Berger v. Carlton et al
Filing
38
ORDER partially granting 30 motion to dismiss; directing Defendants to answer or otherwise respond by February 20, 2019; setting deadlines; the parties must conduct discovery so the due date of any discovery requested is no later than June 24, 2019; any motions relating to discovery must be filed by July 15, 2019; motions to dismiss and/or for summary judgment must be filed by July 25, 2019; responses to any motions to dismiss and/or for summary judgment must be filed by September 6, 2019. Signed by Judge Marcia Morales Howard on 1/22/2019. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JACKIE BERGER,
Plaintiff,
v.
Case No. 3:17-cv-1191-J-34JBT
M.B. CARLTON
AND M.R. WILLIAMS,
Defendants.
ORDER
I. Status
Plaintiff Jackie Berger, an inmate of the Florida penal
system, initiated this action on October 24, 2017, by filing a pro
se Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. He
filed an Amended Complaint (Doc. 5) on December 6, 2017, and a
Second Amended Complaint (SAC; Doc. 27) on June 21, 2018. In the
SAC, Berger names the following Defendants: (1) Captain M.B.
Carlton, and (2) Sergeant M.R. Williams. He asserts that Defendants
violated his Eighth Amendment right when they directed the use of
chemical agents and denied him a timely decontamination shower. As
relief, he requests compensatory and punitive damages.
This matter is before the Court on Defendants' Motion to
Dismiss Plaintiff's Amended Complaint (Motion; Doc. 30). The Court
advised Berger that granting a motion to dismiss would be an
adjudication of the case that could foreclose subsequent litigation
on the matter, and gave him an opportunity to respond. See Orders
(Docs. 9, 33, 36). Plaintiff filed a response in opposition to the
Motion. See Plaintiff's Opposition to Defendants' Motion to Dismiss
(Response; Doc. 37). Defendants' Motion is ripe for review.
II. Motion to Dismiss Standard
In ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's
World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In
addition, all reasonable inferences should be drawn in favor of the
plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir.
2010). Nonetheless, the plaintiff must still meet some minimal
pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d
1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while
"[s]pecific facts are not necessary[,]" the complaint should "'give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Further, the plaintiff must allege "enough
facts to state a claim that is plausible on its face." Twombly, 550
U.S. at 570. "A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
2
A "plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do[.]" Twombly, 550 U.S. at 555 (internal quotations
omitted); see also Jackson, 372 F.3d at 1262 (explaining that
"conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal")
(internal citation and quotations omitted). Indeed, "the tenet that
a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions[,]" which simply
"are not entitled to [an] assumption of truth." See Iqbal, 556 U.S.
at 678, 680. Thus, in ruling on a motion to dismiss, the Court must
determine
whether
the
complaint
contains
"sufficient
factual
matter, accepted as true, to 'state a claim to relief that is
plausible on its face[.]'" Id. at 678 (quoting Twombly, 550 U.S. at
570). And, while "[p]ro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore,
be liberally construed," Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998), "'this leniency does not give the
court a license to serve as de facto counsel for a party or to
rewrite an otherwise deficient pleading in order to sustain an
action.'" Alford v. Consol. Gov't of Columbus, Ga., 438 F. App'x
3
837, 839 (11th Cir. 2011)1 (quoting GJR Invs., Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal
citation omitted), overruled in part on other grounds as recognized
in Randall, 610 F.3d at 706).
III. Second Amended Complaint2
Berger asserts that Defendant Williams allegedly saw him on
January 20, 2017, "shouting obscenities toward staff," kicking his
cell door, and encouraging other inmates to break the sprinkler
heads. SAC at 10. He states that he and his cellmate (Latwain
McClaren, #U26804) explained to Defendant Carlton that they were
not the ones who incited the disturbance. See id. According to
Berger, Carlton talked to other inmates (Allen Willich, #J39576;
Carlton
Holliman,
#169976)
about
their
involvement
in
the
disturbance, and ultimately discredited the inmates' accounts and
relied on Williams' statement that Berger had shouted at staff and
caused the disturbance. See id. at 10-11. Berger avers that Carlton
1
"Although an unpublished opinion is not binding
is persuasive authority." United States v. Futrell, 209
1289 (11th Cir. 2000) (per curiam); see generally Fed.
