Brewer v. Buford #495

Filing 104

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that defts' 98 Motion for Summary Judgment be GRANTED in part and DENIED in part; GRANTED to the extent that all claims be barred except claims for nominal damages. Signed by Magistrate Judge Joe Brown on 12/29/11. (xc:Pro se party by regular and certified mail.)(rd)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DANNY LEE BREWER,

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Plaintiff
v.
K. BUFORD #495,
Defendant
TO:

No. 3:11-0074
Judge Campbell/Brown
Jury Demand

THE HONORABLE TODD J. CAMPBELL
REPORT AND RECOMMENDATION
Presently pending is the Defendants’ motion for summary

judgment
statement

(Docket
of

Entry

undisputed

98).

This

material

motion

facts

is

supported

(Docket

Entry

by

a

99);

a

memorandum of law (Docket Entry 100); a transcription of the
depositions of the Plaintiff (Docket Entry 101); and copies of
three unreported cases (Docket Entry 102). The Plaintiff has filed
a response in opposition (Docket Entry 103).
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the motion for summary judgment be GRANTED in part
and DENIED in part.

Specifically, the Magistrate Judge recommends

that the motion be granted insofar as it seeks to preclude the
Plaintiff’s claim for mental and emotional damages.

However, the

motion should be denied insofar as it seeks to bar the Plaintiff
from recovering nominal damages even in the absence of physical
injury.

BACKGROUND
The

facts

of

this

case

are

straightforward.

The

Plaintiff, in his complaint (Docket Entry 1), alleges that on
December 30, 2010, he was sexually assaulted by the Defendant while
he was a prisoner at the Rutherford County Adult Detention Center.
He alleges that the Defendant grabbed him by the waist and placed
his penis parts and front side against the Plaintiff’s back side
and stated, “Come here boy and give me some of that ass.”

He

alleges that he suffers nightmares about the action taken by the
officer.
The complaint itself is somewhat deficient in that it
does not state specifically whether the Plaintiff is suing the
Defendant in his official or individual capacity and Section 5 does
not list any relief request other than trial by jury.
The Defendant denies that the conduct occurred.
There is no allegation of physical harm in the complaint
and in his deposition (Docket Entry 101, Attach. 1, pp. 58, 81-82)
the Plaintiff clearly testified that he did not suffer any physical
injury and that the only injury he claims is mental or emotional.1
LEGAL DISCUSSION
The standard of review for summary judgment is well
known.

‘Summary judgment is proper if the pleadings, depositions,

1

The page references are to the transcript pages rather than the
page numbers assigned by the ECF system.

2

answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue of
material fact and that the moving party is entitled to a judgment
as a matter of law.’

Adams v. Rockafellow, 66 Fed.Appx. 584 (6th

Cir. 2003) (citing Fed.R.Civ.P. 56(c); LaPointe v. UAW, Local 600,
8 F.3d 376, 378 (6th Cir.1993).) ‘If either party bears the initial
burden of establishing an absence of evidence to support the
nonmoving party’s case.’ Id. (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986).)

‘Once the

moving party has met its burden of production, the nonmoving party
cannot

rest

on

its

pleadings,

but

must

present

significant

probative evidence in support of the complaint to defeat the motion
for summary judgment.’

Id. (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986);
LaPointe, 8 F.3d at 378.)

‘The mere existence of a scintilla of

evidence to support Plaintiff’s position would be insufficient;
there must be evidence upon which the jury can reasonably find for
the Plaintiff.’

Id. (citing Anderson, 477 U.S. at 252, 106 S. Ct.

2505.)
The Defendant’s motion for summary judgment relies on 42
U.S.C.A. § 1997e(e). This section provides this limitation on
recovery,
No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional

3

facility, for mental or emotional injury suffered while
in custody without a prior showing of physical injury.2
Surprisingly, there appears to be no published Sixth
Circuit opinion on the reach of the statute.

The Defendant cites

an unpublished Sixth Circuit case, Adams v. Rockafellow, 66 F.
Appx. 584 (6th Cir. 2003). In Adams the Sixth Circuit held that the
Defendant was entitled to summary judgment on the prisoner’s claim
that he had been subjected to an unconstitutional strip search. It
appears that the plaintiff only sought damages for mental or
emotional injury with no showing of physical injury.

Under those

circumstances the Court affirmed the District Court’s grant of
summary judgment.

This unpublished decision did not discuss

whether claims for nominal damages, punitive damages, or other
relief would be available.
Recent Sixth Circuit District Court opinions addresses
this issue in great detail, see Swackhammer v. Goodspeed, 2009 WL
189854 (W.D. Mich. 2009).

This opinion by Judge Bell recites an

extensive history of the cases ruling on 1997e(e), particularly in
the context of whether it applies to First Amendment claims.

