Johnson v. Hobbs et al
ORDER granting 44 Motion for Summary Judgment. Mr. Johnson's 2 Complaint is DISMISSED with prejudice. Mr. Johnson's 52 Motion for Leave to Supplement the Record is DENIED as moot. An in forma pauperis appeal from this Memorandum and Judgment would not be taken in good faith.. Signed by Magistrate Judge Joe J. Volpe on 02/04/2014. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROBERT SINGLETON JOHNSON, JR.
RAY HOBBS, Director, Arkansas
Department of Correction; et al.
MEMORANDUM AND ORDER
Plaintiff, Robert Johnson, Jr., is an inmate in the Arkansas Department of Correction (ADC)
Ouachita River Unit. He filed a pro se Complaint (Doc. No. 2) pursuant to 42 U.S.C. § 1983,
alleging that while at the ADC Grimes Unit, the defendants violated his constitutional rights.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the defendants filed a Motion
for Summary Judgment (Doc. No. 44). Mr. Johnson filed a Response (Doc. No. 50) and the matter
is ripe for a decision.
After careful consideration, the Court finds defendants are entitled to summary judgment as
a matter of law. For the following reasons, the Motion for Summary Judgment is GRANTED and
Mr. Johnson’s Complaint is DISMISSED.
On August 3, 2010, while working in Grimes Housing Unit 4, Officer Sorrells observed an
altercation between Mr. Johnson, an African American, and Randal Stormes, a white inmate. (Doc.
No. 45-2 at 24.) Following the incident, each inmate was asked to write a witness statement. (Doc.
No. 45 ¶ 7.) Mr. Johnson wrote, “I do not wish to make a statement as statements tend to have an
adverse affect on the one making them.” (Id. ¶ 8.) Officer Sorrells issued major disciplinaries to
both inmates. (Doc. No. 45 ¶ 5.) He charged Stormes with two violations - creating unnecessary
noise and provoking or agitating a fight. (Id. ¶ 14.) He charged Johnson with those charges and with
battery and use of force on another inmate, because he had observed Johnson throwing punches in
the altercation. (Doc. No. 45 ¶ 10; Doc. No. 45-2 ¶ 10.)
Disciplinary hearings were held on August 9, 2010 before Hearing Officer Chad Davis.
(Doc. No. 45 ¶¶ 12, 15, 30). Mr. Johnson waived attendance at his hearing. (Doc. No. 45, ¶ 12).
He was found guilty of all three charges and sentenced to thirty days punitive isolation and reduced
to Class IV status. (Id.)
Mr. Stormes attended his hearing. (Id. ¶ 15). He stated, “Robert Johnson came out of his
cell and was trying to start an argument. I was hollering and getting away. He started throwing
punches.” (Id. ¶ 16.) Stormes was found guilty only of creating unnecessary noise and sentenced
to ten days restriction of commissary, phone, and visitation and reduced to Class IV status. (Id. ¶
In his Complaint, Mr. Johnson asserts that the additional charge and harsher punishment
violated his equal protection rights. (Doc. No. 2.)
STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if
the pleadings, depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex v. Catrett, 477 U.S. 317,
321 (1986). When ruling on a motion for summary judgment, the Court must view the evidence in
a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th
Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the
existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825
(8th Cir. 2007). The nonmoving party’s allegations must be supported by sufficient probative
evidence that would permit a finding in his favor on more than mere speculation, conjecture, or
fantasy. Id. (citations omitted). A dispute is genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact is material if its resolution affects the
outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012).
Disputes that are not genuine or that are about facts that are not material will not preclude summary
judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).
