           Case: 15-10749   Date Filed: 05/20/2016   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10749
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:12-cv-00149-RSB



ANTHONY DAVILA,

                                                            Plaintiff-Appellant,

                                  versus

SHERIFF LOGAN MARSHALL,
CHRISTOPHER DURDEN,

                                                         Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                              (May 20, 2016)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Anthony Davila filed a complaint against Sheriff Logan Marshall and

Captain Christopher Durden, who are administrators of the McDuffie County

Detention Center, where Davila was incarcerated pending his federal retrial. He

alleged that they violated his rights by denying him access to certain religious

items required for his practice of Santeria. The district court 1 denied his motions

for a default judgment and preliminary injunctive relief and granted summary

judgment to Marshall and Durden. Davila appeals those orders.

                                                I.

       Davila was incarcerated at the McDuffie County Detention Center from

May 2012 to March 2014. In October 2012 he filed a complaint under 42 U.S.C.

§ 1983 and the Religious Land Use and Institutionalized Persons Act of 2000

(RLUIPA), 42 U.S.C. § 2000cc-1 et seq., against Marshall and Durden. He alleged

that, while they provided Christian and Muslim inmates their personal religious

items, they denied him access to a Spanish language Santeria bible and a set of five

Santeria bead necklaces that his religion required him to wear at almost all times.

Of relevance to this appeal, he asserted that their actions violated the Free Exercise

Clause of the First Amendment, the Equal Protection Clause of the Fourteenth

Amendment, and RLUIPA. He sought injunctive relief, nominal damages for the

       1
          For most of the proceedings, a magistrate judge issued reports and recommendations
that the district court adopted, pursuant to Federal Rule of Civil Procedure 72(b). The parties
later consented to have the magistrate judge conduct the remaining pretrial matters, pursuant to
28 U.S.C. § 636(c).
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constitutional claims, and monetary damages for the RLUIPA claim against the

defendants in their individual capacities. 2

       Almost two months after the expiration of their time to respond to Davila’s

complaint, Marshall and Durden filed a motion to dismiss. Davila moved for entry

of a default judgment on the basis that the motion to dismiss was untimely. The

district court denied Davila’s motion for a default judgment. It granted in part and

denied in part Marshall and Durden’s motion to dismiss. It dismissed Davila’s

claim for monetary damages under RLUIPA, but permitted the request for

injunctive relief to proceed, along with Davila’s claims for nominal damages based

on the alleged First and Fourteenth Amendment violations.

       Davila also moved for a preliminary injunction to prevent Marshall and

Durden from withholding his bible and Santeria bead necklaces. In response,

Marshall and Durden argued that they had provided him with his bible and one of

the five requested bead necklaces. The district court denied the motion for a

preliminary injunction, finding that Davila had not shown a substantial likelihood

of success on the merits of his claims. Shortly after the district court entered that

order, Davila notified the court that he had been transferred to the Federal

Correctional Institution in Jesup, Georgia.



       2
       Davila also asserted official capacity claims and sought other forms of monetary
damages, but he does not challenge the dismissal of those claims in this appeal.
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      Marshall and Durden moved for summary judgment on all of Davila’s

remaining claims. The district court granted the motion. First, it dismissed as

moot Davila’s request for injunctive relief because of his transfer to FCI Jesup,

while noting that he had not shown that RLUIPA actually applied because there

was no evidence that the Detention Center received federal funding. Next, the

court determined that Marshall and Durden were entitled to qualified immunity

with respect to Davila’s free exercise claim. Finally, the court concluded that

Davila had not presented any evidence supporting his equal protection claim. It

entered judgment in favor of the defendants.

                                         II.

      Davila challenges the district court’s denial of his motion for preliminary

injunctive relief, arguing that he showed a substantial likelihood of success on the

merits. He has been transferred to FCI Jesup, however, and a prisoner’s request for

injunctive relief relating to the conditions of his confinement becomes moot when

he is transferred. Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988). Davila

has not argued that any exception to the mootness doctrine applies. We will

dismiss as moot the portion of his appeal challenging the denial of his motion for

preliminary injunctive relief.




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                                              III.

       Davila contends that the district court abused its discretion by denying his

motion for a default judgment because Marshall and Durden filed their motion to

dismiss after the expiration of their time to respond to his complaint. He is correct

that the motion to dismiss was late, but not that its lateness warranted entry of a

default judgment.

