Gill v. Inch et al

Filing 42

ORDER that the claims against Defendant J. Falk are DISMISSED without prejudice. The Clerk shall terminate J. Falk as a Defendant in this case. Defendants' 33 Motion to Dismiss is GRANTED to the extent Plaintiff requests compensatory damage s. The Motion 33 is otherwise DENIED. Defendants must file their answers to Plaintiff's Complaint by June 28, 2021. Thereafter, the Court will issue a separate order setting deadlines for discovery and the filing of dispositive motions. Signed by Judge Marcia Morales Howard on 6/7/2021. (JND)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RICARDO IGNACIO GILL,
Plaintiff,
v.

Case No. 3:20-cv-535-MMH-JRK

MARK INCH, et al.,
Defendants.
ORDER
I. Status
Plaintiff Ricardo Ignacio Gill, a death-sentenced inmate in the custody
of the Florida Department of Corrections (FDOC) and housed at Union
Correctional Institution (UCI), initiated this action by filing a pro se Civil
Rights Complaint (Doc. 1; Complaint) under 42 U.S.C. § 1983. Gill sues these
Defendants: (1) Mark Inch, Secretary of the FDOC; (2) John Palmer, Regional
Director of Region II; (3) Barry Reddish, Warden of Florida State Prison (FSP);
(4) Jeffery McClellan, Assistant Warden of FSP; (5) Travis Lamb, Warden of
UCI; (6) J. Falk, Assistant Warden of UCI; (7) Tifani Knox, Assistant Warden
of UCI; (8) Richard Andrews, Classification Supervisor at UCI; (9) J. Lindsey,
Colonel at UCI; and (10) E. Biascochea, Major at UCI. Id. at 2-6. Gill asserts
that Defendants’ prolonged and arbitrary application of the FDOC’s non-

contact visitation policy violates his due process rights under the Fifth and
Fourteenth Amendments.1 Id. at 9.
This matter is before the Court on Defendants Inch, Palmer, Reddish,
McClellan, Lamb, Knox, Andrews, Lindsey, and Biascochea’s Motion to
Dismiss (Doc. 33; Motion). The Court advised Gill that the granting of a motion
to dismiss would be an adjudication of the case that could foreclose subsequent
litigation on the matter and allowed him to respond to the Motion. See Order
of Special Appointment; Directing Service of Process upon Defendants; Notice
to Plaintiff (Doc. 7). Gill filed a response in opposition to the Motion. See
Plaintiff’s Response to Defendants’ Motion to Dismiss (Doc. 37; Response). The
Motion is ripe for review.
II. Dismissal of Claims against Defendant J. Falk
Before resolving the Motion, the Court addresses the status of Gill’s
claims against Defendant J. Falk. On July 20, 2020, the Court directed service
of process on all Defendants. See Order of Special Appointment (Doc. 7). On
August 10, 2020, the United States Marshals Service returned the service of
process as unexecuted for Falk, explaining that service could not be executed
because Falk is “[r]etired” and no longer works for the FDOC. See Doc. 19. The

Gill also references the Equal Protection Clause of the Fourteenth
Amendment, but Gill’s allegations appear intertwined with his due process claim.
1

2

FDOC then, in camera, provided the Court with Falk’s forwarding address.2
See Sealed Notice of Defendant’s Confidential Address (Doc. S-21). On
September 10, 2020, the Court redirected service of process on Falk at the
newly provided forwarding address and further directed the United States
Marshals to use reasonable efforts to locate and serve Falk. See Order
Redirecting Service of Process Upon Defendant Falk (Doc. 22). On September
30, 2020, the United States Marshals Service again returned the service of
process as unexecuted for Falk. See Doc. S-25. In the written remarks on the
second unexecuted return of service, the deputy United States Marshal
specified that on September 10, 2020, he tried to serve Falk at the forwarding
address that the FDOC provided. Id. When those efforts failed, on September
21, 2020, the Marshals Service tried to locate Falk at another address and left
a card when no one answered the door. Id. That same day, the United States
Marshals Service received a phone call from an individual at the additional
address, who advised that he/she had owned the home for about eight years
and that Falk did not live at the residence nor had he lived there previously.
Id.
Thereafter, the Court directed Gill, by November 4, 2020, to show cause
why the claims against Falk should not be dismissed from this action. See

