United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT
who is currently housed at Coffee Correctional Facility in
Nicholls, Georgia, submitted a Complaint in the
above-captioned action pursuant to 42 U.S.C. § 1983.
(Doc. 1.) I have conducted the requisite frivolity review of
this Complaint. For the reasons which follow, I RECOMMEND
that the Court DISMISS Plaintiff's claims against
Defendants Corrections Corporation of America,
(“CCA”), Coffee Correctional Facility, and Warden
Hilton Hall. I also RECOMMEND that the Court DISMISS
Plaintiff's claims for compensatory and punitive damages
and deliberate indifference claims. I further RECOMMEND that
the Court DENY Plaintiff's Motion for Preliminary
Injunction, (doc. 14). The Court DENIES Plaintiff's
Motion for Production, (doc. 12), and Plaintiff's Motion
to Appoint a Translator, (doc. 13).
Plaintiff has stated a viable Eighth Amendment excessive
force claim and state law claims against Defendant Jones, and
those claims shall proceed. Consequently, the Court hereby
ORDERS that the Complaint and this Order be served on
Defendant Jones. The Court provides additional instructions
to Plaintiff and Defendant Jones pertaining to the future
litigation of this action, which the parties are urged to
read and follow.
alleges that Defendant Officer Jones discharged
“gaz” spray in the cafeteria of Coffee
Correctional Facility and then blocked over 25 prisoners,
including Plaintiff, from exiting the cafeteria. (Doc. 1, p.
6.) Plaintiff alleges that, as a result of his exposure to
“gaz” spray, his immune system was
“impacted”, and he suffered chest pain and
coughed up blood. (Id.) After Plaintiff's
symptoms manifested, a prison nurse examined Plaintiff and
immediately treated him. (Id.)
contends that Defendant Officer Jones “engaged in
excessive force, misconduct and authority abuse against
inmates” and that Defendant Warden Hall failed to
investigate the alleged incident after Plaintiff filed an
administrative grievance. (Id. at p. 8.)
seeks to bring this action in forma pauperis under
42 U.S.C. § 1983. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the
prepayment of fees if the plaintiff submits an affidavit that
includes a statement of all of his assets and shows an
inability to pay the filing fee and also includes a statement
of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court
must dismiss the action if it is frivolous or malicious, or
fails to state a claim upon which relief may be granted. 28
U.S.C. §§ 1915(e)(2)(B)(i)-(ii). Additionally,
pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a
governmental entity. Upon such screening, the Court must
dismiss a complaint, or any portion thereof, that is
frivolous or malicious, or fails to state a claim upon which
relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
reviewing a Complaint on an application to proceed in
forma pauperis, the Court is guided by the instructions
for pleading contained in the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 8 (“A pleading
that states a claim for relief must contain [among other
things] . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”);
Fed.R.Civ.P. 10 (requiring that claims be set forth in
numbered paragraphs, each limited to a single set of
circumstances). Further, a claim is frivolous under Section
1915(e)(2)(B)(i) “if it is ‘without arguable
merit either in law or fact.'” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
a complaint fails to state a claim under Section
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 F. App'x 675,
678 (11th Cir. 2010). Under that standard, this Court must
determine whether the complaint contains “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must assert “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not” suffice. Twombly,
550 U.S. at 555. Section 1915 also “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys, and
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by
attorneys.”) (emphasis omitted) (quoting Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However,
Plaintiff's unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States,
508 U.S. 106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Dismissal of Claims against Corrections Corporation of
names Corrections Corporation of America,
(“CCA”), as a Defendant, apparently due to its
role as employer of the other named Defendants. Though CCA is
a private entity, prison contractors are considered state
actors. Therefore, CCA is subject to suit under Section 1983.
See Farrow v. West, 320 F.3d 1235, 1239 n.3 (11th
Cir. 2003). However, supervisors, employers, and private
contractors cannot be sued under Section 1983 simply on a
theory of respondeat superior. Nesmith v. Corr.
