Fanning v. Johnson et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/1/2015. Associated Cases: 2:13-cv-01957-VEH-HGD, 2:13-cv-02126-VEH-HGD(JLC)
2015 Jul-01 AM 11:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DUANE FANNING, II,
Case No. 2:13-CV-1957-VEH-HGD
DENNIS JOHNSON, et al.,
DUANE FANNING, II,
D. BROWN, et al.,
Case No. 2:13-CV-2126-VEH-HGD
Plaintiff, Duane Fanning, II, filed this pro se action pursuant to 42 U.S.C.
§ 1983, alleging that he had been deprived of rights, privileges, or immunities
afforded him under the Constitution or laws of the United States of America during
his incarceration at the Donaldson Correctional Facility in Bessemer, Alabama. The
Page 1 of 13
named defendants in this action are Correctional Lieutenant Michael Wheat;
Correctional Sergeant Joshua Murphree; and Correctional Officers Christopher
Simpson, Steven Harrison,1 Rickey Cunningham, Dennis Johnson, Jason Smith, and
Daryl Brown. The plaintiff seeks compensatory damages.
I. Procedural History
On November 22, 2013, the court entered an Order for Special Report directing
that copies of the complaint be forwarded to the named defendants and requesting
they file a special report addressing the plaintiff’s factual allegations.2 The parties
were advised that the special report, if appropriate, might be construed as a motion
for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil
Procedure. On April 25, 2014, the defendants filed a special report accompanied by
affidavits and copies of certain prison administrative and medical records pertaining
to the plaintiff. (Doc. 22). On October 24, 2014, the parties were notified that the
court would construe the defendants’ special report as a motion for summary
In the complaint, plaintiff names Officer Harris as a defendant in this action. However, a
review of the record reveals the defendant’s correct name is Officer Harrison.
Finding that the issues to be resolved in the plaintiff’s Case No. 2:13-cv-1957-VEH-HGD
and Case No. 2:13-cv-2126-VEH-HGD are substantially similar, the court entered an order on
February 5, 2014, consolidating the two cases and instructing the defendants to address all issues in
both cases in their special report. (Doc. 16). For purposes of this review, the cited document
numbers correspond to Case Number 2:13-cv-1957-VEH-HGD, unless otherwise noted.
Page 2 of 13
judgment and the plaintiff was notified that he would have twenty (20) days to
respond to the motion by filing affidavits or other material if he chose. The plaintiff
was advised of the consequences of any default or failure to comply with Fed. R.
Civ. P. 56. See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). No
response has been filed by the plaintiff. This matter is now before the court on the
defendants’ special report (doc. 22) being construed as a motion for summary
II. Standard of Review
Because the special report of the defendants is being considered a motion for
summary judgment, the Court must determine whether the moving parties, the
defendants, are entitled to judgment as a matter of law. Summary judgment may be
granted only if there are no genuine issues of material fact and the movants are
entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56. In
making that assessment, the Court must view the evidence in a light most favorable
to the non-moving party and must draw all reasonable inferences against the moving
parties. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The burden of proof is upon
the moving parties to establish prima facie entitlement to summary judgment by
showing the absence of genuine issues and that they are due to prevail as a matter of
law. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). Once that
Page 3 of 13
initial burden has been carried, however, the non-moving party may not merely rest
upon his pleadings, but must come forward with evidence supporting each essential
element of his claim. Celotex, supra, see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986); Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989). Unless the
plaintiff, who carries the ultimate burden of proving his action, is able to show some
evidence with respect to each element of his claims, all other issues of fact become
immaterial, and the moving parties are entitled to judgment as a matter of law.
Celotex, supra; see also Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990). As the
Eleventh Circuit explained in Bennett:
Facts in dispute cease to be “material” facts when the
plaintiff fails to establish a prima facie case. “In such a
situation, there can be ‘no genuine issue as to any material
fact,’ since a complete failure of proof concerning an
essential element of the non-moving party’s case
necessarily renders all other facts immaterial.” [citations
omitted]. Thus, under such circumstances, the public
official is entitled to judgment as a matter of law, because
the plaintiff has failed to carry the burden of proof. This
rule facilitates the dismissal of factually unsupported
claims prior to trial.
