Rosales v. Watts et al

Filing 22

ORDER ADOPTING 8 Report and Recommendations of the Magistrate Judge, as supplemented herein, as the opinion of the Court. The Court DISMISSES Plaintiff's claims for monetary damages against Defendants in their official capacities. The Court a lso DISMISSES WITHOUT PREJUDICE Plaintiff's Bivens claims for punitive and compensatory damages. Additionally, for the reasons stated above, the Court DISMISSES Plaintiff's Eighth Amendment claims, as well as his claims brought pursuant to the Federal Tort Claims Act. The Court DENIES Plaintiff's Request for Consolidation. Plaintiff's Bivens and RFRA claims will proceed against Defendants in the manner set forth by the Magistrate Judge. The Court DIRECTS the Clerk to file Plaintiff's proposed Complaint, dkt. no. 15-1, on the docket of this case as Plaintiff's Amended Complaint. Signed by Chief Judge Lisa G. Wood on 3/15/2016. (ca)

3n the mutteb &tate flitrttt Court
for the boutbern flttntt of deorgia
I3run1uttk flthiion
JAVIER ROSALES,
Plaintiff,
V.

HARRELL WATTS; RAYMOND E. HOLT;
SUZANNE R. HASTINGS; JOHN V.
FLOURNOY; KEN HARRIS, JR.; and SAM
KIRCHOFF,

Defendants.

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CIVIL ACTION NO.: 2:15-cv-94

ORDER

Presently before the Court is the Magistrate Judge's
January 4, 2016, Report and Recommendation, dkt. no. 8, to which
Plaintiff has filed Objections, dkt. no. 14. Additionally,
Plaintiff has filed a Notice Regarding his Amended Complaint,
dkt. no. 18, and a Notice of Related Cases, dkt. no. 19. The
Court DIRECTS the Clerk of Court to file Plaintiff's proposed
Complaint, dkt. no. 15-1, on the docket of this case as
Plaintiff's Amended Complaint. Additionally, after an
independent and de novo review of the record, including
Plaintiff's Amended Complaint, the undersigned concurs with the
Magistrate Judge's Report and Recommendation. Accordingly, the
Report and Recommendation of the Magistrate Judge, as
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supplemented herein, is hereby ADOPTED as the opinion of the
Court. Moreover, the Court DENIES Plaintiff's request to
consolidate this case with those listed in his Notice of Related
Cases.
BACKGROUND

Plaintiff, a prisoner at the Federal Correctional
Institution in Jesup, Georgia, believes and practices the
Santeria religion. Dkt. No. 1. Plaintiff alleges that
Defendants have deprived him of the ability to practice his
sincerely held religious beliefs. Id.
Pursuant to 28 U.S.C. § 1915A, the Magistrate Judge
conducted the requisite frivolity review of Plaintiff's
Complaint. Dkt. No. 8. The Magistrate Judge assessed
Plaintiff's claims under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Religious
Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb. Id. In
the resulting Report and Recommendation, the Magistrate Judge
recommended that the Court dismiss Plaintiff's claims for
monetary damages against Defendants in their official capacities
and dismiss Plaintiff's Bivens claims for punitive and
compensatory damages. Id. at pp. 8, 13-15.
However, the Magistrate Judge found that Plaintiff's
allegations arguably state colorable RFRA claims for injunctive
relief against Defendants in their official capacities and for
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monetary damages and injunctive relief against Defendants in
their individual capacities. Id. at pp. 8-11. Additionally,
the Magistrate Judge concluded that Plaintiff stated viable
Bivens claims for injunctive relief against Defendants in their
official capacities and for nominal damages and injunctive
relief against Defendants in their individual capacities. Id.
at pp. 11-15.
Plaintiff filed Objections to the Magistrate Judge's Report
and Recommendation on January 29, 2016. Dkt. No. 14. On that
same date, Plaintiff also moved to amend his Complaint. Dkt.
No. 15. Plaintiff attached a proposed Amended Complaint to his
Motion. Dkt. No. 15-1. On February 9, 2016, the Magistrate
Judge granted Plaintiff's Motion to Amend and directed Plaintiff
to file any desired amended complaint within fourteen days.
Dkt. No. 16. On March 7, 2016, Plaintiff filed a Notice to
Clarify, stating that he only wanted to file the Amended
Complaint attached to his Motion to Amend. Dkt. No. 18. In
addition, Plaintiff filed a Notice of Related Cases on March 7,
2016. Dkt. No. 19. Therein, he listed two cases that fellow
inmates had brought in this Court and asked that the Court
consolidate those cases with this case. Id.