In the Sealed Notice of Defendant’s Confidential Address, the FDOC also
provided the Court with Falk’s full name – Joseph A. Falk.
2

3

Order to Show Cause (Doc. 26). Gill responded to the Court’s Order, arguing
“it is not incumbent upon [him] to provide aid to the U.S. Marshal in serving J
Falk.” See Answer to Court to Doc. 26 Order to Show Cause to Service on
Defendant J Falk (Doc. 31). He asserts that he has provided the Court with all
known information on Falk’s location and that as a state prisoner, he lacks
access to the resources available to the United States Marshals Service who
“with all due diligence can locate a service address for J Falk and perfect
service.” Id. at 2.
Upon review of the record, the Court finds the FDOC and the United
States Marshals Service have used reasonable efforts to effect service of
process on Defendant Falk. See Richardson v. Johnson, 598 F.3d 734, 740 (11th
Cir. 2010) (finding that district court must determine whether a former prison
employee can be located with reasonable effort, and if efforts do not prove
successful, may properly dismiss claims against unserved defendant). After the
FDOC advised the Court that Falk was no longer an FDOC employee, it
provided the Court with his full name and last known address. The United
States Marshals Service then tried to serve Falk at that last known address
and when that proved unsuccessful, used reasonable efforts to locate an
alternate address for Falk and attempted to serve him there. The United
States Marshals Service’s efforts, however, were unsuccessful. Thus, the Court
finds that Gill’s claims against Falk are due to be dismissed without prejudice.
4

III. Gill’s Allegations
In his Complaint, Gill alleges that Defendants, each in their individual
and official capacities as “member[s] of the Institutional Classification Team,”
arbitrarily imposed and continue to impose on Gill a non-contact visitation
policy that does not apply to him, in violation of his Fifth and Fourteenth
Amendment rights. Complaint at 6-16; Response at 5.3 Gill explains that under
rule 33-601.735, Florida Administrative Code, the warden, upon the ICT’s
recommendation, may temporarily place an inmate “in [s]egregated/[n]on[c]ontact visitation status in order to maintain the security and good of the
institution.” Complaint at 7. The ICT bases its recommendation on various
factors, including, inter alia, the inmate’s past behavior during visitations;
disciplinary history involving drugs, contraband, violence, or visiting policy
violations; evidence that the inmate has possessed, transferred, or sold drugs
or alcohol; the inmate’s confirmed membership in a security-threat group; or a
positive drug or alcohol test. Id. at 7-8. Gill contends that if the warden
approves the ICT’s recommended non-contact status, the inmate is “not
allowed to hug, touch, kiss, and enjoy the basic human need of having physical
contact that [is] enjoyed by other similarly situated inmates.” Id. at 8.
According to Gill, because of the stringent nature of non-contact conditions,

In his Response to Defendants’ Motion, Gill clarifies that he sues each
Defendant in their official and individual capacities. Response at 1.
3

5

prison officials may only place an inmate on non-contact status temporarily
and are required to review the inmate’s visitation status every six months to
ensure the inmate is in the least restrictive environment necessary to meet
legitimate security concerns. Id. He states that anything beyond the least
restrictive means “constitute[s] extraordinary circumstances which are not
considered incidental to the normal types of conditions experienced by
individuals in prison.” Id. at 8-9. Gill alleges that as a member of the ICT, each
Defendant has “specific authority and responsibilities relative to the operation
and management of the Inmate Classification System,” including “making
[i]nmate status decisions” and placing inmates under non-contact status. Id.
at 2-6.
Gill maintains, however, that rule 33-601.735 is unconstitutionally
vague, and he argues that Defendants’ application of the rule to him violates
his right to procedural due process and equal protection of the law under the
Fifth and Fourteenth Amendments. Id. at 16. According to Gill, Defendants
rely on the “the vagueness of [this rule to] subject[] [him] to atypical and
significant hardships for an extended period of time without any definite time
limitations.” Id. To support this allegation, Gill asserts that Defendants have
a custom, policy, and practice of misapplying rule 33-601.735 and using noncontact visitation as a long-term punitive device against him even though he
has not engaged in the enumerated prohibited conduct. Id. He explains that he
6

