[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-12632

Non-Argument Calendar

________________________

D.C. Docket No. 5:17-cv-00387-MTT

HJALMAR RODRIGUEZ, 

 Plaintiff-Appellant,

 versus

WILLIAM POWELL,

Deputy Warden of Security, GDCP, 

RUFUS LOGAN,

Unit Manager, GDCP,

DEREK CLUPPER,

COII, GDCP,

LIEUTENANT MICHAEL KYLES,

GDCP,

DR. EDWARD BURNSIDE,

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

(April 29, 2021)

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Before MARTIN, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM: 

Hjalmar Rodriguez, a Georgia state prisoner who proceeded pro se throughout 

the proceedings below, appeals after the district court entered judgment against him 

on his claims against several prison officials for excessive force, retaliation, and 

deliberate indifference to medical needs under 42 U.S.C. § 1983. On appeal, 

Rodriguez, now represented by court-appointed counsel, challenges several pretrial 

matters, arguing that the district court erred or abused its discretion by setting aside

a clerk’s default as to one defendant, failing to review the magistrate judge’s denial 

of a motion to compel discovery, and refusing to appoint an expert witness. After 

careful review, we affirm.

I.

We begin with an overview of Rodriguez’s pertinent claims, which arise from 

three separate incidents. First, Rodriguez asserted claims of excessive force and 

deliberate indifference to his medical needs stemming from a hand injury that he

suffered on December 19, 2013, while incarcerated at the Georgia Diagnostic and 

Classification Prison (“GDCP”). Rodriguez claimed that he placed his hand through 

the “tray flap,” a small opening in his cell door though which food trays and other 

items were passed, as an act of “peaceful protest” to try to get Defendant Derek 

Clupper to respond to his pleas for medical assistance. But Clupper slammed the 

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tray flap closed onto his hand without adequate warning, causing him to suffer pain, 

swelling, bruising, and a broken bone. Rodriguez further alleged that Burnside 

failed to provide adequate follow-up medical care for his injuries. 

Second, Rodriguez claimed that, after the trap-flap incident, several prison 

officials—Defendants Clupper, Michael Kyles, William Powell, and Rufus Logan—

retaliated against him for his use of the prison grievance system. The alleged 

retaliatory conduct included (a) issuing a “falsified” disciplinary report that resulted 

in Rodriguez’s transfer to a more restrictive cellblock; (b) resorting to a disciplinary 

report, as opposed to some lesser disciplinary measure; and (c) keeping Rodriguez

in the more restrictive cellblock even after the disciplinary report was dismissed for 

“factual statement not being supportive.” 

Third, Rodriguez alleged that Burnside provided inadequate medical care for 

a bullet that had been left in his upper left thigh after a shooting in 1997. According 

to Rodriguez, this bullet moved over time down his leg and toward the back of his 

knee, causing him to suffer pain on movement. Eventually, the bullet ruptured his

skin, and he was able to extract the bullet himself, although he developed an 

infection. Rodriguez asserted that Burnside was deliberately indifferent by delaying 

the surgical removal of the bullet and by prescribing only ibuprofen, a medication 

that causes him painful side effects. 

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Of these claims, the district court granted summary judgment on one claim—

for deliberate indifference against Burnside based on the hand injury—but permitted 

the remaining claims to go to trial. A jury trial was held in June 2019, with 

Rodriguez representing himself. The jury returned a verdict against Rodriguez on 

each claim, finding that Clupper did not use excessive force against him; Clupper, 

Kyles, Powell, and Logan did not retaliate against him; and Rodriguez did not have 

an objectively serious medical need related to the bullet embedded in his leg. The 

district court entered judgment on the verdict, and Rodriguez timely appealed. We 

appointed counsel for the appeal.1

 

Rodriguez, though court-appointed counsel, now argues that the district court 

erred or abused its discretion in three ways: (1) granting Burnside’s motion to set 

aside the default entered against him; (2) failing to rule on Rodriguez’s objections 

to a magistrate judge’s order denying his motion to compel the production of certain 

medical records, including x-rays; and (3) refusing to appoint an expert witness to 

assist Rodriguez with his excessive-force and deliberate-indifference claims. He 

also contends that this Court sitting en banc should hold that the Prison Litigation 

Reform Act (“PLRA”) does not bar inmates without physical injury from recovering 

punitive damages. We address each argument in turn.