Corp. of Am., Civil Action No. CV507-043, 2007 WL
2453584, at *2 (S.D. Ga. Aug. 23, 2007) (holding that CCA, as
private contractor who runs prison, cannot be held liable
under Section 1983 on respondeat superior or
vicarious liability basis). “Because vicarious
liability is inapplicable to § 1983 actions, a plaintiff
must plead that each Government-official defendant, through
the official's own individual actions, violated the
Constitution.” Rosa v. Fla. Dep't of
Corr., 522 F. App'x 710, 714 (11th Cir. 2013)
(quoting Iqbal, 556 U.S. at 676) (internal
quotations omitted). Therefore, to hold an employer such as
CCA liable, Plaintiff must demonstrate that either: (1) CCA
actually participated in the alleged constitutional
violation, or (2) there is a causal connection between the
actions of CCA and the alleged constitutional violation.
Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.
1999) (citing Brown v. Crawford, 906 F.2d 667, 671
(11th Cir. 1990)). Here, Plaintiff does not allege that
Defendant CCA actually participated in any purported
constitutional violation. Similarly, Plaintiff fails to
allege a causal connection between Defendant CCA and the
asserted constitutional violations. See Zatler v.
Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (per
curiam) (requiring an affirmative causal connection between a
defendant and an alleged constitutional violation).
Furthermore, Plaintiff has not alleged that CCA implemented
an improper custom or policy, directed its subordinates to
act unlawfully, or knew they would act unlawfully and failed
to stop them from doing so. Thus, Plaintiff has failed to
allege any facts that would result in liability for CCA, and
the Court should DISMISS Plaintiff's
claims against CCA.
Dismissal of Claims against Coffee Correctional
order to state a claim for relief under Section 1983, a
plaintiff must satisfy two elements. First, a plaintiff must
allege that an act or omission deprived him “of some
right, privilege, or immunity secured by the Constitution or
laws of the United States.” Hale v. Tallapoosa
Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). Second, a
plaintiff must allege that the act or omission was committed
by “a person acting under color of state law.”
Id. While local governments qualify as
“persons” under Section 1983, state agencies and
penal institutions are generally not considered legal
entities subject to suit. See Grech v. Clayton Cty.,
335 F.3d 1326, 1343 (11th Cir. 2003). Consequently, a prison
is not a viable defendant under Section 1983. Williams v.
Chatham Cty. Sherriff's Complex, Case No.
4:07-cv-68, 2007 WL 2345243 (S.D. Ga. Aug. 14, 2007)
(“The county jail, however, has no independent legal
identity and therefore is not an entity that is subject to
suit under Section 1983.”). Accordingly, the Court
should DISMISS Plaintiff's claims
against Coffee Correctional Facility.
Dismissal of Supervisory Liability Claims against Defendant
1983 liability must be based on something more than a
defendant's supervisory position or a theory of
respondeat superior. Bryant v. Jones, 575
F.3d 1281, 1299 (11th Cir. 2009); Braddy v. Fla.
Dep't of Labor & Emp't Sec., 133 F.3d 797,
801 (11th Cir. 1998). A supervisor may be liable only through
personal participation in the alleged constitutional
violation or when there is a causal connection between the
supervisor's conduct and the alleged violations.
Id. at 802. “To state a claim against a
supervisory defendant, the plaintiff must allege (1) the
supervisor's personal involvement in the violation of his
constitutional rights, (2) the existence of a custom or
policy that resulted in deliberate indifference to the
plaintiff's constitutional rights, (3) facts supporting
an inference that the supervisor directed the unlawful action
or knowingly failed to prevent it, or (4) a history of
widespread abuse that put the supervisor on notice of an
alleged deprivation that he then failed to correct.”
Barr v. Gee, 437 F. App'x 865, 875 (11th Cir.
appears Plaintiff wishes to hold Defendant Hall liable based
solely on his supervisory position at Coffee Correctional
Facility. He does not make any factual allegations that
Defendant Hall directly participated in or was otherwise
causally connected to the alleged deprivation of his
constitutional rights. For example, he states that Defendant
Hall is “legally responsible for the operation of [the
prison] . . . [and] the protection and welfare of all inmates
of that prison.” (Doc. 1, p. 8.) As set forth above,
such supervisory allegations are an insufficient basis for
Section 1983 liability. Therefore, the Court should
DISMISS Plaintiff's claims against
Dismissal of Claims for Compensatory and Punitive
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).
The purpose of this statute is “to reduce the number of
frivolous cases filed by imprisoned plaintiffs, who have
little to lose and excessive amounts of free time with which
to pursue their complaints.” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (citing
Harris v. Garner, 216 F.3d 970, 976-79 (11th Cir.