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DISCUSSION
I.

Plaintiff's Notice Regarding his Complaint

As detailed above, in response to the Magistrate Judge's
Order granting Plaintiff leave to amend, Plaintiff represents
that he only seeks to file the Complaint attached to his Motion
to Amend. Dkt. No. 18. Accordingly, the Court hereby deems the
Complaint amended. The Clerk of Court is DIRECTED to file
Plaintiff's proposed Amended Complaint, dkt. no. 15-1, on the
docket of this case as Plaintiff's Amended Complaint.
II.

Plaintiff's Notice Regarding Related Cases

In his Notice of Related cases, Plaintiff states that two
cases filed by fellow inmates and Santeria practitioners are
related to this case. Dkt. No. 19 (citing Perez v. Watts, et
al., No. 2:15-cv-76 (S.D. Ga. June 25, 2015); Davila v. Watts,
et al., No. 2:15-cv-171 (S.D. Ga. Dec. 8, 2015)). Plaintiff
requests that the Court consolidate these cases with his case.
Id.
A district court has authority to consolidate multiple
actions if they "involve a common question of law or fact."
Fed. R. Civ. P. 42(a). Consolidation under Rule 42(a) "is
permissive and vests a purely discretionary power in the
district court." Young v. City of Augusta, 59 F.3d 1160, 1168
(11th Cir. 1995) (internal quotes omitted). In exercising that
discretion, district courts must weigh the risk of prejudice and
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confusion wrought by consolidation against the risk of
inconsistent rulings on common factual and legal questions; the
burden on the parties and the Court posed by multiple lawsuits
as opposed to one; the length of time required to conclude
multiple lawsuits as opposed to one; and the relative expense of
proceeding with separate lawsuits if they are not consolidated.
Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495
(11th dr. 1985) . "District courts in this circuit have been
urged to make good use of Rule 42(a) . . . in order to expedite
the trial and eliminate unnecessary repetition and confusion."
Young, 59 F.3d at 1169 (internal quotes omitted). The decision
of whether to consolidate "is entirely within the discretion of
the district court as it seeks to promote the administration of
justice." Gentry v. Smith, 487 F.2d 571, 581 (5th Cir. 1973). 1
Under these standards, consolidation of Plaintiff's action
with those of his fellow inmates would be improper. The Court
In Hubbard v. Haley, 262 F.3d 1194, 1196-97 (11th Cir. 2001),
the Eleventh Circuit held that the Prison Litigation Reform Act
prevents prisoners from joining claims of multiple prisoners in one
lawsuit. There, the court dealt with Plaintiffs who sought to join
their claims under Federal Rule of Civil Procedure 20 and thereby
avoid paying the full filing fee. However, as some courts have
observed, this ruling is not an impediment to consolidating related
actions that were originally filed independently. Clay v. Rice, No.
01 C 50203, 2001 WL 1380526, at *2 (N.D. Ill. Nov. 5, 2001)
(discussing Hubbard and stating, "While it might seem that requiring
plaintiffs with similar claims to bring separate suits will work
against Congress's purpose of reducing the burden of prisoner
litigation on federal courts, local rules in this district (and
presumably in other districts) permit related cases to be reassigned
to a single judge, who may then apply Rule 41(a) of the Federal Rules
to consolidate cases presenting common issues of law or fact,
effectively treating them as a single suit.").
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notes that at this stage, Plaintiff and his fellow inmates have
raised common questions of law and fact. Indeed, they have
filed nearly identical pleadings to date. Nonetheless, as this
case progresses, the parties and the Court must focus not on
legal principles in the abstract but instead on whether
Plaintiff's individual rights have been violated. For example,
the Supreme Court has observed that the test for whether a
person's religious exercise is substantially burdened is not
"whether the religious belief asserted in a RFRA case is
reasonable." Burwell v. Hobby Lobby Stores, Inc.,

