Blount v. Hodge
Filing
52
ORDER granting 36 motion to dismiss, dismissing without prejudice 35 the second amended complaint; denying without prejudice 42 Motion for Partial Summary Judgment; instructions to the Clerk. Signed by Judge Brian J. Davis on 3/18/2019. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DEREK BLOUNT,
Plaintiff,
vs.
Case No. 3:17-cv-733-J-39JRK
ESLEY J. HODGE,
Defendants.
ORDER
I.
Status
Plaintiff, an inmate of the Florida Department of Corrections
(FDOC), is proceeding pro se on a Second Amended Complaint (Second
Amended
Complaint)
(Doc.
35)
pursuant
to
42
U.S.C.
§
1983.
Defendant Esley J. Hodge filed Defendant's Motion to Dismiss
(Motion) (Doc. 36).1
Plaintiff responded by filing Plaintiff's
Statement of Disputed Factual Issues (Doc. 39), Plaintiff's Brief
in Opposition to Defendant's Summary Judgment Motion (Doc. 40), and
a Declaration in Opposition to Defendant's Motion for Summary
Judgment.2
See Order (Doc. 12).
This cause is also before the Court on Plaintiff's Motion for
Partial Summary Judgment (Doc. 42), Declaration in Support (Doc.
1
In this opinion, the Court references the document and page
numbers designated by the electronic filing system.
2
Notably, Defendant Hodge has not filed a motion for summary
judgment; Defendant Hodge filed a motion to dismiss.
43), Brief in Support (Doc. 44), Notice to the Court (Doc. 45), and
Statement of Undisputed Facts (Doc. 46).
Defendant Hodge filed a
Response in Opposition to Plaintiff's Motion for Summary Judgment
(Doc. 47).
II.
Motion to Dismiss
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
"A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
that
the
defendant
is
liable
for
the
misconduct alleged."
Id. (citing Twombly, 550 U.S. at 556).
"[T]he
court
tenet
that
a
must
accept
as
true
all
of
the
allegations contained in a complaint is inapplicable to legal
conclusions.
Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice."
Id. (citing Twombly, 550 U.S. at 555).
III.
The Second Amended Complaint
Plaintiff claims Defendants Hodge subjected him to cruel and
unusual punishment in violation of the Eighth Amendment.
Second
Amended Complaint at 3. Plaintiff also raises a state law claim of
assault and battery.
and punitive damages.
Id.
As relief, Plaintiff seeks compensatory
Id. at 5.
2
Plaintiff
alleges
that
on
March
29,
2017,
at
Suwannee
Correctional Institution, while he was seated in a chair and
handcuffed, Defendant Hodge approached Plaintiff and slapped him on
the right side of his face and temple area for no apparent reason
and without penological justification.
Plaintiff,
Defendant
Hodge
made
a
Id. at 4.
racial
After slapping
slur.
Id.
at
5.
Plaintiff states he received bruising and a knot on the right side
of his face, temple area.
Id.
Plaintiff accessed sick call, and
the nurse took his vital signs and found a small knot on the right
temple area, requiring no medical treatment or medication.
IV.
Defendant
Hodge
Id.
Law and Conclusions
maintains
Plaintiff
is
not
entitled
to
compensatory and punitive damages under 42 U.S.C. § 1997e(e)
because there is an absence of physical injury.
Motion at 3-6.
Plaintiff simply claims he was bruised and had a small knot on the
right side of his face after being slapped by Defendant Hodge.
Defendant Hodge seeks the dismissal of the Second Amended Complaint
without prejudice because there is no request for nominal damages
and Plaintiff is not entitled to compensatory or punitive damages.
Id. at 6-7.
Additionally, to the extent Plaintiff is seeking
monetary damages against Defendant Hodge in his official capacity,
Defendant Hodge claims Eleventh Amendment immunity.
Id. at 7-8.
Insofar as Plaintiff may be seeking monetary damages from
Defendant Hodge in his official capacity, the Eleventh Amendment
3
bars suit.
Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir.
1986) (per curiam) (finding the Secretary of the FDOC immune from
suit in his official capacity). Thus, Defendant's Motion is due to
be granted as to Plaintiff's claim for monetary damages against
Defendant Hodge in his official capacity.
