Dunning v. Jenkins et al
MEMORANDUM OPINION ADOPTING and ACCEPTING the 9 Magistrate Judge's Report and Recommendation and OVERRULING Plaintiff's 10 Objections. Signed by Judge Abdul K Kallon on 6/11/2018. (JLC)
2018 Jun-11 PM 03:56
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MOHAMMAD S. JENKINS, et al.,
) Case No. 2:17-cv-00659-AKK-JHE
The magistrate judge filed a report on May 14, 2018, recommending that
this action be dismissed without prejudice for failing to state a claim upon which
relief can be granted, pursuant to 28 U.S.C. § 1915A(b). Doc. 9. The plaintiff has
filed objections to the report and recommendation. Doc. 10.
The plaintiff argues that res judicata does not bar this action because he is
asserting claims against Defendants Jenkins and Gadson in their individual
capacities and because he is raising “a different Eighth Amendment excessive
force claim against defendants Lt. Jenkins and Officer Gadson” that “could not
have been raised the first time in an earlier proceeding.” Id. at 2-3. With regard to
the latter, the plaintiff declares that after the district court granted summary
judgment in favor of the defendants, an outside medical provider re-examined him
and informed him that his leg injuries “were caused by an aftermath event[,]”
which was not explained by officer reports in his previous lawsuit. Id. at 2-3.1
For the following reasons, the plaintiff’s objections are OVERRULED. In
the plaintiff’s previous lawsuit, Reggie Dunning v. Mohammad Jenkins, et al.,
Case No. 2:16-cv-00110-LSC-JHE, docs. 28 & 29 (N.D. Ala. Feb. 21, 2017)
(“Dunning I”), the district court granted the defendants’ motion for summary
judgment. In this case, as well as Dunning I, the plaintiff sued Defendants Jenkins
and Gadson in their individual capacities and presented facts concerning an August
11, 2015 incident to support his Eighth Amendment excessive force claim against
them. Doc. 1 at 5; Dunning I, docs. 1, 24.
In Dunning I, the plaintiff alleged that after the incident he was taken to the
infirmary where pictures were taken of his “face and left leg – my leg has still not
healed – it continues to swell and is extrem[e]ly painful.” Dunning I, doc. 1 at 3-4.
In his summary judgment affidavit, the plaintiff testified that his “left leg was
swollen and bruised (I am a disabled man with diabet[es]).” Dunning I, doc. 24. at
4. However, he did “not address the lack of any [documentary] evidence of
injuries consistent with his claims of being beaten by batons, stomp[ed] in the
head, or kicked while he l[ay] on the floor.” Dunning I, doc. 26 at 5, n. 6.
In the complaint, the plaintiff did not assert that he was raising a different claim against
the defendants than he did in the previous action and he did not mention the outside medical
Contrary to the plaintiff’s objections, he has not alleged a new Eighth
Amendment claim against the defendants here based on the unsupported
contention that he has new information that could not have been brought to the
court’s attention previously. Instead, his complaint asserts an identical cause of
action against the same defendants based on the same operative facts as his prior
lawsuit in Dunning I. As to the leg injury, except for the outside medical provider
allegation, which the court notes is asserted in the plaintiff’s response to the
magistrate judge’s report and recommendation rather than in the complaint, the
plaintiff raised each and every aspect of his alleged leg injury, including
subsequent swelling and a purported connection to his diabetic condition in
Dunning I. The fact that the plaintiff has purportedly uncovered more evidence
supporting a legal theory he has already litigated fails to create a new cause of
action, and it is settled law that res judicata “bars the parties to a prior action from
re-litigating a cause of action that was or could have been raised in [the prior]
action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1299 (11th Cir. 2001).
Significantly, the plaintiff provides no reason why he could not have offered
or, at the least, sought out an alleged opinion from an outside medical provider in
Dunning I where the court expressly noted that the record lacked any documentary
evidence supporting the plaintiff’s assertions of severe injury arising from the
August 2015 incident.
Moreover, the plaintiff’s conclusory assertion of the
existence of an outside medical provider’s alleged opinion fails to offer any
support for a connection between his medical conditions and the August 11, 2015
event serving as the sole factual basis for the Eighth Amendment excessive force
claim alleged in the complaint.
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation, and the objections thereto, the
magistrate judge’s report is hereby ADOPTED and the recommendation is
ACCEPTED. Therefore, in accordance with 28 U.S.C. § 1915A(b), this action is
due to be dismissed without prejudice for failing to state a claim upon which relief
can be granted. A Final Judgment will be entered.
DONE the 11th day of June, 2018.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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