BARRERA-AVILA v. WATTS et al

Filing 34

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Defendants' 14 MOTION to Dismiss, and DISMISS with prejudice Plaintiff's claims for monetary damages against Defendants in their official capacities, his RFRA claims for monetary damages, and his FTCA claims in their entirety. I further RECOMMEND that the Court DISMISS Plaintiff's Bivens claims for monetary damages without prejudice. The Court should also DISMISS AS MOOT Plaintiff's declaratory and inju nctive relief claims and DENY him leave to appeal in forma pauperis. As these rulings would dispose of all of Plaintiff's claims, the Court need not address the remaining portions of Defendants' Motion re 12 Amended Complaint. Any party seeking to object to this Report and Recommendation is ORDERED to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 3/22/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/8/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
JESUS BARRERA-AVILA,
Plaintiff,

CIVIL ACTION NO.: 2:16-cv-141

v.
HARRELL WATTS; RAYMOND E. HOLT;
JOHN V. FLOURNOY; KEN HARRIS, and
SAM KIRCHOFF,
Defendants.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter is before the Court on Defendants’ Motion to Dismiss, or in the Alternative,
Motion for Summary Judgment. (Doc. 14.) For the reasons set forth below, I RECOMMEND
that the Court GRANT Defendants’ Motion to Dismiss and DISMISS Plaintiff’s Complaint.
Specifically, the Court should DISMISS WITH PREJUDICE Plaintiff’s claims for monetary
damages against Defendants in their official capacities, his RFRA claims for monetary damages,
and his FTCA claims in their entirety. I further RECOMMEND that the Court DISMISS
Plaintiff’s Bivens claims for monetary damages WITHOUT PREJUDICE and DISMISS AS
MOOT Plaintiff’s declaratory and injunctive relief claims. Additionally, the Court should
DENY Plaintiff leave to appeal in forma pauperis and DIRECT the Clerk of Court to close this
case.
BACKGROUND
Plaintiff, who was previously incarcerated at the Federal Correctional Institute in Jesup,
Georgia (“FCI Jesup”), submitted a Complaint in the above captioned action contesting certain
conditions of his confinement. Plaintiff believes and practices the Santeria religion and alleges

that Defendants deprived him of the ability to practice his sincerely held religious beliefs.
(Doc. 12.)
Specifically, Plaintiff claims that Defendant Kenneth Harris, the Supervisory Chaplain at
FCI Jesup, created a policy eliminating the practice of the “Spiritual Mass” ceremony. (Id. at
pp. 3–4.) This policy was carried out by Defendant Sam Kirchoff, the Chaplain at FCI Jesup.
(Id.) Plaintiff maintains that prior to Defendant Harris’ arrival at FCI Jesup in November of
2014, there was a “Standardized Spiritual Mass” for Santeria practitioners at the Prison. (Id. at
p. 10.) This “Standardized Mass” for Santeria allowed, among other things, for each practitioner
to receive a half-cut cigar “so that the practitioner could properly invoke [his] own spiritual
protectors” and “cleanse [himself] with it.” (Id.) This practice was implemented without any
security or safety issues. (Id.) However, on or about November 17, 2014, Defendant Harris
terminated the practice of providing each practitioner a cigar and instead only allowed two cigars
for the ceremony. (Id. at p. 10.)
Plaintiff maintains that, due to the sharing of cigars, Santeria practitioners were exposed
to health risks and could not properly perform the religious ceremony. As for the health risks,
Plaintiff contends that he suffered from “throat pain; troubling [sic] swallowing; sinuses; Body
Aches; Headaches; Fatigue; loss of weight; loss of sleep, 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, chew, lack of ability to masticate food without causing pain and suffering to the
Plaintiff’s throat; and the inability to engage in the normal life activities, including sleeping,
physical exercise, loss of nutrition deficiencies from inability to eat and chew.” (Id. at pp. 12–
13.) At the time of his Amended Complaint, Plaintiff stated that he suffered these symptoms
“for almost a month” and had not recovered. (Id. at p. 13.)

