Angelo Banks v. Edward Aikens

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 21-12862
Non-Argument Calendar
____________________

ANGELO BERNARD BANKS,
Plaintiff-Appellant,
versus
WARDEN, et al.,

Defendants,

DOCTOR EDWARD AIKENS,
NURSE MARY HUGHES-TERRY,
MARTEKA CHITTY,
former officer,
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Defendants-Appellees.

____________________

Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:19-cv-00010-CDL-MSH
____________________

Before JILL PRYOR, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
Angelo Banks, proceeding pro se, sued several former
employees of Rutledge State Prison (the “prison”), claiming that
the employees’ conduct surrounding his medical care and an
inmate attack violated his Eighth Amendment rights. On appeal,
Banks challenges the district court’s discovery and recusal orders,
as well as its grant of summary judgment in favor of
defendants-appellees. Banks also challenges the failure of the
district court to enter a default judgment against one defendant in
his favor. After review, we affirm.
I. FACTUAL BACKGROUND
In a second amended complaint, Banks raised two claims
under 42 U.S.C. § 1983 relevant to this appeal. First, Banks claimed
that two prison medical employees—Dr. Edward Aikens and nurse
Mary Hughes-Terry—were deliberately indifferent to his serious
medical needs in treating his gastrointestinal disorders. Second,
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Banks claimed that prison guard Marteka Chitty violated his Eighth
Amendment rights by coordinating an inmate attack on Banks in
2017. Banks also raised claims against several other prison
employees, including Tiffany Price, but these claims were
dismissed after a preliminary screening under 28 U.S.C.
§§ 1915(e), 1915A(a).
A. Motion to Amend and Request for Clerk’s Entry of Default
Defendants Dr. Aikens and Hughes-Terry answered Banks’s
second amended complaint, and defendant Chitty filed a motion to
dismiss. Banks then filed a motion to amend his second amended
complaint to add Chitty’s first name and to add a claim for
compensatory damages.
The magistrate judge issued an order and report (“the first
report”) (1) granting Banks’s motion to amend as to defendants Dr.
Aikens, Hughes-Terry, and Chitty and incorporating his proposed
amendments into the second amended complaint;
(2) recommending that defendant Chitty’s motion to dismiss
should be denied in part; and (3) recommending that all defendants
should be relieved of the requirement to answer the newly
“incorporated” second amended complaint under Federal Rule of
Civil Procedure 15(a)(3). 1 Banks did not object to the first report,
which the district court adopted.