32.1; 11th Cir. R. 36-2 ("Unpublished opinions are not
binding precedent, but they may be cited as
authority.").
2
. . . , it
F.3d 1286,
R. App. P.
considered
persuasive
The SAC is the operative pleading. In considering a motion
to dismiss, the Court must accept all factual allegations in the
SAC as true, consider the allegations in the light most favorable
to the plaintiff, and accept all reasonable inferences that can be
drawn from such allegations. Miljkovic v. Shafritz and Dinkin,
P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (quotations and
citations omitted). As such, the recited facts are drawn from the
SAC and may differ from those that ultimately can be proved.
4
authorized
the
chemical
spraying,
and
accordingly
an
unknown
officer sprayed chemical agents in Berger's face, mouth, and eyes.
See id. at 11-12. He further maintains that Carlton and Williams
denied him a decontamination shower for over ninety-five minutes.
See id. at 12. According to Berger, he suffered injuries (blurred
and deteriorating vision, dermatological issues, lung congestion,
uncontrollable
wheezing,
shortness
of
breath,
and
constant
coughing) that "led to months of medical attention," as a result of
the chemical spraying and denial of a timely decontamination
shower. Id. at 12-13.
IV. Summary of the Arguments
In the Motion, Defendants maintain that Berger fails to state
an
Eighth
Amendment
claim
against
them.
See
Motion
at
6-7.
Additionally, they state that they are entitled to qualified
immunity, see id. at 7-9, Carlton is not liable on the basis of
respondeat superior, see id. at 9-10, and Berger is not entitled to
compensatory and punitive damages under 42 U.S.C. § 1997e(e)
because he has not alleged any physical injuries that are more than
de minimis, resulting from Defendants' acts and/or omissions, see
id. at 10-13. In response to Defendants' Motion, Berger asserts
that he has alleged facts sufficient to state plausible claims
under the Eighth Amendment. See Response at 3-5. He also maintains
that Defendants are not entitled to qualified immunity, see id. at
5-6, Carlton personally participated in the federal constitutional
5
deprivations, see id. at 6-7, and Berger's resulting physical
injuries are more than de minimis, see id. at 8-9. As such, Berger
requests that the Court deny Defendants' Motion. See id. at 10.
V. Discussion
A. Eighth Amendment Excessive Use of Force
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that (1) the defendant deprived him of a right secured under
the United States Constitution or federal law, and (2) such
deprivation occurred under color of state law. Salvato v. Miley,
790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per
curiam) (citations omitted). Additionally, the Eleventh Circuit
requires "'an affirmative causal connection between the official's
acts or omissions and the alleged constitutional deprivation' in §
1983 cases." Rodriguez v. Sec'y, Dep't of Corr., 508 F.3d 611, 625
(11th Cir. 2007) (quoting Zatler v. Wainwright, 802 F.2d 397, 401
(11th Cir. 1986)). In the absence of a federal constitutional
deprivation or violation of a federal right, a plaintiff cannot
sustain a cause of action against the defendants.
With respect to the appropriate analysis in an excessive use
of force case, the Eleventh Circuit has explained.
[O]ur core inquiry is "whether force was
applied in a good-faith effort to maintain or
restore
discipline,
or
maliciously
and
sadistically to cause harm." Hudson v.
