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Johnson v. Milliner

United States District Court, S.D. Alabama, Southern Division

November 4, 2014


Page 1296

For Marcus Johnson, Plaintiff: Henry Brewster, LEAD ATTORNEY, Henry Brewster, LLC, Mobile, AL; Peter S. Mackey, LEAD ATTORNEY, Burns, Cunningham & Mackey, Mobile, AL.

For Chuck Milliner, Defendant: K. Paul Carbo, Jr., The Atchison Firm, Mobile, AL.

Page 1297



This action is before the Court on the Motion for Summary Judgment filed by defendant Chuck Milliner, plaintiff Marcus Johnson's response in opposition, and defendant's reply (docs. 26-29, 33-34, 37). Upon consideration, and for the reasons set forth herein, the Motion for Summary Judgment is DENIED.

I. Background

Plaintiff Marcus Johnson brings this civil action alleging that he was denied his constitutional rights while incarcerated in the Mobile Metro Jail. Johnson alleges that defendant Corporal Chuck Milliner (Milliner), for no justifiable reason, tasered him in the eye and chest while he was standing on the stairs in the Jail. Johnson alleges that he was rendered unconscious by the tasing, fell down the stairs, fractured his skull and lost sight in his eye.

In Count One, brought pursuant to 42 U.S.C. § 1983, Johnson alleges that Milliner used excessive force and violated his Fourteenth Amendment Due Process rights to be free from cruel and unusual punishment. In Count Two, brought pursuant to state law, Johnson alleges that Milliner committed an assault and battery upon him. Johnson invokes this Court's supplemental jurisdiction over his state law claim.

II. Standard of Review

" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Rule 56(c) governs procedures and provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c).

A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)

Page 1298

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

The mere existence of a factual dispute will not automatically necessitate denial; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004). " An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is genuine if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en banc) (citation omitted).

If a non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. In reviewing whether a non-moving party has met its burden, the Court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted).

III. Facts[1]

The parties do not dispute that at all relevant times, Johnson was a pre-trial detainee incarcerated in the Mobile Metro Jail, that Milliner was employed as a Corrections Corporal at the Jail who had been assigned as the Pod Officer for the pod that included the wedge where Johnson was held, and that Susan Combs was employed as the Floor Officer for Johnson's wedge.

The parties do not dispute that Milliner fired the taser at Johnson while he was standing on the stairwell to the second level of the wedge. One prong hit Johnson in the left mid-epigastrum and the other hit his left eye. Although there is some discrepancy as to whether Johnson fell from the top of the stairs or from the middle, he fell from the stairs to the floor and was injured by both the taser prongs and his fall. He received head injuries, injury to his eye, and a broken tooth. He now has residual migraines and permanent vision loss in his left eye. Johnson required medical treatment and was hospitalized for a week. He had one more hospitalization for migraines.

There is no dispute of fact that Milliner was trained on the use of a taser and had knowledge of the Sheriff's Department's Standard Operating Procedures (SOP) for use of a taser and use of force. Milliner was also aware of the Department's SOP's for placement and duties of its officers in the pod and wedge and the procedure when they left their respective positions.

After the tasering incident, Milliner completed a use of force incident report and Lieutenant Veronica Wilcox investigated the incident. Wilcox submitted a report to Deputy Warden Robert Houston who recommended to Warden Noah Oliver that a pre-disciplinary hearing be held. At the ...

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