Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 1 of 23
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`IN THE DISTRICT COURT OF THE UNITED STATES
`FOR THE MIDDLE DISTRICT OF ALABAMA
`NORTHERN DIVISION
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`CASE NO. 2:10-CV-559-MEF
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`EDDIE JOHNSON,
`AIS #141306,
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`Plaintiff,
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`v.
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`SAM BROWN,
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`Defendant.
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`RECOMMENDATION OF THE MAGISTRATE JUDGE
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`I. INTRODUCTION
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`In this 42 U.S.C. § 1983 action, Eddie Johnson [“Johnson”], a state inmate,
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`challenges the constitutionality of actions taken against him during his incarceration at the
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`Kilby Correctional Facility. Specifically, Johnson alleges that officer Sam Brown
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`[“Brown”] subjected him to excessive force on May 31, 2009, lodged an improper
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`disciplinary against him for assault, and violated various administrative regulations.
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`The defendant filed a special report and supporting evidentiary materials addressing
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`Johnson’s claims for relief. Pursuant to the orders entered in this case, the court deems it
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`appropriate to construe the report as a motion for summary judgment. Order of August 12,
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`2010 - Doc. No. 9. Upon consideration of this motion, the evidentiary materials filed in
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`support thereof and the plaintiff’s response, the court concludes that the defendant’s motion
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 2 of 23
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`for summary judgment is due to be granted.
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`II. STANDARD OF REVIEW
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`“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
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`interrogatories, and admissions on file, together with the affidavits, if any, show there is no
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`genuine [dispute] as to any material fact and that the moving party is entitled to judgment
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`as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th
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`Cir. 2007) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule 56(a) (“The
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`court shall grant summary judgment if the movant shows that there is no genuine dispute
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`as to any material fact and the movant is entitled to judgment as a matter of law.”).1 The
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`party moving for summary judgment “always bears the initial responsibility of informing
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`the district court of the basis for its motion, and identifying those portions of the [record,
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`including pleadings, discovery materials and affidavits], which it believes demonstrate the
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`absence of a genuine issue [- now dispute -] of material fact.” Celotex Corp. v. Catrett, 477
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`U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence indicating
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`there is no dispute of material fact or by showing the nonmoving party has failed to present
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`evidence in support of some element of its case on which it bears the ultimate burden of
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`1Effective December 1, 2010, Rule 56 was “revised to improve the procedures for presenting and deciding
`summary-judgment motions.” Fed.R.Civ.P. 56 Advisory Committee Notes. Under this revision, “[s]ubdivision (a)
`carries forward the summary-judgment standard expressed in former subdivision (c), changing only one word --
`genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summary-judgment determination.”
`Id. “‘Shall’ is also restored to express the direction to grant summary judgment.” Id. Thus, although Rule 56
`underwent stylistic changes, its substance remains the same and, therefore, all cases citing the prior versions of the
`rule remain equally applicable to the current rule.
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`2
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 3 of 23
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`proof. Id. at 322-324.
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`The defendant has met his evidentiary burden and demonstrated the absence of any
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`genuine dispute of material fact. Thus, the burden shifts to the plaintiff to establish, with
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`appropriate evidence beyond the pleadings, that a genuine dispute material to his case
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`exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S.
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`at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support an assertion of fact or
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`fails to properly address another party’s assertion of fact by [citing to materials in the
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`record including affidavits, relevant documents or other materials] the court may ... grant
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`summary judgment if the motion and supporting materials -- including the facts considered
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`undisputed -- show that the movant is entitled to it.”). A genuine dispute of material fact
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`exists when the nonmoving party produces evidence that would allow a reasonable fact-
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`finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263. Consequently, to
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`survive the defendant’s properly supported motion for summary judgment, Johnson is
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`required to produce “sufficient [favorable] evidence” which would be admissible at trial
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`supporting his claims for relief. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
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`Rule 56(e), Federal Rules of Civil Procedure. “If the evidence [on which the nonmoving
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`party relies] is merely colorable ... or is not significantly probative ... summary judgment
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`may be granted.” Id. at 249-250. “A mere ‘scintilla’ of evidence supporting the opposing
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`party’s position will not suffice; there must be enough of a showing that the [trier of fact]
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`could reasonably find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct.
