Johnson v. US

• Citation: 816 F. Supp. 1519
• Decision Date: 04 February 1993
• Docket Number: No. CV 92-B-700-S.,CV 92-B-700-S.
• Parties: Woodrow JOHNSON, Plaintiff, v. UNITED STATES of America; Bureau of Prisons; D.J. Southerland; Mr. Sprayberry; Ed Moragne; Eva Porter; and Terri Anne Moore, Defendants.
• Court: U.S. District Court — Northern District of Alabama

816 F. Supp. 1519

Woodrow JOHNSON, Plaintiff, v. UNITED STATES of America; Bureau of Prisons; D.J. Southerland; Mr. Sprayberry; Ed Moragne; Eva Porter; and Terri Anne Moore, Defendants.

No. CV 92-B-700-S.

United States District Court, N.D. Alabama, S.D.

February 4, 1993.

Woodrow Johnson, Talladega, AL, pro se.

Jack W. Selden, Winfield J. Sinclair, U.S. Attorney's Office, Birmingham, AL for defendants.

ORDER

BLACKBURN, District Judge.

The magistrate judge filed his report and recommendation on December 10, 1992, recommending that the defendants' motion for summary judgment in this cause be granted. The plaintiff has filed objections to the magistrate judge's report and recommendation.

Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the petitioner's objections thereto, 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. Accordingly, the court EXPRESSLY FINDS that there are no genuine issues of material fact and that the defendants are entitled to judgment as a matter of law. Their motion for summary judgment, therefore, is due to be and the same is hereby GRANTED, and this action is DISMISSED.

REPORT AND RECOMMENDATION

PUTNAM, United States Magistrate Judge.

The plaintiff, Woodrow Johnson, is a federal prisoner incarcerated at the Federal Correctional Institute (FCI) in Talladega, Alabama. The plaintiff instituted this pro se action on March 25, 1992, pursuant to the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2674, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and 28 U.S.C. § 1331, wherein he alleges that he has been deprived of his constitutional rights by the actions of the following defendants: the United States of America, Bureau of Prisons ("BOP"), Warden D.J. Southerland, Hospital Administrator Mr. Sprayberry, Unit Manager Ed Moragne, Case Manager Eva Porter, and Unit Counselor Terri Anne Moore. The defendants are being sued in both their individual and their official capacities. The plaintiff seeks injunctive relief and monetary damages in the amount of $250,000. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1)(B), the complaint was referred to the undersigned magistrate for a preliminary review and recommendation.

Pursuant to the court's order to show cause, the respondents filed their special report on August 14, 1992, attaching exhibits and the declarations of Roger Scott, Edward Moragne, Eva Porter, and Terri Anne Moore. In support of the special report, the defendants filed additional declarations of Kenneth P. Moritsugu, M.D., M.P.H., and D.J. Southerland. By order of September 4, 1992, the parties were notified that the special report filed by the respondents would be construed as a motion for summary judgment, and the petitioner was notified of the provisions and consequences of Rule 56 of the Fed.R.Civ.P. The plaintiff filed a response on September 25, 1992, stating substantially the same issues and arguments presented in his complaint.

The plaintiff contends that the defendants violated the Eighth Amendment of the Constitution by housing him in the same cell with an inmate who was dying from acquired immune deficiency syndrome (AIDS). The plaintiff claims that his former cellmate tampered with his toothbrush, toothpaste, and razor blade; in addition, on several occasions, he observed his cellmate's blood on their sink, toilet and towels. The plaintiff alleges that during the last few days prior to his cellmate's death, he was forced to feed and "sanitize" him. The plaintiff's cellmate died on July 10, 1990, shortly after he was transferred from the Talladega FCI. Although the plaintiff does not allege that he contracted AIDS from sharing facilities with his AIDS infected cellmate, he fears that he may have contracted it from him; he complains that he was damaged psychologically because he was subjected to witnessing his cellmate's deteriorating condition. Plaintiff tested negative for the human immunodeficiency virus (HIV) in July 1990, April 1991, and June 17, 1992.

SUMMARY JUDGMENT STANDARD

Because the court is treating the special report from the defendants as a motion for summary judgment, the court must determine whether there are any genuine issues of material fact and whether the moving defendants are entitled to judgment as a matter of law. Summary judgment may be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See F.R.Civ.P. 56. In making that assessment, the court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. See Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). Once that initial burden has been carried, however, the non-moving party may not merely rest upon his pleading, but must come forward with evidence supporting each essential element of his claim. See Celotex Corporation v. Catrett, supra; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial and the moving party is entitled to judgment as a matter of law. See Celotex Corporation v. Catrett, supra; Bennett v. Parker, 898 F.2d 1530 (11th Cir.1990). As the Eleventh Circuit has explained:

Facts in dispute cease to be "material" facts when the plaintiff fails to establish a prima facie case. "In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure to proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Citation omitted. Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.

Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir.1990).

OFFICIAL CAPACITIES

The United States of America, Bureau of Prisons, and the individual defendants in their official capacities assert the bar of sovereign immunity. It is well established that under the doctrine of sovereign immunity, "it is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983); United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). "A suit is considered to be against the sovereign if `the judgment sought would expend itself on the public treasury or domain.'" Clarke v. United States, 691 F.2d 837, 839 (7th Cir.1982) (quoting Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947)). Federal courts have no jurisdiction to consider monetary claims against the United States absent an unequivocal expressed waiver. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). The Federal Tort Claims Act is a limited waiver of sovereign immunity. Under the FTCA, the only proper defendant is the United States of America. 28 U.S.C. § 2679(b)(1) and (d)(1). Therefore, the Bureau of Prisons and the individual defendants in their official capacities are due to be dismissed.

The plaintiff contends that the United States is liable under the FTCA because it is the "creator of the laws that created the conditions plaintiff was subdued to" and thus, violated his Eighth Amendment. The United States is liable for the "negligent or wrongful act or omission" of its employees but that liability "does not extend or apply to a civil action ... which is brought for a violation of the Constitution of the United States." 28 U.S.C. § 2679(b)(1) and (b)(2)(A). Accordingly, the United States is due to be dismissed as a defendant because the plaintiff contends that the United States violated his Eighth Amendment right to be free from cruel and unusual punishment.

Furthermore, the FTCA permits recovery in tort only "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674. The United States Supreme Court held that:

an action under FTCA exists only if the State in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward. 28 U.S.C. § 1346(b) (United States liable "in accordance with the law of the place where the act or omission occurred.").

Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 1474, 64 L.Ed.2d 15 (1980). Under Alabama law, the tort of negligent infliction of mental distress is not recognized. Allen v. Walker, 569 So.2d 350, 352 (Ala.1990). Accordingly, the United States of America, Bureau of Prisons, and the individual defendants in their official capacities are due to be dismissed.

CRUEL AND UNUSUAL PUNISHMENT

Under Bivens, supra, a cause of action exists against federal officials individually for violations of a person's constitutional rights. It is the duty of prisons to furnish prisoners with "reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety."...