1 For clarity, throughout this opinion, we refer to the “incorporated” second

amended complaint as simply the second amended complaint.
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Subsequently, Banks filed an application for a clerk’s entry of
default against the defendants and a motion to stay discovery
pending his request for entry of default. In support of his request
for a clerk’s entry of default, Banks asserted that Chitty failed to
answer the second amended complaint.
Without ruling on Banks’s request for a clerk’s entry of
default, the magistrate judge denied Banks’s motion to stay
discovery. In its order, the magistrate judge noted that (1) it had
relieved the defendants of the requirement to answer the second
amended complaint, (2) its order failed to clarify, however, that
Chitty had not yet filed an answer, and (3) that Chitty needed to do
so. The magistrate judge thus ordered defendant Chitty to file an
answer within 21 days, which Chitty did. After the magistrate
judge’s order, the clerk declined to enter default.
Banks filed objections to the magistrate judge’s order. Banks
also objected to (1) the denial of his motion to stay discovery,
(2) the clerk’s failure to enter default under Federal Rule of Civil
Procedure 55, and (3) the “ongoing acts of bias and personal
prejudices by this clerk of court.”
At this time, the district court did not address Banks’s
objections.
B. Period from 2/28/2020 to 10/30/2020
Although the magistrate judge initially provided 90 days for
discovery, the discovery period ultimately ran for 8 months from
February 28, 2020 until October 30, 2020.
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In May 2020, Banks submitted a discovery request for,
among others, documents related to defendants’ mistreatment of
other inmates. In June 2020, Banks also submitted interrogatories
regarding the defendants’ and other prison staff members’ duties,
and prison procedures regarding inmate assaults and inmate
medical care.
On September 7, 2020, Banks filed a motion to compel,
arguing that the defendants failed to timely respond at all to his
discovery requests. Although the defendants had not yet formally
responded, Banks noted that the defendants objected to the
production of documents related to defendants’ mistreatment of
inmates. Banks sought to compel the production of only this
category of documents, which he argued was relevant.
On October 15, 2020, defendants responded to Banks’s
discovery requests. In response to Banks’s motion to compel,
defendants stated that their untimely response was due to the
COVID-19 pandemic and other delays in obtaining the requested
information. Defendants also objected to Banks’s request for
documents relating to defendants’ mistreatment of inmates as
overbroad and irrelevant and asked the court to deny the motion
to compel.
On October 28, 2020, the magistrate judge granted in part
Banks’s September 7 motion to compel. The magistrate judge
determined that Banks’s motion to compel sought relevant
documents, specifically documents related to defendants’
mistreatment of inmates. Because the defendants’ responses were
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untimely, the magistrate judge determined that defendants waived
their objection to the production of documents related to the
mistreatment of inmates. The magistrate judge ordered
defendants to produce within 21 days (1) documents relating to
inmate complaints against defendant Chitty for failing to protect
inmates or encouraging inmate-on-inmate attacks; and
(2) non-privileged documents relating to inmate complaints against
defendants Dr. Aikens and Hughes-Terry for deliberate
indifference to serious medical needs.
Also on October 28, 2020, the defendants took Banks’s
deposition. Among other things, Banks noted that he had received
at least some of the defendants’ discovery responses submitted on
October 15, 2020.
Discovery closed on October 30, 2020. Banks did not request
an extension of discovery.
C. November 25, 2020 Motion for Sanctions
On November 25, 2020, after the close of discovery, Banks
filed a motion for discovery sanctions, asserting that defendants
failed to produce timely the documents subject to the magistrate
judge’s compulsion order. Banks did not seek to reopen discovery.
Defendants responded that they mailed their discovery
responses to Banks within 21 days of the magistrate judge’s order.
Defendants also noted that they responded to another request for
documents and interrogatories that Banks submitted on November
3, 2020, after discovery closed.
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The magistrate judge denied Banks’s motion, finding that
defendants timely complied with the October 28, 2020 order
compelling production of certain documents related to the
defendants’ mistreatment of inmates.
D. Summary Judgment and Further Discovery Disputes
On December 30, 2020, the defendants filed a motion for
summary judgment.
On January 11, 2021, Banks sought leave to file a third
amended complaint to add three more defendants who were prison
employees: (1) Tiffany Price, who was dismissed after a preliminary
screening of the second amended complaint; (2) James Herron; and
(3) Steven Lopes. Although Banks sought to add three defendants
to the case, his motion for leave to amend did not seek to reopen
the discovery period.
On February 23, 2021, Banks filed a motion to reopen
discovery pursuant to Federal Rule of Civil Procedure 56(d),
asserting that he did not receive defendants’ responses to the
October 28, 2020 order until January 2021. Banks argued that
defendants intentionally sent those responses to his prior prison
address, which delayed his receipt of the documents. 2 Banks also
listed numerous topics on which he hoped to seek further
discovery, including discovery related to the three defendants he
sought to add in his proposed third amended complaint.