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`3
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 4 of 23
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`2505, 2512, 91 L.Ed.2d 202 (1986).” Walker v. Darby, 911 F.2d 1573, 1576-1577 (11th
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`Cir. 1990). Conclusory allegations based on subjective beliefs are likewise insufficient to
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`create a genuine issue of material fact and, therefore, do not suffice to oppose a motion for
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`summary judgment. Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279
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`(11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (plaintiff’s
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`“conclusory assertions ..., in the absence of [admissible] supporting evidence, are
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`insufficient to withstand summary judgment.”); Harris v. Ostrout, 65 F.3d 912, 916 (11th
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`Cir. 1995) (grant of summary judgment appropriate where inmate produces nothing beyond
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`“his own conclusory allegations” challenging actions of the defendants); Fullman v.
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`Graddick, 739 F.2d 553, 557 (11th Cir. 1984) (“mere verification of party’s own conclusory
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`allegations is not sufficient to oppose summary judgment....”). Hence, when a plaintiff fails
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`to set forth specific facts supported by requisite evidence sufficient to establish the
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`existence of an element essential to his case and on which the plaintiff will bear the burden
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`of proof at trial, summary judgment is due to be granted in favor of the moving party.
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`Celotex, 477 U.S. at 322 (“[F]ailure of proof concerning an essential element of the
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`nonmoving party’s case necessarily renders all other facts immaterial.”); Barnes v.
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`Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on any part of the
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`prima facie case the plaintiff presents insufficient evidence to require submission of the
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`case to the trier of fact, granting of summary judgment is appropriate.).
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`For summary judgment purposes, only disputes involving material facts are relevant.
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`4
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 5 of 23
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`United States v. One Piece of Real Property Located at 5800 SW 74th Avenue, Miami,
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`Florida, 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the
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`substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of
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`the Department of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004) (“Only
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`factual disputes that are material under the substantive law governing the case will preclude
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`entry of summary judgment.”). “The mere existence of some factual dispute will not defeat
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`summary judgment unless that factual dispute is material to an issue affecting the outcome
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`of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003)
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`(citation omitted). To demonstrate a genuine dispute of material fact, the party opposing
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`summary judgment “must do more than simply show that there is some metaphysical doubt
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`as to the material facts.... Where the record taken as a whole could not lead a rational trier
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`of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’”
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`Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases
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`where the evidence before the court which is admissible on its face or which can be
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`reduced to admissible form indicates there is no genuine dispute of material fact and
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`establishes the party moving for summary judgment is entitled to it as a matter of law,
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`summary judgment is proper. Celotex, 477 U.S. at 323-324 (Summary judgment is
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`appropriate where pleadings, evidentiary materials and affidavits before the court show
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`there is no genuine dispute as to a requisite material fact.); Waddell, 276 F.3d at 1279 (To
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`establish a genuine dispute of material fact, the nonmoving party must produce evidence
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`5
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 6 of 23
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`such that a reasonable trier of fact could return a verdict in his favor.).
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`Although factual inferences must be viewed in a light most favorable to the
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`nonmoving party and pro se complaints are entitled to liberal interpretation by the courts,
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`a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine
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`dispute of material fact. Beard, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford,
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`906 F.2d 667, 670 (11th Cir. 1990). Thus, the plaintiff’s pro se status alone does not
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`mandate this court’s disregard of elementary principles of production and proof in a civil
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`case. In this case, Johnson fails to demonstrate a requisite genuine dispute of material fact
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`in order to preclude summary judgment on the defendant’s res judicata defense to the
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`excessive force and disciplinary claims. Matsushita, supra. Johnson is likewise entitled
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`to no relief on his claim with respect to a violation of administrative rules and regulations
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`nor his allegation regarding a verbal assault.
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`III. DISCUSSION
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`A. Absolute Immunity
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`To the extent that Johnson seeks relief from defendant Brown in his official
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`capacity, the defendant is entitled to absolute immunity from monetary damages. Official
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`capacity lawsuits are “in all respects other than name, ... treated as a suit against the entity.”