6
McMillian, 503 U.S. 1, 112 S.Ct. 995, 999, 117
L.Ed.2d 156 (1992). In determining whether
force
was
applied
maliciously
and
sadistically, we look to five factors: "(1)
the extent of injury; (2) the need for
application of force; (3) the relationship
between that need and the amount of force
used; (4) any efforts made to temper the
severity of a forceful response; and (5) the
extent of the threat to the safety of staff
and inmates[, as reasonably perceived by the
responsible officials on the basis of facts
known to them]..." Campbell v. Sikes, 169 F.3d
1353, 1375 (11th Cir. 1999) (quotations
omitted).[3]
McKinney v. Sheriff, 520 F. App'x 903, 905 (11th Cir. 2013) (per
curiam). "When considering these factors, [courts] 'give a wide
range
of
deference
to
prison
officials
acting
to
preserve
discipline and security, including when considering decisions made
at the scene of a disturbance.'" Fennell v. Gilstrap, 559 F.3d
1212, 1217 (11th Cir. 2009) (per curiam) (quoting Cockrell v.
Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007)).
"The Eighth Amendment's prohibition of cruel and unusual
punishments necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is
not of a sort repugnant to the conscience of mankind." Hudson v.
McMillian,
503
U.S.
1,
9-10
(1992)
(internal
quotations
and
citations omitted). Indeed, not "every malevolent touch by a prison
guard gives rise to a federal cause of action." Id. at 9 (citation
omitted). Notably, a lack of serious injury is relevant to the
3
See Whitley v. Albers, 475 U.S. 312, 321 (1986).
7
inquiry. See Smith v. Sec'y, Dep't of Corr., 524 F. App'x 511, 513
(11th Cir. 2013) (per curiam) (quoting Wilkins v. Gaddy, 559 U.S.
34, 38 (2010)). The United States Supreme Court explained.
This is not to say that the "absence of
serious injury" is irrelevant to the Eighth
Amendment inquiry. Id. at 7, 112 S.Ct. 995
(opinion of the Court).[4] "[T]he extent of
injury suffered by an inmate is one factor
that may suggest 'whether the use of force
could plausibly have been thought necessary'
in a particular situation." Ibid. (quoting
Whitley, supra, at 321, 106 S.Ct. 1078).[5] The
extent of injury may also provide some
indication of the amount of force applied. As
we stated in Hudson, not "every malevolent
touch by a prison guard gives rise to a
federal cause of action." 503 U.S. at 9, 112
S.Ct. 995. "The Eighth Amendment's prohibition
of 'cruel and unusual' punishments necessarily
excludes from constitutional recognition de
minimis uses of physical force, provided that
the use of force is not of a sort repugnant to
the conscience of mankind." Id., at 9–10 (some
internal quotation marks omitted). An inmate
who complains of a "'push or shove'" that
causes no discernible injury almost certainly
fails to state a valid excessive force claim.
Id., at 9 (quoting Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973)).[6]
Injury and force, however, are only
imperfectly correlated, and it is the latter
that ultimately counts. An inmate who is
gratuitously beaten by guards does not lose
his ability to pursue an excessive force claim
4
Hudson, 503 U.S. 1.
5
Whitley v. Albers, 475 U.S. 312 (1986).
6
See Johnson, 481 F.2d at 1033 ("Not every push or shove,
even if it may later seem unnecessary in the peace of a judge's
chambers, violates a prisoner's constitutional rights.").
8
merely because he has the good fortune to
escape without serious injury.
Wilkins, 559 U.S. at 37-38.
Defendants seek dismissal of Berger's Eighth Amendment claim
against them, arguing that Berger fails to provide sufficient facts
that would entitle him to relief. See Motion at 6-7. They maintain
that Berger was sprayed with chemical agents for disobeying a
lawful order to cease the disturbance. Viewing the facts in the
light most favorable to Berger, as the Court must, the Court is not
so
convinced.
Berger
has
alleged
facts
sufficient
to
state
plausible claims under the Eighth Amendment. In reaching this
conclusion, the Court observes that Berger asserts that Carlton and
Williams authorized and/or directed the January 20, 2017 chemical
spraying, and denied him a timely decontamination shower, resulting
in severe, long-term dermatological, breathing, and vision issues
that required medical attention for an extended period.7 The Court
declines to find that these allegations if proven would fail to
state a plausible claim for a violation of the Eighth Amendment. As
such, Defendants' Motion is due to be denied as to Berger's Eighth
Amendment claims against them.
