POWELL v. OWENS et al

Filing 65

ORDER ADOPTING as amended 64 Report and Recommendations and DENYING 49 Motion for Preliminary Injunction. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 1/27/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WILLIAM H. POWELL,
Plaintiff,
v.
BRIAN OWENS, et al.,
Defendants.

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CIVIL ACTION NO. 5:14-CV-87 (MTT)

ORDER
Magistrate Judge Stephen Hyles recommends granting Defendant Stephen
Bostic’s motion to dismiss (Doc. 25); dismissing Powell’s complaint for failure to
prosecute under Federal Rule of Civil Procedure 41(b); and denying Powell’s motion for
injunctive relief (Doc. 49). Doc. 64.1 Powell did not object.
The Court has reviewed the Order and Recommendation (Doc. 64) for clear error
and REJECTS the recommendation that Bostic’s motion to dismiss (Doc. 25) be
granted; REJECTS the recommendation that Powell’s complaint be dismissed for failure
to prosecute under Federal Rule of Civil Procedure 41(b); and ADOPTS as amended
the recommendation that Powell’s motion for injunctive relief (Doc. 49) be denied.

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   In his Order and Recommendation (Doc. 64), the Magistrate Judge denies Powell’s motions for entry of default 
(Doc. 23), appointment of counsel (Doc. 33), and extension of time (Doc. 62).  Doc. 64 at 1, 4‐8.  The Magistrate 
Judge construes his order on these motions as an order on pretrial matters under 28 U.S.C. § 636(b)(1)(A) subject 
to reconsideration only “where . . . shown [to be] . . . clearly erroneous or contrary to law.”  28 U.S.C. § 636(b)(1).   

The motion for extension of time (Doc. 62) includes a request for injunctive relief.  Doc. 62 at 1‐2.  The 
Magistrate Judge’s determination of this matter requires adoption by the Court under 28 U.S.C. § 636(b)(1)(B).  
The Court has reviewed the Magistrate Judge’s recommendation denying Powell’s request for injunctive relief.  
The Magistrate Judge correctly concludes that the Court has no authority to enjoin Washington State Prison, 
because Powell has not shown it to be a party, an agent of a party, or in active concert or participation with such, 
as required by Federal Rule of Civil Procedure 65(d)(2).  Accordingly, the Court DENIES Powell’s request for 
injunctive relief in Doc. 62, as the Magistrate Judge recommended.   

The Magistrate Judge’s order on the rest of the issues raised in these motions has not been shown to be 
clearly erroneous or contrary to law, and is undisturbed by this Order.  

I. BOSTIC’S MOTION TO DISMISS
Bostic filed his motion to dismiss on July 11, 2014, asserting that the Court
should dismiss Powell’s First Amendment retaliation claim against him because: (1)
Powell’s failure to disclose past actions constitutes an abuse of process; (2) damages
claims against Bostic in his official capacity are not permitted under the PLRA and are
barred by the Eleventh Amendment; and (3) Powell suffered no physical injury as the
result of Bostic’s alleged conduct. Doc. 25-1 at 2-8. The Magistrate Judge first
recommended that Powell’s claims be dismissed because of an abuse of process. Doc.
45. However, the Court rejected that recommendation because, under the applicable
statute of limitations, the dismissal would have been in effect with prejudice, and the
Court did not find a clear record of delay or willful misconduct justifying such a
dismissal. Doc. 61 at 1-2. The Court accordingly referred the matter back to the
Magistrate Judge for consideration of the other grounds Bostic raised. Id.
The Magistrate Judge, considering these grounds, recommends granting Bostic’s
motion to dismiss because: (1) claims for damages against Bostic in his official capacity
are not permitted under the PLRA and are barred by the Eleventh Amendment; and (2)
Powell has not alleged that his physical injuries were causally connected to his First
Amendment retaliation claim against Bostic. Doc. 64 at 2-4. Neither ground, however,
supports the dismissal of Powell’s claim against Bostic.
A.

Powell States a Claim against Bostic in His Individual Capacity
The Magistrate Judge is correct that Powell cannot bring a claim for damages

against Bostic in his official capacity. But Powell does not specify whether his claims
against Bostic are in his individual or official capacity. Construing Powell’s pro se
pleadings liberally, the Court construes Powell’s claim as being against Bostic in his
individual capacity.

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B.

Powell’s Retaliation Claim does not Require Allegations of Physical Injury
The Magistrate Judge concluded that Powell did not allege a physical injury

