ORDER

BRIAN K. EPPS, Magistrate Judge.

Before the Court are the parties' objections to its August 9, 2016 Report and Recommendation ("R&R") (doc. nos. 118, 140) and Plaintiff's Motion for Reconsideration for Appointment of Counsel (doc. no. 139). For the reasons set forth below, the Court OVERRULES the parties' objections (doc. nos. 118, 140), ADOPTS the August 9, 2016 R&R (doc. no. 108) as the opinion of the Court, DENIES Plaintiff's Motion for Reconsideration (doc. no. 139), and ORDERS the parties to comply with the below instructions regarding trial.

I. REPORT & RECOMMENDATION ON SUMMARY JUDGMENT

A.Procedural Background

On August 9, 2016, this Court issued a Report & Recommendation ("R&R") recommending Defendants' motion for summary judgment be granted in part and denied in part and Plaintiff's motion for summary judgment be denied. (Doc. no. 108.) While Plaintiff filed objections to the R&R (doc. no. 118), Defendants filed a motion for status conference in lieu of objections requesting the matter be referred to mediation and the deadline to file objections to the R&R be stayed (doc. no. 115). Before adoption of the R&R and with the consent of the parties, District Judge Dudley H. Bowen, Jr. referred the entire case to the undersigned for plenary disposition. (Doc. nos. 116, 125.) After an unsuccessful mediation, the Court lifted the stay on objections and ordered Defendants to file any objections no later than May 15, 2017. (Doc. no. 136.) After the Court granted an extension, Defendants filed their objections on May 22, 2017. (Doc. no. 140.)

B. Plaintiff's Objections

Plaintiff's lengthy objections can be distilled to three primary claims: (1) the Court erred in ruling Plaintiff's claim for injunctive relief is moot; (2) the Court erred in denying Plaintiff's discovery requests, which in turn prevented him from providing adequate evidence to support his motion for summary judgment; and (3) the Court erred in allowing Plaintiff to only recover nominal damages. (See generally doc. no. 118.)

As explained in detail in the R&R, Plaintiff is clearly not entitled to injunctive relief. (See doc. no. 108, pp. 7-8.) That Plaintiff "can be transferred back to CCA or Wheeler and housed back into the Program" does not change this result because, as the R&R explained, Plaintiff "is not eligible to return to the program." (Id. at 8.) Therefore, Plaintiff's objection is without merit.

Furthermore, an objection to the Court's R&R on summary judgment is not the correct avenue to challenge the Court's rulings on discovery motions. Indeed, Plaintiff has already challenged and appealed the Court's rulings on discovery, and has been rebuffed by both this Court and the Eleventh Circuit. (See doc. nos. 69, 89, 93.) Thus, the Court will not address the merits of these claims.

Finally, the R&R correctly concluded Plaintiff is only entitled to nominal damages. Despite Plaintiff's lengthy discussion of the legislative history and purpose of the PLRA and the decisions of various circuit and district courts, the law in the Eleventh Circuit is clear: 42 U.S.C. § 1997e applies to First Amendment and Religious Land Use and Institutionalized Persons Act ("RLUIPA") claims and precludes recovery of compensatory and punitive damages. See Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007) abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011).

Accordingly, all of Plaintiff's objections are without merit and the Court overrules them.

Defendants have also filed lengthy objections to the August 9th R&R. (Doc. no. 140.) Many of Defendants' arguments are addressed in the R&R, and they offer no novel arguments that merit reconsideration.

Moreover, because Defendants did not raise in their original motion the argument that Defendants Medlin, Hininger, Day, and Phillips cannot be held liable under RLUIPA because RLUIPA does not apply against private individuals and private entities, the Court will not consider it. (Doc. no. 140, p. 7.) While courts have the discretion to consider novel evidence, factual claims, and legal argument raised for the first time in an objection to an R&R, they are under no obligation to do so. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (concluding district judge has broad discretion in considering argument not presented to magistrate judge); see also United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (holding district courts are not required to consider supplemental factual allegations presented for first time in objections to magistrate judge's report and recommendation). Even if the Court were to consider this new argument, it is well established that individual prison officials can be held liable in their official capacities for violations under RLUIPA. See Smith, 502 F.3d at 1275-76 (holding prison officials can be sued in official capacities under RLUIPA); Hathcock v. Cohen, 287 F. App'x 793, 799 n.6 (11th Cir. 2008) ("Inmates may bring RLUIPA claims . . . against defendants in their official capacities.").

