REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, Chief Magistrate Judge.

Plaintiff Edward D. Curry ("Curry"), an inmate of the Florida Department of Corrections ("FDOC"), is proceeding pro se and in forma pauperis in this civil rights action. Presently before the court is Curry's Second Amended Complaint (ECF No. 47). Defendant Correctional Officer R. Johnson filed a motion to dismiss one of Curry's claims and Curry's request for monetary damages (ECF No. 52). Curry has not responded to the motion to dismiss, even though he was directed to do so (ECF No. 53). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(E); see also 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).

I. BACKGROUND

Curry names Correctional Officer R. Johnson as the sole Defendant in this civil rights case (ECF No. 47 at 1, 2). Curry claims that Johnson subjected him to excessive force on July 7, 2016, in retaliation for Curry's filing grievances against two of Johnson's co-workers, in violation of the First and Eighth Amendments (id. at 5-7). Curry seeks punitive damages in the amount of $250,000 (id. at 7).

On August 17, 2017, Officer Johnson filed a motion to dismiss, contending Curry's retaliation claim is subject to dismissal for failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 52). Officer Johnson also seeks dismissal of Curry's request for punitive damages, on the ground that recovery is barred by the Eleventh Amendment and 42 U.S.C. § 1997e(e) (id.). The court directed Curry to file a response to the motion to dismiss on or before September 18, 2017 (see ECF No. 53). As noted above, as of the date of docketing of this Report and Recommendation, Curry has not filed a response.

II. MOTION TO DISMISS STANDARD

Motions to dismiss for failure to state a claim are governed by Rule 12(b)(6). In applying that rule, the allegations of the complaint are taken as true and are construed in the light most favorable to the plaintiff. See Davis v. Monroe Cnty. Bd. of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). "Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). The court may consider documents attached to a complaint or incorporated into the complaint by reference, as well as matters of which a court may take judicial notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L. Ed. 2d 179 (2007); Saunders v. Duke, 766 F.3d 1262, 1272 (11th Cir. 2014); Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) ("[W]here the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal. . . .").

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, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009) (quotation and citation omitted). A claim is plausible on its face where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). Plausibility means "more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quotation and citation omitted).

The determination of whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (citation omitted). The pleader is not entitled to relief "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Id. (citing Fed. R. Civ. P. 8(a)(2)). The court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 678 (quotation and citation omitted). And "bare assertions" that "amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Id. at 681 (quotation and citation omitted). Stated succinctly:

Id. at 679.

The same standard applies when the court screens complaints filed by prisoners and plaintiffs proceeding in forma pauperis. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A. To survive dismissal at the screening phase, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted).

III. CURRY'S FACTUAL ALLEGATIONS

Curry alleges on July 7, 2016, as Officer Johnson was handcuffing him on the recreation yard, Officer Johnson asked Curry to identify himself (Second Amended Complaint at 5). Curry alleges he told Johnson his name, and Johnson began bending Curry's fingers back while ordering him to stop filing grievances about his co-workers, Sergeant Oakes and Lieutenant Gaynor (id.; see also Complaint, ECF No. 1 at 8). Curry alleges that after ten minutes of bending his fingers, Johnson bent Curry's wrist and shoved his handcuffed hands into the handcuff box (Second Amended Complaint at 5). Curry alleges Johnson's conduct resulted in injuries to his thumb and wrist, specifically, a swollen and painful thumb and a cut on his wrist (id.). Curry alleges he was alone inside the "recreation cage" when Officer Johnson engaged in this conduct, and Curry posed no threat to anyone, including himself (id.). Curry alleges the next day, he sought medical treatment for his thumb and wrist (id.). Curry states he was unable to move his thumb (id.). Curry alleges the nurse provided "muscle rub cream" and two ibuprofen tablets and scheduled him for a follow-up visit (id.). Curry alleges he went to a follow-up visit to on July 12, 2016 (id.). Curry alleges the nurse observed his hand and determined that diagnostic testing in the form of an x-ray was warranted (id.). Curry alleges he received the x-ray the next day, and on July 18, 2016, the nurse informed him that the x-ray indicated that his thumb was not broken (id. at 5-6). Curry alleges on August 4, 2016, he sought medical care for his thumb, because it was still swollen and painful when he attempted to use it (id. at 6).

Curry filed this lawsuit on September 22, 2016, approximately two and a half months after the incident (see ECF No. 1 at 1). Curry claims that Officer Johnson's conduct constituted excessive force and retaliation, in violation of the First and Eighth Amendments (Second Amended Complaint at 7). He seeks punitive damages in the amount of $250,000 (id.).