causally connected to Bostic’s conduct, but rather that his injuries are “pre-existing
conditions wholly unrelated to the alleged actions of [Bostic].” Doc. 64 at 4. Assuming,
but not deciding, that this conclusion is correct, this conclusion does not warrant
dismissal of Powell’s claim against Bostic.
Bostic argued dismissal was appropriate because the PLRA bars claims for
compensatory damages absent allegations of a causally related physical injury. Doc.
64 at 4. It is true 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 (11th Cir. 2015).
However, Powell can recover nominal damages for a violation of his First Amendment
rights without alleging physical injury.
To avoid this, Bostic construes Powell’s claim as seeking only compensatory
damages and argues that even if Powell sought nominal damages, they would be
barred by the PLRA absent a causally connected physical injury. Doc. 25-1 at 8 n.3
(noting that even “if Plaintiff had requested them, any claim for punitive and nominal
damages would also be barred”). The Court disagrees.
Bostic supports his legal argument—that nominal damages are barred by the
PLRA absent physical injury—with several older Eleventh Circuit cases which stated
that the issue was unresolved in this Circuit. Id. Since Bostic submitted his brief,
however, the Eleventh Circuit has made “clear . . . what [it had] long implied in [its]
caselaw,” that “nothing in [the PLRA] prevents a prisoner from recovering nominal
damages for a constitutional violation without a showing of physical injury.” Brooks, 800
F.3d at 1307-09. Accordingly, even if Powell failed to allege a causally connected
physical injury, that would not completely bar his claim.

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The Court also disagrees with Bostic’s narrow construction of Powell’s claim.
Powell’s claim should be construed as stating a claim for nominal damages, not just
compensatory damages. This liberal construction is required because Powell is a pro
se litigant. Cf. Magwood v. Sec’y, Fla. Dep't of Corr., 652 F. App'x 841, 843, 845 (11th
Cir. 2016) (“Although [the pro se prisoner’s] complaint did not specifically request
nominal damages, he did request appropriate relief generally, and the district court
should consider whether nominal damages are available . . . .”). Further, Powell’s First
Amendment retaliation claim was actually first stated as such in the Magistrate Judge’s
screening order, not in Powell’s complaint. See Doc. 13 at 8 adopted by Doc. 28. It
would accordingly be anomalous to dismiss the claim now because Powell did not
expressly seek nominal damages in his complaint.
Accordingly, the Court REJECTS the Magistrate Judge’s recommendation as to
Bostic’s motion to dismiss (Doc. 64); and the motion to dismiss (Doc. 25) is hereby
DENIED. Powell’s First Amendment retaliation claim against Bostic in his individual
capacity may go forward.
II. DISMISSAL UNDER RULE 41(b)
The Magistrate Judge recommends “that Plaintiff’s Complaint be dismissed
under Federal Rule of Civil Procedure 41(b),” because Powell failed to respond to the
Court’s direction to provide additional information regarding several unserved
Defendants. Doc. 64 at 5. On August 27, 2014, the Magistrate Judge, noting the
United States Marshals’ inability to effectuate service on all remaining Defendants
except Bostic, gave Powell “thirty (30) days within which to provide the Court with
Defendants[’] current and correct addresses and to provide more detail so as to identify
the unidentified Defendants.” Doc. 40 at 1-2. The Magistrate Judge cautioned that: “[i]f
Plaintiff is unable to determine the Defendants’ current addresses or further identify the
unidentified Defendants, he should respond to this Order with an explanation of his

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good faith efforts to do so,” and warned that “[f]ailure of the Plaintiff to comply . . . may
result in a dismissal of his action.” Id. at 2-3.
The Magistrate Judge correctly notes that Powell has not responded to the
Court’s order. However, the docket does not clearly reflect that Powell was ever served
with the order. Because the statute of limitations would bar Powell from refiling his
claims, such a dismissal would be in effect, with prejudice, and should be supported by
a clear record of delay or willful misconduct. Without evidence that Powell was served
with the order, it is inappropriate to dismiss Powell’s claims under Rule 41(b) for not
complying with the order. Further, even if it were appropriate to dismiss Powell’s claims
as to the unserved Defendants under Rule 41(b), it would be inappropriate to dismiss
Powell’s claim against Bostic, as he has been served. Accordingly, the Court
REJECTS the Magistrate Judge’s recommendation (Doc. 64) that Powell’s complaint be
dismissed under Rule 41(b).
III. POWELL’S MOTION FOR INJUNCTIVE RELIEF
In denying Powell’s motion for injunctive relief (Doc. 49), the Magistrate Judge
relied, in part, on the conclusion that Powell failed to show a substantial likelihood of
prevailing on the merits. Doc. 64 at 7. To the extent that this conclusion was based on
the grounds Bostic raised in his motion to dismiss, the Court disagrees.
However, Powell signed his motion for injunctive relief on October 29, 2014 while
housed at Ware State Prison. Doc. 49 at 1, 5-6. In his motion, Powell claimed that he
had been placed in administrative segregation in retaliation for his pursuit of past legal
action. Id. at 4-5. He stated that this isolation was preventing him from meaningfully
accessing the law library and thus wrongfully deprived him of his right to access the
court. Id. at 2-3. Powell sought relief from these conditions and requested that the
Court understand his limitations in examining his case. Id. at 5. Since he filed this
motion, however, Powell has been moved to Washington State Prison. See Doc. 62 at

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1. For this reason, Powell cannot show any future irreparable harm if his motion
seeking relief against Ware State Prison officials is denied.
Accordingly, with this amendment, the Court ADOPTS the recommendation
(Doc. 64) as to Powell’s motion for injunctive relief (Doc. 49); and it is hereby DENIED.
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SO ORDERED, this 27th day of January, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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