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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID L. JOHNSON, )

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Plaintiff,

vs. CIVIL ACTION NO. 11-228-CG-C

PENTON ASHWORTH, et al.,

Defendants

ORDER

This matter is before the Court on the Report and Recommendation of the 

Magistrate Judge (Doc. 248), and Plaintiff David L. Johnson’s objections to the 

Report and Recommendation. (Doc. 249). After careful consideration of all relevant 

portions of this file, and a de novo review of those portions of the recommendation to 

which objection is made, the Court adopts the Report and Recommendation, with 

the following additional discussion.

I. Background

There are multiple defendants in this case, but this matter concerns 

defendants Donald Bell and Christopher Mummert. Plaintiff alleges Bell and 

Mummert failed to intervene during an incident at the Holman Correctional 

Facility in Atmore, Alabama on December 31, 2010. (Docs. 111, 155). On that date, 

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Plaintiff says he refused medical treatment, which caused defendants Kevin Dunn 

and Penton Ashworth to become aggressive and assault him. (Doc. 155, pp. 3 – 4).

Specifically, Plaintiff claims Ashworth sprayed him twice with a chemical agent 

called Sabre Red. (Doc. 155, p. 4). Defendants Roger Marsh, James Pate, James 

English, Mummert and Bell then tackled Plaintiff, pinned him on the ground, and 

handcuffed him. (Doc. 155, pp. 2, 4). Dunn kicked and punched Plaintiff in the face

while he was lying on the ground. (Doc. 155, p. 4). The resulting injuries were so 

severe Plaintiff needed medical treatment at a free world hospital. (Doc. 155, p. 5). 

Defendants then attempted to conceal what occurred by saying Plaintiff’s injuries 

arose from a brachial stun technique, and that he hit his face on the ground when 

they tackled him. (Doc. 155, p. 5). Because of the assault and attempted cover-up, 

the Alabama Department of Corrections fired or forced Bell and Mummert to resign.

(Doc. 155, p. 5). 

After these events, Plaintiff initiated this lawsuit on May 6, 2011. (Doc. 1). 

Defendants Mummert and Bell failed to answer the complaint or otherwise appear

in this case. Subsequently, the Court entered a default judgment against Bell on 

July 12, 2012. (Doc. 110). The Court also entered a default judgment against 

Mummert on January 30, 2013. (Doc. 197). On August 13, 2014, the Magistrate 

Judge held an evidentiary hearing to determine whether any damages are 

warranted against Bell and Mummert based on Plaintiff’s failure to intervene

claim. (Doc. 248, p. 8). On August 18, 2014, Plaintiff renewed his motion for default 

judgment against Bell. (Doc. 241). Plaintiff also filed a motion for attorneys’ fees on 

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September 10, 2014 (Doc. 244), and supplemented that motion on November 4, 

2014. (Doc. 246). 

II. The Magistrate Judge’s Report & Recommendation

The Magistrate Judge recommended that the Court should not award 

Plaintiff damages against Defendants Mummert and Bell, and that Plaintiff’s 

motion for attorneys’ fees should be denied. Specifically, the Magistrate found the 

following:

1) to the extent Plaintiff stated a cause of action against Bell and 

Mummert for failure to intervene, he has done so only as it relates

to defendant Ashworth’s second discharge of pepper spray (“Sabre 

Red”) and defendant Dunn’s punch to his face that occurred after 

Dunn’s initial and unexpected kick (Doc. 248, pp. 19 – 20);

2) the allegations in the first and second amended complaints are 

sufficient to entitle Plaintiff to a default judgment against Bell and 

Mummert to the extent his failure to intervene claims seek to 

recover for the second burst of pepper spray (“Sabre Red”) and 

Dunn’s punch to his face (Doc. 248, pp. 22 – 24); 

3) Plaintiff failed to offer any evidence establishing Bell or Mummert 

knew or had reason to know defendants Ashworth or Dunn would 

use excessive force against him (Doc. 248, pp. 25 – 26); 

4) Plaintiff failed to offer any evidence showing that the second burst 

of pepper spray (“Sabre Red”) caused damage over and above the 

initial burst of pepper spray, or that Dunn’s punch to the eye 

caused damage over and above Dunn’s kick to his head (Doc. 248, p. 

26); 

5) given the failure of proof as to damages for this specific claim, 

Plaintiff is not entitled to recover damages from Bell or Mummert 

(Doc. 248, p. 27);

6) because Plaintiff is not a “prevailing party” on his failure to 

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intervene claims, he is not entitled to attorneys’ fees. (Doc. 248, pp. 