Defendants' arguments regarding the state action requirement of the Establishment Clause do merit further discussion. Defendants object to the Court's characterization of the Life Principles Program as state action subject to the First Amendment. (See doc. no. 140, p. 3-5.) Defendants contend that because the Georgia Department of Corrections ("GDOC") contract does not require the Life Principles Program, and CCA receives no direct funding for the Program, it is not a "prison function" for purposes of determining state action. (Id. at 4.)

"Where a function which is traditionally the exclusive prerogative of the state . . . is performed by a private entity, state action is present." Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985) (citations omitted). For example, private medical providers treating state inmates are liable under 42 U.S.C. §1983 for deliberate indifference to medical needs because their treatment constitutes state action. See id.; Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) ("When a private entity . . . contracts with a county to provide medical services to inmates, it performs a function traditionally within the exclusive prerogative of the state.").

However, it does not follow that any private individual providing services to inmates engages in state action. In denying prison guards employed at private prisons the defense of qualified immunity, the Supreme Court noted that "correctional functions have never been exclusively public." Richardson v. McKnight, 521 U.S. 399, 405 (1997); see also Brown v. Pugh, No. CV 306-25, 2006 WL 2439859, at *4 (S.D. Ga. Aug. 18, 2006), aff'd, 278 F. App'x 975 (11th Cir. 2008); Schneider v. Donald, No. CV 305-158, 2006 WL 1344587, at *7 (S.D. Ga. May 12, 2006). Therefore, actions taken by private prisons must be evaluated on a case-by-case basis to determine whether they fall under the realm of "state action" or not.

In operating the Life Principles Program, CCA was engaging in a "traditionally public function." Prisons must ensure vocational and life skills programs do not violate the Establishment Clause. See Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 424 (8th Cir. 2007). This responsibility is necessarily a public function, as a private organization cannot violate the Establishment Clause. Moreover, CCA's contract with GDOC contemplates the delegation of this state function to Defendants. The contract specifically mandates that classes in the categories of motivation for change, pre-release, family violence, victim impact, and corrective thinking "must be offered in accordance with policy guidelines." (Doc. no. 97-4, p. 37.)

Indeed, it would be perverse for the government to be able to avoid its constitutional obligations under the Establishment Clause by delegating its responsibilities to a private contractor. As one court explained,

Giron v. Corr. Corp. of Am., 14 F.Supp.2d 1245, 1250 (D.N.M. 1998) (internal citation omitted); see also Coronel v. Walker, No. 2:05CV-120-WAP-JAD, 2006 WL 2923152, at *9 (N.D. Miss. Sept. 14, 2006), report and recommendation adopted, No. 2:05CV120-P-D, 2006 WL 2855027 (N.D. Miss. Oct. 3, 2006) ("It seems clear that just as the state may not constitutionally `establish' a religion directly in its prisons, it may not do so indirectly by the use of privately contracted prisons.").

Accordingly, CCA was engaging in "state action" and can be held liable for an Establishment Clause violation.

D. Conclusion

Accordingly, having considered both parties objections (doc. nos. 118, 140), the Court OVERRULES their objections, ADOPTS the Court's August 9, 2016 R&R (doc. no. 108), and makes it the Order of the Court.

II. TRIAL

Now that the R&R is the order of the Court, the case is ready for trial.

A. A Jury Trial Is Not Needed

In a civil case, the Seventh Amendment right to a jury trial is not absolute, and, under Federal Rule of Civil Procedure 38, a party waives its right to a jury trial by failure to make a timely demand. See Fed. R. Civ. P. 38(a)-(b); LaMarca v. Turner, 995 F.2d 1526, 1545 (11th Cir. 1993). Indeed, to timely demand a jury trial, a party must "serv[e] the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served." Fed. R. Civ. P. 38(b)(1).

Rule 38 does not define what constitutes a pleading. However, Rule 7(a) defines a pleading as follows:

Fed. R. Civ. P. 7(a). Thus, Rule 7(a) provides an exhaustive list of what constitutes a pleading for purposes of Rule 38. See Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir. 1995) ("We hold that the plain text of Rule 7(a) defines what constitutes a pleading for purposes of Rule 38); see also Chilivis v. Securities & Exchange Commission, 673 F.2d 1205, 1209 (11th Cir. 1982) ("Neither a motion to dismiss nor a motion for summary judgment constitutes responsive pleadings for purposes of the federal rules.").