IV. DISCUSSION

A. Limitations on Recovery

1. Eleventh Amendment Immunity

Officer Johnson argues that to the extent Curry sues him in his official capacity for damages, the claim is barred by Eleventh Amendment immunity (see ECF No. 52 at 5-6).

The Eleventh Amendment is an absolute bar to suit for monetary damages by an individual against a state or its agencies, or against officers or employees of the state or its agencies in their official capacities. See Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L. Ed. 2d 662 (1974). Absent waiver or express congressional abrogation, neither of which is present in this case, the Eleventh Amendment bars Curry's claims for monetary damages against Officer Johnson in his official capacity. Therefore, Officer Johnson's motion to dismiss should be granted in this regard.

2. 42 U.S.C. § 1997e(e)

Officer Johnson argues that to the extent Curry sues him in his individual capacity for punitive damages, the claim is precluded by 42 U.S.C. § 1997e(e), because Curry cannot demonstrate he suffered more than a de minimis physical injury (see ECF No. 52 at 6-7)

Section 1997e(e), which is an affirmative defense, provides: "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 commission of a sexual act. . . ." 42 U.S.C. § 1997e(e); see Douglas v. Yates, 535 F.3d 1316, 1320-21 (11th Cir. 2008) (holding that § 1997e(e) is an affirmative defense and not a jurisdictional limitation). Section 1997e(e) is "[r]ead as a limitation on a damages remedy only[.]" Harris v. Garner, 190 F.3d 1279, 1288 (11th Cir.) (finding that the Constitution does not "mandate[ ] a tort damages remedy for every claimed constitutional violation"), vacated, 197 F.3d 1059 (11th Cir. 1999), reinstated in relevant part, 216 F.3d 970, 972, 985 (11th Cir. 2000). Section 1997e(e) precludes the recovery of compensatory and punitive damages without a prior showing of physical injury. See Al-Amin v. Smith, 637 F.3d 1192, 1197-98 (11th Cir. 2011).

The leading case on this issue from the Eleventh Circuit, Harris v. Garner, held that in order to satisfy § 1997e(e), a prisoner must allege a physical injury that is more than de minimis, but need not allege that it is significant. 190 F.3d 1279, 1286-87. In so holding, the court intended to "fuse" the physical injury analysis under § 1997e(e) with the framework set out by the Supreme Court in Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L. Ed. 2d 156 (1992), for analyzing claims brought under the Eighth Amendment for cruel and unusual punishment. Harris, 190 F.3d at 1286. The Harris court was careful to state that its holding did not affect its Eighth Amendment jurisprudence, and it used the Eighth Amendment standards only to guide its analysis under § 1997e(e). In a footnote to its opinion, the court left open the question of whether a de minimis use of physical force might satisfy section 1997e(e) if it were found "repugnant to the conscience of mankind." Harris, 190 F.3d at 1287 n.7 (quoting Hudson, 503 U.S. at 10, 112 S. Ct. at 1000).

As it concerns the framework for resolving excessive force claims under the Eighth Amendment, Hudson set out the following:

Hudson, 503 U.S. at 9-10. More recently, the Supreme Court reiterated the holding of Hudson, rejecting once again "the notion that `significant injury' is a threshold requirement for stating an excessive force claim." Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 175 L. Ed. 2d 995 (2010) (explaining that the "core judicial inquiry" is "that nature of the force" used by prison officers as opposed to the extent of the injury inflicted). The Court noted that "[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury." Wilkins, 559 U.S. at 38. Notwithstanding, a prisoner's "relatively modest . . . alleged injuries will no doubt limit the damages he may recover." Wilkins, 559 U.S. at 40.

One pivotal point should be noted, however. Neither Hudson nor Wilkins mention the physical injury requirement of § 1997e(e). Thus, while those two opinions remain binding precedent for resolving Eighth Amendment excessive force claims, this court's primary source for resolving the § 1997e(e) issue remains the Eleventh Circuit's Harris decision. While Harris does mention fusing its 1997e(e) analysis with the framework of Hudson, the fact nevertheless remains that the emphasis in Harris was on the threshold amount of injury required under § 1997e(e)—greater than de minimis—not on the amount of force.