1 We express our appreciation to appointed counsel in this case, Timothy Butler of 

Troutman Pepper Hamilton Sanders LLP, for his able and vigorous representation of Rodriguez 

on appeal. 

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II.

We start with the decision to vacate the clerk’s default as to Burnside. 

A.

First, the relevant background. In July 2015, the district court permitted 

Rodriguez to amend his complaint to add claims against Burnside, who was not 

originally named as a defendant. At that time, discovery was stayed pending a ruling 

on the other defendants’ motion to dismiss. The court ordered personal service on 

Burnside, and in early November 2015 a U.S. Marshal filed a “Process Receipt and 

Return” reflecting that Burnside was personally served on October 27, 2015. 

On January 5, 2016, the district court issued an order administratively 

terminating pending motions, including the defendants’ motion to dismiss, due to 

Rodriguez’s interlocutory appeal of an order denying a preliminary injunction. The 

court advised that the parties could renew the motions once the appeal was resolved.

Around two weeks later, Rodriguez moved for clerk’s entry of default as to 

Burnside based on his failure to respond to the amended complaint. The court 

granted that motion, and the clerk entered default as to Burnside on January 21, 2016. 

The next day, January 22, Burnside filed a motion to vacate the clerk’s default. 

He contended that he had good cause for his failure to respond to the amended 

complaint, citing two reasons: (1) a misunderstanding as to whether he was entitled 

to representation by the Office of the Attorney General (“AG’s Office”), as were all 

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other defendants in the case; and (2) his lack of actual notice about the lawsuit, 

despite the proof of service reflecting he was personally served. Rodriguez 

responded and requested discovery he claimed was relevant to the default issue. 

Following an evidentiary hearing, supplemental briefing, and a motion for 

default judgment by Rodriguez, a magistrate judge vacated the clerk’s default as to 

Burnside on April 25, 2016. The magistrate judge found that Burnside’s denial of 

receiving personal service was not credible in light of testimony from the Marshal 

who made personal service on him, and that Burnside failed to send a request for 

representation to the A.G.’s Office. 

Nevertheless, Burnside established “good cause” to set aside the default,

according to the magistrate judge, because “the evidence indicates that the failure to

respond was largely the result of a misunderstanding.” The magistrate judge 

explained that Burnside had been represented by the A.G.’s Office in “dozens” of 

prior lawsuits, which suggested he “ordinarily expected [that office] to respond and 

did not realize that further inquiry was needed when he received personal service.” 

And no further inquiry would have been needed but for a mistake by the A.G.’s 

Office, which initially and erroneously believed he was not entitled to state 

representation. 

The magistrate judge concluded that this was not an “extreme situation” where 

a default judgment would be appropriate. The magistrate judge found that the A.G.’s 

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Office acted promptly upon learning of its mistake, that Burnside’s failure to respond 

was not willful or culpable, that Rodriguez suffered no prejudice, and that Burnside 

could raise a meritorious defense. Accordingly, the magistrate judge vacated the 

clerk’s default as to Burnside and denied Rodriguez’s discovery requests as moot. 

The magistrate judge also noted that this Court had resolved Rodriguez’s appeal at 

the end of March 2016, so the case could move forward once again.

Rodriguez filed a motion seeking reconsideration of the magistrate judge’s 

order in June 2016, which the district court denied in October 2017. The court found 

that the magistrate judge’s decision was not “clearly erroneous or . . . contrary to 

law,” Fed. R. Civ. P. 72(a), and that the motion was untimely.

B.