is “confined under [d]eath [r]ow conditions” and has been under a non-contact
visitation status for sixteen years, “at various times from July 27, 2004 up to
present” day and “as recent as April 21, 2020,” with Defendants regularly
withholding certain rights and visitation privileges. Id. at 6, 9. Gill argues that
Defendants failed to review his non-contact status for “11 ½ years, from July
19, 2005 to January 19, 2016,” and the criteria on which Defendants relied to
continue his non-contact status afterwards did not comply with the
requirements of rule 33-601.735. Id. at 15.
According to Gill, his continued “placement on [n]on-[c]ontact visitation
is for the purpose of punishment rather than to serve a valid security concern.”
Id. at 6. To demonstrate the punitive and capricious nature of Defendants’
restrictions, Gill notes that Defendants have sporadically allowed him to enjoy
contact visits on a “case-by-case basis,” and further that Defendants know Gill
exhibited exemplary behavior during those contact visits. He also maintains
that prison officials know he participates in open recreation with seventy-five
other inmates without incident. Id. at 15. However, despite Gill’s exemplary
conduct, Defendants routinely find Gill to be a threat and arbitrarily prohibit
contact visits without justification or supporting evidence. Id. Gill asserts that
he is then forced to visit with his family and friends through glass barriers
while other similarly situated inmates can enjoy human contact with their
visitors. Id. Gill argues that by engaging in this practice, Defendants have
7

hindered his ability to carry on “the ordinary affairs of life in the same manner
and in a like extent had he not been subject to the unconstitutional conduct of
Defendants . . . .” Id. at 20. He explains that as a direct and proximate result
of Defendants’ practice and policies, he has and will continue to suffer “physical
and mental anguish.” Id. at 19-20. As relief, Gill requests a declaratory
judgment deeming Defendants’ use of the non-contact policy unconstitutional
as applied to him and enjoining Defendants from enforcing the non-contact
visitation policy against him now and in the future. Id. at 22-23. He also seeks
$160,000 in compensatory damages; $16,000 in punitive damages from each
Defendant; as well as an award of costs. Id. at 21-22.
IV. 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). 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.
8

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).
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
9

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 837,
839 (11th Cir. 2011)4 (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).
V. Summary of the Arguments
In their Motion, the remaining Defendants request that the Court
dismiss “part of” Gill’s claims against them. Motion at 1. They argue that the
Court cannot grant Gill’s request for declaratory and injunctive relief against
them in their individual capacity, and that Gill is not entitled to compensatory
and punitive damages because he has not alleged sufficient physical injuries
resulting from Defendants’ acts or omissions. Id. at 5-7. Defendants also
maintain that Gill fails to state a plausible procedural due process claim
against them, and that they are entitled to qualified immunity for their
discretionary decision to place Gill on non-contact visitation status.5 Id. at 712. Finally, they contend that some of Gill’s allegations are barred by the

“Although an unpublished opinion is not binding . . . , it is persuasive
authority.” United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per
curiam); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions
are not considered binding precedent, but they may be cited as persuasive
authority.”).
4

Defendants do not address or seek dismissal of Gill’s Fourteenth Amendment
equal protection claim. See generally Motion.
5

10

statute of limitations. Id. at 13. In his Response, Gill urges the Court to deny
Defendants’ Motion and maintains that he states plausible due process and
equal protection claims under the Fourteenth Amendment and that
Defendants are not entitled to qualified immunity. Response at 2-10. He also
asserts that while Defendants’ initial unconstitutional acts may have occurred
outside the statute of limitations, he has alleged a reoccurring and ongoing
violation that “show[s] a pattern of behavior.” Id. at 10.
VI. Analysis
a. Due Process Violation
The Court begins its analysis with Defendants’ argument that Gill fails
to state a plausible claim under the Due Process Clause of the Fourteenth
Amendment. Defendants assert that Gill fails to show “a deprivation which
imposes a significant and atypical hardship in relation to the ordinary
incidents of prison life” because he does not have a liberty interest in
“temporary suspension or restrictions of his visiting privileges.” Motion at 810. In support of this contention, Defendants rely on the Supreme Court’s
decision in Overton v. Bazzetta, 539 U.S. 126 (2003), arguing that in Overton,
the Court upheld the constitutionality of an even more restrictive prison
visitation policy. Motion at 9. In Overton, the Court considered whether a
Michigan prison regulation imposing a two-year ban on visitation privileges
for prisoners convicted of two substance abuse infractions violated the
11

