Johnson v. City of Gulfport et al

Filing 72

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 63 Report and Recommendations. Motion to Dismiss 22 and Motion to Dismiss 24 are granted. Any remaining pending motion is denied. Signed by District Judge Louis Guirola, Jr on 1/5/18 (PKS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DARYL FITZGERALD JOHNSON, #81916
v.

PLAINTIFF
CAUSE NO. 1:16CV286-LG-RHW

THE CITY OF GULFPORT, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING CASE
BEFORE THE COURT is the [63] Report and Recommendation of U.S.
Magistrate Judge Robert H. Walker, in which he examines several motions and
concludes that the defendants are entitled to summary judgment and this case
should be dismissed. Plaintiff Daryl Johnson has filed objections to Magistrate
Judge Walker’s findings and conclusions. The Court has reviewed the Report and
Recommendation, the plaintiff’s objections, the record in this case and the relevant
law, and finds that Magistrate Judge Walker’s findings and conclusions should be
adopted as those of this Court. As a result, this case will be dismissed.
BACKGROUND
Plaintiff Johnson has been an inmate in the Mississippi Department of
Corrections since his conviction for delivery of controlled substances in 2016. He
complains in this lawsuit of actions taken by the City of Gulfport prior to his
incarceration. Specifically, he was charged in 2010 with selling beer without a
permit, and in 2012 police officers kicked in the doors of his office and of his renters.
Johnson alleges that the City has attempted to close his business down several
times by causing him to default on his property taxes and using street repairs to

prevent customer access to his store for a year. Johnson complains that Gulfport
police officers continued to try to close his business by investigating his drug
activities in 2014, which led to his arrest and indictment. Johnson alleges that in
2015 police officers demanded to know whether he was going to plead guilty to the
charges. According to Johnson, an officer stated that he knew it was not Johnson on
the video of the drug transaction, but he had orders to close Johnson down, even if it
took locking him up. After a jury trial, Johnson was convicted of two counts of
transfer of controlled substances in March 2016.
DISCUSSION
1. The Magistrate Judge’s Resolution of the Dispositive Motions
The City moved for dismissal or summary judgment on the grounds that the
claims regarding City actions in 2010 and 2012 are barred by the statute of
limitations, and the remaining claims surrounding Johnson’s arrest and conviction
are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and cannot support a
municipal liability claim under 42 U.S.C. § 1983. Under Heck, a prisoner has “no
cause of action under § 1983 unless and until the conviction or sentence is reversed,
expunged, invalidated, or impugned by the grant of a writ of habeas corpus.”
Heck, 512 U.S. at 489. The individual Gulfport officers moved for dismissal or
summary judgment on similar grounds. They contended that the false arrest and
imprisonment claims against them are barred by Heck, and accordingly Johnson
cannot show violation of a federally secured right to overcome their qualified
immunity.
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The Magistrate Judge construed the motions as summary judgment motions
under Fed. R. Civ. P. 56 and noted that Johnson’s responses simply repeated the
allegations of his complaint. Johnson attached documentation to his responses
which, although generated by himself or his attorney, supports his argument that
he was improperly charged and wrongly convicted. Magistrate Judge Walker
examined the evidence provided by all parties and determined that the City’s
motion should be granted because 1) the three-year statute of limitations at
Mississippi Code § 15-1-49 barred any claim arising from actions occurring in 2010
and 2012; 2) Johnson did not show that his criminal convictions have been
invalidated or set aside, and therefore Heck v. Humphrey bars any relief on the false
arrest and imprisonment claims; and 3) Johnson’s allegations that the City
negligently hired racist and unprofessional police officers and failed to train them in
facial recognition do not support municipal liability claims under § 1983.
Judge Walker determined that the individual officers’ motion should be
granted because all of Johnson’s claims against them arose when Johnson was
arrested, charged, and convicted of the drug charges. Johnson cannot show that his
convictions have been invalidated or set aside, and therefore Heck bars any relief.
See Heck, 512 U.S. at 486 (civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments). As a result, Johnson
cannot overcome the individual officers’ entitlement to qualified immunity.
Magistrate Judge Walker also determined that Johnson’s motion for
preliminary injunction should be denied, and that the various motions to strike
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should be held moot or denied.
2. The Standard of Review
Johnson filed an objection to the Magistrate Judge’s findings and conclusions.
The Court must review any objected-to portions de novo. See Kreimerman v. Casa
Veerkamp, S.A. de C.V., 22 F.3d 634, 646 (5th Cir. 1994); Longmire v. Guste, 921
F.2d 620, 623 (5th Cir. 1991). Such a review means that the Court will consider the
record which has been developed before the Magistrate Judge and make its own
determination on the basis of that record. United States v. Raddatz, 447 U.S. 667,
675 (1980). The Court need not, however, conduct a de novo review when the
objections are frivolous, conclusive, or general in nature. Battle v. U. S. Parole
Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). No factual objection is raised when a
petitioner merely re-urges arguments contained in the original petition. Edmond v.
Collins, 8 F.3d 290, 293 (5th Cir. 1993).
3. Johnson’s Objections
Johnson’s objections concern the two summary judgment motions. He argues
that the Magistrate Judge should not have granted summary judgment to the
defendants because he was “denied a chance to object to the summary judgment or
[properly] object to qualified immunity.” (Pl. Obj. 1, ECF No. 65). He contends that
he is entitled to immunity-related discovery before the Court rules on a motion
based on the defense of qualified immunity. Although he cites to Uniform Local
Rule 16(3), the provisions of that rule make immunity-related discovery a matter of