In fact, Harris went on to hold that the use of force presently before it, namely that the inmate was forced to "dry shave," resulted in a de minimis physical injury and therefore did not meet the threshold requirement under § 1997e(e).1 Harris, 190 F.3d at 1287. Subsequent cases finding only de minimis physical injury on their facts have similarly followed Harris and found that the § 1997e(e) requirement was not satisfied. See Mann v. McNeil, 360 F. App'x 31, 32 (11th Cir. 2010) (unpublished) (plaintiff alleged vague injuries to his back and scrapes and marks on his legs); Quinlan v. Personal Trans. Servs. Co., 329 F. App'x 246, 248-49 (11th Cir. 2009) (asthmatic plaintiff alleged temporary chest pain, headache, difficulty breathing and periodic back pain after being transported in prison van); Dixon v. Toole, 225 F. App'x 797, 799 (11th Cir. 2007) (plaintiff, after being forced to sleep in "strip cell" on a concrete platform, claimed—but could not evidence—an aggravation of his preexisting injuries and exposure to Hepatitis-C from his cellmate, and further alleged bruises and welts from shackles); Borroto v. McDonald, No. 5:04cv165/RH/WCS, 2006 WL 2789152, at *5 (N.D. Fla. Sept. 26, 2006) (defendants allegedly punched plaintiff repeatedly in his abdomen and on the back of his head, hit him on his left ear, and picked him up off the ground and dropped him on his head, which only resulted in bruising and minimal edema of the lower left ear lobe and a red line approximately one centimeter long behind the left ear on the scalp).2

The Eleventh Circuit's recent decision in Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015), bears particular mention. The inmate in that case alleged that, while hospitalized, he was placed in maximum-security restraints, and though he was given medicine that gave him loose stools, the guard refused to lower his waist-chains such that the inmate was forced to defecate into his jumpsuit and lie in his own excrement for two days. Brooks, 800 F.3d at 1298. Although this case was cast under the Eighth Amendment as one of deliberate indifference to medical needs rather than one of excessive force, the court nonetheless spoke in recognition of the degrading and humiliating nature of the defendants' alleged actions—adding that the guards in question laughed at the inmate and taunted him while he suffered. Id. Despite the degrading nature of the alleged harm, which seems on a par with the "repugnant to the conscience of mankind" standard evoked in Hudson and Wilkins for excessive force cases, and suggested in Harris as the source of a possible exception to the de minimis injury rule of § 1997e(e), the court in Brooks nevertheless held that the inmate's alleged physical injuries were de minimis and applied § 1997e(e) to bar the inmate's claims for compensatory and punitive damages. Brooks, 800 F.3d at 1303. The court noted that the inmate's constitutional claim for nominal damages, however, was not barred. Id.

Although Curry did not file a response to Officer Johnson's motion to dismiss, he previously submitted, in response to a now-dismissed Defendant's motion to dismiss, an affidavit describing his physical injury in more detail than he described in the Second Amended Complaint (see General Affidavit of Edward D. Curry, ECF No. 40, Ex. B). In the affidavit, dated June 1, 2017, Curry states:

(Curry Aff.).

While it is a close call, Curry's allegation of pain and swelling which required pain relievers and diagnostic testing, coupled with his allegations of continuing pain which has persisted during the year between the use of force and the submission of his affidavit and affects use of his hand, appear to allege more than the vague injury or periodic episodes of pain found by the Eleventh Circuit to be de minimis as a matter of law for purposes of § 1997e(e). See, e.g., Merritt v. Godfrey, No. 3:13cv607/LAC/EMT, 2015 WL 5439306, at *8 (N.D. Fla. Aug. 10, 2015) (concluding, at motion to dismiss stage, that plaintiff's allegations of back pain while sitting or standing, which persisted and worsened during the year and a half between the use of force that the filing of the complaint, were sufficient to survive dismissal), Report and Recommendation Adopted By 2015 WL 5440570 (N.D. Fla. Sept. 19, 2015). Cf. Quinlan, 329 F. App'x at 248-49 (concluding, at motion to dismiss stage, that plaintiff's complaints of temporary chest pain, headache, and difficulty breathing, as well as subsequent periodic episodes of back pain, none of which required immediate medical attention or evidenced physical injury besides discomfort, did not amount to more than de minimis physical injury); Mann, 360 F. App'x at 32 (concluding, at motion to dismiss stage, that plaintiff's complaints of vague injuries to his back, and scrapes and marks on his knees and legs, did not amount to more than de minimis physical injury). Further factual development is needed to determine whether Curry's physical injury was more than de minimis. Compare Goodwin v. Hatten, No. 1:07cv123-MMP/AK, 2010 WL 750290, *5 (N.D. Fla. Mar. 1, 2010) (concluding, at summary judgment stage, that plaintiff presented sufficient evidence to demonstrate a genuine issue of material fact as to whether his injuries from defendant's use of force (i.e., defendant's slapping plaintiff in the face and punching him in the ribs) were more than de minimis; plaintiff alleged he suffered "unbearable" pain in his ribs and was unable to breathe deeply, medical staff prescribed ibuprofen for pain and ordered diagnostic testing (x-ray, which resulted in normal findings), and medical staff observed bruising and swelling that lasted no more than one week); with Johnson v. Moody, 206 F. App'x 880, 885 (11th Cir. 2006) (concluding, at summary judgment phase, that injury to prisoner's finger, sustained after metal tray door was forcibly closed on his hand, was not more than de minimis, where injury merely required a tetanus shot, bandages, and non-prescription pain relievers), and Harvard v. Beaudry, No. 3:12cv289/LAC/CJK, 2014 WL 4626016. at *10 (N.D. Fla. Sept. 12, 2014) (concluding, at summary judgment stage, that plaintiff failed to present sufficient evidence to demonstrate a genuine issue of material fact as to whether his injuries from defendant's use of force (i.e., defendant's pulling plaintiff's right arm through handcuff portal up to plaintiff's right shoulder and continuously pulling, twisting, and bending it, causing plaintiff to cry out in pain) was more than de minimis; plaintiff alleged he suffered sore shoulder and forearm and broken arm, but evidence demonstrated that the only physical injury attributable to the use of force was a "knot" on the knuckle of plaintiff's right finger, slightly swollen fingers on his right hand, and a scratch on the back of his right arm). Therefore, Officer Johnson's motion to dismiss Curry's individual capacity claim for punitive damages should be denied at this stage of the case.