7
See SAC at 12 (stating Berger received months of medical
treatment); Response at 9 (describing injuries and pain that
persisted for over one year).
9
B. Qualified Immunity
Defendants Carlton and Williams alternatively assert that they
are entitled to qualified immunity. See Motion at 7-9. As to
qualified immunity, the Eleventh Circuit stated:
To invoke qualified immunity, a public
official must first demonstrate that he was
acting within the scope of his or her
discretionary authority. Maddox v. Stephens,
727 F.3d 1109, 1120 (11th Cir. 2013). As we
have
explained
the
term
"discretionary
authority," it "include[s] all actions of a
governmental official that (1) were undertaken
pursuant to the performance of his duties, and
(2) were within the scope of his authority."
Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.
1994) (internal quotation marks omitted).
Here, it is clear that Defendant Officers
satisfied this requirement, as they engaged in
all of the challenged actions while on duty as
police officers conducting investigative and
seizure functions.
Because
Defendant
Officers
have
established that they were acting within the
scope of their discretionary authority, the
burden
shifts
to
[the
plaintiff]
to
demonstrate
that
qualified
immunity
is
inappropriate. See id. To do that, [the
plaintiff] must show that, when viewed in the
light most favorable to him, the facts
demonstrate that Defendant Officers violated
[Plaintiff's] constitutional right and that
that right was "clearly established ... in
light of the specific context of the case, not
as a broad general proposition[,]" at the time
of Defendant officers' actions. Saucier v.
Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001), overruled in part on other
grounds by Pearson, 555 U.S. 223, 129 S.Ct.
808. We may decide these issues in either
order, but, to survive a qualified-immunity
defense, [the plaintiff] must satisfy both
showings.
Maddox,
727
F.3d
at
1120–21
(citation omitted).
10
Jones v. Fransen, 857 F.3d 843, 850-51 (11th Cir. 2017).
The Eleventh Circuit has explained the proper analysis when a
district court considers a motion to dismiss based on qualified
immunity.
When presented with the officers' motions to
dismiss, both our precedent and precedent from
the Supreme Court instruct the district court
to analyze whether, taking [Plaintiff]'s
allegations as true, the . . . complaint
asserted a violation of a clearly established
constitutional right. See Chesser v. Sparks,
248 F.3d 1117, 1121 (11th Cir. 2001) ("[T]he
[qualified immunity] defense may be raised and
considered on a motion to dismiss; the motion
will be granted if the 'complaint fails to
allege the violation of a clearly established
constitutional right.'") (quoting Williams,
102 F.3d at 1182)[8]; Santamorena v. Ga.
Military College, 147 F.3d 1337, 1342 (11th
Cir. 1998) (affirming grant of motion to
dismiss on qualified immunity grounds because
the
"complaint
fail[ed]
to
allege
the
violation
of
a
clearly
established
constitutional right"). See also Siegert v.
Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114
L.Ed.2d 277 (1991) ("A necessary concomitant
to
the
determination
of
whether
the
constitutional right asserted by a plaintiff
is 'clearly established' at the time the
defendant acted is the determination of
whether the plaintiff has asserted a violation
of a constitutional right at all. Decision of
this purely legal question permits courts
expeditiously to weed out suits which fail the
test without requiring a defendant who rightly
claims qualified immunity to engage in
expensive and time consuming preparation to
defend the suit on its merits."). . . .
8
Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir.
1997).
11
Joseph v. Gee, 708 F. App'x 642, 643-44 (11th Cir. 2018) (per
curiam).