We review for abuse of discretion a ruling on a motion to set aside a default. 

See E.E.O.C. v. Mike Smith Pontiac GMC, Inc., 896 F.2d 524, 528 (11th Cir. 1990). 

“A district court abuses its discretion if it applies an incorrect legal standard, applies 

the law in an unreasonable or incorrect manner, follows improper procedures in 

making a determination, or makes findings of fact that are clearly erroneous.” 

Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1244 (11th Cir. 2015). 

The clerk must enter a party’s default when the party “has failed to plead or 

otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. 

P. 55(a). “The court may set aside an entry of default for good cause.” Fed. R. Civ. 

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P. 55(c). “Good cause” is a “mutable” standard that is intended to be “liberal” but 

not “devoid of substance.” Compania Interamericana Export-Import, S.A. v. 

Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996). 

In evaluating good cause, courts generally consider “whether the default was 

culpable or willful, whether setting it aside would prejudice the adversary, . . . 

whether the defaulting party presents a meritorious defense,” and whether the 

defaulting party acted promptly to correct the default. Id. Moreover, “there is a 

strong policy of determining cases on their merits, and we therefore view defaults 

with disfavor.” In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 

2003). But the defaulting party still must offer a “satisfactory reason” to set aside a 

default. African Methodist Episcopal Church, Inc. v. Ward, 185 F.3d 1201, 1202 

(11th Cir. 1999). 

Here, the district court did not abuse its discretion by affirming the magistrate 

judge’s decision to set aside the clerk’s default as to Burnside. The magistrate judge 

considered the proper factors, made findings supported by the record, and adequately 

explained the reasoning supporting the decision. See Surtain, 789 F.3d at 1244. 

Rodriguez contends that Burnside willfully failed to respond for months after 

being personally served. But the magistrate judge found that Burnside’s failure to 

respond to the complaint was not willful or culpable and was instead “largely the 

result of a misunderstanding.” According to the magistrate judge, Burnside’s prior 

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litigation experience led him to expect that the A.G.’s Office would represent him, 

despite receiving personal service, but the A.G.’s Office originally did not appear on 

his behalf because of a mistake on its part. Because Burnside offered a plausible 

reason for his failure to timely respond, we see no error in the magistrate judge’s 

finding that his conduct was not willful or culpable. 

Moreover, the A.G.’s Office acted promptly upon learning of its mistake, 

moving to set aside the default just one day after it was entered, and the record 

supports the magistrate judge’s findings that Rodriguez had suffered no prejudice

and that Burnside had meritorious defenses. See Compania Interamericana, 88 F.3d 

at 951. Rodriguez fails to show he was harmed by the delay, such as a loss of 

evidence or increased difficulties in discovery. Because of Rodriguez’s prior appeal 

of a ruling on injunctive relief and the stay of discovery, litigation was largely at a 

standstill while the issue of default was being actively resolved. So Burnside’s delay 

in responding to the complaint and the related proceedings on the issue of default 

did not meaningfully lengthen the case or inhibit Rodriguez from litigating his 

claims.2

 As for meritorious defenses, Burnside succeeded at summary judgment on 

one claim of deliberate indifference, and he prevailed at trial on the other one. 

2 Rodriguez highlights a discovery request he made in connection with the default 

proceedings, suggesting that he was prejudiced because the magistrate judge denied that request 

as moot upon vacating the clerk’s default. But discovery was stayed at that time, anyway, and 

Rodriguez could have renewed that discovery motion if he believed it was relevant to more than 

just the issue of default. 

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For these reasons, and given the “strong policy of determining cases on their 

merits,” In re Worldwide Web Sys., Inc., 328 F.3d at 1295, we affirm the district 

court’s decision to set aside the clerk’s default as to Burnside. We also note that 

Rodriguez fails to meaningfully address the court’s finding that his request for 

review of the magistrate judge’s order was untimely under Rule 72(a), Fed. R., Civ. 