27 – 28). 

III. Discussion

Plaintiff “objects to certain findings of the Magistrate Judge’s Report and 

Recommendation.” (Doc. 249, p. 1). In particular, Plaintiff argues the Magistrate 

Judge incorrectly characterized the default judgments entered against Bell and 

Mummert as only “defaults.” (Doc. 249, p. 3). Plaintiff contends this Court should 

reject the Magistrate Judge’s holding that those default judgments should now be 

vacated. (Doc. 249, p. 12). “Plaintiff believed that the Court had found the existence 

of damage to be established, giving Johnson a right to relief, but that amount would 

be determined later.” (Doc. 249, pp. 12 – 13). Plaintiff claims he has “proved the 

amount of damages attributable to Bell and Mummert’s conduct and this Court 

should enter an order modifying its already entered judgments, assessing the 

appropriate amount of damages.” (Doc. 249, p. 15). Plaintiff further argues that the 

“fact that the allegations of the complaint do not establish that Bell or Mummert 

knew Dunn was going to kick and punch [Plaintiff] is immaterial as foreknowledge 

is not an element of a failure to intervene claim.” (Doc. 249, p. 20, n. 13). 

To support his claim for damages, Plaintiff highlights the medical records he 

submitted into evidence during the hearing on August 13, 2014. (Doc. 249, p. 21). 

Those records include a CT scan of his facial bones, which “revealed soft tissue 

swelling around the left orbit but no acute facial fracture.” (Doc. 249, p. 21). 

Plaintiff also provided records showing “silvadene cream was applied to his neck 

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and shoulders to treat the chemical burns and medication was applied to his eye.” 

(Doc. 249, p. 21). Because of “massive subconjunctival hemorrhage and decrease in 

vision,” Plaintiff was transferred to the Mobile Infirmary Hospital for further 

treatment. (Doc. 249, p. 22). Plaintiff also suffers from eye pain, headaches, and 

anxiety stemming from the incident that occurred on December 31, 2010. (Doc. 249, 

p. 22). 

Plaintiff thus argues he “has proven compensable damages,” and “the simple 

fact that [he] suffered a deprivation of his constitutional rights itself satisfies any 

necessity of proving the fact of damages.” (Doc. 249, p. 22). Plaintiff seeks 

compensatory and punitive damages from Bell and Mummert. (Doc. 249, p. 22). 

Plaintiff specifically asks for $5,000 in compensatory damages, and $15,000 in 

punitive damages against each Defendant, and an award of attorneys’ fees and costs

as set forth in his motion for attorneys’ fees. (Doc. 249, p. 24). 

A. Default Judgment and Damages

Rule 55 establishes a two-step process for obtaining a default judgment. 

First, a party must successfully request the Clerk of Court to enter the other party’s 

default. FED. R. CIV. P. 55(a). Second, after receiving the Clerk’s entry of default, the 

party must submit a motion for default judgment to the court. FED. R. CIV. P. 55(b).

If the plaintiff’s claim is for a sum certain, the clerk will enter default judgment, but 

if damages are uncertain or other relief is sought, the plaintiff must apply to the 

court for default judgment. FED. R. CIV. P. 55(b)(2).

Default is not “an absolute confession by the defendant of his liability and of 

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the plaintiff’s right to recover,” rather it is merely “an admission of the facts cited in 

the Complaint, which by themselves may or may not be sufficient to establish a 

defendant’s liability.” Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 

1357 (S.D. Ga. 2004) (citations omitted); see also GMAC Commercial Mortg. Corp. v. 

Maitland Hotel Assocs., Ltd., 218 F. Supp. 2d 1355, 1359 (M.D. Fla. 2002). “Even in 

the default judgment context, a court has an obligation to assure that there is a 

legitimate basis for any damage award it enters.” PNCEF, LLC v. Hendricks Bldg. 

Supply LLC, 740 F. Supp. 2d 1287, 1292 (S.D. Ala. 2010) (internal quotation and 

citations omitted). While well-pleaded facts in the complaint are deemed admitted, 

plaintiff’s allegations relating to the amount of damages are not admitted by virtue 

of default; rather, the court must determine both the amount and character of 

damages. Miller v. Paradise of Port Richey, Inc., 75 F.Supp.2d 1342, 1346 (M.D. Fla.