2 Banks filed a notice of change of address with the court in August 2020.
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The defendants responded that they inadvertently
overlooked Banks’s notice of change of address, but they
confirmed with the prison that Banks’s mail would have been
automatically forwarded to his new prison address. Defendants
also argued that Banks sought to reopen discovery to seek
information relating to the three defendants he added in his
proposed third amended complaint, and that Banks could have
sought this information prior to the close of discovery.
The magistrate judge denied Banks’s motion for leave to
amend to file a third amended complaint based on undue delay and
futility. The magistrate judge reasoned that Banks (1) filed his
motion to amend after the close of discovery and after defendants’
summary judgment motion; (2) sought to add two new defendants,
Lopes and Herron, even though his action was pending for two
years; and (3) sought to raise a new claim against Price, who was
dismissed from the action seventeen months prior. The magistrate
judge noted that Banks delayed in seeking to add these three new
parties, even though his deposition testimony and allegations in his
second amended complaint referred to these parties or their
conduct underlying his now-proposed claims against them.
Regarding futility, the magistrate judge determined, among other
things, that the proposed claims against Price, Lopes, and Herron
were based on the January 2017 inmate assault on Banks and would
be barred under the applicable statute of limitations.
As to Banks’s motion to reopen discovery, the magistrate
judge found that defendants’ failure to notice Banks’s change of
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prison address, while “careless and unfocused,” was not intentional
misconduct. The magistrate judge also determined that reopening
discovery was unwarranted because (1) Banks testified at his
October 28, 2020 deposition that he received defendants’ responses
to his initial discovery requests; (2) Banks’s subsequent motion to
compel sought only documents related to defendants’
mistreatment of inmates, which the court ordered produced;
(3) Banks’s November 25, 2020 motion for sanctions raised only
defendants’ failure to produce timely those documents and did not
seek to extend or reopen discovery; (4) Banks confirmed that he
received the documents subject to the October 28, 2020 order in
January 2021; (5) defendants responded to additional discovery
requests made by Banks after discovery closed; and (6) Banks
indicated in his motion to reopen that he wished to pursue lines of
discovery that he did not raise in his previous motions to compel
and for sanctions. The magistrate judge denied Banks’s motion to
reopen discovery but gave Banks 21 days to respond to the
defendants’ summary judgment motion. That 21-day period ended
on April 26, 2021.
Instead of filing a summary judgment response, Banks on
April 13, 2021 filed (1) a motion to recuse the magistrate judge; (2) a
motion to set aside the denial of his motion to reopen discovery;
and (3) a motion to stay a summary judgment ruling pending his
motion to set aside the discovery ruling. Regarding discovery,
Banks asserted that (1) he had not received any of defendants’
discovery responses until January 2021, and (2) the defendants
intentionally sent their discovery responses to the wrong address.
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Regarding recusal, Banks asserted that the magistrate
judge’s bias against him was evidenced by its failure to hold the
defendants accountable for their intentional misconduct.
On May 24, 2021, the magistrate judge issued an order and
report (“the second report”) (1) recommending that the
defendants’ motion for summary judgment should be granted, and
(2) denying Banks’s motions to set aside its prior discovery ruling,
to recuse, and to stay summary judgment. Regarding Banks’s
motion to recuse, the magistrate judge found that Banks’s
assertions of bias arose entirely from adverse rulings in the instant
case, which did not warrant recusal.
As to Banks’s motion to set aside its discovery rulings, the
magistrate judge found that Banks largely restated arguments from
his earlier discovery motions and that he suggested—for the first
time and contrary to his October 28, 2020 deposition testimony—
that he failed to receive any discovery responses until January 2021.
The magistrate judge also concluded that, despite the defendants’
mailing error, Banks received defendants’ discovery responses prior
to the deadline for filing dispositive motions but waited until after
the defendants’ summary judgment motion to seek an extension
of discovery.
Although Banks failed to respond to the defendants’