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`Kentucky v. Graham, 473 U. S. 159, 166 (1985). “A state official may not be sued in his
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`[or her] official capacity unless the state has waived its Eleventh Amendment immunity,
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`see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900,
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 7 of 23
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`908, 79 L.Ed.2d 67 (1984), or Congress has abrogated the state’s immunity, see Seminole
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`Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996).
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`Alabama has not waived its Eleventh Amendment immunity, see Carr v. City of Florence,
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`916 F.2d 1521, 1525 (11th Cir. 1990) (citations omitted), and Congress has not abrogated
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`Alabama’s immunity. Therefore, Alabama state officials are immune from claims brought
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`against them in their official capacities.” Lancaster v. Monroe County, 116 F.3d 1419,
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`1429 (11th Cir. 1997).
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`In light of the foregoing, it is clear that the defendant is a state actor entitled to
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`sovereign immunity under the Eleventh Amendment for claims seeking monetary damages
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`from him in his official capacity. Lancaster, 116 F.3d at 1429; Jackson v. Georgia
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`Department of Transportation, 16 F.3d 1573, 1575 (11th Cir. 1994); Parker v. Williams,
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`862 F.2d 1471 (11th Cir. 1989).
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`B. Relevant Facts
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`In the early afternoon of May 31, 2009, Brown conducted a patrol of the kitchen area
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`at the Kilby Correctional Facility. A verbal exchange occurred between the parties during
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`which Johnson allegedly made insubordinate and disrespectful remarks towards Brown.
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`Upon completion of his patrol rounds, Brown ordered Johnson to accompany him to the
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`segregation shift office. While escorting Johnson to the office, Brown verbally reprimanded
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`Johnson for his insubordination. Johnson responded with loud remarks and, from Brown’s
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`perspective, physically combative behavior. At this time, Brown attempted to place
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 8 of 23
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`handcuffs on Johnson, an effort Johnson resisted, and a struggle ensued between the
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`parties.2 Other correctional officers responded to the struggle and aided Brown in
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`restraining Johnson. Johnson was then escorted to the health care unit for a body chart.
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`The nurse noted abrasions to Johnson’s face, back and chest. Defendant’s Exhibit D - Doc.
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`No. 8-4 at 2.
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`C. Violations of Administrative Rules and Regulations
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`Johnson contends that Brown violated administrative rules and regulations during
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`the events which transpired on May 31, 2009. Complaint - Doc. No. 1 at 3 (“Defendant
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`went outside of Department of Corrections procedures by leaving his post unassigned,
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`verbal assault, excessive force that was not needed, false [disciplinary] charges and failure
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`to notify supervisor of the incident.”). Alleged violations of departmental rules or
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`regulations do not assert a violation of an inmate’s constitutional rights. Sandin v. Conner,
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`515 U.S. 472, 115 S.Ct. 2293 (1995); Harris v. Birmingham Board of Education, 817 F.2d
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`1525 (11th Cir. 1987). Consequently, the defendant is entitled to summary judgment on this
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`claim.
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`D. Verbal Assault
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`Johnson complains that Brown subjected him to a verbal assault. In support of this
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`allegation, Johnson maintains that “words were exchanged” between the parties when
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`2In the documents filed herein, Johnson acknowledges the verbal exchanges with Brown. Johnson also
`concedes his resistance to being handcuffed but maintains that it occurred because his “arm wouldn’t go behind his
`back.” Defendant’s Exhibit A - Doc. No. 8-1 at 2 (Johnson’s state civil complaint).
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 9 of 23
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`Brown first entered the kitchen. Plaintiff’s Response - Doc. No. 11 at 2; Defendant’s
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`Exhibit A - Doc. No. 8-1 at 2 (Johnson’s state civil complaint) (On May 31, 2009, “Plaintiff
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`was assigned to work detail in the kitchen [at Kilby] as a cook. While Plaintiff was
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`preparing the meal, officer Sam Brown (Defendant) came into the kitchen when [Brown]
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`saw Plaintiff he started shouting and cursing Plaintiff.”). It is likewise undisputed that
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`Brown verbally reprimanded Johnson during their trip to the shift office.