P., which provides an independent, alternative ground for affirming on this issue. 

See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) 

(“When an appellant fails to challenge properly on appeal one of the grounds on 

which the district court based its judgment, he is deemed to have abandoned any 

challenge of that ground, and it follows that the judgment is due to be affirmed.”).

III.

We next consider the denial of Rodriguez’s motion to compel the production 

of x-rays and other medical records and his request for a court-appointed medical 

expert. Because these matters are related, we address them together.

A.

The relevant background is as follows. At the outset of the case in January 

2015, Rodriguez requested that the district court appoint counsel and an expert 

witness to represent him in the case. The magistrate judge denied the request for 

court-appointed counsel as “premature” and the request for an expert witness 

because “[t]he [c]ourt does not appoint expert witnesses in civil cases.” 

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More than three years later, in April 2018, after the discovery period had 

expired, Rodriguez filed a motion to compel the production of certain medical 

documents, including x-rays of his hand and leg injuries. In that same motion, he 

also requested the appointment of an orthopedic expert witness, stating that expert 

testimony was needed for his claims against Burnside. 

The defendants responded that they had searched through his medical file and 

provided him with the medical records that related to his claims. But they had not 

been able to locate the requested x-rays, they said, although they had found and 

produced “documents summarizing the results of the x-rays.” They also opposed 

Rodriguez’s request for an expert. Rodriguez replied that the defendants were hiding 

the x-rays, that the summaries were insufficient because they were written by 

Burnside, and that the court should impose sanctions. 

On July 13, 2018, a magistrate judge issued an order denying the motion to 

compel. The magistrate judge noted that the defendants’ counsel had informed 

Rodriguez “numerous times that the x-ray images are not in [his] medical file,” and 

that Rodriguez had not shown some “reasonable articulable suspicion that the 

representation is false.” Stating that courts could not “compel production of 

documents that do not exist,” the magistrate judge denied the motion to compel. 

The magistrate judge also denied Rodriguez’s request for an expert. The 

judge offered four reasons for his ruling: (1) Rodriguez had “exercised great delay,” 

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waiting “until the eve of motions for summary judgment” to request an expert; (2) 

the defendants had not offered expert testimony in support of their motion for 

summary judgment; (3) the injuries at issue were not so complex as to require an 

expert; and (4) appointment of an expert was “extremely rare” and reserved for 

“exceptional circumstances,” but this case was “an ordinary medical care deliberate 

indifference case, similar to dozens of others that are filed in this Court every year.” 

On July 29, 2018, Rodriguez submitted objections to the magistrate judge’s 

order and requested “de novo review” by the district court. Rodriguez argued that 

the defendants should be required to provide sworn testimony that the documents 

did not exist or otherwise explain why the documents were not in his medical file. 

He also challenged the magistrate judge’s reasons for not appointing an expert, 

noting that he had requested an expert witness at the outset of the case, and asserting 

that an expert witness was necessary to testify as to the requirements of orthopedic 

medical care to counter Burnside’s expected testimony. 

Both parties agree that the district court never expressly resolved Rodriguez’s 

objections to the denial of his motion compel. Nor does it appear that the court 

expressly ruled on his objections to the denial of his request for an expert, even 

though the parties are silent as to that related matter. 

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B.

Because the district court failed to expressly rule on his objections to the 

magistrate judge’s rulings, Rodriguez first argues that reversal is warranted both to 

remedy any constitutional problems caused by the court’s failure to exercise de novo

review and for the court to exercise its discretion and explain its decision. 

Section 636 and Rule 72 define the power of magistrate judges. In general, 

magistrate judges may rule on nondispositive pretrial matters, such as discovery 

motions. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). District judges “must 

consider timely objections and modify or set aside any part of the order that is clearly 

erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see 28 U.S.C. § 636(b)(1)(A) 

(“A judge of the court may reconsider any pretrial matter under this subparagraph 

(A) where it has been shown that the magistrate judge’s order is clearly erroneous 

or contrary to law.”).

