IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DAVID CHARLES SUSSMAN,

Petitioner,

v. Case No.: 4:20cv412-MW/EMT

SECRETARY DEP’T OF 

CORRECTIONS,

Respondent.

_________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge’s Report 

and Recommendation, ECF No. 45, and has reviewed de novo Petitioner’s 

objections, ECF Nos. 47 and 50. This Court has also considered, without hearing, 

Petitioner’s motion for leave to file a second amended habeas petition. ECF No. 46. 

Petitioner seeks leave to file a second amended petition to “clarify that 

[Inmate] Brooks had already told Sussman his testimony would support Sussman’s 

defense.” See ECF No. 46 ⁋ 4. In Petitioner’s objections, he states, “Brooks 

personally told me he never received a DR for attacking me, was very remorseful, 

and fully intended to testify that he attacked me, and I never tried to hit him in 

defense.” ECF No. 47 ⁋ 3.

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Neither Petitioner’s objections, ECF No. 47, nor his motion for leave to file a 

second amended habeas petition, ECF No. 46, changes the Magistrate Judge’s 

conclusion that Petitioner has not shown that he was actually prejudiced in the DR 

proceedings, as set forth in the last two paragraphs of the analysis of Ground Two 

on pages 18-19 of the report and recommendation. Petitioner’s assertions as to what 

Brooks said are still speculative. Moreover, the DR team considered evidence 

supporting Petitioner’s defense, specifically, Petitioner’s own statements and those 

of Inmate Pagano.

In addition, the alleged “factual errors” described in Part A of Petitioner’s 

objections, ECF No. 50, are without merit. The Magistrate Judge’s factual 

determinations are supported by the record. Petitioner’s arguments in Parts B 

through E of his objections are also without merit. The Magistrate Judge correctly 

analyzed Petitioner’s due process challenges to the prison disciplinary proceedings 

and correctly determined that Petitioner is not entitled to federal habeas relief.

 To the extent Petitioner makes allegations and arguments that were not 

previously presented to the Magistrate Judge, this Court declines to consider 

them. See Lodge v. Kondaur Capital Corp., 750 F.3d 1263, 1274 (11th Cir. 2014) 

(holding that a district court does not abuse its discretion by declining to consider 

evidence never mentioned before or submitted to the magistrate judge); Williams v. 

McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (holding that a district court has 

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discretion to decline to consider a party’s argument when that argument was not first 

presented to the magistrate judge); see also Barcelona v. Rodriguez, 847 F. App’x 

739, 741 n.2 (11th Cir. 2021) (holding that the district court acted within its 

discretion in declining to consider factual allegations and arguments plaintiff 

presented for the first time in his objections to the report and recommendation). The 

Eleventh Circuit has adopted the position of the First, Fifth, Ninth, and Tenth 

Circuits, that “requiring the district court to consider new arguments raised in the 

objections effectively would eliminate efficiencies gained through the Magistrates 

Act and would unfairly benefit litigants who could change their tactics after issuance 

of the magistrate judge’s report and recommendation.” Williams, 557 F.3d at 1291.

Accordingly,

IT IS ORDERED:

The report and recommendation, ECF No. 45, is accepted and adopted, over 

the Petitioner’s objections, as this Court’s opinion. Petitioner’s motion for leave to 

file a second amended habeas petition, ECF No. 46, is DENIED. The Clerk shall 

enter judgment stating, “Petitioner’s amended habeas petition challenging FDOC 

DR Log Nos. 102-160772 and 102-160773, ECF No. 33, is DENIED.” A certificate 

of appealability is DENIED. The Clerk shall close the file. 

SO ORDERED on December 6, 2021.

s/Mark E. Walker 

Chief United States District Judge

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