Case 2:12-cv-00544-MHT-SRW Document 17 Filed 10/25/12 Page 1 of 10
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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. 2:12-CV-544-MHT
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`LARRY DALE BROWN, #221622,
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`Plaintiff,
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`v.
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`KENNETH JONES, et al.,
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` Defendants.
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`RECOMMENDATION OF THE MAGISTRATE JUDGE
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`I. INTRODUCTION
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`This 42 U.S.C. § 1983 action is before the court on a complaint filed by Larry Dale
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`Brown [“Brown”], a state inmate, in which he presents claims arising during his
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`incarceration at the Bullock Correctional Center against warden Kenneth Jones, Lt. C.
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`Carlton, Lt. Ruffin, Sgt. Dominic Whitley and Capt. Sylvester Nettles. Specifically, Brown
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`asserts that on February 12, 2012, the defendants acted with deliberate indifference to his
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`safety by failing to protect him from attack by another inmate. Complaint - Doc. No. 1 at
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`3 (“Defendants refused to take reasonable measure to protect plaintiff from harm after he
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`notified the officials threats had been made. By [their] refusing plaintiff placement into
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`protective custody he was assaulted by another inmate resulting in black eye and busted
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`lip.”). Brown also alleges that the defendants’ inaction was the result of discrimination due
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`to his Caucasian race. Id. Brown seeks monetary damages for the alleged violation of his
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`constitutional rights. Id. at 4.
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`On September 27, 2012, the defendants filed a motion to dismiss in which they argue that
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`this case is subject to dismissal in accordance with “the doctrine of res judicata,” as the instant
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`complaint contains claims presented or which could have been presented to the Circuit Court of
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`Montgomery County, Alabama in a prior civil case “dismissed [by the state court] ... with
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`prejudice.” Motion to Dismiss - Doc. No. 15 at 2-3. Based on the argument presented in the
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`motion to dismiss, the court entered an order “that on or before October 9, 2012 the plaintiff
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`shall show cause why this motion should not be granted.” Order of September 28, 2012 - Doc.
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`No. 16. In this order, the court “cautioned the plaintiff that if he fails to file a response to this
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`order the court will enter a Recommendation that his case be dismissed based on res judicata....”
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`Id. As of the present date, the plaintiff has filed no response to this order.
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`Upon review of the defendants’ motion to dismiss, the undisputed evidentiary materials
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`filed in support thereof and applicable federal law, the court concludes that the defendants’
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`motion to dismiss is due to be granted.
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`II. DISCUSSION AND ANALYSIS - RES JUDICATA
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`The defendants maintain that this case is subject to dismissal as the plaintiff’s claims
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`are precluded by res judicata arising from the dismissal of Brown’s state action, Brown v.
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`The state civil action, Brown v. Jones, et al., Case No. CV-12-668-J-A, raised the identical claim regarding
`the defendants alleged failure to protect Brown from attack by another inmate. Defendants’ Exhibit A - Doc. No. 15-1
`at 3-7. Brown, however, did not make the allegation that this failure was the result of racial discrimination. Id. The
`racial discrimination claim clearly arises out of the same cause of action and could have been raised by Brown in his
`state complaint. On August 22, 2012, the Circuit Court of Montgomery, Alabama issued an order that the plaintiff’s
`complaint be dismissed with prejudice. Defendants’ Exhibit D - Doc. No. 15-4.
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`Jones, et al., Case No. CV-12-668-J-A, by the Circuit Court of Montgomery County.
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`The 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, 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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`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 (11 Cir. 2010) certiorari
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`denied, 131 S.Ct. 342, 178 L.Ed. 2d 223, 79 USLW 3205 (Oct. 4, 2010) (citing Manning
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`v. City of Auburn, 953 F.2d 1355, 1359 (11 Cir. 1992)). “We have consistently concluded
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`that when the substance and facts of each action are the same, res judicata bars the second
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`suit.” Id. In I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541 (11 Cir. 1986),
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`the Court summarized the doctrine of res judicata as follows:
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`Res judicata or claim preclusion refers to the preclusive effect of a judgment
`in foreclosing relitigation of matters that were litigated or could have been
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`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). It is to these four elements that the court
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`now turns.
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`1. A Final Judgment. In June of 2012, Brown filed suit against Jones, Carlton,
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`Ruffin and Whitley in the Circuit Court of Montgomery County, Alabama. Defendants’
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`Exhibit A - Doc. No 15-1 (Complaint in the case of Brown v. Jones, et al., Case No. CV-12-
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`668-J-A). In that case, Brown alleged that correctional officials at Bullock Correctional
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`Facility failed to protect him from attack by a fellow inmate when they refused his request
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`for placement in protective custody. Id. The facts made the basis of the state civil action
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`are identical to the facts presented to this court in support of the instant complaint. On
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`August 6, 2012, the defendants filed a motion to dismiss the complaint pending before the
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`state court in which they argued that the plaintiff’s claims provided no basis for relief.