__ U.S. at

134 S. Ct. 2751, 2778 (2014) . Instead, the Court must
look to "whether the [government's rule] imposes a substantial
burden on the ability of the objecting part[y] to conduct
[himself] in accordance with [his] religious beliefs." Id.
(emphasis omitted); see also Yellowbear v. Lampert, 741 F.3d 48,
55 (10th Cir. 2014) (noting that a burden is substantial when it
"prevents the plaintiff from participating in an activity
motivated by a sincerely held religious belief").
Additionally, several courts have found that allowing
prisoner plaintiffs to proceed together in one action poses a
litany of practical problems. See, e.g., Gentry v. Lawton Corr.
Facility, No. CIV-14-310-W, 2014 WL 2712305, at *1 (W.D. Okla.
May 13, 2014); Pinson v. Haynes, No. CIV. A. H-08-2237, 2008 WL
4857944, at *2 (S.D. Tex. Nov. 6, 2008) ("Among the concerns
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noted are the possibility of inmate transfers, security, and the
need for each individual plaintiff to represent himself and sign
each pleading related to his claims."). Of primary concern is
that Plaintiff and his fellow inmates cannot represent each
other before the Court. Wallace v. Smith, 145 F. App'x 300, 302
(11th Cir. 2005). Thus, Plaintiff and his fellow inmates would
have to each sign every document that they jointly filed. Fed.
R. Civ. P. 11(a). Additionally, if one plaintiff filed a motion
separately, he would then have to serve the other plaintiffs
with that pleading. Fed. R. Civ. P. 5(a). Such timely
communication between plaintiffs incarcerated in a large penal
institution is impractical. Gentry, 2014 WL 2712305, at *1
("Clearly, [the incarcerated proposed joint plaintiffs] are not
in a position to efficiently and effectively confer with one
another, review proposed pleadings, and then sign them within
the court's deadlines."). Given these practical problems,
consolidation would likely cause, not prevent, delay and
inefficiency.
For these reasons, the Court DENIES Plaintiff's request to
consolidate this lawsuit with the cases of his fellow inmates
and Santerja practitioners at this time.

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III. The Magistrate Judge's Report and Recommendation and
Screening of Plaintiff's Amended Complaint

In the Report and Recommendation, the Magistrate Judge
correctly stated and applied the law pertinent to the screening
of Plaintiff's claims. The Court need not restate that analysis
herein. However, Plaintiff has raised additional issues in his
Amended Complaint and his Objections, which the Court addresses
below.
A. Bivens Claims for Compensatory and Punitive Damages

The Magistrate Judge concluded that Plaintiff stated
cognizable claims that Defendants violated the RFRA and that, at
this stage, Plaintiff's claims for both monetary damages and
injunctive relief should proceed under the RFRA. Dkt. No. 8,
pp. 8-11. The Magistrate Judge also concluded that Plaintiff's
Bivens claims under the Free Exercise Clause of the First
Amendment and the Equal Protection Clause of the Fourteenth
Amendment should survive frivolity review. Id. at pp. 11-12.
However, the Magistrate Judge recommended that the Court limit
the damages available to Plaintiff on his Bivens claims.
Specifically, the Magistrate Judge concluded that, because
Plaintiff did not allege he suffered any physical injury,
42 U.S.C. § 1997e(e) barred him from recovering any
compensatory or punitive damages on his Bivens claims. Id. at

