United States District Court, M.D. Florida, Jacksonville Division
KEITH L. JOLLY, Plaintiff,
DEBORA ELLIS-BAILEY, et al., Defendants.
ORDER OF DISMISSAL
J. DAVIS UNITED STATES DISTRICT JUDGE
Keith L. Jolly, an inmate of the Florida penal system,
initiated this action by filing a pro se Civil Rights
Complaint (Doc. 1; Complaint) and a motion to proceed in
forma pauperis (Doc. 2). Plaintiff names as Defendants four
corrections officers at the Duval County Jail. In his
Complaint, Plaintiff asserts First and Fourth Amendment
violations stemming from alleged mail tampering and theft. As
to the claim of mail tampering, Plaintiff alleges Defendant
Ellis-Bailey retrieved a letter from his pocket on April 18,
2016, and kept the letter as “contraband.”
See Complaint at 5. According to Plaintiff, later
that same day, Defendant Ellis-Bailey searched his cell for
other letters and, finding none, directed Defendant Perkins
to monitor his outgoing mail. Id. at 7. Plaintiff
contends his outgoing mail was monitored through April 22,
2016, during which time officers intercepted two letters
Plaintiff wrote to his son, which were then sent to the
prosecutor in his criminal case. Id. at 9, 24,
As to the theft claim, Plaintiff asserts Defendant Peoples
either misplaced or stole a payroll check he had in his
property. Id. at 18. Plaintiff claims he suffered a
mental breakdown from the stress caused by the events. He
seeks only punitive damages. Id. at 33.
Prison Litigation Reform Act (PLRA) requires a district court
to dismiss a complaint if the court determines the action is
frivolous, malicious, or fails to state a claim on which
relief can be granted. See 28 U.S.C. §
1915(e)(2)(B). With respect to whether a complaint
“fails to state a claim on which relief may be granted,
” the language of the PLRA mirrors the language of Rule
12(b)(6), Federal Rules of Civil Procedure, so courts apply
the same standard in both contexts. Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see
also Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.
2008). “To survive a motion to dismiss, 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) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Labels and conclusions”
or “a formulaic recitation of the elements of a cause
of action” that amount to “naked
assertions” will not suffice. Id. (quotations,
alteration, and citation omitted). Moreover, a complaint must
“contain either direct or inferential allegations
respecting all the material elements necessary to sustain a
recovery under some viable legal theory.” Roe v.
Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683
(11th Cir. 2001) (quotations and citations omitted). In
reviewing a pro se plaintiff's pleadings, a court must
liberally construe the plaintiff's allegations. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam);
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
2011). However, the duty of a court to construe pro se
pleadings liberally does not require the court to serve as an
attorney for the plaintiff. Freeman v. Sec'y, Dept.
of Corr., 679 Fed.Appx. 982, 982 (11th Cir. 2017)
(citing GJR Invs., Inc. v. Cty. of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998)).
note, this is Plaintiff's third attempt to raise these
claims. See Nos. 3:18-cv-214-J-32MCR;
3:19-cv-72-J-25JBT. The Court dismissed Plaintiff's two
prior cases without prejudice for Plaintiff's failure to
state a claim. See Order (Doc. 20), No.
3:18-cv-214-J-32MCR; Order (Doc. 5), No. 3:19-cv-72-J-25JBT.
In both dismissal orders, the Court explained Plaintiff was
precluded from recovering punitive damages under the PLRA
because he alleged no physical injury. Id. The Court
also found Plaintiff's allegations failed to state a
federally cognizable claim.
Complaint again is subject to dismissal. As to
Plaintiff's suggestion that his cell was unlawfully
searched, he fails to state a claim under the Fourth
Amendment. Pre-trial detainees and prisoners enjoy a lowered
expectation of privacy than those who are not incarcerated.
