IN THE UNITED STATES COURT OF APPEALS
`
`[DO NOT PUBLISH]
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 09-13332
`Non-Argument Calendar
`________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`OCTOBER 30, 2009
`THOMAS K. KAHN
`CLERK
`
`D.C. Docket No. 08-01731-CV-TCB-1
`
`WILLIAM NORMENT,
`
`Plaintiff-Appellant,
`
`versus
`
`NEWTON COUNTY SHERIFF'S DEPARTMENT,
`NEWTON COUNTY, GEORGIA,
`RICHARD ANTONIO HOWARD, Individually and as
`Deputy Sheriff of Newton County, Georgia,
`JOE NICHOLS, Individually and as Sheriff of Newton
`County, Georgia,
`
`Defendants-Appellees.
`
`________________________
`
`Appeal from the United States District Court
`for the Northern District of Georgia
`________________________
`(October 30, 2009)
`
`Before BLACK, BARKETT and COX, Circuit Judges.
`
`PER CURIAM:
`
`
`
`[DO NOT PUBLISH]
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 09-13332
`Non-Argument Calendar
`________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`OCTOBER 30, 2009
`THOMAS K. KAHN
`CLERK
`
`D.C. Docket No. 08-01731-CV-TCB-1
`
`WILLIAM NORMENT,
`
`Plaintiff-Appellant,
`
`versus
`
`NEWTON COUNTY SHERIFF'S DEPARTMENT,
`NEWTON COUNTY, GEORGIA,
`RICHARD ANTONIO HOWARD, Individually and as
`Deputy Sheriff of Newton County, Georgia,
`JOE NICHOLS, Individually and as Sheriff of Newton
`County, Georgia,
`
`Defendants-Appellees.
`
`________________________
`
`Appeal from the United States District Court
`for the Northern District of Georgia
`________________________
`(October 30, 2009)
`
`Before BLACK, BARKETT and COX, Circuit Judges.
`
`PER CURIAM:
`
`
`
`William Norment appeals following the grant of summary judgment to the
`
`Defendants. He also appeals the denial of his motion for relief from judgment. We
`
`affirm.
`
`I. Background
`
`On April 20, 2006, Jameson Norment called 911 and told the operator that her
`
`son, William Norment, who is a paranoid schizophrenic, had a knife in his bedroom
`
`and had not been taking his prescribed antipsychotic medications. During the
`1
`
`conversation, the 911 operator overheard William cursing at Jameson and calling her
`
`a liar. The operator notified Deputy Richard Antonio Howard of the Newton County
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`Sheriff’s department of the disturbance, and he proceeded to the Norment residence
`
`to investigate the situation.
`
` When Deputy Howard arrived, William opened the front door and permitted
`
`him to enter the home. Jameson then came out of a bedroom where she had sought
`
`refuge during the 911 call and informed Deputy Howard that William was mentally
`
`ill, not on his medication, and needed to be evaluated at the hospital. While Deputy
`
`Howard attempted to speak with Jameson, William disrupted the conversation by
`
`verbally abusing and cursing at his mother. Deputy Howard warned William three
`
`We summarize the facts of this case from Defendants’ statement of material facts. (R.2-32
`1
`at 310.) The reasons for doing so are discussed in section II of this opinion.
`
`2
`
`
`
`times to calm down and watch his mouth, but William continued to curse at Jameson.
`
`At this point, Deputy Howard placed William’s hands behind his back and secured
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`them in handcuffs. William then threatened Jameson by telling her, “I’ll be back.”
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`In order to diffuse the situation, Deputy Howard escorted William out of the
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`house. On their way out, William violently kicked the front door open and kicked
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`over a metal lantern that was on the front patio. Deputy Howard and William then
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`walked fifteen feet into the front yard, where William cursed again at his mother,
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`“bucked,” and attempted to remove the handcuffs. (R.2-32 at 316.) After noticing
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`William had removed one of his hands from the handcuffs, Deputy Howard swept
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`William’s legs out from under him and took him to the ground. (Id. at 317.) Deputy
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`Howard performed this maneuver in order to minimize the risk that William would
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`strike him with the handcuffs. (Id. at 316.)
`
`Deputy Howard then helped William to his feet and escorted him to a patrol
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`car. During the walk to the car, William complained that his neck was injured.
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`Deputy Howard secured him in the back of the car and called for an ambulance,
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`which arrived fifteen minutes later. Paramedics immobilized William and transported
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`him to a hospital, where he received treatment for a serious neck injury.