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`Defendants’ Exhibit C - Doc. No. 15-3 at 1-4. On August 22, 2012, the Circuit Court of
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`Montgomery County, Alabama granted the defendants’ motion to dismiss and “ORDERED
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`that all claims in this cause are hereby DISMISSED WITH PREJUDICE.” Defendants’
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`Exhibit D - Doc. No. 15-4.
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`This court must first determine whether the state court’s decision on the defendants’
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`motion to dismiss is a decision 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 fact or
`state of the parties disclosed by the pleadings or evidence, or both, and on
`which the right of recovery depends, irrespective of formal, technical, or
`dilatory objections or contentions. Key factors in determining whether a
`judgment may be considered as on the merits are that there have been notice
`and an opportunity to be heard....
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`“It is not necessary, however, that there should have been a trial. If the
`judgment is general, and not based on any technical defect or objection, and
`the parties had a full legal opportunity to be heard on their respective claims
`and contentions, it is on the merits, although there was no actual hearing on
`the facts of the case.”
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`Mars Hill Baptist Church of Anniston, Ala., Inc. v. Mars Hill Missionary Baptist Church,
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`761 So.2d 975 (Ala. 2000); Bd. of Tr. of the Univ. of Ala. v. Am. Res. Ins. Co., Inc., 5 So.3d
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`521, 533 (Ala. 2008) (same). After reviewing all of the pleadings, including evidence
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`contained therein, the state court granted the defendants’ motion to dismiss and dismissed
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`the case with prejudice. Thus, it is clear that the state court’s dismissal of the plaintiff’s
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`case constituted a final judgment on the merits. See Alpha Life Insurance Corp. v. Jackson,
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`906 so.2d 143, 155 (Ala. 2005) (citing Hammermill Paper Co. v. Day, 336 So.2d 166, 168
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`(Ala. 1976) (dismissal with prejudice represents an adjudication on the merits).
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`2. Court of Competent Jurisdiction. The Circuit Court of Montgomery County,
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`Alabama is a court of competent jurisdiction. Pursuant to ALA. CODE 1975 § 12-11-30(1),
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`circuit courts in Alabama “shall have exclusive original jurisdiction of all civil actions in
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`which the matter in controversy exceeds ten thousand dollars ($10,000), exclusive of
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`interest and costs, and shall exercise original jurisdiction concurrent with the district court
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`in all civil actions in which the matter in controversy exceeds three thousand dollars
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`($3,000), exclusive of interest and costs.” Id. (emphasis added). Consequently, the state
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`circuit court had jurisdiction over Brown’s complaint and, thus, was a court of competent
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`jurisdiction.
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`3. Identical Parties. Parties are “identical” for purposes of res judicata when they
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`are the same or in privity with one another. N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1561 (11th
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`Cir. 1990). The plaintiff named Kenneth Jones, Lt. C. Carlton, Lt. Ruffin and Sgt.
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`Dominic Whitley as defendants in the state court action. Thus, the aforementioned
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`defendants appear as defendants in both the previous state court case and this case. In the
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`instant case, the plaintiff also names Capt. Sylvester Nettles as a defendant. In Thompson
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`v. SouthTrust Bank, 961 So.2d 876, 883 (Ala. Civ. App. 2007), the court, while noting that
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`in Alabama the term “privity” had not been uniformly defined with respect to res judicata,
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`observed that it was often deemed to arise from
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`“(1) the relationship of one who is privy in blood, estate, or law; (2) the
`mutual or successive relationship to the same rights of property; [or] (3) an
`identity of interest in the subject matter of litigation.” Thus, the existence of
`privity has generally been resolved “on an ad hoc basis in which the
`circumstances determine whether a person should be bound by or entitled to
`the benefits of a judgment.” Hughes v. Martin, 533 So.2d 188, 191
`(Ala.1988).
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`It is clear that Capt. Sylvester Nettles is in privity by law with the other defendants
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`and had an identity of interest in the prior litigation; thus, he may take advantage of the
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`previous adjudication in their favor.