Defendants Carlton and Williams assert that they are entitled
to qualified immunity because they did not violate Berger's Eighth
Amendment right. See Motion at 8-9. However, upon review of the
SAC, the Court finds this assertion unavailing. The Court is of the
view that Berger has stated plausible Eighth Amendment claims
against
Defendants
Carlton
and
Williams,
and
therefore,
the
Defendants are not entitled to qualified immunity at this stage of
the litigation. Accordingly, Defendants' Motion based on qualified
immunity is due to be denied.
C. Supervisory Liability
Defendant Carlton asserts that he is not liable on the basis
of respondeat superior. See Motion at 9-10. Carlton maintains that,
as
a
supervisor,
he
is
not
responsible
for
the
acts
and/or
omissions of Williams, a subordinate officer. The United States
Court of Appeals for the Eleventh Circuit has stated:
"Supervisory officials are not liable under
section 1983 on the basis of respondeat
superior or vicarious liability." Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396 (11th
Cir. 1994) (internal quotation marks and
citation omitted). "The standard by which a
supervisor is held liable in her individual
capacity for the actions of a subordinate is
extremely rigorous." Gonzalez, 325 F.3d at
1234 (internal quotation marks and citation
omitted).[9] "Supervisory liability occurs
9
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
12
either
when
the
supervisor
personally
participates in the alleged constitutional
violation or when there is a causal connection
between actions of the supervising official
and the alleged constitutional deprivation."
Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990).
"The necessary causal connection can be
established 'when a history of widespread
abuse puts the responsible supervisor on
notice of the need to correct the alleged
deprivation, and he fails to do so.'" Cottone,
326 F.3d at 1360 (citation omitted).[10] "The
deprivations that constitute widespread abuse
sufficient to notify the supervising official
must be obvious, flagrant, rampant and of
continued duration, rather than isolated
occurrences." Brown, 906 F.2d at 671. A
plaintiff can also establish the necessary
causal connection by showing "facts which
support an inference that the supervisor
directed the subordinates to act unlawfully or
knew
that
the
subordinates
would
act
unlawfully and failed to stop them from doing
so," Gonzalez, 325 F.3d at 1235, or that a
supervisor's "custom or policy . . . resulted
in deliberate indifference to constitutional
rights," Rivas v. Freeman, 940 F.2d 1491, 1495
(11th Cir. 1991).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008) (overruled on
other grounds as recognized by Randall v. Scott, 610 F.3d 701, 709
(11th
Cir.
2010)
(rejecting
the
application
of
a
heightened
pleading standard for § 1983 cases involving qualified immunity));
see also Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 1047-48 (11th
Cir. 2014). In sum,
To state a claim against a supervisory
defendant, the plaintiff must allege (1) the
10
Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
13
supervisor's personal involvement in the
violation of his constitutional rights,[11] (2)
the existence of a custom or policy that
resulted in deliberate indifference to the
plaintiff's constitutional rights,[12] (3)
facts supporting an inference that the
supervisor directed the unlawful action or
knowingly failed to prevent it,[13] or (4) a
history of widespread abuse that put the
supervisor on notice of an alleged deprivation
that he then failed to correct. See id. at
1328–29 (listing factors in context of summary
judgment).[14] A supervisor cannot be held
liable under § 1983 for mere negligence in the
training or supervision of his employees.
Greason v. Kemp, 891 F.2d 829, 836–37 (11th
Cir. 1990).
Barr v. Gee, 437 F. App'x 865, 875 (11th Cir. 2011) (per curiam).
To the extent Berger seeks to impose liability on Defendant Carlton
on the basis of respondeat superior, Defendants' Motion is due to
be granted. Otherwise, the Motion as to Berger's claims against
Carlton is due to be denied. Upon review, Berger alleges sufficient
11
See Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir.
2007) ("Causation, of course, can be shown by personal
participation in the constitutional violation.").
12
See Goebert, 510 F.3d at 1332 ("Our decisions establish that
supervisory liability for deliberate indifference based on the
implementation of a facially constitutional policy requires the
plaintiff to show that the defendant had actual or constructive
notice of a flagrant, persistent pattern of violations.").