See Hudson v. Palmer, 468 U.S. 517, 527-28 (1984)
(“[T]he Fourth Amendment's proscription against
unreasonable searches does not apply within the confines of
the prison cell.”); Bell v. Wolfish, 441 U.S.
520, 546, 556-57 (1979) (holding the warrantless search of a
pretrial detainee's “room” did not violate
the Fourth Amendment).
allegations of mail tampering implicate his right to free
speech under the First Amendment. Even if his allegations
substantively state a claim for relief, he would be entitled
only to nominal damages because he asserts no actual injury.
See Al-Amin v. Smith, 511 F.3d 1317, 1335 (11th Cir.
2008) (noting Eleventh Circuit precedent “recognizes
the award of nominal damages for violations of the
fundamental constitutional right to free speech absent any
actual injury”). Despite being twice informed of the
limitation on recovery under the PLRA, Plaintiff again seeks
only punitive damages but alleges no physical injury.
See Complaint at 33. Rather, he asserts only
emotional injury, which is not cognizable as a theory of
recovery under the PLRA. See 42 U.S.C. §
1997e(e) (“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 or the
commission of a sexual act.”).
availability of nominal damages has not been foreclosed by
§ 1997e(e). See Brooks v. Warden, 800 F.3d
1295, 1309 (11th Cir. 2015). As such, before dismissing
Plaintiff's Complaint, the Court is obliged to consider
whether his allegations can be liberally construed to request
nominal damages. See Hughes v. Lott, 350 F.3d 1157,
1162-63 (11th Cir. 2003). Of course, this Court is mindful
that a pro se Plaintiff is held to less stringent standards
than a trained lawyer, and any interpretation of the
Complaint must be liberally considered. Erickson,
551 U.S. at 94 (citing Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
due consideration, even under a liberal interpretation,
Plaintiff's Complaint cannot be construed as requesting
nominal damages. Plaintiff requests the following relief:
Im [sic] actually asking for 280, 000 dollars in punitive
damages for the pain and suffering I'll seek [sic] while
incarcerated away from my family and hindering me from
starting my own business. This amount account for all my lost
wages and a lost [sic] of a business venture that I started
and all the defendant that was involve [sic] with the illegal
tampering of my outgoing mail, and the one count of grand
Complaint at 33. Plaintiff's sole request for a large sum
of money, which he designates specifically as “punitive
damages, ” cannot be considered a request for nominal
damages. See, e.g., Williams v. Langford,
No. 2:13-cv-315-FtM-38CM, 2015 WL 163226, at *7 (M.D. Fla.
Jan. 12, 2015) (citing Carey v. Piphus, 435 U.S.
247, 266-67 (1978)) (finding a request for $250, 000 could
not be liberally construed as a request for nominal damages,
which generally do not exceed one dollar); Honors v.
Judd, No. 8:10-cv-22-T-33AEP, 2011 WL 3498287, at *6
(M.D. Fla. Aug. 10, 2011) (finding the plaintiff's claim
was barred under the PLRA because he demonstrated only a de
minimis injury and did not seek nominal damages but only
punitive and compensatory damages).
Plaintiff does not include a request for “other
relief” or similarly inclusive language that could be
liberally construed as a request for nominal damages. Cf.
Smith v. Barrow, No. CV 311-044, 2012 WL
6519541, at *5 (S.D. Ga. Nov. 9, 2012), report and
recommendation adopted as modified, 2012 WL 6522020
(S.D. Ga. Dec. 13, 2012) (liberally construing the complaint
to request nominal damages because the plaintiff asked for
“such other relief to which he may be entitled) (citing
Holloway v. Bizzaro, 571 F.Supp.2d 1270, 1272 (S.D.
Fla. 2008) (same); Linehan v. Crosby, No.
4:06-cv-00225-MP-WCS, 2008 WL 3889604, at *13 (N.D. Fla. June
26, 2008) (same)). For these reasons, Plaintiffs Complaint is
subject to dismissal under the Court's screening
case is DISMISSED ...