summary judgment motion, the magistrate judge reviewed the
record, determined there were no genuine disputes of material
fact, and recommended summary judgment be granted in favor of
the defendants. The magistrate judge found that Banks’s claim
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against defendant Dr. Aikens relied solely on Dr. Aikens’s failure to
follow the recommendations of Banks’s prior prison doctor. The
magistrate judge concluded that this difference in medical opinion
was insufficient to support Banks’s deliberate indifference claim.
The magistrate judge also noted record evidence that Dr. Aikens
treated Banks’s stomach condition by prescribing medication
shortly after Banks’s arrival at the prison and that Banks later
refused to cooperate with Dr. Aikens’s efforts to examine Banks
and to have Banks referred to a specialist.
Next, the magistrate judge found that Banks’s claim against
defendant nurse Hughes-Terry relied on his assertions that she
(1) refused to give him unprescribed medication and (2) would not
allow him to see Dr. Aikens to get new medication prescribed.
However, the magistrate judge concluded that it was undisputed
(1) that Hughes-Terry, as a nurse, could not prescribe medication
herself or issue unprescribed medication, and (2) that
Hughes-Terry had not deprived Banks of access to Dr. Aikens.
Instead, the magistrate judge pointed out that Banks admitted at
his deposition that Hughes-Terry told him to request a sick call to
see Dr. Aikens to have new medication prescribed.
The magistrate judge then construed Banks’s claim against
defendant Chitty as proceeding under a failure-to-protect and an
excessive-use-of-force theory, but it determined that both theories
failed. As to Banks’s failure-to-protect theory, the magistrate judge
found there was no evidence that Chitty subjectively knew of any
risk to Banks posed by the inmates involved in the attack. The
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magistrate judge stated that Banks’s excessive-use-of-force theory
failed because Banks relied on only speculation that Chitty
encouraged the inmates to attack Banks. The magistrate judge
noted that Banks testified at his deposition that Chitty called one
of the inmates to her office prior to the attack. However, Banks
testified at his deposition that he did not know what Chitty and the
inmate spoke about.
Banks filed objections to the magistrate judge’s second
report. Among other things, Banks renewed the arguments in his
discovery and recusal motions, and he asserted that the magistrate
judge lacked the authority to consider those motions.
The district court adopted the second report, affirmed the
magistrate judge’s denial of Banks’s motions, and entered
summary judgment in favor of the defendants. The district court
considered Banks’s objections to the second report but found that
his objections lacked merit. Specifically, the district court
concluded that the magistrate judge had authority to determine
Banks’s discovery motions under 28 U.S.C. § 636(b)(1)(A), and that
the magistrate judge’s rulings on those motions were not clearly
erroneous or contrary to law. Banks timely appealed.
II. ENTRY OF DEFAULT JUDGMENT
On appeal, Banks argues the district court should have
entered a default judgment in his favor.
We review for an abuse of discretion the denial of a motion
for default judgment. Mitchell v. Brown & Williamson Tobacco Corp.,
294 F.3d 1309, 1316 (11th Cir. 2002). To obtain a default judgment,
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a party must first apply to the clerk of the court for an entry of
default. Fed. R. Civ. P. 55(b)(1). The clerk must enter default if the
party against whom relief is sought failed to plead or otherwise
defend against suit and this failure is shown by affidavit or
otherwise. Fed. R. Civ. P. 55(a). Second, if a plaintiff’s claim is not
for a sum certain or a sum that can be made certain by
computation, the plaintiff must apply to the court for a default
judgment. Fed. R. Civ. P. 55(b).
As to default judgment, Banks argues that the district court
abused its discretion by denying his motion for default judgment.
Banks contends defendant Chitty did not timely respond to the
second amended complaint and the district court improperly
denied his motion based on “its familiarity with the credability [sic]
of the material allegations.”
But Banks never filed—and the district court never ruled
on—a motion for default judgment.3 Instead, Banks filed a request
for a clerk’s entry of default under Rule 55(a), which was never
entered. The magistrate judge noted, but did not rule on, Banks’s
request for a clerk’s entry of default when it denied his
contemporaneously filed motion to stay discovery pending his