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pp. 14-15 (citing Williams v. Brown, 347 F. App'x 429, 436
(11th Cir. 2009)).
In his Objections to the Report and Recommendation,
Plaintiff acknowledges that the Eleventh Circuit has interpreted
Section 1997e(e) to preclude inmates from recovering
compensatory and punitive damages for the violation of a
constitutional right when they have not suffered physical
injury. Dkt. No. 14, pp. 2-3. However, Plaintiff offers law
from other Circuits on this point "to preserve the issue for en
banc review by the Eleventh Circuit Court of Appeals or
Certiorari review by the United States Supreme Court." Id. at
pp. 3-7. This Court will follow binding Eleventh Circuit
precedent, which Plaintiff acknowledges, and bar Plaintiff from
recovering compensatory or punitive damages on his Bivens claims
absent a showing of physical injury.
While Plaintiff acknowledges Section 1997e(e) and the
Eleventh Circuit precedent in his Objections, he also attempts
to dodge that authority through his Amended Complaint.
Plaintiff amended his claims to allege a "health injury." Dkt.
No. 15-1, pp. 11-13. Specifically, Plaintiff alleges that, as a
result of Defendants' infringement on his religious practices,
he and the other inmates have been required to share cigars
during their religious ceremony. Id. He claims that, due to
sharing the cigar, he has contracted an illness and has suffered
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"throat pain; troubling [sic] swallowing; sinuses; Body Aches;
Headaches; Chronic fatigue as one of the practitioners was sick
with the flu." Id. at p. 12. He describes his ailments as
"serious inhibition of the ability of Plaintiff to eat and chew
hard foods, lack of ability to masticate without causing pain
and suffering to the Plaintiff's throat; and the inability to
engage in the normal life activities, including physical
exercise, loss of nutrition deficiencies from inability to eat
and chew." Id. Plaintiff contends that he suffered from these
symptoms for over a month.
"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
rainimis."

Mitchell v. Brown & Williamson Tobacco Corp., 294

F.3d 1309, 1312-13 (11th Cir. 2002). "The meaning of the phrase
'greater than de minhrnis,' however, is far from clear." Chatham
v. Adcock, 334 F. App'x 281, 284 (11th Cir. 2009). Nonetheless,
courts have repeatedly held that an illness of the type that
Plaintiff alleges in his Amended Complaint does not clear the
Section 1997e(e) hurdle. See Jackson v. Hill, 569 F. App'x 697,
699 (11th Cir. 2014) (allegation that retaliation caused
Plaintiff sleeplessness insufficient to state physical injury
under Section 1997e(e)); Quinlan v. Personal Trans. Servs. Co.,
329 F. App'x 246, 249 (11th Cir. 2009) (pretrial detainee's
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complaints of headaches, difficulty breathing, temporary chest
pain, and lingering back pain were not greater than de minimis
and, therefore, did not provide the necessary physical injury to
recover for mental and emotional injuries); Adcock, 334 F. App'x
at 281 (claims of nausea, nightmares, and increased blood
pressure insufficient to satisfy Section 1997(e)); Johnson v.
Runnels, No. 2:04-cv-776, 2013 WL 3940884 (E.D. Cal. July
30, 2013) (coughing, sneezing, severe headaches, body aches,
and throat pain not more than de minirnis injuries); Rainey v.
Huertas, No. 12-cv-01434, 2013 WL 491925 (D. Col. Jan. 17, 2013)
(weight loss due to inability to chew not an injury more than de
minimis); Hall v. Plumber Official, No. 10-20814, 2011 WL
1979721, at *14 (S.D. Fla. Apr. 26, 2011) (plaintiff's
allegations of dehydration, severe diarrhea, gastroesophogeal
ref lux disease, chest pain, abdominal pain, bleeding gums,
plaque buildup, depression, and constant, severe, and
unnecessary pain did not show an injury greater than de
minimis); Sanchez v. United States, No. 10-21435, 2010 WL
3199878 (S.D. Fla. Aug. 6, 2010) (loss of appetite, loss of
sleep, and gastrointestinal distress insufficient to state
physical injury under Section 1997e (e)); Bryant v. Lafourche
Parish Det. Ctr., No 09-7345, 2010 WL 1979789 (E.D. La. Apr. 23,
2010) (finding flu-like symptoms de minimis injuries and
summarizing cases finding same); White v. Simpson, No. 3-04-cvAO 72A
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728, 2004 WL 2049306 (N.D. Tex. Sept. 13, 2004) (suffering flulike symptoms insufficient to state more than de minimis
physical injury); Carnell v. Multnomah Cty., 141 F. Supp. 2d
1046, 1053-54 (D. Or. 2001) (allegations of foot fungus, nose
sores, constipation, and winter cold amounted only to de minimis
injuries precluding relief for compensatory damages).
As these cases bear out, even accepting the facts stated in
Plaintiff's Complaint and Amended Complaint as true, he has
failed to allege a physical injury that is more than de minimis.
Therefore, he cannot recover compensatory or punitive damages on
his Bivens claims.
However, as Plaintiff correctly points out, the Eleventh
Circuit has held that Courts should dismiss an inmate's punitive
and compensatory damages claims under Section 1997e(e) without
prejudice to allow an inmate to ref ile his claims when and if he
is released. Harris v. Garner, 216 F.3d 970, 980 (11th Cir.
2004). Accordingly, the Court will dismiss Plaintiff's Bivens
claims for compensatory and punitive damages without prejudice.
B. Claims Under the Federal Tort Claims Act
The Magistrate Judge recommended that the Court dismiss
Plaintiff's official capacity claims for monetary damages. Dkt.
No. 10, p. 5. In his Objections, Plaintiff stated that he is
bringing claims under the Federal Tort Claims Act ("FTCA"), and