       We review only for abuse of discretion the denial of a motion for a default

judgment. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316

(11th Cir. 2002). When a party “has failed to plead or otherwise defend, and that

failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”

Fed. R. Civ. P. 55(a). Parties must file responsive pleadings within 21 days after

being served, and a motion to dismiss must be filed before any responsive

pleadings. 3 Fed. R. Civ. P. 12(a)(1), (b). But “[e]ntry of judgment by default is a

drastic remedy which should be used only in extreme situations . . . . [W]e must

respect the usual preference that cases be heard on the merits rather than resorting

to sanctions that deprive a litigant of his day in court.” Mitchell, 294 F.3d at 1316–

17 (quoting Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985)).




       3
         Officers and employees of the United States have 60 days to respond. Fed. R. Civ. P.
12(a)(2)–(3). But Marshall and Durden are not officers or employees of the United States, so the
21-day deadline applies to them.
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      Davila served his complaint on Marshall and Durden on January 24, 2013.

See Fed. R. Civ. P. 5(b)(2)(C). Their time to respond expired on February 18,

2013. See Fed. R. Civ. P. 6(a)(1), (d). They filed their motion to dismiss 56 days

later, on April 16, 2013. Eight days after that, Davila moved for entry of default.

Despite Marshall and Durden’s late filing, this is not an “extreme situation[ ]” that

warrants “resorting to sanctions that deprive a litigant of his day in court,”

Mitchell, 294 F.3d at 1316–17, especially given that they filed their motion to

dismiss before Davila moved for a default judgment, see McCorstin v. U.S. Dep’t

of Labor, 630 F.2d 242, 243–44 (5th Cir. 1980) (holding that the plaintiff was not

entitled to a default judgment because even though the defendant’s answer was

late, it was filed before the plaintiff moved for a default judgment). The district

court did not abuse its discretion in denying Davila’s motion for a default

judgment.

                                          IV.

      Davila contends that the district court erred in concluding that the Detention

Center was not subject to RLUIPA because it did not receive federal funds. We do

not need to reach that issue, however, because the district court gave an

independently adequate alternative ground for dismissing Davila’s RLUIPA claim.

With respect to his request for monetary damages, the district court correctly found

that RLUIPA does not authorize claims for monetary damages against prison


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officials in their individual capacities. See Smith v. Allen, 502 F.3d 1255, 1275

(11th Cir. 2007), abrogated in part on other grounds by Sossamon v. Texas, 563

U.S. 277, 131 S. Ct 1651 (2011). And the district court properly dismissed as

moot Davila’s request for injunctive relief under RLUIPA because he had been

transferred to another prison. See Spears, 846 F.2d at 1328. We will affirm the

district court’s dismissal of Davila’s request for monetary damages and injunctive

relief under RLUIPA.

                                           V.

      Davila contends that the district court erred in finding that Marshall and

Durden were entitled to qualified immunity with respect to his free exercise claim.

He argues that their delay in giving him his bible and their decision to give him

only one of his five Santeria bead necklaces did not pass the test for a prison rule

that restricts the free exercise of a sincerely held religious belief, and accordingly

they violated his clearly established right to freely exercise his faith.

      We review de novo the district court’s grant of summary judgment based on

qualified immunity and resolve all issues of material fact in the light most

favorable to the plaintiff. McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir.

2009). Summary judgment is appropriate 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).


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       There are no genuine disputes of material fact in this case. All the parties

agree that in 2012, Davila received in the mail a package containing a Spanish

language Santeria bible and five Santeria bead necklaces. The officer delivering

the mail informed Davila of the delivery but did not give him the bible or the bead

necklaces. After Davila filed this lawsuit, Durden reviewed the bible, which he

could not read, as he does not understand Spanish. He then met with Davila and

gave it to him. Durden also gave Davila one of the five bead necklaces, but

withheld the remaining four.

       The district court did not err in concluding that Marshall and Durden were

entitled to qualified immunity. “Qualified immunity offers complete protection for

government officials sued in their individual capacities as long as their conduct

violates no clearly established statutory or constitutional rights of which a

reasonable person would have known.” Lee v. Ferraro, 284 F.3d 1188, 1193–94

(11th Cir. 2002) (quotation marks omitted). To be entitled to qualified immunity,

the official must “first prove that he was acting within the scope of his

discretionary authority when the allegedly wrongful acts occurred.” Id. at 1194

(quotation marks omitted). Once the official has made that showing, the burden

shifts to the plaintiff to establish: “(1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, __, 131 S. Ct. 2074, 2080


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(2011) (quotation marks omitted). Courts may address those questions in either

order. Id.

