Case: 15-10750     Date Filed: 08/15/2017   Page: 1 of 4


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-10750
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 2:09-cv-01070-MHT-WC



ROCKY JONES,

                                                                Plaintiff-Appellant,

                                        versus

COFFEE COUNTY SHERIFF’S DEPARTMENT,
in its individual and official capacities, et al.,

                                                                         Defendants,

NEIL BRADLEY,
Deputy, in his individual and official capacities,
TONY HARRISON,
Deputy, in his individual and official capacities,

                                                             Defendants-Appellees,

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Alabama
                          ________________________
                                (August 15, 2017)
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Before ED CARNES, Chief Judge, HULL and WILSON, Circuit Judges.

PER CURIAM:

       Rocky Jones sued the Coffee County Sheriff’s Department and several law

enforcement officers (including Neil Bradley and Tony Harrison) under 42 U.S.C.

§ 1983 alleging that they used excessive force to arrest him. The district court

accepted a magistrate judge’s recommendation that summary judgment be granted

as to Bradley and Harrison. 1 Jones contends that the district court’s judgment

should be reversed because the magistrate judge did not have statutory authority to

conduct an evidentiary hearing and issue a report and recommendation in this case.

       The relevant portion of the federal statute governing the powers of

magistrate judges provides that:

       (A) a judge may designate a magistrate judge to hear and determine
       any pretrial matter pending before the court, except a motion for
       injunctive relief, for judgment on the pleadings, for summary
       judgment, to dismiss or quash an indictment or information made by
       the defendant, to suppress evidence in a criminal case, to dismiss or to
       permit maintenance of a class action, to dismiss for failure to state a
       claim upon which relief can be granted, and to involuntarily dismiss
       an action. . . .

       (B) a judge may also designate a magistrate judge to conduct hearings,
       including evidentiary hearings, and to submit to a judge of the court
       proposed findings of fact and recommendations for the disposition, by
       a judge of the court, of any motion excepted in subparagraph (A), of
       applications for posttrial relief made by individuals convicted of
       criminal offenses and of prisoner petitions challenging conditions of

       1
         The district court granted summary judgment to the other defendants in an earlier order
that Jones does not challenge.
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      confinement.

28 U.S.C. § 636(b)(1). Subparagraph A of this provision generally authorizes

district courts to designate magistrate judges to “hear and determine any pretrial

matter.” 

But it also lists several types of pretrial motions —

including motions for summary judgment like the one in this case — that

magistrate judges are not permitted to determine. 

refer to those as

“exempted motions.”

      Magistrate judges are not prohibited from having anything to do with

exempted motions; they just don’t have the last word where exempted motions are

concerned. Subparagraph B allows the district court to designate a magistrate

judge to conduct hearings on exempted motions and make a recommendation,

which the district court is free to accept or reject. 

That is what

happened in this case: The district court referred the motion for summary

judgment to a magistrate judge and then accepted the magistrate judge’s

recommendation that summary judgment be granted.

      Jones contends that § 636(b)(1)(B) only authorizes a magistrate to make a

recommendation as to exempted motions in certain cases. He argues that the

phrase “application for posttrial relief made by individuals convicted of criminal

offenses and of prisoner petitions challenging conditions of confinement” modifies

the phrase “of any motion exempted under subparagraph (A).” In other words,


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Jones thinks magistrate judges are authorized to make recommendations on

exempted motions only in habeas cases and cases challenging conditions of

confinement. We disagree.

      It is far more natural to read Subparagraph B to provide a list of three, rather

than two, circumstances in which a district court judge can designate a magistrate

judge to make a recommendation: when confronting (1) an exempted motion

under Subparagraph A; (2) a criminal defendant’s application for post-trial relief;

or (3) a prisoner’s petition challenging the conditions of his confinement. While it

is true that the statute does not make use of a serial comma between the second and

third of these circumstances, the use of a serial comma is optional. United States

v. Bass, 

, 340 n.6, 

, 518 n.6 (1971) (“[M]any leading

grammarians, while sometimes noting that commas at the end of a series can avoid

ambiguity, concede that use of such commas is discretionary.”). “When

grammarians are divided, and surely where they are cheerfully tolerant, we will not

attach significance to an omitted comma.”