2000)). “Tracking the language of [this] statute,
§ 1997e(e) applies only to lawsuits involving (1)
Federal civil actions (2) brought by a prisoner (3) for
mental or emotional injury (4) suffered while in
custody.” Id. at 532.
Williams v. Brown, 347 F. App'x 429, 436 (11th
Cir. 2009), the Eleventh Circuit stated that,
“compensatory damages under § 1983 may be awarded
only based on actual injuries caused by the defendant and
cannot be presumed or based on the abstract value of the
constitutional rights that the defendant violated. Pursuant
to 42 U.S.C. § 1997e(e), in order to recover for mental
or emotional injury suffered while in custody, a prisoner
bringing a § 1983 action must demonstrate more than a
de minim[i]s physical injury.” Id.
(internal citations omitted) (alterations in original).
Consequently, a prisoner that has not suffered more than
de minimis physical injury cannot recover
compensatory or punitive damages. Al-Amin v. Smith,
637 F.3d 1192, 1199 (11th Cir. 2011) (“In sum, our
published precedents have affirmed district court dismissals
of punitive damage claims under the PLRA because the
plaintiffs failed to meet § 1997e(e)'s physical
injury requirement.”); Smith v. Allen, 502
F.3d 1255, 1271 (11th Cir. 2007) (“Plaintiff seeks
nominal, compensatory, and punitive damages. It is clear from
our case law, however, that the latter two types of damages
are precluded under the PLRA.”), abrogated
on other grounds by Sossamon v. Texas, 563 U.S. 277
(2011). “In order to avoid dismissal under §
1997e(e), a prisoner's claims for emotional or mental
injury must be accompanied by allegations of physical
injuries that are greater than de minimis.”
Mitchell v. Brown & Williamson Tobacco Corp.,
294 F.3d 1309, 1312-13 (11th Cir.2002). “The meaning of
the phrase ‘greater than de minimis, '
however, is far from clear.” Chatham v.
Adcock, 334 F. App'x 281, 284 (11th Cir. 2009).
case, Plaintiff has only alleged de minimis physical
injury resulting from Defendants' alleged excessive use
of force. Plaintiff claims that Defendant Jones sprayed him
(presumably with pepper spray). However, he states only that
he suffered a sore throat and pain in his lungs, that he
coughed up blood twice, and that the pepper spray had an
“impact” on his immune system. (Doc. 1, p. 6.)
Several courts have held that the typical effects associated
with pepper spray, such as temporary burning of the skin and
difficulty breathing, are not sufficient to satisfy Section
1997(e)'s physical injury requirement. See,
e.g., Jennings v. Mitchell, 93 F. App'x
723, 725 (6th Cir. 2004) (finding that prisoner who suffered
the discomfort of pepper spray had shown only de
minimis injury, insufficient to satisfy §
1997e(e)); Kirkland v. Everglades Corr. Inst., No.
12-22302-CIV, 2014 WL 1333212, at *6 (S.D. Fla. Mar. 31,
2014) (“If [plaintiff] experienced temporary chemical
burns and minor respiratory problems from exposure to a
chemical agent, he then sustained only minor, physical
injuries from the chemical spray.”); Magwood v.
Tucker, No. 3:12cv140/RV/CJK, 2012 WL 5944686, at *5
(N.D. Fla. Nov. 14, 2012) (prisoner failed to show more than
a de minimis physical injury resulting from
officer's use of chemical agent where he alleged he
suffered bloody nose and bloody phlegm); Kornagay v.
Burt, No. 3:09cv281/LAC/EMT, 2011 WL 839496 (N.D. Fla.
Feb. 8, 2011) (prisoner failed to show more than a de
minimis physical injury resulting from officer's use
of chemical agent where prisoner alleged he suffered burning
lungs and skin, congested breathing, tearing eyes, nasal
discharge, dizziness, the sensation of respiratory distress,
choking, and burns to his scalp); Beecher v. Jones,
No. 3:08cv416/MCR/EMT, 2010 WL 5058555, at *5-6 (N.D. Fla.
Oct. 29, 2010) (prisoner who alleged no physical injury
arising from use of chemical agents failed to show requisite
physical injury under § 1997e(e)); see also
Osterback v. Ingram, No. 3:96cv580/LAC/SMN, 2000 WL
297840, at *10 (N.D. Fla. Jan.12, 2000) (plaintiff unable to
recover compensatory or punitive damages with respect to
injuries caused by ...