constitution. 539 U.S. at 134. The Court found the regulation did not violate
the Fourteenth Amendment’s due process mandates because it served the
legitimate goal of deterring the use of drugs and alcohol within prisons. Id. In
doing so, the Court held that “[d]espite the importance of the rights [] at issue
. . . withholding such privileges is a proper and even necessary management
technique to induce compliance with the rules of inmate behavior, especially
for high-security prisoners who have few other privileges to lose.” Id.
Nevertheless, the Court recognized that the restriction was “severe,” and
observed that if “the withdrawal of all visitation privileges were permanent or
for a much longer period, or if it were applied in an arbitrary manner to a
particular inmate, the case would present different considerations.” Id. at 137.
Defendants here assert that, like the prisoners in Overton, Gill fails to “allege
that visitors are completely prevented from visiting in prison, but [instead
asserts] the visits occur behind a protective barrier.” Motion at 8. And,
according to Defendants, “withdrawal of visitation privileges for a limited
period of time as a means of effecting prison discipline is ‘not a dramatic
departure from accepted standards for conditions of confinement.’” Id. (quoting
Sandin v. Conner, 515 U.S. 472, 485 (1995)).
In Response, Gill argues that the facts of his case are distinguishable
from those in Overton and that he has alleged facts sufficient to demonstrate
a prolonged and arbitrary withdrawal of contact privileges. Response at 4-5.
12

He asserts that rules 33-601.731 and 33-601.735, Florida Rules of
Administrative Code, establish a liberty interest in contact visitation and are
“designed to instruct administrators and curtail arbitrary use of state power”
in restricting that liberty interest. Response at 3. He explains that the rules
outline which offenses justify a restriction in a prisoner’s visitation privileges
and provide a time limit for that restriction. Id. According to Gill, however, he
has not committed any offense justifying the prohibition of contact visitation
under the rules and Defendants have arbitrarily extended suspension of his
non-contact visitation with “no hearings, no notice of changes, [and] simply on
the[ir] whim . . . .” Id. at 4-5. He argues that Defendants do not consider him a
security threat because they allow him to participate in open yard time without
restraints, he is not confined to a security cell, and he is otherwise “given the
same privileges as other inmates that are not considered security threats
except having his visitation restricted.” Id. at 10.
Courts “examine procedural due process questions in two steps; the first
asks whether there exists a liberty or property interest that has been interfered
with by the state[;] the second examines whether the procedures attendant
upon that deprivation were constitutionally sufficient.” Kentucky Dep’t of
Corr. v. Thompson, 490 U.S. 454, 460 (1989); see also Wilkinson v. Austin, 545
U.S. 209, 221-22 (2005). The issue before the Court at this stage of the

13

proceeding centers on the first step – whether Gill has alleged a liberty
interest.
Liberty interests may arise either from the Due Process Clause or from
state law. Meachum v. Fano, 427 U.S. 215, 225-27 (1976). The Due Process
Clause does not provide an inmate with a liberty interest or right to “unfettered
visitation.” See Thompson, 490 U.S. at 460-61 (finding that “[t]he denial of
prison access to a particular visitor . . . is not independently protected by the
Due Process Clause”). As such, even viewing Gill’s allegations in the light most
favorable to him, as the Court must, he fails to allege a violation in a liberty
interest protected by the Due Process Clause of its own force. Nevertheless,
taking Gill’s allegations about his conditions as true, the Court finds that the
alleged restrictions on Gill’s contact visitation, particularly when imposed, as
he asserts, indefinitely and arbitrarily, give rise to a liberty interest under
state law.
Defendants argue that Overton precludes a prisoner from claiming a
liberty interest in a visitation restriction. However, Defendants’ reliance on
Overton is misplaced. The Court in Overton focused on whether a particular
regulation limiting a prisoner’s liberty interest was warranted, conducting a
fact-intensive inquiry that balanced the penological benefits of the regulation
and the prisoner’s right to visitation. Overton, 539 U.S. at 135. Overton did not
specifically discuss how a court determines whether that plaintiff alleged a
14

