W. LOUIS SANDS, Sr., District Judge.
Before the Court is a December 18, 2015 Recommendation by United States Magistrate Judge Thomas Q. Langstaff (Doc. 90). Judge Langstaff recommends that Plaintiff Owens' Motion for Summary Judgment (Doc. 72) and Defendants' Motion for Summary Judgment (Doc. 73) be denied.
Judge Langstaff notified the Parties that they could file written objections to his Recommendation within fourteen days. (Doc. 90 at 15.) The Defendants requested an extension of time to file their objections, which Judge Langstaff granted, and they timely filed their objections on January 14, 2016. (Docs. 91, 92, 97.) On January 6, 2016, Owens filed a surreply to Defendants' reply regarding their Motion for Summary Judgement. Because this surreply was filed without leave from the Court and after Judge Langstaff issued his Recommendation, the Court hereby
As to Owens' Motion for Summary Judgment, the Court adopts Judge Langstaff s findings that genuine issues of material fact remain as to whether the events that occurred on July 3, 2012 happened as alleged and whether Defendants are liable for violating Owens' Eighth Amendment rights. (Doc. 90 at 6-7.) Only a trier of fact should determine which of the two versions of the events at issue is the more credible one. See Hall v. Bennett, 447 F. App'x 921, 924 (11th Cir. 2011). For that reason, the Court agrees with Judge Langstaff's Recommendation that Owens' Motion for Summary Judgment (Doc. 72) be denied. Next, the Court will address in turn each of the arguments raised in Defendants' Motion for Summary Judgment (Doc. 73) and objections (Doc. 97).
Defendants argue that they are entitled to judgment as a matter of law because Owens failed to exhaust all administrative remedies available to him. (Doc. 73-2 at 13.) The Prison Litigation Reform Act (PLRA) reads, "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
After a disciplinary hearing following the events alleged in Owens' complaint, Owens was found guilty of three disciplinary charges and sanctioned with fourteen days in isolation. (Doc. 97 at 13.) Defendants argue that Owens did not appeal the disciplinary hearing findings and therefore did not exhaust his administrative remedies. As Judge Langstaff noted, Owens is not challenging through this lawsuit the disciplinary hearing findings, the due process afforded him in the disciplinary proceedings, or the sanction imposed. (Doc. 90 at 14.) Rather, Owens seeks relief for the injuries he claims he suffered at the hands of the Defendants. Indeed, the disciplinary appeals process could not have afforded Owens any relief for the injuries he suffered. The Eleventh Circuit has held, citing Tenth Circuit precedent, that the term "available" as used in PLRA's exhaustion requirement "means that inmates must exhaust administrative remedies so long as there is the possibility of at least some kind of relief." Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (quoting Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir. 2004)). Defendants point to no evidence that any form of relief for Owens' injuries was available to him through the disciplinary process. The Court finds that the disciplinary process and the exhaustion of Owens' injury claim are not interdependent. While a prison grievance process and Owens' injury claim would be interdependent to the extent that exhaustion of the grievance process would be required, Defendants have not argued that Owens failed to exhaust such a grievance process. Id. at 1156. (Doc. 90 at 15 n. 4.) Therefore, as to Defendants' argument that Owens' lawsuit is barred under 42 U.S.C. § 1997e(a), the Court adopts Judge Langstaff's recommendation and finds that Defendants have not proven that Owens' lawsuit is barred for failure to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007) (holding that exhaustion under the PLRA is an affirmative defense).
The PLRA also bars lawsuits brought by prisoners "for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Defendants argue that because Owens has not demonstrated that he suffered more than a de minimis physical injury, he is barred from seeking money damages altogether.
In support of their objections, Defendants cite two Eleventh Circuit cases involving prisoners' claims for First Amendment injuries. (Doc. 97 at 6 (citing Al-Amin v. Smith, 637 F.3d 1192 (11th Cir. 2011); Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007), abrogated on other grounds, Sossamon v. Texas, 563 U.S. 277 (2011)).) In Al-Amin and Smith v. Allen, the prisoner plaintiffs did not allege any physical, mental, or emotional injury. In both cases, the court held that the plaintiffs could not seek punitive damages in the absence of physical injury. Al-Amin, 637 F.3d at 1199; Smith, 502 F.3d at 1271. Further, in Al-Amin, the court's holding encompassed both compensatory and punitive damages. 637 F.3d at 1198.
In Harris v. Garner, the Eleventh Circuit held § 1997e(e) bars prisoner lawsuits where no significant physical injury can be proven. 190 F.3d 1279, 1286-87 (11th Cir. 1999), rehearing granted, opinion vacated 197 F.3d 1059, opinion reinstated in part on rehearing 216 F.3d 970, certiorari denied 532 U.S. 1065.