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Plaintiff also contends that Defendants interfered with Santeria practitioners’ worship in
other ways. He alleges that, due to Santeria practitioners’ use of food offerings during Spiritual
Mass, Defendant Harris relocated Santeria worship services outdoors because food is not
allowed in the chapel. (Id. at p. 11.) However, Defendant Harris allows Jewish worshipers to
bring challa bread, matzo, and beverages into the chapel during religious services. (Id.) Plaintiff
also alleges that prison staff failed to provide supplies to the Santerian practitioners and that
Defendants unnecessarily burdened Santerian inmates’ receipt of religious items. (Id.)
Plaintiff sued Defendants in their individual and official capacities and contended that
they violated the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §2000bb, et seq., the
Federal Tort Claims Act (“FTCA”), and the First, Eighth and Fourteenth Amendments to the
United States Constitution. (Doc. 12.) He requested compensatory and punitive damages in the
amount of $320.00 per day per Defendant. (Id. at pp. 14–15.) He also requests court costs and
expenses, and “declaratory and injunctive relief” against each Defendant. (Id. at p. 14.)
Plaintiff originally filed this action the United States District Court for the District of
Columbia. Defendants moved that court to either dismiss Plaintiff’s case or transfer the case to
this District. (Doc. 14.) Among other things, they contended that the District of Columbia court
lacked jurisdiction over them, because they reside in this District and the events giving rise to
Plaintiff’s claims occurred in this District. (Doc. 14-1, pp. 16–22.) Defendants also argued that
they were immune from suit in their official capacities, and Plaintiff failed to state a claim upon
which relief can be granted against them in their individual capacities. Plaintiff filed a response
to Defendants’ Motion, (doc. 24), and Defendants filed a reply, (doc. 29.). In the interim,
Plaintiff was transferred from FCI Jesup to Yazoo City Low Federal Correctional Institute.
(Doc. 28.)

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The District of Columbia court ultimately granted Defendants’ request to transfer the case
to this Court. (Doc. 30.) However, that court left pending Defendants’ arguments for dismissal
which this Court now addresses.
STANDARD OF REVIEW
When ruling on a Rule 12(b)(6) motion to dismiss, the Court must “accept[ ] the
allegations in the complaint as true and constru[e] them in the light most favorable to the
plaintiff.” Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). “A complaint
must state a facially plausible claim for relief, and ‘[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Wooten v. Quicken Loans, Inc., 626 F.3d 1187,
1196 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause of action” does
not suffice. Ashcroft, 556 U.S. at 678.
“The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”

Id. (internal punctuation and citation

omitted). While a court must accept all factual allegations in a complaint as true, this tenet “is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. Id.
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.

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Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).
DISCUSSION
I.

Dismissal of Official Capacity Claims for Monetary Damages
Plaintiff brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”) and RFRA. “Bivens only applies to claims
against federal officers in their individual capacities; it does not create a cause of action for
federal officers sued in their official capacities.” Sharma v. Drug Enf’t Agency, 511 F. App’x
898, 901 (11th Cir. 2013) (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69–71 (2001)).
Moreover, the Eleventh Circuit has held that Congress did not unequivocally waive the
Government’s sovereign immunity through RFRA. Davila v. Gladden, 777 F.3d 1198, 1210–11
(11th Cir. 2015). Therefore, RFRA does not authorize suits for money damages against federal
officers in their official capacities. Id. Thus, the Court should DISMISS WITH PREJUDICE
Plaintiff’s Bivens and RFRA claims for money damages against Defendants in their official
capacities. 1

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As Defendants point out, Plaintiff appears to disavow any claims against Defendants in their individual
capacities. (Doc. 24, p. 8, 33.) Because Plaintiff cannot recover monetary damages against Defendants in
their official capacities, and he does not sue them in their individual capacities, he cannot recover
monetary damages at all. However, the Court provides additional grounds for dismissal of his monetary
damages claims in the following sections.
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II.

Dismissal of RFRA Claims for Monetary Damages
“Congress enacted RFRA . . . in order to provide very broad protection for religious

liberty.” Burwell v. Hobby Lobby Stores, Inc., ___U.S. ___, 134 S.Ct. 2751, 2760 (2014).
Under the statute, the “Government shall not substantially burden a person’s exercise of religion
even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb–1(a). If the
Government takes action that substantially burdens a person’s exercise of religion, it must
“demonstrate[ ] that application of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb–1(b); see also, Gonzalez v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (pursuant to RFRA, the federal
government must demonstrate a compelling interest when substantially burdening the exercise of
religion).
“RFRA requires the Government to demonstrate that the compelling interest test is
satisfied through application of the challenged law ‘to the person’—the particular claimant
whose sincere exercise of religion is being substantially burdened.” Id. at 430–31 (quoting 42
U.S.C. § 2000bb-1(b)). 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.” Hobby Lobby, 573 U.S. at ––––, 134 S.Ct. at 2778. 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”).