B. Retaliation Claim

Officer Johnson contends Curry's factual allegations fail to state a plausible claim of retaliation (see ECF No. 52 at 8-10). Johnson contends Curry cannot establish he suffered any adverse action which would likely deter a person of ordinary firmness from filing grievances (id.). Johnson further argues Curry failed to provide any substantive factual support for his assertion that Johnson injured Curry's thumb and wrist in retaliation for filing grievances (id.).3

The First Amendment forbids prison officials from retaliating against prisoners for exercising the right of free speech. See Crawford-El v Britton, 523 U.S. 574, 588 n.10, 592-93, 118 S.Ct. 1584, 140 L. Ed. 2d 759 (1998); Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003) (citations omitted). "First Amendment rights to free speech and to petition the government for a redress of grievances are violated when a prisoner is punished for filing a grievance concerning the conditions of his imprisonment." Boxer X v. Harris, 437 F.3d 1107, 1112 (11th Cir. 2006). To prevail on a claim of retaliation, the inmate must establish these elements: (1) his speech was constitutionally protected; (2) the defendant's retaliatory conduct adversely affected the protected speech; and (3) there is a causal relationship between the retaliatory action and the protected speech. See Douglas, 535 F.3d at 1321 (citing Bennett v. Hendrix, 423 F.3d 1247, 1250, 1254 (11th Cir. 2005)). A prisoner's filing of a grievance concerning the conditions of his imprisonment is protected speech under the First Amendment. See Douglas, 535 F.3d at 1321. As to the second element, the Eleventh Circuit employs a purely objective standard: "A plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights." Bennett, 423 F.3d at 1253. In adopting this objective standard, the Eleventh Circuit expressly rejected a subjective "actual chill" standard; in other words, a plaintiff need not show that the retaliatory conduct actually chilled his exercise of his First Amendment rights, rather, he need only show that the retaliatory acts would likely deter a person of ordinary firmness from exercising his First Amendment rights. Id. at 1254.

The third element, whether there was a causal connection between the retaliatory acts and the adverse effect on the speech, "asks whether the defendants were subjectively motivated to discipline because [the prisoner] complained of the conditions of his confinement." Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008). The subjective motivation issue is resolved under the burden-shifting formula of Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L. Ed. 2d 471 (1977). See Hartman v. Moore, 547 U.S. 250, 260, 126 S.Ct. 1695, 64 L. Ed. 2d 441 (2006) (citing Mt. Healthy, 429 U.S. at 285-87; Crawford-E;, 523 U.S. at 593); Smith, 532 F.3d at 1278. Initially, the plaintiff must plead and provide sufficient evidence of the retaliatory motive and the adverse action. See Hartman, 547 U.S. at 259-60. "[U]pon a prima facie showing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of. . . ." Id. at 260 (citing Mt. Healthy, 429 U.S. at 287).

Assuming the truth of Curry's factual allegations, as this court must at the motion-to-dismiss stage, the facts plausibly suggest that Officer Johnson retaliated against Curry for filing administrative grievances concerning his co-workers, Sergeant Oakes and Lieutenant Gaynor. Curry specifically alleges Officer Johnson ordered him to stop filing grievances as he inflicted physical pain and injury by forcefully bending Curry's fingers back. These allegations state a plausible claim of retaliation. Therefore, Officer Johnson's motion to dismiss should be denied in this respect.

Accordingly, it is respectfully RECOMMENDED:

1. That Defendant's motion to dismiss (ECF No. 52) be GRANTED IN PART and ONLY as to Plaintiff's claims for monetary damages against Defendant in his official capacity.

2. That this case be remanded to the undersigned for further proceedings.