As

Judge Bell points out,
The majority of circuits that have considered the issue
have concluded that § 1997e(e) does not bar claims for
nominal damages, punitive damages, injunctive relief, or

2

Although not relevant to this Report and Recommendation the
Senate has passed Senate Bill 1925 on November 30, 2011, which
would amend this section to add to the end of the sentence the
words, “or the commission of a sexual act (as defined in § 2236 of
Title 18, U.S.C.).” This Bill has not been enacted into law at the
present time.
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declaratory relief. See Mayfield v. Texas Dep't of
Criminal Justice, 529 F.3d 599, 606 (5th Cir.2008)
(‘Despite the limitations imposed by § 1997e(e), we have
recognized that a prisoner can, absent a showing of
physical injury, pursue punitive or nominal damages based
upon a violation of his constitutional rights.‘); Smith
v. Allen, 502 F.3d 1255, 1271 (11th Cir.2007) (Ԥ 1997(e)
does not preclude a prisoner from seeking nominal damages
if he can establish that he has suffered a constitutional
injury.‘); Hughes v. Lott, 350 F.3d 1157, 1162 (11th
Cir.2003) (citing cases from the Second, Third, Seventh,
Ninth, and Tenth Circuits that have interpreted §
1997e(e) not to preclude a prisoner from seeking nominal
damages); Thompson, 284 F.3d at 416 (‘Because Section
1997e(e) is a limitation on recovery of damages for
mental and emotional injury in the absence of a showing
of physical injury, it does not restrict a plaintiff's
ability to recover compensatory damages for actual
injury, nominal or punitive damages, or injunctive and
declaratory relief.‘).
*3 Nominal damages are appropriate even if a prisoner
cannot prove actual injury sufficient to entitle him to
compensatory damages. Hughes, 350 F.3d at 1162 (citing
Carey v. Piphus, 435 U.S. 247, 255, 98 S. Ct. 1042, 55
L.Ed.2d 252 (1978)); Allah, 226 F.3d at 251 (‘[T]he
Supreme Court recognized in both Carey and Stachura that
certain absolute constitutional rights may be vindicated
by an award of nominal damages in the absence of any
showing of injury warranting compensatory damages. ‘)
(citing Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S.
299, 308 n. 11, 106 S. Ct. 2537, 91 L.Ed.2d 249 (1986);
Carey, 435 U.S. at 266). See also Wolfel v. Bates, 707
F.2d 932, 934 (6th Cir.1983) (upholding an award of
nominal damages where prison officials were properly held
liable for violating a prisoner's First Amendment rights)
(decided prior to enactment of § 1997e(e)) (citing Carey,
435 U.S. at 267).
In his amended complaint Plaintiff has requested
declaratory and injunctive relief, compensatory damages
for mental and emotional injuries, and punitive damages.
(Dkt. No. 32, ¶¶ 107-24.) Although Plaintiff's complaint
does not request an award of nominal damages, his pro se
complaint requesting damages for violation of his
constitutional rights will be liberally construed to
assert such a request. The Court concludes that §
1997e(e) applies to a prisoner's First Amendment claims,
and that it bars Plaintiff's claim for mental and
emotional damages if he cannot show a physical injury.
5

However, the Court also concludes that § 1997e(e) does
not bar a prisoner from recovering nominal and punitive
damages for First Amendment violations, even in the
absence of physical injury. Accordingly, Defendant's
motion for summary judgment will be denied.
Swackhammer at 1-3.
Another recent district court case, Jones v. Price, 696
F. Supp. 2d 618 (N.D. W.Va. 2010) provides an updated analysis and
citation of cases concerning limitations of § 1997e(e).

In the

Jones case the inmate was subjected to a strip search in view of a
female booking clerk.

The court held that in the absence of a

showing of physical injury § 1997e(e) bars an inmate from seeking
compensatory damages for mental or emotional distress.

The Court

went on to say that it did not prevent an inmate from seeking
nominal damages for the injuries, even where there was no physical
injury.

Price at 624.
The Magistrate Judge agrees with what appears to be the

majority of courts considering this issue, that § 1997e(e) does bar
claims for mental and emotional distress absent physical injury,
but

that

it

does

not

bar

claims

for

nominal

damages.

The

Magistrate Judge, however, believes that in the absence of a
specific request for punitive damages or injunctive relief that
those claims are not available to the Plaintiff at this late date.
His complaint does not contain sufficient facts to justify punitive
damages

and

there

is

nothing

in

his

pleadings

that

put

the

Defendant on notice that the Plaintiff is seeking punitive damages
or to allege facts which would meet a punitive damages “shock the

6

conscience standard.”

It appears that only claims of nominal

damages under the above-cited case law remains.
The Magistrate Judge has given the pro se Plaintiff the
benefit of the doubt to construe his complaint to include nominal
damages.

The Defendant’s brief did not address this issue.
Accordingly, the Magistrate Judge recommends that the

motion for summary judgment be GRANTED as to all claims except for
nominal damages.3
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion for summary judgment be GRANTED to the
extent that all claims be barred except claims for nominal damages.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further

3

If only nominal damages are available it is possible that neither
side is entitled to a jury trial as requested since the amount in
controversy will not exceed $20. If a jury trial is not required then
the matter could be referred to the Magistrate Judge for a final
evidentiary hearing and a report and recommendation as to the outcome of
the factual disputes that remain in the case. However, the issue of a
jury trial was not raised or briefed by either party and the Magistrate
Judge does not make a separate recommendation concerning that issue in
this Report and Recommendation.

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appeal of this Recommendation.

Thomas v. Arn, 474 U.S. 140 106 S.

Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTERED this 29th day of December, 2011.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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