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`To state a viable claim for relief in a 42 U.S.C. § 1983 action, the conduct
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`complained of must have deprived the plaintiff of rights, privileges or immunities secured
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`by the Constitution. American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 119
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`S.Ct. 977, 985, 143 L.Ed.2d 130 (1999); Parratt v. Taylor, 451 U.S. 527 (1981); Willis v.
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`University Health Services, Inc., 993 F.2d 837, 840 (11th Cir. 1993). Derogatory,
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`demeaning, profane, threatening or abusive comments made by an officer to an inmate, no
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`matter how repugnant or unprofessional, do not rise to the level of a constitutional
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`violation. Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th Cir. 1989) (mere verbal
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`taunts, despite their distressing nature, directed at inmate by jailers do not violate inmate’s
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`constitutional rights); Ayala v. Terhune, 195 Fed. Appx. 87, 92 (3rd Cir. 2006)
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`(“[A]llegations of verbal abuse, no matter how deplorable, do not present actionable claims
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`under § 1983.”); McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) (“[A]cts ...
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`resulting in an inmate being subjected to nothing more than threats and verbal taunts do not
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`violate the Eighth Amendment.”); Sims v. Hickok, 185 F.3d 875 (10th Cir. 1999) (district
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 10 of 23
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`court’s summary dismissal of inmate’s complaint for failure to state a claim appropriate
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`because officer’s insults and racial slurs did not amount to a constitutional violation); Siglar
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`v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (verbal abuse, even if racially or ethnically
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`motivated, does not give rise to a cause of action under § 1983); Northington v. Jackson,
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`973 F.2d 1518, 1524 (10th Cir. 1992) (mere threats, even to inmate’s life, made by guard
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`do not satisfy the objective component of the Eighth Amendment as verbal threats and
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`harassment are “necessarily excluded from the cruel and unusual punishment inquiry....”);
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`Ivey v. Wilson, 832 F.2d 950, 954-955 (6th Cir. 1987) (verbal abuse alone is not violative
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`of the Eighth Amendment); O’Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987)
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`(“[A]lleged verbal threats by jail officials ... did not rise to the level of a constitutional
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`violation.”); Gaul v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (Eighth Amendment trivialized
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`by assertion that mere thereat constitutes a constitutional wrong); Purcell v. Coughlin, 790
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`F.2d 263, 265 (2nd Cir. 1986) (mere name-calling did not violate inmate’s constitutional
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`rights); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (verbal abuse, including threat
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`of harm, not actionable under § 1983). Under the circumstances of this case, Johnson fails
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`to state a cognizable claim with respect to Brown’s purported verbal assault and summary
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`judgment is due be granted in favor of the defendant with respect to this claim.
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`E. Res Judicata
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`Johnson alleges that the use of force by Brown constituted excessive force which
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`violated the Eighth Amendment. He also challenges the constitutionality of a disciplinary
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 11 of 23
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`lodged against him for assault on a correctional employee arising from the incident with
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`Brown. The defendant asserts that these claims are precluded by res judicata due to the
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`dismissals of Johnson’s state civil actions, Johnson v. Brown, Case No. CV-2009-1133
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`(excessive force) and Johnson v. State of Alabama, Case No. CV-2009-1107 (disciplinary)
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`by the Circuit Court of Montgomery County, Alabama, and the affirmance of these
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`dismissals by the Alabama Court of Civil Appeals and the Alabama Court of Criminal
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`Appeals, respectively. See Defendant’s Exhibit A - Doc. No. 8-1, Defendant’s Exhibit F -
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`Doc. No. 8-6 and Defendant’s Exhibit G - Doc. No. 8-7. In his response to the defendant’s
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`report, Johnson does not dispute the applicability of this bar to his claims. Plaintiff’s
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`Response - Doc. No. 11.