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the Court’s discretion. The rule states that:
Filing a motion to compel arbitration, or a motion asserting an
immunity defense or jurisdictional defense stays the attorney
conference and disclosure requirements and all discovery, pending the
court's ruling on the motion, including any appeal. Whether to permit
discovery on issues related to the motion and whether to permit any
portion of the case to proceed pending resolution of the motion are
decisions committed to the discretion of the court, upon a motion by
any party seeking relief.
L. U. Civ. R. 16(B). There is no automatic entitlement to discovery, nor is there a
requirement that the movant submit a proposed order granting discovery as
Johnson argues. Given the straight forward nature of the qualified immunity
defense in this case, the Magistrate Judge did not abuse his discretion by not
allowing limited discovery before taking up the individual officers’ motion. The
Court overrules this objection.
In regard to his assertion that he was not served with the summary judgment
motions and did not have a chance to respond, (Pl. Obj. 1, ECF No. 65), the Court
notes that Johnson filed timely responses to both motions, referring to the
respective motions and attaching his own evidence. (See ECF Nos. 26, 27). This
objection is without merit and is overruled.
The remainder of Johnson’s objection consists of a restatement of his
arguments that he was improperly charged and wrongfully convicted of the drug
charges. The fact that his convictions have not been invalidated or set aside
prevented the Magistrate Judge from considering any of these arguments. The
Magistrate Judge properly concluded that Heck v. Humphrey prohibits Johnson’s

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attempt to attack his criminal conviction through this civil lawsuit.
CONCLUSION
Having reviewed the entire Report and Recommendation, de novo where
necessary, the Court finds it proper and neither clearly erroneous nor contrary to
law. The Magistrate Judge correctly concluded that Johnson’s motion for
preliminary injunction should be denied and the summary judgment motions should
be granted and this case dismissed. The Report and Recommendation will be
adopted as the findings and conclusions of this Court.
IT IS THEREFORE ORDERED AND ADJUDGED that the Report and
Recommendation [63] of United States Magistrate Judge Robert H. Walker entered
in this cause on November 17, 2017, should be, and the same hereby is, adopted as
the findings of this Court.
IT IS FURTHER ORDERED AND ADJUDGED that the [22] Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12 and/or Fed. R. Civ. P. 56 by City of Gulfport
is GRANTED, and the [24] Motion to Dismiss Pursuant to Fed. R. Civ. P. 12 or
Fed. R. Civ. P. 56 and for Other Relief by Adam Gibbons, Nicholas Olds, and Joey
Wuest is GRANTED. Plaintiff’s claims arising from actions occurring in 2010 and
2012 are dismissed with prejudice. Plaintiff’s remaining claims are dismissed
without prejudice to his ability to reassert them in the event that his criminal
convictions are invalidated or set aside.
IT IS FURTHER ORDERED AND ADJUDGED that any remaining
pending motion is DENIED.
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SO ORDERED AND ADJUDGED this the 5th day of January, 2018.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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