The Court liberally construes Plaintiff's Second Amended
Complaint, as it must, but finds, to the extent Plaintiff is
seeking monetary damages against Defendant Hodge in his individual
capacity, Hodge's Motion is due to be granted.
The Eleventh
Circuit addressed the question of non-actionable de minimis injury
in the prison context:
"No Federal civil action may be brought
by a prisoner confined in a jail, prison, or
other correctional facility, for mental or
emotional injury suffered while in custody
without a prior showing of physical injury."
42 U.S.C. § 1997e(e). "In order to avoid
dismissal under § 1997e(e), a prisoner's
claims for emotional or mental injury must be
accompanied
by
allegations
of
physical
injuries that are greater than de minimis."
Mitchell v. Brown & Williamson Tobacco Corp.,
294 F.3d 1309, 1312–13 (11th Cir. 2002). We
have previously held that a forced "dry shave"
only amounted to a de minimis injury. Harris
v. Garner, 190 F.3d 1279, 1286–87 (11th Cir.
1999), vacated, 197 F.3d 1059, reinstated in
relevant part, 216 F.3d 970, 972 (11th Cir.
2000) (en banc); see also Nolin v. Isbell, 207
F.3d 1253, 1258 n. 4 (11th Cir. 2000) (bruises
received during an arrest were non-actionable
de minimis injury).
Mann v. McNeil, 360 F. App'x 31, 32 (11th Cir. 2010) (per curiam),
cert. denied, 562 U.S. 1009 (2010).
4
In order to satisfy 42 U.S.C. § 1997e(e) of the Prison
Litigation Reform Act (PLRA), the physical injury must be more than
de minimus, but need not be significant.
Thompson v. Sec'y, Fla.
Dep't of Corr., 551 F. App'x 555, 557 (11th Cir. 2014) (per curiam)
(citation omitted).
The minor nature of Plaintiff's injury,
bruising and a small knot on his temple area, that did not require
medical treatment or medication, constitutes de minimis physical
injury.3
See Mann, 360 F. App'x at 32 (finding vague injuries to
the prisoner's back and scrapes and marks to his knees and legs
were de minimis physical injuries); Johnson v. Moody, 206 F. App'x
880, 885 (11th Cir. 2006) (per curiam) (concluding injury to a
finger, without a fracture or break, requiring a tetanus shot,
3
The Court is not unsympathetic with Plaintiff's plight as
described in the Second Amended Complaint. The Court recognizes
the use of racial epithets and physical mistreatment of inmates
resulting in emotional harm is not acceptable penological behavior
and should not be sanctioned or condoned; however, in order to
obtain compensatory and punitive damages, Plaintiff must meet the
requirement of more than de minimis physical injury while he
remains confined. Pursuant to the PLRA, before reaching any claim
of emotional harm, an inmate must show physical injury. See Harris
v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996) (finding the mugging
and harassment with racial epithets and taunts of an inmate causing
or exacerbating a back injury supported the jury's finding of a
violation of the prisoner's constitutional rights and supported the
punitive damage award against a corrections officer), cert. denied,
520 U.S. 1257 (1997). But for the requirements of the PLRA, this
Court would be inclined to let this case proceed based on
Plaintiff's allegations of racial hatred and physical mistreatment.
However, pursuant to the requirements of the PLRA, the Court is
obliged to dismiss the case without prejudice to Plaintiff refiling
his claims for compensatory and punitive damages if and when he is
released from prison.
Although this result is disconcerting,
Plaintiff has not alleged enough to avoid dismissal at this stage.
5
bandages
and
non-prescription
pain
minimis injury under the PLRA);
relievers,
constituted
de
Harris v. Chapman, 97 F.3d 499,
505-506 (11th Cir. 1996) (holding the injury from kicking, mugging
or slapping, and snapping the prisoner's head back with a towel was
not de minimis because it resulted in causing or exacerbating the
prisoner's back condition), cert. denied, 520 U.S. 1257 (1997); and
Harvard v. Beaudry, No. 3:12cv89/LC/CJK, 2014 WL 4626016, at * 10
(N.D. Fla. Sept. 12, 2014) (finding the inmate, after a use of
force, suffered no more than de minimis injury even though he had
a sore right shoulder and forearm, a knot on the knuckle of his
right index finger, swollen fingers on his right hand, and a
scratch on the back of his arm, without a fracture).
Defendant Hodge requests Plaintiff's claims against Hodge in
his individual capacity for compensatory and punitive damages be
dismissed without prejudice.
granted.
