthermore, Staley has produced no evidence indicating that

King delayed in responding to the assault. More generally, Staley has produced no

evidence indicating that King acted with deliberate indifference to a substantial

risk of harm to Staley. Taken in the light most favorable to Staley, the facts



                                            14
indicate that King may have been aware of a risk to Staley from another inmate,

Haywood, and that King did nothing to aid Staley between the time Brown initially

spat on Staley and the eventual assault. Although an inmate does not necessarily

have to identify the particular source of risk, in this case, there is no evidence that

Staley’s fear of reprisal at the hands of Haywood based on a specific incident

between them alerted King to a substantial risk of harm to Staley from Brown, or

any other inmate. In retrospect, any failure on King’s part to intuit that Brown

spitting on Staley was a precursor to physical violence is at most negligent. That

being the case, any failure on her part to call for assistance immediately upon the

initial spitting incident cannot constitute deliberate indifference.

      Contrary to Staley’s contention, there is no indication that the district court

failed to review the record or draw reasonable inferences in Staley’s favor.

      Because Staley failed to present triable facts showing that defendants were

deliberately indifferent to a substantial risk of harm to him, the district court did

not err by granting summary judgment to the defendants.

      Based upon a review of the record and the parties’ briefs, we find no error.

Accordingly, we affirm.

      AFFIRMED.




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