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Walker v. Herron

United States District Court, N.D. Florida, Gainesville Division

March 19, 2018

DEMETRIUS LAREDO WALKER, Plaintiff,
v.
GARY HERRON, et al., Defendants.

          REPORT AND RECOMMENDATION

          GARY R. JONES, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a prisoner currently incarcerated at Taylor Correctional Institution, initiated this case by filing a complaint under 42 U.S.C. § 1983, which he later amended. (ECF Nos. 1, 23.) Presently pending before the Court is the Amended Motion to Dismiss by Defendants Herron and Davenport. (ECF No. 24.) Plaintiff responded, ECF No. 27, and the motion is, therefore, ripe for review. For the reasons discussed below, the undersigned recommends that the motion to dismiss be granted in part.

         I. Plaintiff's Allegations

         Plaintiff's claims against Defendants (“Officer Herron” and “Officer Davenport”) stem from an incident at Mayo Annex on September 28, 2016. Plaintiff alleges that while Defendants were counseling him in a medical holding cell, Officer Davenport said, “I know how to deal with stupid niggers like you!” Then as Officer Herron was placing Plaintiff in hand restraints, Officer Davenport told Officer Herron to “spray his ass.” Officer Herron then sprayed Plaintiff with chemical agents five times total in the face, mouth, and ear. During this incident, Officer Davenport remained outside the medical holding cell and did not intervene or stop Officer Herron's actions. After the incident, Plaintiff was escorted to administrative confinement for decontamination shower. (ECF No. 23 at 9-10.)

         Plaintiff says that as a result of the use of chemical agents by Defendant Herron, Plaintiff experienced pain in both of his eyes, specifically burning, swelling, and blurred vision for approximately four days. Plaintiff also says that he saw prison medical staff regarding the pain and blurred vision he was experiencing. (Id. at 10.)

         Based on the above incident, Plaintiff says that Officer Herron and Officer Davenport violated his Eighth Amendment rights and Florida law. For relief Plaintiff requests a declaratory judgment, compensatory and punitive damages of $2, 500 against each Defendant, costs in the suit, and any additional relief the Court deems proper. (Id. at 11-13.)

         II. Standard of Review

         To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that an act or omission committed by a person acting under color of state law deprived him of a right, privilege, or immunity secured by the Constitution or laws of the United States. Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir.1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of the claims, then the complaint is subject to dismissal. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (noting that “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and the complaint “must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”); Ashcroft v. Iqbal, 566 U.S. 662, 680-86 (2009) (Twombly “expounded the pleading standard for all civil actions, ” and conclusory allegations that “amount to nothing more than a formulaic recitation of the elements of a constitutional . . . claim” are “not entitled to be assumed true”; further, to escape dismissal the complaint must allege facts sufficient to move claims “across the line from conceivable to plausible”).

         A pro se litigant's allegations are entitled to the benefit of liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A court, however, does not have “license . . . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998), overruled on other grounds by Iqbal, 556 U.S. 662.

         III. Discussion

         Defendants raise the following two arguments in their motion to dismiss. First, Defendants argue that because Plaintiff has failed to allege that he suffered the requisite physical injury, he is not entitled to compensatory or punitive damages. Second, Defendants argue that they are immune from Plaintiff's claim that they violated Florida law. Therefore, Defendants request that Plaintiff's state tort claim be dismissed and that his Eighth Amendment claim be for nominal damages only. (ECF No. 24.)

         A. The PLRA bars Plaintiff's claims for punitive and compensatory damages because Plaintiff has failed to allege more than a de minimis physical injury.

         Defendants first argue that Plaintiff is not entitled to claim compensatory or punitive damages because Plaintiff has failed to show that he suffered from more than a de minimis physical injury as required by the PLRA. As a result, Defendants say that Plaintiff is entitled to claim nominal damages only. (ECF No. 24 at 4-8.)

         Under the PLRA, “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). According to the Eleventh Circuit, the PLRA precludes claims for punitive and compensatory damages absent a showing of physical injury. Al-Amin ...


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