Motion at 5-7.
This request will be
An explanation follows.
The Eleventh Circuit instructs that dismissal of an inmate's
compensatory and punitive damages claims under § 1997e(e) without
prejudice is appropriate to allow the inmate to refile when and if
the inmate is released.
See Harris v. Garner, 216 F.3d 970, 980
(11th Cir. 2000), cert. denied, 532 U.S. 1065 (2001).
However,
this Court must first inquire as to whether Plaintiff sought
nominal damages because the availability of nominal damages under
1997e(e) has not been deemed foreclosed in the Eleventh Circuit.
6
Upon review, it is quite obvious that Plaintiff did not expressly
request nominal damages in his Second Amended Complaint.
Indeed,
"Plaintiff's complaint cannot be liberally construed as requesting
nominal damages, because he specifically requests only compensatory
and punitive damages."
Pollard v. City of Ft. Myers Police Dep't,
No. 2:15-cv-79-FtM-29DNF, 2015 WL 859397, at *3 (M.D. Fla. Feb. 27,
2015).
Also, the Court is unable to infer a nominal damages request
because Plaintiff does not seek such other and further relief as
this Court may deem just, proper, and equitable as relief, or make
a similarly stated request for relief.
See Day v. Vaughn, 56
F.Supp.3d 1377, 1384 (S.D. Ga. Oct. 22, 2014).
Even an extremely
liberal construction of Plaintiff's Second Amended complaint does
not support a contention he is seeking nominal damages.
Unlike some cases that have been liberally construed to be
seeking nominal damages, the operative complaint in this case does
not contain language like "such other relief as may appear that
plaintiff is entitled," or "any other relief the court deems
appropriate or just" or similar language. For example, in Smith v.
Barrow, No. CV 311-044, 2012 WL 6519541, at *5 (S.D. Ga. Nov. 9,
2012), report and recommendation adopted by No. CV 311-044, 2012 WL
6522020 (S.D. Ga. Dec. 13, 2012), the district court denied the
defendant's motion to dismiss because the court determined the
Eleventh Circuit has not foreclosed the availability of nominal
7
damages under § 1997e(e), and the operative complaint could be
liberally construed to request nominal damages:
Among his requests for relief, Plaintiff
asks that the Court "[g]rant such other relief
as it may appear that [P]laintiff is
entitled." (Doc. no. 1, p. 17.) The Court thus
liberally construes Plaintiff's complaint to
request nominal damages. See Holloway v.
Bizzaro, 571 F.Supp.2d 1270, 1272 (S.D. Fla.
2008) ("Complaints which have been liberally
construed to raise a request for nominal
damages or equitable relief contain such
phrases as 'such other relief as may appear
that Plaintiff is entitled' or similar
language.");
Linehan
v.
Crosby,
No.
4:06–cv–00225–MP–WCS, 2008 WL 3889604, at *13
(N.D. Fla. June 26, 2008), adopted by 2008 WL
3889604 (N.D. Fla. Aug.20, 2008) ("Plaintiff
did seek 'such other relief as this Court may
deem just and appropriate.' The court should
construe the complaint liberally as seeking
nominal
damages.")
(internal
citation
omitted).
After a thorough review of the Second Amended Complaint, the
Court finds Plaintiff has not included language that can liberally
be construed as a request for nominal damages. As such, the Second
Amended Complaint is due to be dismissed without prejudice to
Plaintiff's
right
to
refile
his
claims
for
compensatory
and
punitive damages if and when he has been released from prison.
Therefore, it is now
ORDERED:
1.
the
Defendant's Motion to Dismiss (Doc. 36) is granted, and
Second
Amended
Complaint
(Doc.
prejudice.
8
35)
is
DISMISSED
without
2.
Plaintiff's Motion for Partial Summary Judgment (Doc. 42)
is DENIED without prejudice as prematurely filed.
See Defendant's
Response in Opposition to Plaintiff's Motion for Summary Judgment
(Doc. 47).
3.
The
Clerk
shall
enter
judgment
dismissing
the
case
without prejudice and terminating any pending motions.
4.
The Clerk shall close the case.
DONE AND ORDERED at Jacksonville, Florida, this 18th day of
March, 2019.
sa 3/18
c:
Derek Blount
Counsel of Record
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?