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`Under well settled federal law,
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`[t]he preclusive effect of a judgment is defined by claim preclusion and issue
`preclusion, which are collectively referred to as “res judicata.” Under the
`doctrine of claim preclusion, a final judgment forecloses “successive
`litigation of the very same claim, whether or not relitigation of the claim
`raises the same issues as the earlier suit.” New Hampshire v. Maine, 532
`U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Issue preclusion,
`[often denoted as “collateral estoppel”,] in contrast, bars “successive
`litigation of an issue of fact or law actually litigated and resolved in a valid
`court determination essential to the prior judgment,” even if the issue recurs
`in the context of a different claim. Id., at 748-749, 121 S.Ct. 1808. By
`“preclud[ing] parties from contesting matters that they have had a full and
`fair opportunity to litigate,” these two doctrines protect against “the expense
`and vexation attending multiple lawsuits, conserv[e] judicial resources, and
`foste[r] reliance on judicial action by minimizing the possibility of
`inconsistent decisions.” Montana v. United States, 440 U.S. 147, 153-154,
`99 S.Ct. 970, 59 L.Ed.2d 210 (1979).
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 12 of 23
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`Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 2171 (2008).
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`“Our res judicata analysis has always required a consideration of the facts and legal
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`theories of two causes of action as well as the rights and duties involved in each case.”
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`Draper v. Atlanta Indep. Sch. Sys., 377 Fed. Appx. 937, 940 (11th Cir. 2010), cert. denied,
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`__ U.S. __, 131 S.Ct. 342, 178 L.Ed. 2d 223 (2010) (citing Manning v. City of Auburn, 953
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`F.2d 1355, 1359 (11th Cir. 1992)). “We have consistently concluded that when the
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`substance and facts of each action are the same, res judicata bars the second suit.” Id. In
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`I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541 (11th Cir. 1986), the Court
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`summarized the doctrine of res judicata as follows:
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`Res judicata ... refers to the preclusive effect of a judgment in foreclosing
`relitigation of matters that were litigated or could have been litigated in an
`earlier suit.... In order for the doctrine of res judicata to bar a subsequent suit,
`four elements must be present: (1) there must be a final judgment on the
`merits; (2) the decision must be rendered by a court of competent
`jurisdiction; (3) the parties, or those in privity with them, must be identical
`in both suits; and (4) the same cause of action must be involved in both cases.
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`I.A. Durbin, 793 F.2d at 1549 (citations omitted). The court now turns to these four
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`elements.
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`1. Final Judgments. On July 22, 2009, Johnson filed suit against Brown in the
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`Circuit Court of Montgomery County, Alabama. Defendant’s Exhibit A - Doc. No 8-1
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`(complaint in Johnson v. Brown, Case No. CV-2009-1133). In that case, Johnson raised
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`the same excessive force claim against Brown as is presented in this case. Id. The facts
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 13 of 23
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`made the basis of the state civil action are identical to the facts presented to this court in
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`support of the instant complaint. On January 18, 2010, the Circuit Court of Montgomery
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`County, Alabama issued an order granting summary judgment in favor of the defendant.
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`This order reads as follows:
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`On July 22, 2009, Petitioner filed a civil complaint alleging that the
`defendant used excessive force in violation of his Eighth Amendment
`[rights]. The petitioner requested injunctive relief and sought monetary
`damages. The court issued a special report giving each side an opportunity
`to respond. Both sides filed an answer to the special report and the court
`finds as follows:
`The petitioner is currently an inmate at Kilby Correctional Facility.
`On May 31, 2009, the petitioner became insubordinate and made
`disrespectful comments toward the defendant. The defendant eventually
`instructed the petitioner to come to the shift office. The petitioner while
`being escorted to the shift office, became very loud and physically
`combative. The defendant attempted to restrain the petitioner for his safety
`and the safety of others. A physical struggle ensued and other officers came
`in and assisted the defendant. The [petitioner] was eventually handcuffed and
`placed in leg restraints. He was taken to the medical unit for a body chart to
`be done and it showed that he suffered minor abrasions and bruises.
`The defendant admits using force, but states that it was necessary and
`appropriate. The Eighth Amendment protections are only triggered when a
`prisoner is subjected to an “unnecessary and wanton infliction of pain.”