liberty interest at the pleading stage. Rather, to determine if the state has
created a protected liberty interest here, the Supreme Court has directed that
courts must focus on the nature of the deprivation at issue. Sandin, 515 U.S at
483. In evaluating the nature of the deprivation, the Court instructed that
state-created liberty interests rising to the level of requiring due process
protection generally will be limited to “freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force, nonetheless impose []
[an] atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Id. 484. That is to say, “the touchstone of the inquiry
into the existence of a protected, state-created liberty interest in avoiding
restrictive conditions of confinement is not the language of the regulations
regarding those conditions but the nature of those conditions themselves”
when compared to the typical conditions of incarceration. Wilkinson, 545 U.S.
at 223.
Here, Gill alleges that prisoners are allowed contact visitation and when
a prisoner is on non-contact visitation status, prison officials are required to
provide a periodic review of that restriction. According to Gill, however, for
sixteen years, Defendants have arbitrarily and with punitive intent placed Gill
under non-contact status while other similarly situated prisoners enjoy their
right to contact visits. He asserts that Defendants have limited his contact
15

visitation without notice or an opportunity to be heard, and absent a rule
violation justifying the restriction. Construed liberally, as the Court must do
on a motion to dismiss, Gill has adequately alleged conditions that may pose
an atypical and significant hardship in relation to the ordinary incidents of
prison life, implicating a state-created liberty interest. Thus, the Motion is due
to be denied to the extent Defendants contend Gill has failed to state a
plausible claim for relief.
b. Qualified Immunity
Defendants also assert that they are entitled to qualified immunity for
Gill’s Fourteenth Amendment due process claims for monetary damages
against them in their individual capacities. Motion at 10-12. In response, Gill
argues that Defendants are not entitled to qualified immunity because they
have arbitrarily and in a prolonged unnecessary manner restricted a liberty
interest that is clearly established. Response at 8-9.
“The defense of qualified immunity completely
protects
government
officials
performing
discretionary functions from suit in their individual
capacities unless their conduct violates ‘clearly
established statutory or constitutional rights of which
a reasonable person would have known.’’ Gonzalez v.
Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (quoting
Hope v. Pelzer, 536 U.S. 730, 739 (2002)) . . . . Once it
has been determined that the official was acting
within his discretionary duties, the burden shifts to
the plaintiff to show (1) that the official violated a
constitutional right and (2) that the right was clearly
established at the time of the alleged violation.
16

Caldwell v. Warden, FCI Talladega, 748 F.3d 1090,
1099 (11th Cir. 2014). Our inquiry “can begin with
either prong.” Morris v. Town of Lexington, 748 F.3d
1316, 1322 (11th Cir. 2014).
Marbury v. Warden, 936 F.3d 1227, 1232-33 (11th Cir. 2019) (internal citations
modified).
Gill does not appear to refute Defendants’ argument that Defendants
were engaged in discretionary functions during the events at issue. Accepting
Gill’s allegations about each Defendant and considering those allegations
independently, the Court finds that Gill has alleged facts sufficient to state a
plausible Fourteenth Amendment due process claim against each Defendant.
Thus, Defendants’ qualified immunity argument is unavailing at this stage of
the proceeding.
c. Declaratory and Injunctive Relief
Defendants argue that Gill’s request for declaratory and injunctive relief
against them in their individual capacities should be dismissed because § 1983
does not permit injunctive relief against state officers sued in their individual
capacities. Motion at 5-6. In support, Defendants rely on the Seventh Circuit
Court of Appeals’ opinion in Greenawalt v. Indiana Dep’t of Corr., 397 F.3d
587, 589 (2005), in which the court said, “[S]ection 1983 does not permit
injunctive relief against state officials sued in their individual as distinct from
their official capacity.” Motion at 5. Defendants also rely on a footnote in the
17

Tenth Circuit Court of Appeals’ opinion in Brown v. Montoya, 662 F.3d 1152,
1161 n.5 (10th Cir. 2011), in which the court states, “Section 1983 plaintiffs
may sue individual-capacity defendants only for money damages and officialcapacity defendants only for injunctive relief.” Motion at 5. In his Response,
Gill argues that it is his “intention to sue all Defendants in their official
capacities as well as their individual capacities for any and all forms of relief
available.” Response at 1.
The parties do not cite, and the Court is unaware of, an Eleventh Circuit
decision that specifically decided the issue of whether it is proper to seek
injunctive relief against a state official sued in their individual capacity under
§ 1983. Notably, in Attwood v. Clemons, 818 F. App’x 863 (11th Cir. 2020), the
Honorable Britt Grant wrote an extensive concurrence analyzing the
distinction between individual and official capacity claims raised in a § 1983
case, and noted that a successful § 1983 suit targeting a government official in
their individual capacity “may result in an award of monetary damages,
declarative relief, or injunctive relief to correct the constitutional violation.”
Attwood, 818 F. App’x at 872 (Grant, J., concurring in part). The majority,
however, took “no position on the concurrence’s view,” explaining it would not
make a finding on an issue not before it. Id. at 869; see also Executive 100, Inc.
v. Martin Cnty., 922 F.2d 1536, 1542 n.7 (11th Cir. 1991) (“[W]e do not reach
the issue of whether suits against officials for prospective injunctive relief may
18