1999); see also Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir.

2003) (federal law requires judicial determination of damages absent factual basis 

in record).

To be sure, the Court is not “vacating” the default judgments entered against 

Mummert and Bell. As mentioned, when the amount of damages is in dispute, as in 

this case, only the court may enter judgment, and then only after determining the 

amount of damages. FED. R. CIV. P. 55(b)(2). There can be no “judgment” without a 

determination of relief, and damages for a default judgment are not awarded 

automatically. See Anheuser Busch, Inc., 317 F.3d at 1267 (“The default judgment 

entered by the court against [defendant] was not a final default judgment, as it 

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provided neither relief nor damages.”); see also Adolph Coors Co. v. Movement 

Against Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (explaining that 

damages may be awarded on default judgment only if the record adequately reflects 

the basis for award).

In his objection, Plaintiff thoroughly argues that he has alleged a failure to 

intervene claim against Mummert and Bell. (Doc. 155, pp. 16 – 19). The Court 

agrees Plaintiff has alleged facts to support such a claim, however, the primary 

issue is whether Plaintiff has shown he is entitled to damages based on these 

claims. For damages, Plaintiff rehashes the same arguments that the Magistrate 

Judge previously considered and rejected. Plaintiff points to evidence showing

injuries that occurred as a result of Dunn’s initial kick to Plaintiff’s head and the 

first burst of pepper spray. (Doc. 249, pp. 21 – 22). The evidence does not, however,

show injuries that occurred as a result of Dunn’s later punch or the second burst of 

pepper spray. 

Furthermore, Plaintiff does not provide any evidence to show Mummert and 

Bell were in a position to prevent Dunn from punching Plaintiff or to stop the 

second burst of pepper spray. (Doc. 249, pp. 16 – 19). Plaintiff instead argues Bell 

and Mummert were present and witnessed the altercation, thus they “had the 

opportunity to protect” Plaintiff. (Doc. 155, p. 19). But Defendants’ mere presence is 

not enough to establish damages for a failure to intervene claim. Cf. Ensley v. 

Soper, 142 F.3d 1402, 1407 (11th Cir. 1998) (in order for an officer to be liable for 

failing to stop police brutality, the officer must be in a position to intervene).

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After reviewing the record, the Court agrees with the Magistrate Judge’s 

findings that the evidence does not support awarding damages for Plaintiff’s failure 

to intervene claim as to defendants Mummert and Bell.

B. Prevailing Party and Attorneys’ Fees 

Plaintiff argues he is the prevailing party pursuant to 42 U.S.C. § 1988, thus 

he has a right to recover reasonable attorneys’ fees. (Doc. 249, p. 24). To qualify as a 

prevailing party, a civil rights plaintiff must obtain at least some relief on the 

merits of his claim. The plaintiff must obtain an enforceable judgment against the 

defendant from whom fees are sought, or comparable relief through a consent 

decree or settlement. Farrar v. Hobby, 506 U.S. 103, 111 (1992) (citations omitted). 

Accordingly, a plaintiff who wins nominal damages is a prevailing party under 

section 1988. Id. at 112. Standing alone, however, “the moral satisfaction that

results from any favorable statement of law” cannot bestow prevailing party status. 

Id. at 112 – 13. 

In this case, the Court agrees with the Magistrate Judge’s finding that 

Plaintiff is not a prevailing party. There is no material alteration of the legal 

relationship between Plaintiff and Mummert or Bell based simply on their default. 

See Id. (no material alteration of the legal relationship between the parties occurs 

until the plaintiff becomes entitled to enforce a judgment, consent decree, or 

settlement against the defendant). Accordingly, the Magistrate Judge properly

recommended denial of Plaintiff’s motion for attorneys’ fees and costs. 

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CONCLUSION

After due and proper consideration of all portions of this file deemed relevant 

to the issues raised, and a de novo determination of those portions of the Report and 

Recommendation to which objection is made, the undersigned hereby ADOPTS the 

Report and Recommendation (Doc. 248) of the Magistrate Judge. It is hereby 

ORDERED that plaintiff have and take nothing from the defaulting defendants, 

and that themotion for an award of attorneys’ fees (Doc. 244) as amended (Doc. 246) 

is DENIED because plaintiff is not a prevailing party under § 1988.

DONE and ORDERED this 31st day of March, 2015.

/s/ Callie V. S. Granade

UNITED STATES DISTRICT JUDGE

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