13
See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)
("Douglas's complaint alleges that his family informed [Assistant
Warden] Yates of ongoing misconduct by Yates's subordinates and
Yates failed to stop the misconduct. These allegations allow a
reasonable inference that Yates knew that the subordinates would
continue to engage in unconstitutional misconduct but failed to
stop them from doing so.").
14
West v. Tillman, 496 F.3d 1321 (11th Cir. 2007).
14
facts suggesting that Carlton was personally involved in, or
otherwise causally connected to, alleged violations of his federal
statutory or constitutional rights. See SAC at 10-12.
D. Physical Injury Requirement
42 U.S.C. § 1997e(e)
Next, the Court turns to Defendants' assertions that Berger is
not entitled to compensatory and punitive damages under 42 U.S.C.
§ 1997e(e) because he has not alleged any physical injuries that
are more than de minimis, resulting from Defendants' acts and/or
omissions. See Motion at 10-13. In Brooks v. Warden, 800 F.3d 1295
(11th Cir. 2015), the Eleventh Circuit Court of Appeals addressed
the availability of compensatory and punitive damages as well as
nominal damages in suits brought by prisoners under § 1983. The
Eleventh Circuit stated:
[Plaintiff]'s claim, however, is further
governed by the Prison Litigation Reform Act
of 1995 [(PLRA)], Pub.L. No. 104–134, §§
802–10, 110 Stat. 1321, 1366–77 (1996). The
PLRA places substantial restrictions on the
judicial relief that prisoners can seek, with
the goal of "reduc[ing] the number of
frivolous
cases
filed
by
imprisoned
plaintiffs, who have little to lose and
excessive amounts of free time with which to
pursue their complaints." Al–Amin v. Smith,
637 F.3d 1192, 1195 (11th Cir. 2011) (quoting
Napier v. Preslicka, 314 F.3d 528, 531 (11th
Cir. 2002)). The section of the Act at issue
here, 42 U.S.C. § 1997e(e), reads this way:
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
15
without a prior showing of physical
injury or the commission of a sexual
act....
This Court has held that § 1997e(e) applies to
all
federal
civil
actions,
including
constitutional claims brought under § 1983.
See Harris v. Garner (Harris II), 216 F.3d
970, 984–85 (11th Cir. 2000) (en banc)....
In this case, [Plaintiff] did not allege
any physical injury . . . . Nevertheless, he
sought "compensatory . . . punitive, and
nominal damages" from [Defendant]. Under the
statute and our caselaw, an incarcerated
plaintiff cannot recover either compensatory
or
punitive
damages
for
constitutional
violations unless he can demonstrate a (more
than de minimis) physical injury. See Al–Amin,
637 F.3d at 1198 (punitive); Harris v. Garner
(Harris I), 190 F.3d 1279, 1286 (11th Cir.
1999) (compensatory), reh'g en banc granted
and opinion vacated, 197 F.3d 1059 (11th Cir.
1999), opinion reinstated in relevant part,
216 F.3d 970. However, we have never had the
opportunity in a published opinion to settle
the availability of nominal damages under the
PLRA. We do today, and we hold that nothing in
§ 1997e(e) prevents a prisoner from recovering
nominal damages for a constitutional violation
without a showing of physical injury.
Brooks, 800 F.3d at 1307-08 (emphasis added).
To satisfy § 1997e(e), a prisoner must assert physical injury
that is more than de minimis, but the injury does not need to be
significant. See Thompson v. Sec'y, Fla. Dep't of Corr., 551 F.
App'x 555, 557 (11th Cir. 2014) (citation omitted); Dixon v. Toole,
225 F. App'x 797, 799 (11th Cir. 2007). Despite § 1997e(e)'s
limitation, successful constitutional claimants who lack a physical
injury may still recover nominal damages. See Hughes v. Lott, 350
16
F.3d 1157, 1162 (11th Cir. 2003) ("Nominal damages are appropriate
if
a
plaintiff
constitutional
establishes
right,
even
if
a
violation
he
cannot
of
prove
a
fundamental
actual
injury
sufficient to entitle him to compensatory damages."). Further, the
Eleventh Circuit has instructed courts to dismiss an inmate's
compensatory and punitive damages claims under § 1997e(e) without
prejudice to allow an inmate to refile when and if the inmate is
released. See Harris v. Garner, 216 F.3d 970, 980 (11th Cir. 2000).