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that Defendants are not immune to those claims in their official
capacities. Dkt. No. 14, pp. 1, 7.
The FTCA waives the federal government's sovereign immunity
as to negligent or wrongful actions by its employees within the
scope of their official duties where a "private person[ ] would
be liable to the claimant in accordance with the law of the
place where the act or omission occurred." 28 U.S.C.
§ 1346(b) (1). However, the Eleventh Circuit has made clear
that "constitutional claims are not cognizable under the FTCA's
jurisdictional provision, and the United States is not liable
for damages under the FTCA for suits arising out of
constitutional violations." Treece v. Wilson, 212 F. App'x 948,
951 (11th Cir. 2007) (citing FDIC v. Meyer, 510 U.S. 471, 478
(1994); Couden v. Duffy, 446 F.3d 483, 499 (3d dr. 2005); and
Williams v. United States, 242 F.3d 169, 175 (4th dr. 2001));
see also Trupei v. United States, 239 F. App'x 489, 493-94 (11th
dr. 2007)

(pro se prisoner's Eighth Amendment claim was not

cognizable under the FTCA).
Here, Plaintiff's Complaint and Amended Complaint only
assert constitutional claims. Indeed, Plaintiff states in his
Objections that his Complaint "is premised on Constitutional
violations under the First Amendment and the Equal Protection
Clause of the United States Constitution." Dkt. No. 14,
These claims are not cognizable under the FTCA.
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p. 3.

Furthermore, there are exceptions to the FTCA's waiver of
sovereign immunity, and, of import in this case, is 28 U.S.C.
§ 2680(a), or the discretionary function exception. The FTCA
does not apply to:
Any claim based upon an act or omission of an employee
of the Government, exercising due care, in the
execution of a statute or regulation, whether
such statute or regulation be valid, or based upon the
exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part
of a federal agency or an employee of the Government,
whether . . . the discretion involved be abused.
28 U.S.C. § 2680(a). "If the discretionary function exception
applies, the FTCA claim must be dismissed for lack of subject
matter jurisdiction." Lambert v. United States, 198 F. App'x
835, 839 (11th Cir. 2006). A two-part test is used to determine
whether the discretionary function exception applies, and thus,
whether a cause of action against the United States is barred.
First, "the nature of the conduct" is considered, and then it is
determined "whether [the conduct] involves an element of
judgment or choice." Cohen v. United States, 151 F.3d 1338,
1341 (11th Cir. 1998) (internal punctuation and citation
omitted). "Government conduct does not involve an element of
judgment or choice, and thus is not discretionary, if 'a federal
statute, regulation, or policy specifically prescribes a course
of action for an employee to follow, because the employee has no
rightful option but to adhere to the directive." Id. (quoting
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Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997)).
Second, "if the conduct at issue involves the exercise of
judgment, [a court] must determine whether that judgment is
grounded in considerations of public policy." Id. "In making
this determination, [courts] do not focus on the subjective
intent of the government employee or inquire whether the
employee actually weighed social, economic, and political policy
considerations before acting." Id. Instead, courts "focus on
the nature of the actions taken and on whether they are
susceptible to policy analysis."