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According to Plaintiff, he has been denied the ability to participate in rituals that his
Santeria belief not only motivates but requires. Thus, Plaintiff plausibly alleges that Defendants
violated RFRA. However, those claims do not entitle him to monetary relief.
RFRA states that “[a] person whose religious exercise has been burdened in violation of
this section may assert that violation as a claim or defense in a judicial proceeding and obtain
appropriate relief against a government.” 42 U.S.C. § 2000bb–1(c).

There is no binding

precedent which addresses whether RFRA provides claims against individual defendants for
monetary damages. See Davila v. Gladden, 777 F.3d at 1210 (“[W]e decline to address whether
RFRA authorizes suits against officers in their individual capacities.”). However, in a similar
case, Chief Judge Lisa Godbey Wood of this Court addressed this issue, and determined that
RFRA does not provide for such claims. See Davilla v. Nat’l Inmate Appeals Coordinator, No.
CV212-005, 2012 WL 3780311, at *1–3 (S.D. Ga. Aug. 31, 2012). In that case, Chief Judge
Wood, who is the presiding judge in this case, explained,
As Defendants note, there is no binding precedent which addresses whether the
RFRA bars claims against individual defendants for monetary damages.
However, several courts have addressed this question and have determined that
the RFRA does not allow for the recovery of monetary damages. Oklevueha
Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012)
(the “appropriate relief” provision does not allow suits for monetary damages
under the RFRA); Burke v. Lappin, 821 F. Supp. 2d 244 (D.C. 2011) (the RFRA
did not waive the federal government’s sovereign immunity for damages); JeanPierre v. Bureau of Prisons, No. 09–266, 2010 WL 3852338 (W.D. Pa. July 30,
2010) (the RFRA does not waive sovereign immunity for monetary damages);
Bloch v. Thompson, No. 1:03-CV-1352, 2007 WL 60930 (E.D. Tex. Jan. 5, 2007)
(the RFRA does not waive immunity for damages); and Gilmore-Bey v.
Coughlin, 929 F. Supp. 146 (S.D.N.Y. 1996) (the RFRA did not abrogate
Eleventh Amendment bar to actions for monetary damages); but see Agrawal v.
Briley, No. 02C6807, 2006 WL 3523750 (N.D. Ill. Dec. 6, 2006) (the RFRA does
not bar monetary damages).
The Eleventh Circuit Court of Appeals has not determined whether the RFRA
bars monetary damages claims against individual defendants. However, the
United States Supreme Court determined in Sossamon v. Texas, ___ U.S. ___,

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131 S. Ct. 1651, 1659–60 (Apr. 20, 2011), that the “appropriate relief” provision
of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc–2(a), is not “the unequivocal expression” of consent for states to
“waive their sovereign immunity to suits for damages.” In Smith v. Allen, the
Eleventh Circuit concluded that § 2000cc–2(a) “cannot be construed as creating a
private cause of action against individual defendants for monetary damages.” 502
F.3d 1255, 1275 (11th Cir. 2007), abrogated on other grounds by Sossoman. The
“appropriate relief” section contained in the RFRA is identical to that contained in
the RLUIPA. 42 U.S.C. §§ 2000bb–1(c) and 2000cc–2(a).
The undersigned has no reason to believe that the Eleventh Circuit’s reasoning in
a case pertaining to the RFRA would be any different than that court’s reasoning
in Smith, which concerned the RLUIPA and which is a statute of very similar
construct as the RFRA. Accordingly, the undersigned agrees with Defendants
that Plaintiff’s monetary damages claims under the RFRA against Defendants are
barred. See Cardinal v. Metrish, 564 F.3d 794, 799–801 (6th Cir. 2009) (noting
the RLUIPA’s “appropriate relief” provision is not a clear and unequivocal
waiver of sovereign immunity and monetary damages claims are barred), and
(citing Webman, 441 F.3d 1022, with seeming approval, that the RFRA does not
authorize monetary damages claims).
Id. at *2–3. Chief Judge Wood went on to hold that RFRA permitted the plaintiff to pursue
claims for injunctive relief. Id.
Chief Judge Wood’s holding regarding monetary damage claims under RFRA applies
with equal force in the case at hand. Because RFRA does not provide for such relief, the Court
should DISMISS WITH PREJUDICE all RFRA monetary damage claims against Defendants.
III.