be brought only against defendants in their official capacities.”). Further, when
presented with this issue on a motion to dismiss, one jurist of this Court has
declined to find that injunctive relief cannot remedy personal liability in a §
1983 suit, see Hatcher v. Desoto Cnty. Sch. Dist. Bd. Of Educ., 939 F. Supp. 2d
1232, 1236 (M.D. Fla. 2013), while another has endorsed, albeit without
discussion, the position of Defendants, see Wright v. Barnes, No. 3:14-cv-479J-39JBT, 2015 WL 9581765, at *2 (M.D. Fla. Dec. 30, 2015).
Here, no one disputes that Gill can proceed with his request for
injunctive and declaratory relief against Defendants in their official capacities.
Because those requests will proceed and given the current procedural posture
of this case, the Court declines to find that declaratory or injunctive relief
against Defendants in their individual capacity cannot remedy Gill’s alleged
constitutional violation. See, e.g., Hall v. Jarvis, No. 3:10-cv-442-99MMHTEM, 2011 WL 971125, at *6 (M.D. Fla. Mar. 2, 2011) (considering same
argument on a motion to dismiss, explaining “[u]nder these circumstances,
whether [p]laintiff is seeking injunctive and declaratory relief against
[d]efendant

in

his

official

or

individual

capacity

seems

practically

inconsequential . . . . In either capacity, [d]efendant is the person to be enjoined
– and no one else.”). Thus, Defendants’ Motion will be denied without prejudice
on this issue.

19

d. Lack of Physical Injury
Next, Defendants assert that Gill’s request for

punitive and

compensatory damages must be dismissed because he fails to allege a physical
injury resulting from their purported unconstitutional acts. Motion at 6-7. In
response, Gill contends that because he has suffered a loss of liberty “resulting
from improper retention in a restrictive classification status,” he is entitled to
“monetary damages.” Response at 2.
At issue is 42 U.S.C. § 1997e(e), which reads:
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 or
the commission of a sexual act . . . .
42 U.S.C. § 1977e(e). Until recently, the Eleventh Circuit read this statute to
mean that “an incarcerated plaintiff cannot recover either compensatory or
punitive damages for constitutional violations unless he can demonstrate a
(more than de minimis) physical injury.” Brooks v. Warden, 800 F.3d 1295,
1307-08 (11th Cir. 2015). However, in Hoever v. Marks, 993 F.3d 1353 (11th
Cir. 2021), the Eleventh Circuit reexamined § 1997e(e)’s physical injury
requirement and precisely defined its limitation on the damages a prisoner can
recover for constitutional violations. The court held and instructed “the district
court to dismiss only a request for compensation for an alleged mental or
emotional injury in the absence of an alleged physical injury.” Id. at 1361. It
20

reasoned that “a plaintiff – at least one alleging a constitutional violation –
need not allege a compensable injury to seek punitive damages, so long as he
plausibly alleges that the underlying misconduct was willful or malicious.” Id.
In the Complaint, Gill alleges that Defendants have used “[n]on-[c]ontact
visitation as a long-term punitive status with actual knowledge of its effect on
[Gill’s] physical and psychological well being”; and that he “has in the past and
will in the future endure physical and mental anguish.” Complaint at 16-20.
He requests compensatory and punitive damages. Id. at 21-22. Taking Gill’s
allegations as true, § 1997e(e) precludes his request for compensatory damages
because he fails to allege facts supporting his conclusory statement that
Defendants’ actions resulted in physical “anguish.” However, because he has
alleged that Defendants violated his constitutional rights willfully and with
“actual knowledge,” his lack of physical injury does not prohibit his potential
recovery of punitive damages. Thus, Defendants’ Motion is due to be granted
as to Gill’s request for compensatory damages and denied as to his request for
punitive damages.
e. Statute of Limitations
Last, the Court addresses Defendants’ contention that any portion of
Gill’s claim involving conduct that allegedly occurred before May 29, 2016, is
barred by Florida’s four-year statute of limitations. Motion at 12-13. In his
Response, Gill asserts that “while some of the facts germane to this recurrent
21