`Pursuant to Hudson v. McMillian, 503 U. S. 1 (1992), the defendant
`complied with the five factors that the court must look at in evaluating an
`Eighth Amendment claim for excessive force. Due to the petitioner[’s]
`behavior, the defendant needed to use force. The defendant only used the
`force necessary to restrain the petitioner. The defendant believed the
`petitioner was a threat to himself and others. Other officers at the prison
`helped the defendant to restrain the petitioner which reduced the severity of
`the force necessary to restrain the petitioner and the injuries suffered by the
`petitioner were only minor.
`The petitioner’s claim for monetary damages is prohibited pursuant to
`the Eleventh Amendment. ,To the extent that the petitioner is suing the
`defendant in his official capacity, the suit is against the state and therefore the
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 14 of 23
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`defendant is immune from suit. If the petitioner is suing the defendant in his
`individual capacity, then the court must look to Ex parte Cranman, 792 So.2d
`392 (Ala. 2000) for evaluating whether or not a state official sued in his
`individual capacity is entitled to immunity as an agent of the State. The
`petitioner has the burden of showing that the defendant acted wilfully or
`maliciously once the defendant shows that he was undertaking a
`discretionary function. There is absolutely no evidence that the defendant
`acted wilfully or maliciously. He used only the force necessary to restrain
`the petitioner. The petitioner offers no evidence to contradict that the
`defendant acted reasonably under the circumstances. The petitioner only
`offers assertions that have no basis.
`Wherefore it is ORDERED that the defendant is due to have and is
`GRANTED summary judgment in his favor.
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`Defendant’s Exhibit A - Doc. No. 8-1 at 7-8. Johnson filed an appeal of this decision, and
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`the Alabama Court of Civil Appeals issued an order on June 3, 2010, summarily dismissing
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`the appeal of the trial court’s order. Id. at 10.
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`Johnson also submitted a civil action to the Circuit Court of Montgomery County,
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`Alabama in July of 2009, an action the court deemed filed on August 7, 2009, that was
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`styled as a petition for writ of habeas corpus, in which he challenged the disciplinary
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`lodged against him by Brown for assault on a correctional employee. Defendant’s Exhibit
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`G - Doc. No 8-7 (petition in Johnson v. State of Alabama, Case No. CV-2009-1107). In
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`light of the claims presented by Johnson and in accordance with state law, the state courts
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`construed this petition as a petition for certiorari.3 After receiving appropriate pleadings
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`from the parties, the Circuit Court of Montgomery County denied Johnson relief on his
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`3Under Alabama law, a petition for writ of certiorari is the appropriate method in which to challenge a prison
`disciplinary and the state courts determine the type of motion based on the substance of the motion rather than the style
`of the motion. See Ex parte Woods, 941 So.2d 259 (Ala. 2006); Ex parte Deramus, 882 So.2d 875 (Ala. 1997).
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 15 of 23
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`petition and Johnson appealed this decision.
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`On February 19, 2010, the Alabama Court of Criminal Appeals issued a
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`memorandum opinion affirming the dismissal of the petition by the trial court. The relevant
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`portion of the appellate court’s opinion reads as follows:
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`The appellant, Eddie Johnson, an inmate at Kilby Correctional
`Facility, appeals the circuit court’s dismissal of his petition for a writ of
`certiorari, in which he challenged a prison disciplinary proceeding, and the
`resulting punishment.
`On May 31, 2009, Johnson physically resisted an attempt by Officer
`Sam Brown to place handcuffs on him. Officer Brown had to receive
`assistance from another officer to subdue Johnson. Johnson was charged with
`violating the administrative rules and regulations of the Department of
`Corrections (“DOC”), namely, Rule 29, assaulting a DOC employee.
`Following a hearing [on the disciplinary charge] at which several witnesses
`testified including Johnson, Johnson was found guilty of violating Rule 29.
`Johnson’s punishment for the incident was 30 days in disciplinary
`segregation, 30 days loss of store, telephone, and visitation privileges, and 30
`days of “extra duty under the supervision of the First Shift.”
`On August 7, 2009, Johnson filed a petition for writ of certiorari in
`Montgomery Circuit Court. In his petition, Johnson argued that his due
`process rights were violated because the disciplinary report was incomplete.
`Further, Johnson called for an investigation into Officer Brown’s behavior,
`alleging that Officer Brown violated certain DOC rules and regulations.