Dismissal of FTCA Claims
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,

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510 U.S. 471, 478 (1994); Couden v. Duffy, 446 F.3d 483, 499 (3d Cir. 2005); and Williams v.
United States, 242 F.3d 169, 175 (4th Cir. 2001)); see also Trupei v. United States, 239 F. App’x
489, 493–94 (11th Cir. 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.” (Doc. 14, p. 3.) These claims are not cognizable under the FTCA.
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 Ochran v. United States, 117

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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:
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 below 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

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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 below, 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 should DISMISS WITH PREJUDICE Plaintiff’s
claims under the Federal Tort Claims Act.
IV.

Dismissal of Bivens Claims for Monetary Relief
In Bivens, the United States Supreme Court “recognized for the first time an implied

private action for damages against federal officers” for violations of certain constitutional rights.
Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 66 (2001). Here, Plaintiff seeks to hold Defendants
liable for violating his rights under the Free Exercise Clause of the First Amendment, the Equal
Protection Clause of the Fourteenth Amendment, and his right against cruel and unusual
punishment under the Eighth Amendment. Regardless of whether Plaintiff has plausibly alleged
that Defendants violated these rights, he cannot recover monetary damages.
“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). The purpose of this statute is “to reduce 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.” Napier v. Preslicka, 314 F.3d 528,
531 (11th Cir. 2002) (citing Harris v. Garner, 216 F.3d 970, 976–79 (11th Cir. 2000)).
“Tracking the language of [this] statute, § 1997e(e) applies only to lawsuits involving (1) Federal
civil actions (2) brought by a prisoner (3) for mental or emotional injury (4) suffered while in
custody.” Id. at 532.

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In Williams v. Brown, 347 F. App’x 429, 436 (11th Cir. 2009), the Eleventh Circuit
stated that, “compensatory damages under § 1983 may be awarded only based on actual injuries
caused by the defendant and cannot be presumed or based on the abstract value of the
constitutional rights that the defendant violated. Pursuant to 42 U.S.C. § 1997e(e), in order to
recover for mental or emotional injury suffered while in custody, a prisoner bringing a § 1983
action must demonstrate more than a de minim[i]s physical injury.” Id. (internal citations
omitted) (alterations in original). Consequently, a prisoner that has not suffered any physical
injury cannot recover compensatory or punitive damages. Al-Amin v. Smith, 637 F.3d 1192,
1199 (11th Cir. 2011) (“In sum, our published precedents have affirmed district court dismissals
of punitive damage claims under the PLRA because the plaintiffs failed to meet § 1997e(e)’s
physical injury requirement.”); Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007) (“It is clear
from our case law, however, that [compensatory and punitive damages] are precluded under the
PLRA.”) abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011). However,
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 refile his claims
when and if he is released. Harris v. Garner, 216 F. 3d 970, 980 (11th Cir. 2004).
In his Amended Complaint, Plaintiff attempts to dodge the operation of Section 1997e(e),
by arguing that he has suffered from an unnamed sickness due to sharing cigars with his fellow
inmates. “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
minimis.” Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1312–13 (11th Cir.
2002). “The meaning of the phrase ‘greater than de minimis,’ however, is far from clear.”
Chatham v. Adcock, 334 F. App’x 281, 284 (11th Cir. 2009).

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Nonetheless, courts have

repeatedly held that illness of the type that Plaintiff alleges in his Amended Complaint does not
clear the Section 1997e(e) hurdle.
Indeed, this Court has already found that an inmate cannot recover monetary damages on
the same claimed injuries that Plaintiff raises here. Order, Rosales v. Watts, et. al., 2:15-cv-94
(S.D. Ga. March 15, 2016) ECF No. 22. In Rosales, one of Plaintiff’s former fellow Santerian
prisoners at FCI Jesup brought the same claims Plaintiff brings here. Rosales, like Plaintiff,
contended that sharing a cigar had caused him to contract a sickness with the exact same
symptoms that Plaintiff alleges in his Amended Complaint. Id. at 9–10. Chief Judge Wood
found that, even accepting Rosales’ claims of illness as true, Section 1997e(e) barred his claims
for monetary relief. Id.at 10–12 (citing 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 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 minimis
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 reflux disease, chest pain, abdominal pain,
bleeding gums, plaque buildup, depression, and constant, severe, and unnecessary pain did not

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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-cv-728,
2004 WL 2049306 (N.D. Tex. Sept. 13, 2004) (suffering flu-like symptoms insufficient to state
more than de minimis physical injury); Carnell v. Multnomah Cty., 141 F. Supp. 2d 1046, 105354 (D. Or. 2001) (allegations of foot fungus, nose sores, constipation, and winter cold amounted
only to de minimis injuries precluding relief for compensatory damages)).
For all of these reasons, 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.
For all of these reasons, the Court should DISMISS WITHOUT PREJUDICE
Plaintiff’s Bivens claims for monetary relief.
V.

