Steger v. Johnson et al
MEMORANDUM OPINION AND ORDER ADOPTING and ACCEPTING the Magistrate Judge's 38 REPORT AND RECOMMENDATION with the exception of his consideration of the Plaintiff's State Law claims, as those claims were previously dismissed by this Co urt. The Defendants' pending 20 35 MOTIONS for Summary Judgment are DENIED, and this action is REFERRED to the Magistrate Judge for further proceedings consistent with this Opinion. Signed by Judge Virginia Emerson Hopkins on 3/31/2015. (JLC)
2015 Mar-31 PM 02:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
BRIAN O’NEAL STEGER,
AGENT JULIAN JOHNSON, et. al., )
Case no: 5:12-cv-3918-VEH-JEO
MEMORANDUM OPINION AND ORDER
The magistrate judge filed a report and recommendation on February 2, 2015,
recommending that the motions for summary judgment filed by defendants Johnson and
Miles be GRANTED IN PART and DENIED IN PART. With regard to the Fourth
Amendment constitutional claims against the defendants, the magistrate judge
recommended that defendant Johnson’s motion for summary judgment be GRANTED
to the extent the plaintiff alleges Johnson initially pursued him, subdued him and
refused to loosen his handcuffs, and DENIED to the extent the plaintiff alleges Johnson
utilized excessive force by gratuitously punching the plaintiff in the face and ribs while
he lay compliant and prostrate on the ground.
The magistrate judge further
recommended that defendant Miles’s motion for summary judgment be DENIED in
connection with the plaintiff’s Fourth Amendment failure to intervene/excessive force
claim against him.
As to the state law claims against the defendants, the magistrate judge
recommended that summary judgment be GRANTED to defendants Johnson and Miles
as to the plaintiff’s claims of intentional and negligent infliction of emotional distress,
and DENIED as to the plaintiff’s claims of assault and battery.
On February 18, 2015, the defendants filed objections to the report and
recommendation. (Docs. 39 & 40). The plaintiff filed no objections to the report and
recommendation. On March 6, 2015, the undersigned entered an order acknowledging
the defendants’ objections, and directed that “[a]ny response to those objections . . .
be filed within 14 days.” (Doc. 41). No response has been filed to the defendants’
I. The defendants’ objections
The defendants’ objections can be divided into three categories. Each will be
The magistrate judge’s recommendations as to the plaintiff’s state law
Defendants Miles and Johnson argue the magistrate judge should not have
addressed the plaintiff’s state law claims in the summary judgment report and
recommendation because, on June 10 and June 17, 2013, the undersigned dismissed all
claims against all defendants except the excessive force claims against defendants
Miles and Johnson pursuant to 28 U.S.C. §1915A(b). (Doc. 39 at 5-6; Doc. 40 at 3-5).
A review of the court record confirms the defendants’ positions. (Docs. 9 &10,
“Partial Dismissal Orders”). Moreover, after de novo review of the entire case was
conducted, the June 10 and June 17, 2013, dismissal orders adopted and accepted
every aspect of the magistrate judge’s 28 U.S.C. §1915A report and recommendation
entered May 6, 2013. (Id.; Doc. 9, “28 U.S.C. § 1915A Report and
Recommendation”). Although that report and recommendation did not specifically
mention the plaintiff’s state law claims, the plaintiff filed no objections to the
recommended dismissal of all claims against all defendants except the excessive force
claims against Miles and Johnson, and he did not move for reconsideration of the
partial dismissal orders.
The plaintiff also did not file any response to the magistrate judge’s
characterization of the remaining claims in this case as being excessive force claims
against defendants Miles and Johnson in a July 1, 2013, Order for Special Report.
(Doc. 12 at 2-3). Nor did he file a response to the defendants’ objections to the
magistrate judge’s summary judgment report and recommendation. In both instances,
the plaintiff was afforded an opportunity to clarify his claims or address the defendants’
objections, but failed to do so. He never has requested reconsideration of the dismissal
of his state law claims.
As such, for the foregoing reasons, to the extent the magistrate judge’s summary
report and recommendation recommends that summary judgment be granted in part and
denied in part as to the plaintiff’s state law claims against the defendants, the report and
recommendation is REJECTED. Pursuant to this court’s orders entered June 10 and
June 17, 2013, the state law claims were dismissed pursuant to 28 U.S.C. § 1915A(b),
and thus were no longer pending after those dates.