and ongoing violation were perpetuated by the Defendants beyond the statute
of limitations, if it is applicable, all the facts of this case should be considered,
as [ ] Defendants, if the case is brought before a jury, will try and bring up past
behaviors [] [of] [Gill] . . . .” Response at 10.
Actions “brought pursuant to 42 U.S.C. § 1983 are subject to the statute
of limitations period governing personal injury actions in the state where the
action is brought.” Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1263
(11th Cir. 2014) (citation omitted). In Florida, “[t]he applicable statute of
limitations in a § 1983 lawsuit is the four-year Florida state statute of
limitations for personal injuries.” Omar v. Lindsey, 334 F.3d 1246, 1251 (11th
Cir. 2003) (per curiam) (citations omitted); see Ealy v. GEO Grp., Inc., 667 F.
App’x 739, 740 (11th Cir. 2016) (“This Court has on several occasions applied
the four-year residual limitations period under Florida’s personal injury
statute, Florida Statutes § 95.11(3)(p), to 42 U.S.C. § 1983 claims.”). Federal
law determines when the statute of limitations begins to run. Rozar v. Mullis,
85 F.3d 556, 561 (11th Cir. 1996). Under federal law, the statute of limitations
begins to run when “the plaintiffs know or should know (1) that they have
suffered the injury that forms the basis of their complaint and (2) who has
inflicted the injury.” Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003).
An exception to the general accrual rule is the “continuing violation”
doctrine. “Under the continuing violation doctrine, the statute of limitations is
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tolled for a claim that otherwise would be time-barred where the violation
giving rise to the claim continues to occur within the limitations period.” Nat’l
Parks & Conservation Ass’n, Inc. v. Tenn. Valley Auth., 502 F.3d 1316, 1322
(11th Cir. 2007). In other words, the doctrine “permits a plaintiff to sue on an
otherwise time-barred claim when additional violations of the law occur within
the statutory period.” Robinson v. United States, 327 F. App’x 816, 818 (11th
Cir. 2007). “When the violation alleged involves a continuing injury, the cause
of action accrues, and the limitation period begins to run, at the time the
unlawful conduct ceases.” Id. “The critical distinction in the continuing
violation analysis . . . is whether the plaintiff [] complain[s] of the present
consequence of a one-time violation, which does not extend the limitations
period, or the continuation of that violation into the present, which does.”
Knight v. Columbus, Ga., 19 F.3d 579, 580-81 (11th Cir. 1994). “Where a
continuing violation is found, the plaintiff[ ] can recover for any violations for
which the statute of limitations has not expired.” Id. at 581.
Gill alleges that the due process violations and “[t]he injurious
occurrences hereinafter complained of [and] affecting [him] occurred at various
times from July 27, 2004 up to present.” Complaint at 6. He also states, “These
injurious occurrences are as recent as April 21, 2020 where [n]on-contact
[v]isiting [s]tatus was again continued . . . .” Id. Given these allegations, and
only for the purpose of ruling on the Motion, the Court finds Gill has plausibly
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alleged a “continuing violation” that may extend the limitations period. See,
e.g., Johnson v. City of Warner Robins Ga., No. 5:15-CV-419(CAR), 2018 WL
1095563, at *9-*15 (M.D. Ga. Feb. 28, 2018) (finding due process claim based
on four-and-one-half-year administrative segregation was continuing violation
for statute of limitations purposes). Thus, Defendants’ Motion is due to be
denied as to this issue.
In consideration of the foregoing, it is now
ORDERED:
1.

The claims against Defendant J. Falk are DISMISSED without

prejudice. The Clerk shall terminate J. Falk as a Defendant in this case.
2.

Defendants’ Motion to Dismiss (Doc. 33) is GRANTED to the

extent Gill requests compensatory damages. The Motion (Doc. 33) is otherwise
DENIED.
3.

Defendants must file their answers to Gill’s Complaint by June

28, 2021. Thereafter, the Court will issue a separate order setting deadlines
for discovery and the filing of dispositive motions.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of June,
2021.

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Jax-7
C:
Ricardo Ignacio Gill, #105559
Omar J. Famada, Esq.

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