Johnson v. Keaton et al (INMATE1)

Filing 32

ORDER, JUDGMENT and DECREE of the court that: (1) Mr. Johnson's objection 31 is OVERRULED; (2) the 28 REPORT AND RECOMMENDATION of the Mag Judge is ADOPTED; 3) defendants' 14 motion for summary judgment is GRANTED and this action is DISMISSED with prejudice; (4) the costs of this proceeding are TAXED against Mr. Johnson for which let execution issue. Signed by Honorable William Keith Watkins on 9/29/08. (djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M IC H A E L JOHNSON, #146037, P l a in tif f , v. M U N C H IE KEATON, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ORDER O n August 13, 2008, the Magistrate Judge filed a Recommendation (Doc. # 28) that D ef en d an ts ' motion for summary judgment be granted on Plaintiff Michael Johnson's (" Jo h n s o n " ) claims which are brought pursuant to 42 U.S.C. § 1983. Having received an e x te n sio n of time to file any objections to the Recommendation (Doc. # 30), Mr. Johnson tim e ly filed an Opposition (Doc. # 31), which the court construes as an Objection made p u rs u a n t to 28 U.S.C. § 636(b)(1)(C). The bulk of Mr. Johnson's Objection challenges an Order issued on March 29, 2006 ( D o c . # 18), denying a request for production of documents, and an Order entered on D e c em b e r 7, 2006 (Doc. # 24), denying Mr. Johnson's motion to amend to add claims for re lie f which occurred several months after initiation of this lawsuit. Notably, Mr. Johnson d i d not object to these orders at the time they were entered. Not only are his present o b je c tio n s to those orders untimely, but Mr. Johnson also has failed to demonstrate that the

C A S E NO. 2:05-CV-1238-WKW (WO)

M ag istrate Judge's rulings on these pretrial matters are either clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). Furthermore, having conducted an independent and de novo review, the court finds th a t Mr. Johnson's other objections fail to undermine the proposed findings and re c o m m e n d a tio n s of the Magistrate Judge. Id. For example, addressing Mr. Johnson's First A m e n d m e n t retaliation claim, the Magistrate Judge's recommendation emanates, in part, fro m facts garnered from Captain Jeffery Knox's affidavit, in particular, Captain Knox's s ta te m e n t that "Warden Mosley advised [Captain Knox] that she instructed inmate Johnson to assist other inmates with their legal work, but he was not authorized to possess their legal m aterials." (Doc. # 28 at 8, 10, 14.) In his objection, Mr. Johnson asserts that the court sh o u ld not consider any statements made by the Warden because those statements were in tro d u c e d through an affidavit from Captain Knox. (Doc. # 31 at 3.) The court interprets M r . Johnson's argument as an objection on hearsay grounds. This argument, however, fails. R u le 801(c) defines "hearsay" as "a statement, other than one made by the declarant w h ile testifying at the trial or hearing, offered in evidence to prove the truth of the matter a ss e rte d ." Fed. R. Evid. 801(c). The court finds that the Warden's statements to Captain K n o x are not offered to prove the truth of the matter asserted. Rather, analogous to an o ff icer's consideration of third-party information on the question of probable cause, the court f in d s that the Warden's statements are offered to show the effect that the information had on C a p t a in Knox's assessment of whether cause existed to initiate disciplinary action against

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M r. Johnson and, more specifically, whether to place Mr. Johnson in the restricted privilege d o rm . See Woods v. City of Chicago, 234 F.3d 979, 986-87 (7th Cir. 2000) (third-party s ta te m e n ts describing altercation between putative assault victim and arrestee admissible "not fo r their truth, but to show the effect that the statements had on the [arresting] officers[']" d e ter m in a tio n of probable cause); see also Fed. R. Evid. 803(3) (state of mind exception to h ea rsay rule). It is this limited purpose for which the court finds that it may consider Mr. K n o x 's testimony concerning the Warden's statements. Even assuming for the sake of a rg u m e n t that the Warden's statements to Mr. Knox are inadmissible hearsay, Mr. Johnson co u ld not prevail on his First Amendment retaliation claim because the Magistrate Judge's a lte rn a tiv e findings (Doc. # 28 at 15-20) independently support the entry of summary ju d g m e n t in Defendants' favor. Mr. Johnson simply has failed to carry his burden to defeat D e f en d a n ts ' properly supported motion for summary judgment; he has not demonstrated that a genuine issue of material fact exists for trial on any of his claims. Accordingly, it is the ORDER, JUDGMENT and DECREE of the court that: 1. 2. 3. M r. Johnson's Objection (Doc. # 31) is OVERRULED. T h e Magistrate Judge's Recommendation (Doc. # 28) is ADOPTED. D e f e n d a n ts' motion for summary judgment is GRANTED (Doc. # 14) and this

a c tio n is DISMISSED with prejudice. 4. T h e costs of this proceeding are TAXED against Mr. Johnson for which let

e x e cu tio n issue.

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A n appropriate judgment will be entered. D O N E this 29th day of September, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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