The plaintiff’s failure to comply with discovery orders
Defendants Miles and Johnson argue the magistrate judge should have
recommended dismissal of the plaintiff’s case for failure to comply with discovery
orders, or in the alternative, striking the plaintiff’s opposition to the defendants’ special
reports. (Doc. 39 at 17-20; Doc. 40 at 5-8). The history of events giving rise to the
defendants’ motion is as follows. In the July 1, 2013, Order for Special Report, the
plaintiff was instructed that “[w]ithin twenty (20) days after the date of service of the
special report,” he was to file and serve upon the defendants his “initial disclosures,”
which were described as:
The name, employment position or title, and AIS number, if any,
of every person having personal knowledge of the facts relevant to
the claims asserted by the plaintiff or the defenses asserted by the
A clear and legible copy of all documents relevant to the claims or
defenses asserted in the action, including all incident reports,
disciplinary reports, classification or custody records as may bear
directly on the claims or defenses asserted.
A specific and clearly-stated computation of any category of
damages claimed by the plaintiff as a result of the defendant’s
(Doc. 12 at 4).
On August 29, 2013, defendant Miles filed a “Special Report, Initial Disclosures,
and Request that [the] Special Report be Treated as Motion for Summary Judgment.”
(Doc. 18). Defendant Miles also filed a “Motion to Stay Proceedings under the
Servicemembers Civil Relief Act.” (Doc. 19). On August 30, 2013, defendant Johnson
filed a “Special Report, Initial Disclosures, and Request that [the] Special Report be
Treated as Motion for Summary Judgment.” (Doc. 20). Thus, the plaintiff’s ‘Initial
Disclosures’ were due on September 18, 2013, and September 19, 2013.
The plaintiff did not file initial disclosures within the time period allotted.
Instead, on October 10, 2013, the plaintiff filed an “Objection to the Defendants’
Special Report and Answer.” (Doc. 10). In it, he specifically identified two
eyewitnesses by name (David L. Whitaker and Regnald A. Jones), submitted affidavits
from these witnesses as well as his own, and made various legal arguments in support
of his constitutional claims against the defendants. (Id.).
On January 23, 2014, defendant Johnson filed a “Motion and Reply.” (Doc.
27). Johnson requested that the plaintiff’s case be dismissed for lack of prosecution,
and that his objection to the special reports be stricken for failure to submit his initial
disclosures – as specifically described in the Order for Special Report – within the time
period allotted in that order. (Id.).
On January 31, 2014, the magistrate judge denied defendant Johnson’s motion
to dismiss, but noted that the plaintiff had not filed Initial Disclosures, and afforded the
plaintiff ten (10) days from the entry date of the order to do so. (Doc. 29). Five (5)
days later, the magistrate judge granted defendant Miles’s motion to stay based on his
call to active duty in Afghanistan, and the entire case was eventually stayed until
November 26, 2014. (Docs. 30 & 32).
On December 8, 2014, the magistrate judge entered an order construing the
defendants’ special reports as motions for summary judgment, and afforded the plaintiff
twenty (20) days to respond. (Doc. 35). Although the plaintiff requested and was
granted an extension of time to file a response to the defendants’ motions, he did not
do so. Nor has he responded to the defendants’ objections to the magistrate judge’s
summary judgment report and recommendation. He has never filed formal “Initial
Based upon this history, the court finds that defendants are correct that the
plaintiff did not comply with the magistrate judge’s directives regarding initial
disclosures. Nonetheless, the plaintiff is proceeding pro se. While continued violations
of court orders should not be allowed even in the case of a pro se plaintiff, the plaintiff
did set out, in his complaint, the amount of compensatory and punitive damages he
demands for his excessive force/failure to intervene claims. (Doc. 1 at 9). Moreover,
the defendants have long been aware of the identity of the plaintiff’s two witnesses and
have produced medical records pertaining to the plaintiff’s injuries immediately after
the incident. The court finds that complete dismissal of the plaintiff’s case, or the
striking of his objections to the defendants’ special reports, is too severe a sanction for
the plaintiff’s failure to comply with the magistrate judge’s discovery orders at this
time. (Doc. 39 at 17-20; Doc. 40 at 5-8).
Accordingly, these objections are
The excessive force and failure to intervene claims against defendant Miles
Defendant Miles objects to the magistrate judge’s consideration of the plaintiff’s
claim against him under Fourth Amendment excessive force and failure to intervene
standards. (Doc. 39 at 4-6). Miles asserts that he was not given notice to defend
against a failure to intervene claim at any point during the 1915A screening process or
in the Order for Special Report. (Id.). He argues the magistrate judge’s consideration
of the allegations against him under a failure to intervene standard was beyond the
scope of this court’s partial dismissal order and the order for special report. (Id. at 6).
Alternatively, defendant Miles argues that he is entitled to summary judgment with
regard to the plaintiff’s failure to intervene claim. (Doc. 39 at 6-13). He declares that
the facts, as alleged by the plaintiff, show that a failure to intervene claim is not viable.
(Id. at 8). Specifically, defendant Miles asserts that the “plaintiff’s allegations describe
a quick series of events, which transpired in the course of, presumably, a few seconds.”
(Id.). He declares that, in order to state a viable failure to intervene claim, “‘it must .
