Nelson v. Shirkey
MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 11/29/12. (ASL)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
OFFICER GARY SHIRKEY,
2012 Nov-29 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case No. 4:10-cv-00112-IPJ-PWG
MEMORANDUM OF OPINION
The complaint in this matter asserts an excessive force claim by an Alabama prisoner
against an officer employed by the Alabama Department of Corrections. On September 7,
2011, the defendant’s motion for summary judgment was denied and this matter was referred
to the magistrate judge for purposes of conducting an evidentiary hearing on the plaintiff’s
claim.1 The magistrate judge conducted a hearing on November 7, 2011, which included the
testimony of the plaintiff, the defendant, and three witnesses. On September 24, 2012, the
magistrate judge entered a written report finding, inter alia, that the testimony of the plaintiff
and the plaintiff’s witness was not credible and recommending that judgment be entered in
favor of the defendant. This matter is now before the court on the magistrate judge’s
September 24, 2012, Finding and Recommendation (Doc. #42).
Pursuant to 28 U.S.C. 636(b)(1)(B), a District Judge may designate a magistrate judge to
conduct evidentiary hearings on prisoner petitions challenging conditions of confinement, including
claims of excessive force. See McCarthy v. Bronson, 500 U.S. 136 (1991).
The plaintiff filed objections to the magistrate judge’s findings and recommendation
on October 3, 2012. He contends the testimony showed that there are disputed issues of fact
which should be decided by a jury. However, the existence of genuine issues of fact is
relevant only for purposes of summary judgment, which was decided in a earlier phase of this
litigation. In this instance, after observing the demeanor of the witnesses, the magistrate
judge properly made determinations of credibility, weighed the testimony, and determined
that the preponderance of the credible evidence favored the defendant. It is not appropriate
for a District Judge, who did not observe and hear the witnesses, to reject a magistrate
judge’s finding of credibility, absent the “rare case” in which there exists an “articulable
basis” for such rejection in the record. U. S. v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001).
No such basis exists in this action.
Therefore, having carefully reviewed and considered de novo the entire record, the
court is of the opinion that the magistrate judge's findings are due to be and hereby are
ADOPTED and the recommendation is ACCEPTED.
The plaintiff's objections are
OVERRULED and the court EXPRESSLY FINDS that the defendant is entitled to judgment
as a matter of law, and that this action is due to be DISMISSED WITH PREJUDICE. A
Final Judgment will be entered.
Based upon the foregoing, the plaintiff's pending motion for production of documents
(Doc. #40) and motion to appoint counsel (Doc. #41) are DENIED as moot.
Done and ORDERED this 29th
day of November 2012.
INGE PRYTZ JOHNSON
U.S. DISTRICT JUDGE
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