Johnson v. City of Birmingham
| Decision Date | 24 August 2012 |
| Docket Number | Case No.: 2:10-CV-2836-VEH |
| Parties | TIMOTHY JEROME JOHNSON, Plaintiff, v. BIRMINGHAM, CITY OF, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
This case stems from the October 20, 2008, arrest of Plaintiff, Timothy Jerome Johnson ("Plaintiff") by City of Birmingham police officer Christopher Hutchinson ("Officer Hutchinson"). The Plaintiff has sued both Officer Hutchinson (individually and in his official capacity) and the City of Birmingham ("City") (hereinafter, Officer Hutchinson and the City are collectively referred to as "Defendants") under 42 U.S.C. § 1983. Plaintiff sued Officer Hutchinson for violating his Constitutional rights in that: Officer Hutchinson illegally detained and illegally searched Plaintiff (Count III); Officer Hutchinson illegally arrested Plaintiff (Count I); and Officer Hutchinson used excessive force (Counts I and IV). Plaintiff also is suing Officer Hutchinson underAlabama state law for these acts (negligent, reckless, wanton, intentional and/or malicious: unlawful search, unlawful detention, unlawful arrest, unlawful imprisonment, and excessive force (¶ 20); negligent and/or intentional infliction of emotional distress (¶ 21)) (Count VI). Plaintiff sued the City for violating his Constitutional rights in that: Plaintiff was illegally confined by the City at the Birmingham City Jail (Count II); the City is liable because Officer Hutchinson's actions were carried out according to policies, customs, and practices approved, endorsed, or ratified by the City (Count V); the City is liable because Officer Hutchinson was inadequately trained and supervised (Count V); and the City is liable under state law for Officer Hutchinson's acts by virtue of respondeat superior (¶ 22), because Officer Hutchinson's acts were according to approved customs, policies, and practices of the City (¶ 23), and because the City failed to properly train and supervise Officer Hutchinson (¶ 24)(Count VI).
On January 18, 2012, Defendants filed a Motion for Summary Judgment. (Docs. 20, 21). On February 25, 2012, Plaintiff filed a response to Defendants' Motion for Summary Judgment. (Doc. 25) On June 22, 2012, Chief Magistrate Judge Paul W. Greene entered a Report and Recommendation granting Summary Judgment to the Defendants on all of Plaintiff's claims. On June 22, 2012, Judge Greeneentered an order reassigning the matter to the undersigned. (Doc. 31)
Objections to the Report and Recommendation were due by July 9, 2012. (Doc.30). The Plaintiff failed to file timely objections. On July 11, 2012, the undersigned entered an Order adopting the Report and Recommendation and also entered a Final Judgment ordering that the case be dismissed with prejudice. (Docs. 32, 33).
On July 12, 2012, the Plaintiff filed a Motion to Set Aside the Judgment. (Doc. 34). On July 16, 2012, the court ordered the Plaintiff to file specific objections to the Report and Recommendation. On July 25, 2012, the Plaintiff filed objections to the Report and Recommendation. (Doc. 35). On July 27, 2012, Defendants responded to Plaintiff's Motion and Objections. (Doc. 37).
While no party discusses what rule or legal standard applies to Plaintiff's Motion, Plaintiff's proffered reason for setting aside the summary judgment and order of dismissal is "inadvertent error." (Motion, Doc. 34, ¶ 2). Therefore, the court treats the Motion as having been brought under FED. R. CIV. P. 60(b)(1).
Under Rule 60(b)(1), the court may relieve a party from a Final Judgment or Order for "mistake, inadvertence, surprise, or excusable neglect." A motion underRule 60(b)(1) must be made within a reasonable time and, in any event, no more than a year after the entry of a judgment or order or the date of the proceeding. Defendants have not asserted that Plaintiff's proferred reason of inadvertent error is insufficient, nor have they otherwise opposed the court's consideration of Plaintiff's objections on the merits. Therefore, to the extent that Plaintiff's Motion asks this court to reopen the case and consider Plaintiff's objections to Judge Greene's Report and Recommendation, the Motion is due to be granted as unopposed. Plaintiff's objections will be considered by the court on the merits.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted). A district judge must review legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry., 37 F.3d 603, 604 (11thCir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff'd 28 F.3d 116 (11th Cir. 1994).
That said, the court also acknowledges the principle that "[n]either the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (citation omitted). Moreover, absent specific objections, there is no requirement that a district judge review factual findings de novo. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993) () (emphasis in original) (citations omitted).
Additionally, it is incumbent upon the parties to raise before the district court any objections that they may have regarding a magistrate judge's findings contained in a report and recommendation, as the failure to do so subsequently waives or abandons the issue, even if such matter was presented at the magistrate judge level. See, e.g., United States v. Pilati, 627 F.3d 1360, 1364 (11th Cir. 2010) ( )
The Eleventh Circuit has summarized the summary judgment burden, including when a defendant seeks judgment as a matter of law on the basis of an affirmative defense, as follows.
Summary judgment is appropriate "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). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to "come forward with specific facts showing that there is a genuine issue for trial." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quotations and emphasis omitted). If the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense. See Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir.2003).
Int'l Stamp Art, Inc. v. U.S. Postal Serv., 456 F.3d 1270, 1273-74 (11th Cir. 2006).
Initially, the court notes that Plaintiff did not object to Judge Greene's grant of summary judgment to the City as to Plaintiff's claims (whether under Section 1983 or state law) against it. Therefore, summary judgment is due to be granted in favorof the City as to all of Plaintiff's claims. The court will now turn to the matters that Plaintiff did object to: the grant of qualified immunity to Officer Hutchinson concerning Counts I, II, III, and IV and the grant of discretionary function immunity to Officer Hutchinson on Plaintiff's state law claims (Count VI).1
Plaintiff objects to Judge Greene's factual finding that Plaintiff has an "extensive criminal record." (Objections, Doc. 35, ¶ 1.) Because, as Defendants point out (see Doc. 37, p. 3), this finding is immaterial to any finding by Judge Greene or this court, the court sustains Plaintiff's objection to this factual finding.2
A state official is entitled to qualified immunity from a suit for money damages unless the plaintiff demonstrates that (1) the official violated a constitutional right (2) that was clearly established at the time the challenged conduct occurred. Ashcroft v. al-Kidd, 563 U.S. ——, 131 S.Ct. 2074, 2080 (2011). The Supreme Court has said that courts may consider these questions in any order. Id.
"Only if a cognizable violation is shown does the court proceed to determine whether defendant is entitled to immunity." 13D Charles Alan Wright, et al., Federal Practice & Procedure § 3573.3 n. 65 (3d ed.2008) (citing Moore v. Andreno, 505 F.3d 203, 208 n. 5 (2d Cir.2007)). "If there is no constitutional violation, then the plaintiff's § 1983 claim fails as a matter of law and the defendant is therefore entitled to summary judgment and does not need qualified immunity." Marvin v. City...
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