. . be true that the non-intervening officer was in position to intervene yet failed to do
so.’” (Id.) (quoting Hadley v. Gutierrez,
526 F.3d 1324, 1330-31 (11th Cir. 2008) (emphasis omitted)). Since defendant Miles
declares the plaintiff “describes Officer Johnson’s actions as a quick succession of
blows: ‘three shots to the ribs and two shots to the mouth,’” he argues the plaintiff’s
own allegations establish that he was not in a position to intervene and interrupt
defendant Johnson’s use of excessive force. (Id.).
As stated earlier, the plaintiff is proceeding pro se. While the plaintiff’s claim
against Miles was characterized as an excessive force claim at all times prior to the
magistrate judge’s summary judgment report and recommendation, the historical facts
presented by the plaintiff have never changed, regardless of whether they undergird a
claim of excessive force or failure to intervene. Through his objections to the summary
judgment report and recommendation, defendant Miles has presented legal argument
based on those facts to move for judgment in his favor as to the failure to intervene
claim. Therefore, defendant Miles has not been prejudiced by the lack of notice as to
the failure to intervene claim – either factually or legally. The liberal construction
afforded pro se pleadings is in the plaintiff’s favor because the facts of this case present
a fine distinction between a claim of excessive force and one of failure to intervene.
It is a nuance that should not be held against a pro se plaintiff under the facts of this
case. Accordingly, defendant Miles’s objection to consideration of the failure to
intervene claim is OVERRULED.
This court is required to construe the plaintiff’s version of events (including all
reasonable inferences therefrom) in his favor for purposes of summary judgment.
Defendant Miles points out that the magistrate judge focused more on a failure to
intervene claim than an excessive force claim. Miles moves for judgment in his favor
with regard to the failure to intervene claim because he contends that it should be
presumed that defendant Johnson’s act of punching the plaintiff happened in a few
seconds and was a quick succession of events. But the facts, when construed in the
plaintiff’s favor, do not undisputedly establish that Johnson’s assault began and ended
in such a short period of time (i.e., a quick succession) that defendant Miles had no
opportunity to respond.
Indeed, what defendant Miles requests is for the court to make assumptions in
his favor with regard both to the temporal duration of defendant Johnson’s punches and
that such duration alone establishes that defendant Miles had no opportunity to
intervene. That is not the proper standard of review, and the plaintiff has not made any
allegations to the effect that Johnson’s punches came in a fast barrage. Moreover,
under the scenario presented by the plaintiff, the timetable focused upon by defendant
Miles is not the only material fact at issue. Rather, the plaintiff alleges that defendant
Johnson “laid” on him, and then defendant Miles put his knee on the plaintiff’s neck
while Johnson cuffed him. (Doc. 21 at 6-7). The officers asked the plaintiff “w[h]at
he had,” and the plaintiff replied, “nothing.” (Id.). At that point, defendant Johnson
hit the plaintiff in the ribs three times and in the mouth two times. (Id.).
Questioning the plaintiff after he was cuffed, compliant, and both officers were
on his back and neck, shows that the frenetic events leading to the plaintiff’s tackle and
submission were over, and that the officers were in extremely close proximity to one
another’s bodies. Johnson began hitting the plaintiff after he stated to both defendants
that he had nothing. When these facts are construed in a light most favorable to the
plaintiff, defendant Miles either tacitly joined in the attack against the plaintiff by
continuing to hold his knee to the plaintiff’s neck as defendant Johnson punched the
plaintiff, or failed to intervene in the plaintiff’s behalf after Johnson threw the first
From these facts, a reasonable fact finder could determine either that disputed
issues of material fact exist as to an excessive force claim or a failure to intervene claim
against defendant Miles. These same facts show that defendant Miles is not entitled to
qualified immunity as a matter of law. Accordingly, it is for a jury to decide whether
defendant Miles’s actions constitute either excessive force or a failure to intervene. To
be clear, the motion for summary judgment filed by defendant Miles as to the Fourth
Amendment excessive force and failure to intervene claims against him are DENIED.
Having carefully reviewed and considered de novo all the materials in the court
file, including the summary judgment report and recommendation and the defendants’
objections, the court is of the opinion that the magistrate judge’s report is due to be and
is hereby ADOPTED and his recommendation is ACCEPTED, with the exception of
his consideration of the plaintiff’s state law claims, as those claims were previously
dismissed by this court.
The court EXPRESSLY FINDS that there are genuine disputed issues of
material fact as to the Fourth Amendment excessive force claim against defendant
Johnson and the Fourth Amendment excessive force/failure to intervene claim against
defendant Miles. Accordingly, neither defendant is entitled to judgment as a matter of
law as to those claims. The defendants’ pending motions for summary judgment are
DENIED, and this action is REFERRED to the magistrate judge for further
proceedings consistent with this opinion.
DATED this the 31st day of March, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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