3 In their response brief, the defendants interpret Banks’s argument as referring

to his motion for sanctions, which referenced, but did not request, default
judgment. Instead, Banks’s motion for sanctions requested that certain,
unspecified facts “be deemed admitted and established as evidence.” Banks
appears to confirm that the defendants misinterpret his argument, stating in
his reply brief that the defendants’ “brief clearly and convincingly seeks to
‘mislead’ this Court’s review of the issue of default judgment.”]
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request for a clerk’s entry of default. And while Banks filed an
objection to the clerk’s failure to enter default, the district court
never ruled on that objection. Unsurprisingly, we may not review
non-existent orders or judgments of the district court. Cf. Bogle v.
Orange Cnty. Bd. of Cnty. Comm’rs, 162 F.3d 653, 661 (11th Cir. 1998)
(holding that a notice of appeal must designate an existing order or
judgment).
Alternatively, we liberally construe Banks’s brief as arguing
that he was entitled to a default judgment, and thus the district
court erred by entering summary judgment in favor of the
defendants. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(stating we must liberally construe pro se briefs). But that argument
fairs no better. Banks was not entitled to a default judgment
because Chitty timely responded to the second amended
complaint. We explain why.
After incorporating Banks’s amendments to the second
amended complaint, the magistrate judge relieved the defendants
of the requirement to answer the newly “incorporated” second
amended complaint. Banks did not object to or appeal this ruling
to the district court. Later, the magistrate judge clarified that,
unlike Dr. Aikens and Hughes-Terry, defendant Chitty had not filed
an answer to the second amended complaint. Instead, Chitty filed
a motion to dismiss, which was denied in part. The magistrate
judge, therefore, ordered Chitty to answer the second amended
complaint within 21 days, which Chitty did. Under Federal Rule of
Civil Procedure 15(a)(3), a court may prescribe a different
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timeframe for answering an amended complaint. Fed. R. Civ. P.
15(a)(3). Because Chitty answered the second amended complaint
within the 21 days prescribed by the court, her answer was timely
and a default judgment in favor of Banks was unwarranted. See id.;
Fed. R. Civ. P. 55.
III. SUMMARY JUDGMENT
Banks also appeals the grant of summary judgment in favor
of the defendants.
We review de novo a district court’s entry of summary
judgment. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th
Cir. 2005). An appellant abandons an issue on appeal by making
only passing references to it or by raising it in a perfunctory manner
without supporting arguments and authority. Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014); Timson, 518 F.3d
at 874 (stating issues not briefed by pro se appellants are deemed
abandoned).
First, Banks generally asserts that the district court
improperly resolved genuinely disputed material facts in granting
summary judgment. However, Banks fails to identify any such
factual disputes. Banks had the responsibility, both in the district
court and on appeal, to sift through the record and highlight the
disputed material facts that precluded summary judgment on his
claims. See Coleman v. Hillsborough Cnty., 41 F.4th 1319, 1328 (11th
Cir. 2022) (“Apparently, he would like for us to dig through the
record in an effort to turn up facts that might make his case for him.
But that is his job, not ours.”); Serendipity at Sea, LLC v. Underwriters
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16 Opinion of the Court 21-12862

at Lloyd’s of London Subscribing to Pol’y No. 187581, 56 F.4th 1280,
1287 (11th Cir. 2023) (“[W]e will not require the district court to
undertake the proverbial hunt for the Red October submarine in
the Atlantic Ocean in order to find a disputed issue of fact in the
summary judgment record.” (footnote omitted)).
Although we liberally construe pro se filings, we cannot act
as de facto counsel or rewrite an otherwise deficient filing to sustain
an action. See Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th Cir.
2020). Even liberally construed, though, Banks’s brief contains
nothing more than a recitation of the summary judgment standard
under Rule 56(a)—and fails to identify the disputed material facts
that preclude summary judgment. See Fed. R. Civ. P. 56(c) (stating
a party asserting that a fact is genuinely disputed must support this
assertion by “citing to particular parts of materials in the record”).
“[A] pro se litigant does not escape the essential burden under
summary judgment standards of establishing that there is a
genuine issue as to a fact material to his case in order to avert
summary judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir.
1990). As a result, Banks has abandoned this summary judgment
issue. See Sapuppo, 739 F.3d at 681; Timson, 518 F.3d at 874. 4

4 To be clear, and as the magistrate judge correctly noted, Banks’s failure to

respond to defendants’ summary judgment motion did not itself warrant
summary judgment against him. See United States v. One Piece of Real Prop.
Located at 5800 SW 74th Ave., Mia., Fla., 363 F.3d 1099, 1101 (11th Cir. 2004)
(stating courts “cannot base the entry of summary judgment on the mere fact
that the motion was unopposed, but, rather, must consider the merits of the
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We recognize that Banks argues that the district court erred
by also characterizing his sworn affidavits and declarations as
“unsupported allegations.” (Quotation marks omitted.) Although
Banks appears to quote the magistrate judge’s or district court’s use
of the words “unsupported allegations,” the second report and the
district court’s order adopting that report never used those words.
Regardless, in the second report, which the district court adopted,
the magistrate judge properly gave evidentiary weight to Banks’s
deposition testimony and allegations in his sworn complaint, and it
assumed for the purposes of summary judgment that Banks’s
version of events was true. See Marbury v. Warden, 936 F.3d 1227,
1232 (11th Cir. 2019) (noting facts alleged in a sworn complaint
constitute evidence at the summary judgment stage).5 Banks has
not shown any failure to consider his affidavits, declarations, and
allegations.
Accordingly, we affirm the district court’s summary
judgment.
IV. DISCOVERY
Banks also appeals the various discovery rulings. Banks
objected to the magistrate judge’s discovery rulings. The district

motion”). Instead, the magistrate judge and district court based summary
judgment on the merits of defendants’ motion.
5 We note that Banks’s original second amended complaint was not sworn.

