United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
THAI CANNON UNITED STATES MAGISTRATE JUDGE
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.
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. 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
described the effects of the use of chemical agents as
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
Id. at 5-6.
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
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.
28 U.S.C. 1915 Prescreening Standard
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
Plaintiff's Claims Do Not Meet the Physical Injury
Requirement from 42 U.S.C. § 1997e(e) for Seeking
Compensatory or Punitive Damages
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 ...