Magistrate judges cannot rule on dispositive matters, however, absent consent 

of the parties. See 28 U.S.C. § 636(b)(1)(B), (c)(1). But they can assist by holding 

hearings and issuing “proposed findings and recommendations.” See 28 U.S.C. 

§ 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b)(1). Upon timely objection, the district 

judge “shall make a de novo determination of those portions of the report or specified 

proposed findings or recommendations to which objection is made.” 28 U.S.C. 

§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). This “de novo review requirement is 

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essential to the constitutionality of section 636” because it ensures that the ultimate 

disposition of cases is reserved to the judgment of an Article III judge. See Jeffrey 

S. by Ernest S. v. State Bd. of Educ. Of State of Ga., 896 F.2d 507, 512–13 (11th Cir. 

1990); see also Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009). 

Rodriguez is incorrect that de novo review was required here. The magistrate 

judge issued orders on certain nondispositive pretrial matters related to discovery 

and the appointment of an expert. Under the framework described above, “a district 

court reviews a magistrate judge’s ruling on non-dispositive matters under the 

clearly-erroneous or contrary-to-law standard.” Jordan v. Comm’r, Miss. Dep’t of 

Corr., 947 F.3d 1322, 327 (11th Cir.), cert denied, 141 S. Ct. 251 (2020); see 28 

U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). “It was not required to perform a de 

novo review and neither are we.” Crawford’s Auto Ctr., Inc. v. State Farm Mut. 

Auto. Ins. Co., 945 F.3d 1150, 1162 (11th Cir. 2019). And since the orders related 

to nondispositive matters, the constitutional concerns raised by Rodriguez are not 

present in this case. See Williams, 557 F.3d at 1291; Jeffrey S., 896 F.2d at 512.

Nor does the lack of express rulings by the district court mandate reversal. 

“The denial of a motion by the district court, although not formally expressed, may 

be implied by the entry of final judgment (which is in effect an overruling of pending 

pretrial motions) or of an order inconsistent with the granting of the relief sought by 

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the motion.” Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th 

Cir. July 1981).3

 

Here, we conclude that the denial of Rodriguez’s pretrial motions to compel 

and for a court-appointed expert may be implied by the district court’s entry of final 

judgment on his claims following a trial conducted without the court’s appointment 

of an expert or its ordering of production of the requested x-rays. See Local 472 of 

United Ass’n of Journeymen & Apprentices v. Ga. Power Co., 684 F.2d 721, 724

(11th Cir. 1982) (“In light of the [d]istrict [c]ourt’s grant of summary judgment in 

favor of the defendants, we interpret the [c]ourt’s silence regarding these [pretrial 

discovery] motions as a denial.”). These actions were so inconsistent with the 

granting of relief sought by Rodriguez as to implicitly affirm the magistrate judge’s 

denial of his motions. See Addington, 650 F.2d at 666. We therefore look to the 

magistrate judge’s rulings for an explanation of the court’s implicit decisions. 

C.

Turning to the substance of Rodriguez’s requests, we review for abuse of 

discretion a district court’s (here, implicit) affirmance of a magistrate judge’s ruling 

on a discovery matter. Jordan, 947 F.3d at 1328. Whether to appoint an expert 

witness is likewise a discretionary decision. Steele v. Shah, 87 F.3d 1266, 1270–71 

3 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 

1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 

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(11th Cir. 1996). “[W]hen employing an abuse of discretion standard, we will leave 

undisturbed a district court’s ruling unless we find that the district court has made a 

clear error of judgment, or has applied the wrong legal standard.” Ameritas Variable 

Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005). 