Id.

In this case, Plaintiff takes issue with Defendants'
judgment and choices on issues that are grounded in questions of
public policy. Cf. Cohen, 151 F.3d at 1342 (even if the Bureau
of Prisons ("BOP") has "a general duty of care to safeguard
prisoners, the BOP retains sufficient discretion in the means it
may use to fulfill that duty to trigger the discretionary
function exception.") Accordingly, the discretionary function
exception to the FTCA's waiver of sovereign immunity precludes
this Court from exercising jurisdiction over Plaintiff's FTCA
claims.
Plaintiff's FTCA claims are also barred by the exception to
the FTCA'S waiver of sovereign immunity found at 28 U.S.C. §
1346(b) (2), or the physical injury exception. That subsection
provides as follows:
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No person convicted of a felony who is incarcerated
while awaiting sentencing or while serving a sentence
may bring a civil action against the United States or
an agency, officer, or employee of the Government, for
mental or emotional injuries suffered while in custody
without a prior showing of physical injury.
28 U.S.C. § 1346(b) (2). This statutory language mirrors, in
large part, the physical injury requirement of 42 U.S.C. §
1997e(e). Therefore, the Court's above analysis of Plaintiff's
claims under Section 1997e(e) applies with equal effect in this
context. See Doe v. United States, No. CIV. 12-00640 ACK, 2014
WL 7272853, at *6 (D. Haw. Dec. 17, 2014) ("Given the similar
language between §§ 1346(b) (2) and 1997e(e), the Court will rely
upon cases interpreting either statute."); Michtavi v. United
States, No. 4:07-CV-0628, 2009 WL 578535, at *5 n.2 (M.D. Pa.
Mar. 4, 2009) (same). As explained above, even construing
Plaintiff's Amended Complaint liberally, he fails to allege an
adequate physical injury. Therefore, the physical injury
exception provides yet another bar to Plaintiff's FTCA claims.
For all of these reasons, the Court DISMISSES Plaintiff's
claims under the Federal Tort Claims Act.
C. Eighth Amendment Claims

Throughout his pleadings, Plaintiff cites the First and
Fourteenth Amendments as the bases for his Constitutional
claims. However, in his Amended Complaint, he also makes brief
mention of the Eighth Amendment. Dkt. No. 15-1, pp. 1, 12.