898 F.2d at 1532.
III. Factual Assertions
The following facts are undisputed, or if disputed, taken in a light most
favorable to the non-moving party, the plaintiff.
Page 4 of 13
The plaintiff is a prisoner in the custody of the Alabama Department of
Corrections. On October 5, 2013, he was housed in the Donaldson Correctional
Facility in Bessemer, Alabama. At approximately 7:30 p.m. that evening, defendants
Johnson and Simpson were involved in the process of escorting inmates of G-Dorm
to the showers. (Docs. 22-3 and 22-2). After Johnson and Simpson handcuffed the
plaintiff behind his back and opened his cell door, the plaintiff exited the cell and spit
in the face of Johnson, who immediately performed a “routine take down,” placing
the plaintiff on the floor. Id. The plaintiff then began to struggle with Johnson,
kicking and attempting to head butt him, at which point Simpson assisted by pushing
the plaintiff’s face to the floor with his forearm, while Johnson placed his weight on
the plaintiff to hold him down. (Docs. 22-3 at 2; and 22-4 at 2).3 Officers Johnson
and Simpson testify that these events were “particularly dangerous” because of the
small space in which they were occurring. Id.
Upon hearing the commotion, Officer Harrison, who was conducting shower
call on the top tier, immediately started down the stairs and called for backup.
(Doc. 22-5). When he arrived on the scene, Johnson and Simpson were still trying
In his complaint, the plaintiff alleges Simpson “repeatedly punched downward on [his]
face.” (Doc. 1 at 3). However, he has presented nothing to refute the defendants’ affidavits, which
state unequivocally that no officer punched, kicked, or struck the plaintiff in any way. (Docs. 22-3
at 2; 22-4 at 2; 22-5 at 2; 22-6 at 2; 22-7 at 2; 22-8 at 2).
Page 5 of 13
to gain control over the plaintiff, who was “struggling and kicking.” Id. at 2.
Harrison assisted by grabbing the plaintiff’s legs, who then “became compliant”
shortly thereafter. Id. at 2.4
Sergeant Murphree testifies that he responded to the “Code Red” call and
arrived on the scene to find Johnson, Simpson, and Harrison attempting to control the
plaintiff. (Doc. 22-6). Murphree and Simpson lifted the plaintiff to his feet as he
continued to resist. Id. at 2.5 Murphree then placed him against the wall and ordered
him to calm down. Id. at 2.6 After the plaintiff stopped resisting, Murphree and the
East Hall rover, Officer Etheridge (not a named defendant), escorted the plaintiff to
The plaintiff alleges in the complaint that Officer Harrison “stood over [his] head and
cracked [his] skull” by striking him numerous times with a “police stick.” (Doc. 1 at 3). Not only
are these allegations inconsistent with the injuries noted on the body chart (doc. 22-11 at 5), but the
plaintiff fails to refute Harrison’s testimony that he never took his baton from its holster and that he
never struck the plaintiff in any manner. (Doc. 22-5 at 2).
In the process of lifting the plaintiff off the floor, he accidently hit his head on the open tray
door. (Doc.’s 22-6 at 2; 22-3 at 2).
The plaintiff alleges that Sergeant Murphree and Officers Cunningham and Brown punched
him in the nose several times after he stood up. (Doc. 1 at 2). He also states that before going into
the infirmary, Officer Smith “re-broke” his rib by landing “numerous blows to [his] body,” and that
Cunningham “repeatedly kicked [his] knee inwardly” in an attempt to break it. Id. at 2. However,
he fails to refute their affidavits in which they deny ever hitting, kicking, or punching him. (Docs.
22-6 at 2; 22-8 at 2; 22-9 at 2; 22-10 at 2). In fact, as discussed infra, Cunningham, Brown, and
Smith testify they had no direct contact with the plaintiff on that occasion.
Page 6 of 13
the East barber shop where he was held until he could be examined by medical
personnel. Id. at 2.7
Lieutenant Wheat arrived on the scene as Murphree and Etheridge were
escorting the plaintiff out of the dorm. (Doc. 22-7). Contrary to the plaintiff’s
allegations, Lieutenant Wheat testifies he did not witness the incident and did not
observe anyone kick or strike the plaintiff in any way. Id at 2. Wheat explains that
because plaintiff’s injuries did not appear serious, he was held in the barber shop
while the officers involved were seen by medical personnel. Id at 2.8 While the
plaintiff was waiting in the barber shop before being sent to the infirmary, he
admitted to Lieutenant Wheat that he spit into Officer Johnson’s face. Id at 2.