Here, the only pleadings are Plaintiff's amended complaint, which superseded his original complaint in its entirety, and Defendants' answer to the amended complaint. (Doc. nos. 11, 24.) Neither party demanded a jury trial in either of these pleadings. (See doc. nos. 11, 24.) Nor did either party file such a demand within fourteen days of Defendants' answer, the "last pleading directed to the issue is served." See Burns, 53 F.3d at 1241. Therefore, both parties waived their right to a jury trial. See LaMarca, 995 F.2d at 1545. That Plaintiff is pro se does not change this result. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) ("once a pro se . . . litigant is in court, he is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure"). Accordingly, the case will proceed to a bench trial before the undersigned.

B. Plaintiff Is Not Entitled to Counsel

Plaintiff asks the Court to reconsider its May 1, 2017 Order denying him counsel. (Doc. no. 139.) However, Plaintiff's reasons for requiring counsel are insufficient. That Defendants' counsel has allegedly "been practicing law since 1965" and has more courtroom experience than Plaintiff does not prejudice him or entitle him to counsel. (See id. at 2.) Indeed, if equal courtroom experience were required in every case, no case could ever be tried. Furthermore, Plaintiff does not need a lawyer to contest punitive damages or injunctive relief as the Court has already ruled Plaintiff is not entitled to either as a matter of law. (See id.)

In sum, Plaintiff has not shown "the facts and legal issues are so novel or complex as to require the assistance of a trained practitioner." Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Accordingly, Plaintiff is not entitled to counsel and the Court DENIES his motion. (Doc. no. 139.)

C. Instructions

In preparation for trial, the Court DIRECTS each party to file with the Clerk of this Court a proposed pretrial order. Each proposed pretrial order shall be filed by the close of business on Monday, July 10, 2017. The form of the proposed pretrial order is attached to this order and can be located at http://www.gasd.uscourts.gov/pdf/consolidated_pretrial_order_others.pdf.1 A party's failure to comply with the requirements of this Order may result in dismissal of the complaint or answer or in other sanctions determined appropriate by the Court. If any party in this case is not represented by counsel, such party shall be obligated to comply with the requirements of this Order in the same manner as counsel.

All evidentiary objections, motions in limine, and responses thereto that have not been resolved prior to the pretrial conference shall be submitted in writing by the close of business on July 10, 2017. All responses shall be submitted by the close of business on July 24, 2017.

The Clerk of Court has scheduled the pretrial conference for Wednesday, July 12, 2017 at 10:00 a.m., and the bench trial is scheduled for Tuesday, August 15, 2017 at 9:00 a.m. At the pretrial conference, the Court, with the assistance of the parties or their counsel as the case may be, shall combine the proposed pretrial orders into a single consolidated order that will govern the bench trial of this case. All trial exhibits (in digital format for non-incarcerated parties) and an exhibit list must be provided to the Court at the pretrial conference. Lead counsel for any represented party and any pro se party must attend the pretrial conference.

The parties are also notified that unless excused by prior request, the Court will expect the presence of the following parties or witnesses at trial:

If Plaintiff wishes to have additional witnesses subpoenaed, he must follow the procedures outlined in the following paragraph and provide the required documentation on or before Friday, July 14, 2017, to the Courtroom Deputy Clerk, P.O. Box 1130, Augusta, Georgia, 30903. Under no circumstances will blank subpoenas be issued and mailed directly to any prison inmates.

Should Plaintiff desire the attendance of inmate witnesses, he must comply with the following procedure:

No more than three (3) witnesses will be required to attend the trial except upon a showing of exceptional circumstances. Failure to comply with these requirements will result in the non-appearance of the requested inmate witness.

III. CONCLUSION

For the reasons set forth above, the Court OVERRULES the parties' objections (doc. nos. 118, 140), ADOPTS the August 9, 2016 R&R (doc. no. 108) as the opinion of the Court, DENIES Plaintiff's Motion for Reconsideration (doc. no. 139), and ORDERS the parties to comply with the below instructions regarding trial.

SO ORDERED.