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16

Thus, in an abundance of caution, the Court will assess whether
Plaintiff states a viable claim for violation of the Eighth
Amendment.
The cruel and unusual punishment standard of the Eighth
Amendment requires prison officials to "ensure that inmates
receive adequate food, clothing, shelter, and medical care."
Farmer v. Brennan, 511 U.S. 825, 832 (1994). Generally
speaking, however, "prison conditions rise to the level of an
Eighth Amendment violation only when they involve the wanton and
unnecessary infliction of pain." Chandler v. Crosby, 379 F.3d
1278, 1289 (11th Cir. 2004) (quotations omitted). Thus, not all
deficiencies and inadequacies in prison conditions amount to a
violation of a prisoner's constitutional rights. Rhodes v.
Chapman, 452 U.S. 337, 349 (1981). The Constitution does not
mandate comfortable prisons. Id. Prison conditions violate the
Eighth Amendment only when the prisoner is deprived of "the
minimal civilized measure of life's necessities." Id. at 347.
However, "[c]ontemporary standards of decency must be brought to
bear in determining whether a punishment is cruel and unusual."
Bass v. Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999).
"To be deliberately indifferent a prison official must know
of and disregard an excessive risk to inmate health or safety;
the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
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exists, and he must also draw the inference.'" Id. (quoting
Purcell ex rel. Estate of Morgan v. Toombs Cty., 400 F.3d 1313,
1319-20 (11th Cir. 2005)) . Whether a substantial risk of
serious harm exists so that the Eighth Amendment might be
violated involves a legal rule that takes form through its
application to facts. However, "simple negligence is not
actionable under § 1983, and a plaintiff must allege a conscious
or callous indifference to a prisoner's rights." Smith v. Reg'l
Dir. of Fla. Dep't of Corr., 368 F. App'x 9, 14 (11th Cir.
2010). In other words, "to find deliberate indifference on the
part of a prison official, a plaintiff inmate must show: (1)
subjective knowledge of a risk of serious harm; (2) disregard of
that risk; (3) by conduct that is more than gross negligence."
Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010). A
medical need is serious if it "'has been diagnosed by a
physician as mandating treatment or [is] one that is so obvious
that even a lay person would easily recognize the necessity for
a doctor's attention." Goebert v. Lee Cty., 510 F.3d 1312,
1326 (11th Cir. 2007) (quoting Hill v. DeKaib Reg'l Youth Det.
Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).
Plaintiff alleges that Defendants have disregarded a risk
to his health by purchasing the wrong cigar filters for use
during his religious ceremonies. Dkt. No. 15-1, p. 12.
Plaintiff states that he told Defendant Harris about the problem
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with the filters and that Defendant Harris refused to purchase
new filters. Id. As a result, Plaintiff states he and other
Santerian inmates have contracted the above-discussed illness
from sharing the cigars. Id.
Plaintiff fails to satisfy the objective component of an
Eighth Amendment claim because he has not identified a
sufficiently serious risk to his health or safety. His
contracting an undiagnosed illness with symptoms akin to the
common cold or the flu simply does not rise to the level of the
wanton and unnecessary infliction of pain contemplated by the
Eighth Amendment. Glenn v. Kitchen, No. CV 111-082, 2011 WL
6997637, at *5 (S.D. Ga. Dec. 13, 2011) ("A common cold is not a
sufficiently serious medical need to give rise to an Eighth
Amendment violation."); see also Allen v. Bedard, No. 2:13-CV787-FTM-29, 2013 WL 6231233, at *4 (M.D. Fla. Dec. 2, 2013)
(plaintiff's allegations of contaminated air supply, common
cold, breathing problems, and blood loss insufficient to
implicate Eighth Amendment); Gaona v. Yates, No.

09cv-999-SKO

PC, 2010 WL 2843163, at *3 (E.D. Cal. July 19, 2010) ("The risk
of contracting flu-like symptoms is not the type of
'sufficiently serious,' wanton and unnecessary infliction of
pain that is prohibited by the Eighth Amendment."); Cruz v.
Schwarzenegger, No. 1:08-cv-352-OWW-SMS PC, 2008 WL 4330466, at
*2 (E.D. Cal. Sept. 19, 2008) ("The facts that there is a risk
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of developing Valley Fever if confined at Pleasant Valley State
Prison and that Plaintiff contracted Valley Fever are
insufficient to support a claim for violation of the Eighth
Amendment. The risk of serious harm to Plaintiff's health or
safety had to have been substantial.").
Consequently, to the extent that Plaintiff attempts to
assert claims for violation of his Eighth Amendment rights, the
Court DISMISSES those claims for failure to state a claim.

CONCLUSION
Having conducted a de novo review of the entire record,
including Plaintiff's Amended Complaint and his Objections, the
Court concurs with the Report and Recommendation of the
Magistrate Judge. Accordingly, the Report and Recommendation,
as supplemented herein, is adopted as the opinion of the Court.
The Court DISMISSES Plaintiff's claims for monetary damages
against Defendants in their official capacities. The Court also
DISMISSES WITHOUT PREJUDICE Plaintiff's Bivens claims for

punitive and compensatory damages. Additionally, for the
reasons stated above, the Court DISMISSES Plaintiff's Eighth
Amendment claims, as well as his claims brought pursuant to the
Federal Tort Claims Act. The Court DENIES Plaintiff's Request
for Consolidation. Plaintiff's Bivens and RFRA claims will

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proceed against Defendants in the manner set forth by the
Magistrate Judge.
SO ORDERED, this

da

lj
o

LISA GODB
CHT JUDGE
W
UNITED STAT} ITCOURT
E
SOJT}RN DISTRICT OF GEORGIA

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, 2016.