Correctional Officers Cunningham, Brown, and Smith responded to the “Code
Red” by immediately proceeding to the G-dorm. However, they each were met in the
hallway by a supervisor who informed them that the incident was under control.
Officer Cunningham states that he was still present in the hallway when the plaintiff
was being escorted out of the dorm by two officers. However, he testifies he was not
close enough to “even identify the officers . . . much less punch [the plaintiff].” (Doc.
According to the officers involved, the entire incident lasted approximately one minute.
(Docs. 22-3 at 2; 22-4 at 2).
Wheat states that when an inmate has not been seriously injured, it is protocol to allow
officers to be seen first by medical personnel, so that the officers can continue with their shift duties.
(Doc. 22-7 at 2).
Page 7 of 13
22-8 at 2). Brown testifies he returned to his post without ever seeing the plaintiff
that day (doc. 22-9 at 2), while Smith states he returned to his post and was never in
the same room as the plaintiff. (Doc. 22-10 at 2). The plaintiff offers nothing to
refute these officers’ affidavits.
The plaintiff was eventually taken to the infirmary where a body chart was
prepared, noting the plaintiff’s injuries which included two half-inch abrasions on his
left shoulder, a contusion to his left side, a half-inch abrasion on the crown of his
head, a one-inch abrasion to the left side of his neck, and bleeding from his nose.
(Doc. 22-11 at 5). Additionally, an October 11, 2013, x-ray of the plaintiff’s chest
was found to be normal, which is wholly inconsistent with his allegation that he
sustained a broken rib. Id at 14.
Maintaining institutional security and preserving internal order and discipline
are essential goals of a prison administration and may require limitation or retraction
of the constitutional rights of prisoners. Bell v. Wolfish, 441 U.S. 520 (1979). Prison
officials must therefore be free to take appropriate action to insure the safety of
inmates and staff, and the courts will not normally second-guess prison officials on
matters involving internal security. Wilson v. Blankenship, 163 F.3d 1284 (11th Cir.
1998). When disciplinary action is taken by a prison official to prevent a security
Page 8 of 13
threat or to restore official control, the court’s Eighth Amendment inquiry focuses on
whether force was applied in a good faith effort to maintain or restore discipline or
was undertaken maliciously or sadistically to cause harm. Sims v. Mashburn, 25 F.3d
980 (11th Cir. 1994). The factors to be examined in determining whether the use of
force was wanton and unnecessary include an evaluation of: 1) the need for the
application of the force; 2) the relationship between that need and the amount of force
used; 3) the threat reasonably perceived by the responsible officials; and 4) any
efforts made to temper the severity of the response. Hudson v. McMillian, 503 U.S. 1,
In the present case, the plaintiff has failed to establish a genuine issue of fact
with respect to any of the four Hudson factors cited above. The plaintiff has failed
to present evidence to rebut the defendants’ clear showing that there was a need for
the application of force at the time it was applied and that the severity of the force
used was tempered to meet the circumstances. As stated above, prison officials may
take appropriate action to ensure the safety and security of the institution. In this
instance, the plaintiff has failed to rebut the defendants’ special report which presents
specific facts indicating the plaintiff spit into the face of a correctional officer and
struggled with officers when they attempted to gain control over him. The defendants
have therefore set forth unrefuted facts which show that the use of force was
Page 9 of 13
warranted. Having presented nothing in response to the special report, the plaintiff
has failed to create a genuine issue of fact with regard to whether or not the
defendants’ actions were undertaken for reasons other than a good faith effort to
maintain security and restore order.9
Additionally, the defendants have set forth specific facts which demonstrate
that the amount of force used was reasonably related to the threat faced under the
circumstances. As stated earlier, maintaining safety and security in a prison or jail
setting is an essential goal of a prison or jail administration. Bell, supra. Therefore,
“a prison’s internal security is peculiarly a matter normally left to the discretion of
prison administrators,” and those administrators should be accorded “wide ranging
deference” with respect to measures taken in response to actual confrontations with
There is authority for the proposition that the specific facts in a plaintiff’s sworn complaint
can sometimes be asserted in response to a motion for summary judgment. See Caldwell v. Warden,
FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). However, in this instance, the plaintiff’s
complaint is contradicted by the unequivocal testimony in the several affidavits submitted with
defendants’ special report, by the incident report prepared by jail staff on the day of the events, and
by the medical record. (The court fails to find anything in the medical record which confirms the
injuries alleged by the plaintiff in his complaint, i.e, broken nose, broken rib, or cracked skull).