Official Capacity Claims
Defendants argue that Mr. Johnson’s official capacity claims for money damages are barred
by the doctrine of sovereign immunity. (Doc. No. 46 at 10.) Mr. Johnson disagrees. (Doc. No. 50
Defendants were employees of ADC (Doc. No. 45 ¶ 4) and ADC is an administrative agency
of the State of Arkansas. (Id. ¶ 3.) A suit against a state official in his or her official capacity is not
a suit against the official but rather is a suit against the state. See Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989). The State of Arkansas and its agencies are immune under the
Eleventh Amendment from suits under § 1983. See Murphy v. State of Ark., 127 F.3d 750, 754 (8th
Cir. 1997). Although a state may waive its immunity, the State of Arkansas has not waived its
sovereign immunity. See Doe v. Nebraska, 345 F.3d 593, 597 (8th Cir. 2003); Burk v. Beene, 948
F.2d 489, 493 (8th Cir. 1991). Mr. Johnson’s claims for monetary damages against the defendants
in their official capacity are barred by the doctrine of sovereign immunity and are, therefore,
In their Motion for Summary Judgment, the defendants state that Mr. Johnson asserts liability
against Warden Maples based on his status as Warden at the Grimes Unit and against Director Hobbs
based on his position as ADC Director. (Doc. No. 46 at 8.) Mr. Johnson admits that he seeks to
hold these defendants liable based on their supervisory positions. (Doc. No. 50 at 15-17.)
Supervisors cannot be held liable under § 1983 on a theory of respondeat superior or
supervisor liability. See Briscoe v. County of St. Louis, Missouri, 690 F.3d 1004, 1011 (8th Cir.
2012); Luckert v. Dodge County, 684 F.3d 808, 817 (8th Cir. 2012). A supervisor can only be held
liable for their personal involvement in a constitutional violation, or when their corrective inaction
amounts to deliberate indifference to or tacit authorization of the violative practices. Luckert, 684
F.3d at 817.
Mr. Johnson responds that prior to the August 3 incident, he put Warden Maples and Director
Hobbs on notice that racial misconduct was occurring at the Grimes Unit. (Doc. No. 50 at 15-17.)
He asserts that his prior complaints establish that Warden Maples and Director Hobbs not only knew
about the racial misconduct at the unit but facilitated and approved it. To defeat the properly
supported Motion for Summary Judgment, Mr. Johnson cannot rely on unsupported conclusory
allegations and must present affirmative evidence. See Celotex Corp. V. Catrett, 477 U.S. 317, 324325 (1986); Dunavant v. Moore, 907 F.2d 77, 80 (8th Cir. 1990). In the absence of such evidence,
Mr. Johnson fails to create an issue of fact for trial. Defendants Maples and Hobbs cannot be held
liable on a theory of respondeat superior and they are entitled to summary judgment as a matter of
Mr. Johnson makes a disparate treatment claim regarding the different disciplinary charges
and punishments he received as compared to a white inmate involved in the same conduct. (Doc. No.
50 at 1.) Specifically, Mr. Johnson was charged and found guilty of three violations while the white
inmate was charged with two violations and found guilty of one. (Id.)
Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment
from invidious discrimination based on race. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963
(1974). To state a claim of racial discrimination, the prisoner must show that similarly situated
inmates were treated differently and that this difference in treatment bears no rational relation to any
legitimate penal interest. See Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998); Abdullah v.
Gunter, 949 F.2d 1032, 1037 (8th Cir. 1991). Dissimilar treatment of dissimilarly situated persons,
does not violate equal protection. Klinger v. Dep’t of Corrs., 31 F.3d 727, 731 (8th Cir. 1994). Thus
the initial inquiry in analyzing Mr. Johnson’s equal protection claim is determining whether he and
Mr. Stormes are similarly situated. U.S. v. Whiton, 48 F.3d 356, 358 (8th Cir. 1995). Absent a
threshold showing that he and Stormes are similarly situated, Mr Johnson does not have a viable
equal protection claim. Klinger, 31 F.3d at 731.
On their face, Mr. Johnson’s allegations are concerning. However, defendants offer
compelling evidence that Johnson and Stormes are not similarly situated. (Doc. No. 46 at 6.)