Here, Rodriguez has not shown an abuse of discretion concerning either the 

denial of his motion to compel or his request for a court-appointed expert. As to the

x-rays, Rodriguez offers no reason to disbelieve the defendants’ representation that 

the x-rays, among other requested documents, were not in his medical file and could 

not be produced. While he suggests that the district court should have required the 

defendants to offer some proof of that fact, not simply representations, he does not 

cite any authority establishing such a legal requirement. Cf. Searock v. Stripling, 

736 F.2d 650, 654 (11th Cir. 1984) (relying on a party’s “uncontradicted 

representation[s]” contained in “responses to the request for production, his 

responses to [a] motions for sanctions, and his motions for clarification and relief 

from the dismissal orders” to conclude that he made a good-faith effort to find the 

requested documents). And the district court’s discretion over discovery issues is 

ordinarily quite broad. See United States v. Cuya, 964 F.3d 969, 970 (11th Cir. 2020) 

(“The district court has broad discretion to compel or deny discovery.”). 

Accordingly, we cannot say that the court made a clear error of judgment or applied 

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the wrong legal standard by accepting the defendants’ representation and not 

ordering production of the x-rays. See Ameritas Variable, 411 F.3d at 1330.

Concerning the appointment of an expert witness, Rule 706(a), Fed. R. Evid., 

provides that the district court may appoint an expert witness either on its own 

motion or the request of a party. “Such an appointment is especially appropriate 

where the evidence or testimony at issue is scientifically or technically complex.” 

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1348 (11th Cir. 

2003). And “[w]here a party requests the appointment of an expert to aid in 

evaluating evidence that is relevant to a central issue in the case, the court is 

obligated to fairly consider the request and to provide a reasoned explanation for its 

ultimate decision on the matter.” Id.; see Steele, 87 F.3d at 1271. But we have 

observed that “we are unfamiliar with any set of circumstances under which a district 

court bears an affirmative obligation to appoint an independent expert.” Quiet Tech., 

326 F.3d at 1348.

Here, the district court “fairly consider[ed]” the request and “provide[d] a 

reasoned explanation for its ultimate decision on the matter” by implicitly affirming 

the magistrate judge’s decision. Id. The magistrate judge, in turn, cited several 

reasons for denying Rodriguez’s request, including that he had delayed by waiting 

“until the eve of motions for summary judgment” to request an expert, that the 

defendants had not offered expert testimony, and that the injuries at issue were not 

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so complex as to require an expert.4 Thus, the court articulated explicit, principled 

reasons, which were supported by the record, for declining to exercise its discretion 

to appoint an expert. See id. at 1349. That an expert would have been helpful to 

Rodriguez’s case is not, on its own, sufficient to show that the failure to appoint one 

constituted an abuse of discretion. See id. The abuse-of-discretion standard allows 

for a range of choice absent a legal error or a clear error of judgment, which 

Rodriguez has not shown here. See Ameritas Variable, 411 F.3d at 1330. We 

therefore affirm on this issue as well. 

IV.

Finally, Rodriguez asserts that this Court sitting en banc should hold that 

punitive damages are available under the PLRA to a prisoner who has not suffered 

physical injury. We have done just that. On April 9, 2021, this Court sitting en banc 

held that the PLRA “does not bar punitive damages in the absence of physical 

injury,” overruling prior precedent to the contrary. Hoever v. Marks, ___ F.3d ___, 

No. 17-10792, 2021 WL 1326618, at *3 (11th Cir. Apr. 9, 2021) (en banc). But this 

en banc decision does not warrant a remand in this case because the jury did not 

4 Rodriguez disputes any “delay” and notes that he filed a request for an expert early in the 

case, which the magistrate judge denied. But he cannot challenge that prior decision directly 

because he did not timely object to it, see Fed. R. Civ. P. 72(a) (“A party may not assign as error 

a defect in the order not timely objected to.”), the first request was premature in any case, and the 

magistrate judge’s timeliness concerns are still valid given the gap of more than three years 

between the two requests for a court-appointed expert. 

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reach the issue of damages on any of Rodriguez’s claims and Rodriguez does not 

suggest that this issue is an independent basis for reversal. 

V.

In sum, we affirm the judgment against Rodriguez. 

AFFIRMED.

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