`DOC subsequently moved to dismiss the petition or, in the alternative, for a
`summary judgment, arguing that Johnson was not entitled to due process
`because he had asserted no protected liberty interest and that DOC complied
`with its administrative regulations. On October 26, 2009, the circuit court
`granted DOC’s motion to dismiss on the ground that the inmate disciplinary
`proceeding did not violate Johnson’s due process rights. This appeal
`followed.
`On appeal, Johnson contends that the circuit court abused its discretion
`when it granted the State’s motion to dismiss because, he argues, (1) the State
`violated his due process rights; and (2) Officer Brown’s conduct violated
`several administrative regulations. Johnson also appears to challenge the
`sufficiency of the evidence presented at the disciplinary hearing.
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 16 of 23
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`Under Wolff v. McDonnell, 418 U.S. 539 (1974), an inmate facing a
`disciplinary proceeding is entitled certain due process protections; namely:
`(1) notice of the claimed violation; (2) a right to call witnesses and to present
`documentary evidence on his behalf; and (3) a written statement by the fact-
`finders as to the evidence relied on and the reasons for the disciplinary
`actions. 418 U.S. at 563....
`In Sandin v. Conner, 515 U.S. 472 (1995), the United States Supreme
`Court set out the standard by which to evaluate whether alleged liberty
`interests are protected by the Due Process Clause, and, thus, entitled to the
`procedural protections outlined in Wolff v. McDonnell:
`“The time has come to return to the due process principles we
`believe were correctly established and applied in Wolff and
`Meachum [v. Fano, 427 U.S. 215 (1976)]. Following Wolff,
`we recognize that States may under certain circumstances
`create liberty interests which are protected by the Due Process
`Clause. But these interests will be generally limited to freedom
`from restraint which, while not exceeding the sentence in such
`an unexpected manner as to give rise to protection by the Due
`Process Clause of its own force, nonetheless imposes atypical
`and significant hardship on the inmate in relation to the
`ordinary incidents of prison life.”
`Sandin, 515 U.S. at 483-84 (internal citations omitted).
`Although Johnson contends that the State’s actions implicated his due-
`process rights, this Court has previously held that an inmate does not have a
`liberty interest in visitation, store, telephone, and other privileges....
`Likewise, placement in disciplinary confinement or assignment of extra work
`duty fails to constitute a liberty interest.... Thus, Johnson’s punishment
`involved no deprivation of a liberty interest. Because Johnson was not
`deprived of a liberty interest, the due-process protections discussed in Wolff,
`and which Johnson argues were violated, are not applicable to this case.
`Nevertheless, an examination of the record indicates that Johnson was
`afforded the due process protections under Wolff. A review of the record
`indicates that Johnson received notice of the alleged violation and at least 24
`hours advance notice of the hearing, that he was given the opportunity to be
`heard and to present documentary evidence, and that the hearing officer
`provided written findings of fact following the hearing.
`Regarding Johnson’s challenge to the evidence presented at his
`disciplinary hearing, in a due-process hearing, the hearing officer need rely
`only upon “some evidence” that the administrative action is warranted. See
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`Case 2:10-cv-00559-MEF-SRW Document 17 Filed 12/03/12 Page 17 of 23
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`generally, Superintendent v. Hill, 472 U.S. 445, 455 (1985).... Based on our
`review of the record, there was sufficient evidence presented at the
`disciplinary hearing to establish that Johnson violated DOC rules and
`regulations by assaulting a DOC employee. Furthermore, the record does not
`support Johnson’s contention that DOC [or its employees] violated any
`administrative regulations. Accordingly, we cannot say that the circuit court
`abused its discretion by dismissing Johnson’s petition.
`Based on the foregoing, the circuit court’s judgment is affirmed.
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`Defendant’s Exhibit F - Doc. No. 8-6 at 1-4 (citation to record and footnote omitted).
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`In order toe analyze the res judicata effect of these rulings, this court must first
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`determine whether the decisions of the state courts in Johnson’s civil actions are decisions
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`on the merits.
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`“A judgment is on the merits when it amounts to a decision as to the
`respective rights and liabilities of the parties, based on the ultimate f