Lowrey v. Walton County Sheriff's Department

Filing 31

RECOMMENDATION to grant 13 MOTION to Dismiss Complaint filed by defendants Captain Etchinson, Elliott, Harris, Thrasher, Officer Evans, and Walton County Sheriff's Department. Objections to R&R due by 12/23/2008. Ordered by U.S. Mag Judge Claude W. Hicks, Jr. on 12/5/08. (CWH)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION ANTHONY BLAKE LOWREY, Plaintiff VS.

NO. 3:07-CV-113 (CDL)
LT. ELLIOTT, et al., Defendants PROCEEDINGS UNDER 42 U.S.C. §1983 BEFORE THE U. S. MAGISTRATE JUDGE

RECOMMENDATION
Before the court is the defendants' MOTION TO DISMISS the above-styled case. Tab #13. After being advised of his right to respond to the defendants' motion, plaintiff ANTHONY BLAKE LOWREY, who was incarcerated at the time he filed his complaint, filed a response that does not specifically refute the defendants' contention -- that the plaintiff's claim regarding missing religious services while incarcerated is barred by the Prison Litigation Reform Act's (PLRA) limitation on recovering damages because he does not allege a physical injury. Tab #15.

DISCUSSION The sole remaining claim in plaintiff Lowrey's complaint is that he was not permitted to attend religious services while he was in custody. He does not allege any physical, mental, or emotional injury as a result of missing these services. The defendants aver that because he did not suffer any such injury, his claim must be dismissed for failure to state a claim pursuant to the PLRA. The PLRA provides, inter alia: 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) (emphasis added).

In the instant case, plaintiff Lowrey has not sued for mental or emotional injury. Instead, he alleges that his rights have been abridged in violation of his First Amendment right to practice his religion. A prisoner is permitted to bring a suit pursuant to the PLRA even if he alleges only a violation of a constitutionally protected right and does not allege any actual injury. Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007). However, recovery in such cases is limited to nominal damages. See Id. at 1271 (citing Napier v. Preslicka, 314 F.3d 528 (11th Cir. 2002)). In the case at bar, plaintiff Lowrey has failed to make even an implied claim for nominal damages. It is incumbent on a plaintiff to request nominal damages if he intends to pursue such damages. See Oliver v. Falla, 258 F.3d 1277 (11th Cir.2001).1 IT IS THEREFORE RECOMMENDED that the defendants' MOTION
TO

DISMISS be

GRANTED. Pursuant to 28 U.S.C. §636(b)(1), the parties may serve and file written objections to this RECOMMENDATION with the district judge to whom this case is assigned WITHIN TEN (10) DAYS after being served with a copy thereof. SO RECOMMENDED this 5th day of DECEMBER, 2008.2

CLAUDE W. HICKS, JR. UNITED STATES MAGISTRATE JUDGE

Oliver is an excessive force case brought under the Eighth Amendment in which the plaintiff failed to request a jury instruction on nominal damages or to object to the trial court's failure to give such an instruction. The Eleventh Circuit determined that a plaintiff must seek nominal damages and that failure to do so constitutes a waiver of entitlement to such damages. Although it is unclear whether the plaintiff in Oliver actually set forth a claim for nominal damages in his complaint, it stands to reason that if no such damages are sought in the first place, as in the case at bar, the same reasoning set forth in Oliver as to failure to request a jury instruction would preclude recovery of nominal damages herein. This Recommendation replaces an earlier Recommendation filed November 4, 2008 (Tab #28) which has been this day vacated.
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