Dismissal of Claims for Injunctive and Declaratory Relief
In his Complaint, in addition to monetary relief, Plaintiff requested that the Court issue

injunctive and declaratory relief to prevent further interference with his Santerian practice at FCI
Jesup. However, Plaintiff was subsequently transferred out of FCI Jesup to Yazoo City Low
Federal Correctional Institute. (Doc. 28.) Thus, his claims for declaratory and injunctive relief
are now moot.
“Article III of the Constitution limits the jurisdiction of the federal courts to the
consideration of ‘Cases’ and ‘Controversies.’” Mingkid v. U.S. Att’y Gen., 468 F.3d 763, 768
(11th Cir. 2006) (citation omitted). “The doctrine of mootness derives directly from the case-or-

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controversy limitation, because an action that is moot cannot be characterized as an active case
or controversy.” Id. (citation omitted). A case is moot when it no longer presents a live
controversy for which the court can provide meaningful relief. Id. An inmate’s claim for
injunctive relief against prison officials must be dismissed for mootness when the prisoner is
transferred to another prison and is no longer subject to the condition for which injunctive relief
is sought. Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988); Wahl v. McIver, 773 F.2d
1169, 1173 (11th Cir. 1985); McKinnon v. Talladega Cty., Ala., 745 F.2d 1360, 1363 (11th Cir.
1984). Because Plaintiff is no longer housed at FCI Jesup, he is no longer subjected to the
authority and practices of Defendants. Thus, any injunctive or declaratory relief the Court could
issue would not provide Plaintiff any meaningful relief. Consequently, the Court should
DISMISS AS MOOT Plaintiff’s claims for declaratory and injunctive relief. 2
VI.

Denial of Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. See Fed. R. App. R. 24(a)(1)(A) (“A party who was
permitted to proceed in forma pauperis in the district-court action, . . ., may proceed on appeal in
forma pauperis without further authorization, unless the district court—before or after the notice
of appeal is filed—certifies that the appeal is not taken in good faith[.]”). An appeal cannot be
taken in forma pauperis if the trial court certifies, either before or after the notice of appeal is
filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3). Good faith in this
2

Defendants filed their Motion prior to Plaintiff’s transfer. Thus, they did not argue that his claims are
moot. Nonetheless, the Court has “an obligation to notice and decide mootness issues” sua sponte.
United States v. Sec’y, Florida Dep’t of Corr., 778 F.3d 1223, 1227 (11th Cir. 2015)

3

A Certificate of Appealability (“COA”) is not required to file an appeal in a Section 1983 action. See Fed. R.
App. P. 3 & 4; Morefield v. Smith, No. 607CV010, 2007 WL 1893677, at *1 (S.D. Ga. July 2, 2007) (citing Mathis
v. Smith, No. 05-13123-A (11th Cir. Aug. 29, 2005) (unpublished)).

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context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Defendants’ Motion to Dismiss and Plaintiff’s Response,
there are no non-frivolous issues to raise on appeal, and any appeal would not be taken in good
faith. Thus, the Court should DENY Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the reasons set forth above, I RECOMMEND that the Court GRANT Defendants’
Motion to Dismiss, (doc. 14), and DISMISS WITH PREJUDICE Plaintiff’s claims for
monetary damages against Defendants in their official capacities, his RFRA claims for monetary
damages, and his FTCA claims in their entirety. I further RECOMMEND that the Court
DISMISS Plaintiff’s Bivens claims for monetary damages WITHOUT PREJUDICE. The
Court should also DISMISS AS MOOT Plaintiff’s declaratory and injunctive relief claims and
DENY him leave to appeal in forma pauperis.

As these rulings would dispose of all of

Plaintiff’s claims, the Court need not address the remaining portions of Defendants’ Motion.
Any party seeking to object to this Report and Recommendation is ORDERED to file
specific written objections within fourteen (14) days of the date on which this Report and

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Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 8th day of March,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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