Taking Berger's allegations as to his injuries as true, he
asserts physical injuries that are greater than de minimis. The
injuries
Berger
complains
about
are
allegedly
the
result
of
Defendants Carlton and Williams authorizing and/or directing the
chemical spraying, and denying him a timely decontamination shower.
According to Berger, he suffered partial blindness, dermatological
issues, and respiratory difficulties that required several months
of medical treatment, as a result of the chemical spraying and
delayed decontamination shower. See SAC at 9, 12-13.
Here, Berger's alleged injuries, described as dermatological,
vision, and respiratory distress leading to months of medical
treatment, cross § 1997e(e)'s de minimis threshold. See Thompson,
551 F. App'x at 557 n.3 (describing an approach of asking whether
the injury would require a free world person to visit an emergency
room or doctor) (citing Luong v. Hatt, 979 F. Supp. 481, 486 (N.D.
Tex. 1997) ("A physical injury is an observable or diagnosable
17
medical
condition
requiring
treatment
by
a
medical
care
professional. It is not a sore muscle, an aching back, a scratch,
an abrasion, a bruise, etc., which lasts even up to two or three
weeks.")). Thus, Defendants' Motion is due to be denied to the
extent that the Court finds Berger's request for compensatory and
punitive damages is not precluded under § 1997e(e) because he
alleges that he suffered physical injuries that are greater than de
minimis.
Therefore, it is now
ORDERED:
1.
Defendants'
Motion
to
Dismiss
Plaintiff's
Amended
Complaint (Doc. 30) is GRANTED to the extent Berger seeks to impose
liability on Defendant Carlton on the basis of respondeat superior.
Berger's
claims
against
Defendant
Carlton
on
the
basis
of
respondeat superior are DISMISSED. Otherwise, Defendants' Motion is
DENIED.
2.
20,
2019,
Defendants Carlton and Williams, no later than February
must
answer
or
otherwise
respond
to
the
SAC,
the
operative complaint.
3.
The parties shall conduct discovery so the due date of
any discovery requested is no later than June 24, 2019. Any motions
relating to discovery shall be filed by July 15, 2019.
18
4.
All motions to dismiss and/or for summary judgment must
be filed by July 25, 2019.15
5.
Responses to any motions to dismiss and/or for summary
judgment must be filed by September 6, 2019.
6.
The parties are encouraged to discuss the possibility of
settlement and notify the Court if their efforts are successful. In
doing so, Plaintiff and Defendants are encouraged to maintain a
realistic approach in making and/or considering any settlement
offers. If the parties are unable to settle the case privately, and
want a Magistrate Judge to conduct a settlement conference, they
should notify the Court.
7.
As to the taking of Plaintiff's deposition, if necessary,
the Court grants permission to Defendants' counsel. Defendants'
counsel must contact the Warden of Plaintiff's institution to
arrange an appropriate time and place for the deposition.
8.
Plaintiff is advised that any documents submitted for the
Court's consideration must be legible. Portions of Plaintiff's
filings are illegible and/or difficult to decipher, especially when
electronically scanned. Therefore, Plaintiff is encouraged to use
a black pen, not pencil. The Court may strike documents that are
not in compliance with these instructions.
15
The Court requires the complete transcript of any deposition
submitted as an exhibit.
19
9.
The Court expects strict compliance with the Court's
deadlines.
DONE AND ORDERED at Jacksonville, Florida, this 22nd day of
January, 2019.
sc 1/22
c:
Jackie Berger, FDOC #M38196
Counsel of Record
20
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