      Davila argues that Marshall and Durden were not acting within their

discretionary authority because they did not have the authority to persecute him for

his faith. That argument evidences Davila’s misunderstanding of the term

discretionary authority. “[T]he inquiry is not whether it was within the defendant's

authority to commit the allegedly illegal act. Framed that way, the inquiry is no

more than an untenable tautology.” Holloman ex rel. Holloman v. Harland, 370

F.3d 1252, 1266 (11th Cir. 2004) (quotation marks omitted). Instead, “we look to

the general nature of the defendant’s action, temporarily putting aside the fact that

it may have been committed for an unconstitutional purpose, in an unconstitutional

manner, to an unconstitutional extent, or under constitutionally inappropriate

circumstances.” Id. Viewed in that light, it is clear that Marshall and Durden, both

administrators of the Detention Center, satisfied their burden of showing that they

were acting within their discretionary authority when they made decisions about

Davila’s access to his religious items.

      The burden therefore shifts to Davila to show that Marshall and Durden

violated a statutory or constitutional right and that the right was clearly established

at the time of their conduct. See al-Kidd, 563 U.S. at __, 131 S. Ct. at 2080. A

right is clearly established if “existing precedent . . . placed the statutory or


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constitutional question beyond debate.” Id. at __, 131 S. Ct. at 2083. Davila has

not met that burden. He argues that his right to freely exercise his religion has

been clearly established since the Supreme Court decided Cruz v. Beto, 405 U.S.

319, 92 S. Ct. 1079 (1972) and Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520, 113 S. Ct. 2217 (1993). But neither of those opinions relate to a

prisoner’s right to immediately access religious materials written in another

language or to possess potentially dangerous religious jewelry. See City of

Hialeah, 508 U.S. at 525–28, 546–47, 113 S. Ct. at 2223–24, 2233–34 (holding

that a law targeting the use of animal sacrifice in order to prevent the construction

of a Santerian church violated the Free Exercise Clause); Cruz, 405 U.S. at 319–

22, 92 S. Ct. at 1080–82 (holding that a Buddhist prisoner stated a claim under the

First and Fourteenth Amendments when he alleged that he was placed in solitary

confinement for proselytizing, while inmates of other religions were encouraged to

participate in religious programs).

      While a case need not be “on all fours, with materially identical facts” in

order to preclude qualified immunity, it does need to give the officials “reasonable

warning that the conduct at issue violated constitutional rights.” Holloman ex rel.

Holloman, 370 F.3d at 1277 (quotation marks omitted). Neither City of Hialeah

nor Cruz did that. And Davila has not pointed to any other precedent that clearly

established that prison officials were required to hand over his Spanish language


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bible without delay, or that they were compelled to provide him his other four bead

necklaces. He has therefore not met his burden of showing that Marshall and

Durden were not entitled to qualified immunity. The district court did not err in

granting Marshall and Durden summary judgment based on qualified immunity

with respect to Davila’s First Amendment claim.

                                         VI.

      Finally, Davila contends that the district court erred in granting Marshall and

Durden summary judgment on his equal protection claim because he created a

genuine issue of material fact by asserting that they denied him access to his

religious items while giving religious items to inmates of other religions. A bare

assertion, without more, is simply not enough to defeat a motion for summary

judgment. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (“[M]ere

conclusions and unsupported factual allegations are legally insufficient to defeat a

summary judgment motion.”) (quotation marks omitted). Davila presented no

evidence supporting his allegation that inmates of other religions were given access

to religious items similar to the ones that he was denied. The district court

therefore did not err in granting summary judgment to Marshall and Durden on

Davila’s equal protection claim.




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                                               VII.

       We DISMISS AS MOOT the portion of Davila’s appeal that challenges the

denial of his motion for a preliminary injunction. We AFFIRM the district court’s

dismissal of his RLUIPA claim and the district court’s grant of summary judgment

to the defendants on his free exercise and equal protection claims. 4




       4
          Marshall and Durden also urge us to affirm on the alternative basis that Davila failed to
exhaust his administrative remedies, even though the district court found that there was a
genuine question of material fact about whether Davila was able to exhaust. We need not decide
that issue because the district court correctly granted Marshall and Durden summary judgment.

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