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`William filed this lawsuit in the Superior Court of Newton County, Georgia
`
`claiming that Deputy Howard is liable under 42 U.S.C. § 1983 for violating his
`
`3
`
`
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`Fourth and Fourteenth Amendment rights to be free from excessive force by state
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`officers. The Complaint also asserted constitutional claims against Newton County
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`and the Newton County Sheriff’s Department as well as state law claims of battery
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`and negligence against Deputy Howard and Joe Nichols, the Sheriff of Newton
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`County. The Defendants removed the case to the United States District Court for the
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`Northern District of Georgia.
`
`The Defendants moved for summary judgment on all claims. William opposed
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`the motion, but failed to file a response to Defendants’ statement of material facts.
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`Applying the local rules, the court deemed all of the facts set forth in Defendants’
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`statement to be admitted. (R.3-50 at 6.) Due to concessions William made in his
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`summary judgment response brief, the court held William abandoned all
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`constitutional claims except the one against Deputy Howard in his individual
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`capacity. The court granted summary judgment on the remaining claims based on
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`qualified immunity for the constitutional claim and official immunity for the state law
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`claims. William then filed a motion for relief from judgment pursuant to Federal Rule
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`of Civil Procedure 60(b)(1), which the court denied. William now appeals; his only
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`arguments are that the court erred in granting summary judgment to Deputy Howard,
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`and it erred in denying his motion for relief from that judgment.
`
`4
`
`
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`II. William’s Motion for Relief from Judgment
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`William contends his failure to file a response to Defendants’ statement of
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`material facts was inadvertent and amounted to excusable neglect. Federal Rule of
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`Civil Procedure 60(b) provides that upon “just terms,” the court may relieve a party
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`from final judgment on several grounds, including “mistake, inadvertence, surprise,
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`or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Whether failure to comply with a
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`local rule may be excused is an “equitable decision turning on ‘all relevant
`
`circumstances surrounding the party’s omission.’” Cheney v. Anchor Glass
`
`Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (quoting Pioneer Inv. Serv. Co.
`
`v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993).
`
`We factor “the danger of prejudice to the opposing party, the length of the delay and
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`its potential impact on judicial proceedings, the reason for the delay, including
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`whether it was within the reasonable control of the movant, and whether the movant
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`acted in good faith.” Id. Notably, this court “has demonstrated its wariness” of
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`grants of relief from judgment based upon attorney error. Cavaliere v. Allstate Ins.
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`Co., 996 F.2d 1111, 1115 (11th Cir. 1993).
`
` William’s counsel claims he prepared the required statement of facts and
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`delegated to his secretary the task of filing the statement. He states that in the course
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`of filing many documents, “she overlooked this particular document.” (Appellant’s
`
`5
`
`
`
`Br. at 7.) Even so, Defendants’ brief in reply to William’s opposition to summary
`
`judgment noted the failure to file the required statement. (R.3-43 at 2 n.1.) So,
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`William’s counsel had notice of the error, yet he did not seek leave to correct it during
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`the five months that the motion for summary judgment was pending. William argues
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`that the reply brief pointed out the error in a footnote with “remarkably small” type
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`size. (Appellant’s Br. at 23.) But, this does not excuse William’s failure to make sure
`
`the proper documents were filed with the district court. It was William’s burden, not
`
`that of Defendants’ counsel, to ensure he complied with the local rules.
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`William’s counsel waited five months before attempting to correct his error;
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`this delay was significant. Also, because William had notice of his failure to file the
`
`required statement, but he made no effort to correct the mistake, his counsel’s error
`
`was too serious, even if made in good faith, to be considered “excusable neglect.”
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`The length of the delay and the reason for the delay are factors that weigh against
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`excusing William’s failure to file a response to Defendants’ statement of material
`
`facts. We conclude the district court did not abuse its discretion in denying William’s
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`motion for relief from judgment.
`
`III. William’s Appeal of Summary Judgment
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`The district court acted consistent with local rules when it deemed the facts set
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`forth in Defendants’ statement of material facts admitted and within its discretion
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`6
`
`
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`when it denied William’s motion for relief from judgment. We therefore base our
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`review of the facts on Defendants’ statement of material facts. William’s brief does
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`not consider this version of the facts. He implicitly acknowledges, and we agree, that
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`under these facts, Deputy Howard is entitled to qualified immunity on the
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`constitutional claim and official immunity on the state law claims. We hold the
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`district court did not err in granting summary judgment to Deputy Howard on all
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`claims.
`
`AFFIRMED.
`
`7
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