But Banks’s subsequent amendments to the second amended complaint were
sworn. Because the magistrate judge incorporated these two pleadings, we
treat them as both sworn for purposes of this appeal.
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court overruled Banks’s objections and adopted the magistrate
judge’s rulings.
We review for an abuse of discretion a district court’s
discovery decisions. Lary v. Trinity Physician Fin. & Ins. Servs.,
780 F.3d 1101, 1105 (11th Cir. 2015). The district court enjoys broad
discretion in determining the scope and effect of discovery. Avirgan
v. Hull, 932 F.2d 1572, 1580 (11th Cir. 1991). We must affirm under
the abuse of discretion standard unless we determine that the
district court made a clear error in judgment, even if we would
have decided the issue differently had it been our choice. See In re
Rasbury, 24 F.3d 159, 168 (11th Cir. 1994); MSP Recovery Claims,
Series LLC v. Hanover Ins. Co., 995 F.3d 1289, 1296 (11th Cir. 2021).
On appeal, Banks argues that he did not have an adequate
opportunity to conduct discovery prior to the entry of summary
judgment.
Before entering summary judgment, the district court must
ensure that the parties had an adequate opportunity for discovery.
Fla. Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1316
(11th Cir. 1990). After careful review of the record, we conclude
that Banks had an adequate opportunity to conduct discovery
before the entry of summary judgment.
The discovery period in this case extended from February
28, 2020 to October 30, 2020. Banks filed his initial discovery
requests in May and June 2020, but defendants failed to timely
respond. Even though Banks was aware that his discovery requests
were outstanding, defendants’ responses were late, and discovery
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was set to close at the end of October 2020, Banks did not seek an
extension of discovery.
Instead, in September 2020, Banks filed a motion to compel
the production of a single category of documents from his initial
requests related to inmate mistreatment by the defendants, which
the magistrate judge granted in part on October 28, 2020. Also on
October 28, 2020, Banks was deposed and confirmed that he had
already received at least some of defendants’ responses.
Presumably though, Banks had not yet received the documents
subject to the magistrate judge’s October 28, 2020 discovery order,
as that order was entered on the same day as his deposition.
On November 25, 2020, Banks filed a motion for sanctions
for defendants’ failure to comply with the October 28, 2020 order.
Banks, however, did not seek to extend or reopen the discovery
period that had expired on October 30, 2020. Due to defendants’
careless mailing error, Banks did not receive certain documents
subject to the October 28, 2020 order until January 2021. In the
meantime, defendants responded to additional discovery requests
Banks made after discovery had closed, defendants filed their
motion for summary judgment, and the district court granted
Banks an extension to respond to the summary judgment motion,
giving him until February 26, 2021 to respond.
Yet, it was not until February 23, 2021, three days before his
summary judgment response was due, that Banks sought to reopen
discovery. The magistrate judge denied Banks’s motion after
noting that Banks confirmed he received defendants’ discovery
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responses and delayed in seeking additional discovery. The
magistrate judge denied Banks’s February 23, 2021 motion to
reopen discovery but again extended the time for Banks to respond
to summary judgment to April 26, 2021.
Instead of responding to defendants’ summary judgment
motion, Banks filed his April 13, 2021 motion to set aside the
magistrate judge’s denial of his motion to reopen discovery. Banks
also on April 13, 2021 asserted for the first time—and contrary to
his October 28, 2020 deposition testimony—that he did not receive
any of defendants’ discovery responses until January 2021. This
new assertion was directly at odds with Banks’s deposition
testimony that confirmed he received some discovery prior to his
October 28, 2020 deposition. After noting Banks’s inconsistencies
regarding when he received defendants’ responses, the magistrate
judge declined to reopen discovery and proceeded to analyze
defendants’ summary judgment motion.
Based on these facts, we cannot say the district court abused
its discretion in denying Banks’s motion to reopen discovery. Prior
to the entry of summary judgment, Banks received defendants’
responses to his initial discovery requests, the October 28, 2020
order, and his out-of-time discovery requests. While defendants’
responses to Banks’s initial requests and to the October 28, 2020
order were late, Banks was aware of the October 30, 2020 discovery
deadline and that defendants’ responses were outstanding, but he
did not timely seek to extend or reopen discovery. Further, Banks
confirmed that he received the defendants’ responses by January
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28, 2021, but he waited until February 23, 2021 to seek to reopen
discovery. “Despite construction leniency afforded pro se litigants,
we nevertheless have required them to conform to procedural
rules.” Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002); see also
Brooks v. Britton, 669 F.2d 665, 666-67 (11th Cir. 1982) (dismissing pro
se litigant’s appeal where he failed to timely move for an extension
of time to file his notice of appeal).
Given the extent of discovery Banks was able to conduct, his
receipt of defendants’ January 28 responses prior to the entry of
summary judgment, and his failure to timely seek an extension or
reopening of discovery, we conclude the district court did not abuse
its discretion by denying his motion to reopen discovery.
V. RECUSAL
Banks also appeals the denial of his motions to recuse.
We review for an abuse of discretion the denial of a motion
to recuse. Thomas v. Tenneco Packaging Co., 293 F.3d 1306,
1319-20 (11th Cir. 2002). A judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). Section 455(a) imposes a
self-enforcing obligation on judges to recuse where the proper legal
grounds exist. Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001).
A motion for recusal must show that the judge’s purported bias is
personal rather than judicial in nature. Bolin v. Story, 225 F.3d 1234,
1239 (11th Cir. 2000). “[E]xcept where pervasive bias is shown, a
judge’s rulings in the same or a related case are not a sufficient basis
for recusal.” Id.
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22 Opinion of the Court 21-12862