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`4. The Same Cause of Action. In Manning, the Court summarized the law
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`regarding when a cause of action is the same for purposes of res judicata as follows:
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`In this circuit, the determination of whether the causes of action in two
`proceedings are the same is governed by whether the primary right and duty
`are the same. Hunt, 891 F.2d at 1561 (quoting Kemp v. Birmingham News
`Co., 608 F.2d 1049, 1052 (5 Cir. 1979)); I.A. Durbin, Inc. v. Jefferson Nat'l
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`Bank, 793 F.2d 1541, 1549 (11 Cir. 1986). The test is one of substance, not
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`form. I.A. Durbin, 793 F.2d at 1549. Res judicata applies “not only to the
`precise legal theory presented in the previous litigation, but to all legal
`theories and claims arising out of the same ‘operative nucleus of fact.’”
`Hunt, 891 F.2d at 1561 (despite variations in legal theories used and
`remedies sought, second suit barred because wrongful act in both cases was
`flying Confederate flag atop state capitol) (quoting Olmstead v. Amoco Oil
`Co., 725 F.2d 627, 632 (11 Cir. 1984)); Jaffree v. Wallace, 837 F.2d 1461,
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`1468 (11 Cir. 1988) (second suit barred because “[b]oth cases raised first
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`amendment (free exercise and establishment clause) challenges to use of
`textbooks and teachings on various subjects”); Nilsen v. City of Moss Point,
`701 F.2d 556, 560 (5 Cir. 1983) (section 1983 action against city that
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`refused to hire plaintiff as firefighter due to her sex precluded by earlier Title
`VII action on same facts).
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`953 F.2d 1355, 1358-59 (11 Cir. 1992).
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`In the earlier state case, Brown complained that the defendants, correctional officials
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`at Bullock, failed to protect him from attack by another inmate by refusing his request for
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`placement in protective custody. Examination of the complaints filed in each of Brown’s
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`civil actions demonstrates that the allegations contained therein arise from the same set of
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`facts and circumstances. Thus, the failure to protect issue in the prior litigation is identical
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`to the issue raised in this lawsuit. Although the instant complaint presents an additional
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`allegation regarding a purported racial motive for the inaction of the defendants, “[r]es
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`judicata acts as a bar ‘not only to the precise legal theory presented in the previous
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`litigation, but to all legal theories and claims arising out of the same operative nucleus of
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`fact.’” Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1356 (11 Cir. 1998).
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`“Res judicata is a broad, judicially developed doctrine, which rests upon the
`ground that public policy, and the interest of the litigants alike, mandate that
`there be an end to litigation; that those who have contested an issue shall be
`bound by the ruling of the court; and that issues once tried shall be
`considered forever settled between those same parties and their privies. 46
`Am.Jur.2d Res Judicata § 395 (1969). ‘The principle of res judicata fosters
`reliance on judicial action, and tends to eliminate vexation and expense to the
`parties, wasted use of judicial machinery and the possibility of inconsistent
`results.’ ‘Developments in the Law-Res Judicata,’ 65 Harv. L.Rev. 820
`(1952).”
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`Thompson, 961 So. at 885.
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`“Res judicata bars the filing of claims which were raised or could have been raised
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`in an earlier proceeding.” Driessen v. Fla., 401 Fed. Appx. 435 (11 Cir. 2010) quoting
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`Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11 Cir. 1999). The court therefore
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`concludes that the claims presented against the defendants in the instant cause of action
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`entitle him to no relief as these claims are precluded from review by the doctrine of res
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`judicata.
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`III. CONCLUSION
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`Case 2:12-cv-00544-MHT-SRW Document 17 Filed 10/25/12 Page 9 of 10
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`Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
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`1. The defendants’ motion to dismiss be GRANTED.
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`2. This case be DISMISSED with prejudice.
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`It is further
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`ORDERED that on or before November 9, 2012, the parties may file objections to
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`this Recommendation. Any objections filed must clearly identify the findings in the
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`Magistrate Judge’s Recommendation to which the party is objecting. Frivolous, conclusive
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`or general objections will not be considered by the District Court. The parties are advised
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`that this Recommendation is not a final order of the court and, therefore, it is not
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`appealable.
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`Failure to file written objections to the proposed findings and advisements in the
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`Magistrate Judge’s Recommendation shall bar the party from a de novo determination by
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`the District Court of issues covered in the Recommendation and shall bar the party from
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`attacking on appeal factual findings in the Recommendation accepted or adopted by the
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`District Court except upon grounds of plain error or manifest injustice. Nettles v.
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`Wainwright, 677 F.2d 404 (5 Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d
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`33 (11 Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11 Cir. 1981, en
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`banc), adopting as binding precedent all decisions of the former Fifth Circuit handed down
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`prior to the close of business on September 30, 1981.
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`Case 2:12-cv-00544-MHT-SRW Document 17 Filed 10/25/12 Page 10 of 10
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`DONE, this 25 day of October, 2012.
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`/s/ Susan Russ Walker
`SUSAN RUSS WALKER
`CHIEF UNITED STATES MAGISTRATE JUDGE
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