Although it is not proper for this court to weigh the evidence when ruling on a motion for summary
judgment, our courts have recognized that in certain circumstances a party’s version of the facts can
be discounted when it is blatantly contradicted by the record and to the extent that “no reasonable
jury could believe it.” Vicks v. Knight, 380 Fed.Appx. 847, 852 (11th Cir. 2010), citing Scott v.
Harris, 550 U.S. 372, 380 (2007). In Vicks, the Eleventh Circuit affirmed the granting of summary
judgment in favor of prison guards notwithstanding the fact that their version of events was in direct
contradiction to the inmate’s complaint and affidavit. Despite this apparent issue of fact, the court
found that summary judgment was proper because the plaintiff’s version of events was “contradicted
by all the relevant evidence, with the exception of his own affidavit.” Id.
Page 10 of 13
inmates. Whitley v. Albers, 475 U. S. 312, 321-22 (1986), quoting Rhodes v.
Chapman, 452 U.S. 337, 349 n.14 (1981). In this case, the defendants have presented
facts which show a reasonable relationship between the need for and the amount of
force used. Once the defendants established that relationship with specific, factual
affidavits, the plaintiff was obliged to counter those facts with something more than
the allegations set forth in his complaint.
The third Hudson factor to be examined in an excessive force claim is whether
or not a responsible official would have reasonably perceived a threat under the
circumstances. Again, the defendants have provided the court with specific facts in
that regard. Their affidavits state that the plaintiff spit into the face of an officer and
that he continued to resist when officers attempted to control him. Furthermore, the
defendants state that the plaintiff’s behavior was “particularly dangerous” because of
the small area in which the events took place (doc. 22-3 at 2) and that a handcuffed
inmate can still present a danger to officers because of his ability to bite, kick, and
head butt. (Doc. 22-5 at 2). By contrast, the plaintiff has presented nothing to rebut
the defendants’ special report with regard to these issues. Therefore, the specific and
undisputed facts before the court clearly show that the defendants acted reasonably
in assuming they faced a security and safety threat from the plaintiff.
Page 11 of 13
Finally, Hudson requires the court to examine the facts as they relate to the
defendants’ efforts to temper the severity of the response. In that regard, the
defendants testify without refute that the incident lasted for no more than
approximately one minute and that the plaintiff was immediately escorted to the
barber shop to await medical examination. The defendants state unequivocally that
no officer kicked, punched, or struck the plaintiff in any way and that the use of force
ended when he was under control, at which point he was escorted out of the dorm.10
Furthermore, the injuries to the plaintiff as noted in the medical record are consistent
with the type of scuffle described in the defendants’ special report and are blatantly
inconsistent with the allegations set out in the complaint.11 Once the defendants
presented specific facts to show that the use of force was necessary, reasonable, and
tempered under the circumstances, it was incumbent upon the plaintiff to come forth
with specific facts in rebuttal. Having failed to do so, his claims are due to be
The defendants acknowledge the plaintiff inadvertently hit his head on the open tray door
as they were lifting him off the ground. However, this is not evidence of excessive force, even if the
plaintiff was under control at the time. The subjective component of an Eighth Amendment claim
requires a showing that a defendant acted with a “sufficiently culpable state of mind.” Hudson,
503 U.S. at 8. These facts do not satisfy this subjective component.
As noted earlier, the plaintiff has pointed to nothing in the medical record which
corroborates his assertion that he suffered a broken nose, a fractured skull, and a broken rib.
Page 12 of 13
Accordingly, for the reasons stated above, the court finds the defendants’
special report shall be treated as a motion for summary judgment and, as such, that
it is due to be GRANTED and this action DISMISSED WITH PREJUDICE.
DONE and ORDERED this 1st day of July, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
Page 13 of 13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?