At several points throughout the district court proceedings,
Banks sought the “release” or recusal of the magistrate judge,
asserting that the magistrate judge was biased against him, issued
unfavorable rulings, and mischaracterized evidence. Each motion
was denied.
Here, Banks argues again that both the magistrate judge and
the district court demonstrated “extra judicial bias,” which
warranted recusal. Banks argues this bias is evidenced by the
judges’ mischaracterization of his allegations and their unequal
treatment of the parties. Banks also argues that the judges
improperly limited his claim against Chitty to only a
failure-to-protect theory.
Sufficiently put, however, the bases for recusal on which
Banks relies are all judicial in nature and relate to the judges’ rulings
in this case. See Story, 225 F.3d at 1239. These acts do not establish
pervasive bias and are insufficient to warrant recusal. See id.
Additionally, it is clear from the second report, which the district
court adopted, that the magistrate judge did not limit Banks’s claim
against Chitty. Instead, the magistrate judge liberally construed
Banks’s allegations against Chitty as raising both a
failure-to-protect theory and an excessive-force theory. The
magistrate judge analyzed Banks’s claim under both theories,
concluding both failed. Accordingly, the magistrate judge and
district court did not abuse their discretion in declining to recuse.
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21-12862 Opinion of the Court 23

VI. CONCLUSION
For the above reasons, we affirm the district court’s grant of
summary judgment, its denial of Banks’s discovery motions, and
its denial of Banks’s motions to recuse. 6
AFFIRMED.

6 We deny Banks’s motion to file a supplemental brief, which seeks to raise,

for the first time on appeal, the dismissal of his claims against defendant Leticia
Bell-Burks. Absent certain exceptions not relevant here, an appellant who
does not raise an issue in his opening brief may not do so in a supplemental
brief. See Miccosukee Tribe of Indians of Fla. v. Cypress, 814 F.3d 1202, 1210-11
(11th Cir. 2015) (stating an appellant may raise a new argument in a
supplemental brief when an intervening Supreme Court opinion overrules
existing precedent).