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Ross v. Fead

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

May 30, 2019

DEVON J ROSS, Plaintiff,
v.
JAMES FEAD, CAPTAIN WILSON, Defendants.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court sua sponte. Plaintiff Devon J. Ross, a prisoner proceeding pro se and in forma pauperis, filed a second amended civil rights complaint under 42 U.S.C. § 1983. ECF Doc. 12. He asserts that correctional officers violated his Eighth and Fourteenth Amendment rights and violated Florida Department of Corrections policy and procedures by using chemical agents against him without justification. Id. at 7. The undersigned has screened the complaint pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2) and respectfully recommends that this case be dismissed under 28 U.S.C. § 1915A(b)(1) and § 1915(e)(2)(B)(ii) for Plaintiff's failure to state a claim on which relief may be granted.

         I. Background

         Plaintiff sues two correctional officers, Fead and Wilson, in their individual capacities under 42 U.S.C. § 1983. ECF Doc. 12 at 7. He alleges that on November 26, 2017, he was incarcerated at the correctional institution at which Fead and Wilson were correctional officers.[1] Id. at 5. On that date, a correctional officer named Sergeant Stalnaker, who is not a defendant in this suit, attempted to place another inmate into the cell with Plaintiff, who is under protective management and disciplinary status. Id. The other inmate was not under the same status. Id. Plaintiff informed Sergeant Stalnaker of this, and warned, “I'll be placed into a potentially dangerous situation….I don't want to get into trouble if a violent event occured [sic] between myself and the other inmate.” Id. Sergeant Stalnaker ignored Plaintiff's warning and, accompanied by Defendant Fead, directed Plaintiff to submit to hand restraints. Id. Plaintiff complied with the hand restraints and, while Plaintiff's cell was searched by Defendant Fead, Sergeant Stalnaker led Plaintiff to the shower to be searched. Id. While being searched, Plaintiff declared a psychological emergency but was denied. Id. Upon being returned to the cell, Plaintiff declared another psychological emergency, but Defendant Wilson did not bring Plaintiff to anyone for counseling. Instead, Defendant Wilson instructed Sergeant Stalnaker to open the food flap of the cell so that Defendant Fead could apply chemical agents in the cell. Id. Plaintiff alleges that Defendants Fead and Wilson thus “effected a bogus reason to apply/use chemical on me, even though I posed no risk to anyone and wasn't destroying any property.” Id.

         Plaintiff described the effects of the use of chemical agents as follows:

I was blinded temporarily, [and] my blood pressure went up. I experienced burning sensations for 4 days and had an anxiety attack feeling like I was going to die due to difficulties breathing. Also suffered [sic] mental anguish due to the fact I declared Psychological Emergency but instead of following policy and procedures and having me evaluated my mental health [sic] the Defendants sprayed chemical agents in a sadistically and maliciously manner [sic] to inflict pain to the Plaintiff.

Id. at 5-6.

         Plaintiff initiated the instant suit by submitting a “Complaint for Violation of Civil Rights” to the Taylor C.I. mail room on February 11, 2019. ECF Doc. 1. Magistrate Judge Kahn ordered Plaintiff to amend his motion to proceed in forma pauperis and his complaint so that each was filed on the correct forms for the Northern District of Florida (ECF Doc. 4). Plaintiff did both and was granted in forma pauperis status on April 19, 2019. ECF Doc. 10. The Court then reviewed his amended complaint under 28 U.S.C. §§ 1915A and 1915(e)(2), informed Plaintiff that his amended complaint was deficient in three areas and directed Plaintiff to file a second amended complaint or a notice of voluntary dismissal. ECF Doc. 11. In that order, the Court warned Plaintiff that his amended complaint (1) failed to state a basis for official capacity liability against Fead and Wilson; (2) failed to state a basis for granting a temporary restraining order; and (3) failed to satisfy 42 U.S.C. § 1997e(e)'s requirement that a prisoner plaintiff allege more than a de minimis physical injury when seeking compensatory or punitive damages.

         Plaintiff filed a second amended complaint on May 15, 2019. ECF Doc. 12. Although Plaintiff now sues Defendants in only their individual capacities and no longer seeks injunctive relief (thus remedying two of his deficiencies), his second amended complaint continues to fail to state a claim upon which relief can be granted. In his second amended complaint, Plaintiff seeks only compensatory and punitive damages. ECF Doc. 12 at 7. Plaintiff, however, has failed to allege facts sufficient to show that he suffered any physical injury which would warrant the recovery of such damages.

         II. Analysis

         A. 28 U.S.C. 1915 Prescreening Standard

         Because Plaintiff is a prisoner, the Court is required to review his complaint, identify cognizable claims and dismiss the complaint, or any portion thereof, if the complaint “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(a)-(b); see also 28 U.S.C. § 1915(e)(2)(B) (applying the same standard to in forma pauperis proceedings). Dismissals for failure to state a claim are governed by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The Court accepts all well-pleaded factual allegations of the complaint as true and evaluates all reasonable inferences derived from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994). To survive dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (holding that courts must follow the Supreme Court's “ ‘two-pronged approach' of first separating out the complaint's conclusory legal allegations and then determining whether the remaining well-pleaded factual allegations, accepted as true, ‘plausibly give rise to an entitlement to relief.'” (quoting Iqbal, 556 U.S. at 679)).

         B. Plaintiff's Claims Do Not Meet the Physical Injury Requirement from 42 U.S.C. § 1997e(e) for Seeking Compensatory or Punitive Damages

         According to the Prison Litigation Reform Act (“PLRA”), “[n]o 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). “[T]he phrase ‘Federal civil action' means all federal claims, including constitutional claims.” Napier v. Preslicka, 314 F.3d 528, 532 (11th Cir. 2002). This action, brought by Plaintiff under 42 U.S.C. § 1983, is a “Federal civil action” under this definition, and Plaintiff alleges he was a ...


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