Defendants submitted Mr. Johnson’s deposition testimony and declarations from Officer Sorrells and
Hearing Officer Davis. (Doc. Nos. 45-1 to 45-3.) After a close review of the undisputed facts, the
Court finds that Johnson and Stormes are not similarly situated. Officer Sorrells observed only
Johnson throwing punches during the altercation and, therefore, Johnson and Stormes were not
equally charged. (Doc. No. 45-2 ¶ 10; Doc. No. 45-3 ¶¶ 4, 17.) Throwing punches is considered
a more serious charge than creating unnecessary noise. (Doc. No. 45-2 ¶ 11; Doc. No. 45-3 ¶ 4.)
Further, Mr. Johnson admits he was the only one throwing punches and throwing punches is the
more serious offense. (Doc. No. 45-1 at 93, 95-96.)
Mr. Johnson’s charges and resulting punishment were based on his conduct during the
altercation. (Doc. No. 45-2 ¶ 15; Doc. No. 45-3 ¶ 25.) And his defense of his charges differed
greatly to that of Mr. Stormes. As such, Johnson and Stormes are dissimilarly situated persons who
received dissimilar treatment. For these reasons, the Court finds that Mr. Johnson fails to state a
viable equal protection claim against the defendants and they are entitled to summary judgment as
a matter of law.
Additionally, the Court has considered Mr. Johnson’s argument that because he and Stormes
have a history of fighting, they should be considered similarly situated. While this creates a
similarity, to satisfy the threshold requirement Mr. Johnson must establish that he and Mr. Stormes
are similarly situated in all relevant aspects. See Carter v. Ark., 392 F.3d 965, 969 (8th Cir. 2004).
This is not the case. Therefore, his argument is without merit.
The defendants also assert they are entitled to qualified immunity. Qualified immunity
shields government officials performing discretionary functions from liability for damages “insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified
immunity is a question of law, not a question of fact. McClendon v. Story Cnty. Sheriff’s Office, 403
F.3d 510, 515 (8th Cir. 2005). Thus, issues concerning qualified immunity are appropriately
resolved on summary judgment. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (the privilege is
“an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to trial”).
To determine whether a defendant is entitled to qualified immunity, the courts generally
consider two questions: (1) whether the facts alleged or shown, construed in the light most favorable
to the plaintiff, establish a violation of a constitutional or statutory right; and (2) whether that right
was so clearly established that a reasonable official would have known that his or her actions were
unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009); see also Saucier v. Katz, 533 U.S. 194,
201 (2001).1 “Qualified immunity is appropriate only if no reasonable fact-finder could answer yes
to both of these questions.” Nelson v. Corr. Med. Services, 583 F.3d 522, 528 (8th Cir. 2009).
The United States Supreme Court precedent establishes:
[T]he right the official is alleged to have violated must have been ‘clearly
established’ in a more particularized, and hence more relevant, sense: The contours
of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in question has previously
been held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
For the reasons discussed above, the Court finds that Mr. Johnson fails to establish that the
defendants violated his constitutional rights. They are, therefore, entitled to qualified immunity.
Motion for Leave to Supplement the Record (Doc. No. 52)
In support of his Response, Mr. Johnson submitted several exhibits. (Doc. No. 51.) Instead
of being docketed with his Response and Brief In Support (Doc. No. 50), the exhibits were docketed
with his Response to Defendants’ Statement of Facts (Doc. No. 51). He now seeks an order
correcting the matter. The Court finds this error to have no affect on its resolution of the Motion for
Summary Judgment. Mr. Johnson’s Motion for Leave to Supplement the Record (Doc. No. 52) is,
therefore, DENIED as moot.
Courts are “permitted to exercise their sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Nelson, 583 F.3d at 528 (quoting Pearson, 555 U.S. at 236).
IT IS, THEREFORE, ORDERED that:
Defendants’ Motion for Summary Judgment (Doc. No. 44) is GRANTED.
Mr. Johnson’s Complaint (Doc. No. 2) is DISMISSED with prejudice.
Mr. Johnson’s Motion for Leave to Supplement the Record (Doc. No. 52) is DENIED
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis
appeal from this Memorandum Order and the accompanying Judgment would not be taken in good
ORDERED this 4th day of February, 2014.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
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