Harris, Al-Amin, Smith, and Brooks all involve § 1983 actions in which prisoners did not allege physical injuries. This case is distinguishable because Owens has alleged and produced evidence of physical injury, though the question of whether that injury was de minimis remains unanswered at this point. This case is like Nix v. Carter, where this Court found "no authority limiting a prisoner's damages for the actual physical injury he may have suffered, even if the court determines the injury was de minimis" because § 1997e(e) "only bars recovery for mental or emotional injury." No. 5:10-cv-256-CAR, 2013 WL 432566 at *2 (M.D. Ga. Feb. 1, 2013). The Court is unpersuaded that the cases cited by Defendants, in which the plaintiffs alleged and proved no physical injury at all, hold that the plain language limiting § 1997e(e)'s applicability to claims for "mental or emotional injury" in fact encompasses claims for physical injury, too. See Napier v. Preslicka, 314 F.3d 528, 532 (11th Cir. 2002) (holding that the application of § 1997e(e) is predicated on the allegation of emotional injuries only and suggesting that where physical injuries are also alleged, and later proven, § 1997e(e) is untriggered). The Court therefore finds that Owens' compensat ory and punitive damages claims for physical injury are not barred by § 1997e(e) even if his physical injury was de minimis. For the reasons stated above with regard to Owens' Motion for Summary Judgment, the Court finds that a genuine issue of material fact exists as to whether Owens is entitled to damages for the physical injuries he suffered and therefore adopts Judge Langstaff's Recommendation as to Defendants' Motion for Summary Judgment on Owens' compensatory and punitive damages claims for physical injury.
As the Court has already discussed, § 1997e(e) of the PLRA does bar prisoners from recovering compensatory and punitive damages for mental and emotional injury where no physical injury has been shown. Al-Amin, 637 F.3d at 1198-99; Smith, 502 F.3d at 1271. The Eleventh Circuit has held that physical injuries supporting mental and emotional injury claims must be more than de minimis. Brooks, 800 F.3d at 1307. Defendants argued in their Motion for Summary Judgment and objections that Owens' mental and emotional injury claims are barred as a matter of law because he has not shown that he suffered greater than de minimis physical injuries. (Docs. 73-2 at 7-9; 97 at 7.) In his Recommendation, Judge Langstaff declined to determine as a matter of law that Owens' physical injuries are de minimis and recommended that Owens' claims for mental and emotional injury be allowed to proceed to trial. (Doc. 90 at 10-11.)
Owens' medical records show that he suffered a three centimeter hematoma to the frontal cranium, a five centimeter occipital hematoma, a scapula abrasion, and a hematoma to his bottom lip. (Doc. 90 at 11 (citing to the record).) A nurse reported, "numerous hematomas, significant swelling, minimal bleeding. . . ." (Id.) And Owens testified during his deposition that he suffered scrapes and abrasions and has a permanent knot on his head but that no teeth were knocked out and no stiches or follow-up medical care were required. (Id. at 11-12.)
In support of their argument that Owens has failed to establish greater than de minimis physical injury, Defendants cite a number of cases involving a variety of physical injuries, none of which are perfectly analogous to the case at hand. (Doc. 97 at 7-11.) Defendants also emphasize that Owens presented no evidence of lasting injury. (Doc. 97 at 9.) Indeed, this Court has relied on a Northern District of Texas case, Luong v. Hatt, that describes more than de minimis injuries as the type for which ordinary people would seek professional medical care as opposed to treating at home. Johnson v. Georgia, No. 6:06-cv-49-WLS, 2007 WL 601619 at *3 (M.D. Ga. Feb. 16, 2007) (holding that a more than de minimis injury "is not a sore muscle, an aching back, a scratch, an abrasion, a bruise, etc., which lasts even up to two or three weeks") (quoting Luong v. Hatt, 979 F.Supp. 481, 486 (N.D. Tex. 1997)). However, Owens testified in his deposition that he suffered a permanent knot on his head as a result of the blows he suffered during the alleged incident. (Doc. 73-3 at 39, 42.) Defendants have offered no evidence to rebut this testimony and argue, "[T]he cases discussed in the text do not support a finding that, based on the presence of this alleged `knot,' Plaintiff's injuries are more than de minimis." (Doc. 97 at 12 n.3.) The Court finds that an ordinary person would likely seek professional medical attention for a knot that endures for a number of weeks, months, and even years. A jury could find that such an injury, if proven, is more than de minimis. The Court also notes that this case does not involve a single scratch or abrasion, but numerous abrasions and hematomas. Cumulatively, Owens' injuries may also support a finding that he suffered more than a de minimis injury.
Viewing the evidence in the light most favorable to Owens, the Court concludes that Owens has put forth enough evidence for a jury to determine that his physical injuries were more than de minimis. The Court therefore finds Owens' claim for mental and emotional injuries is not barred by § 1997e(e). The Court therefore adopts Judge Langstaff's Recommendation as to Defendants' Motion for Summary Judgment as to Owens' damages claims for mental and emotional suffering.
Finally, Defendants argue that since Owens' complaint does not explicitly demand nominal damages, Defendants should be granted summary judgment on such a claim. (Doc. 97 at 11.) The Court adopts Judge Langstaff's determination that Owens' pro se complaint can and should be "liberally construed to include a request for nominal damages arising out of the alleged constitutional violation" and denies Defendants' Motion for Summary Judgment as to Owens' claim for nominal damages. (Doc. 90 at 13 n.3 (citing Williams v. Brown, 347 F. App'x 429, 436 (11th Cir. 2009)).)
The Court herein
Plaintiff, proceeding pro se, brought the above-styled action pursuant to 42 U.S.C. § 1983 on January 2, 2014. (Doc. 1). Presently pending in this action are Plaintiff's Motion for Summary Judgment (Doc. 72), and Defendants' Motion for Summary Judgment. (Doc. 73).
Defendants filed a Motion to Dismiss Plaintiff's Complaint on June 17, 2014. (Doc. 22). On December 8, 2014, the district judge adopted the undersigned's recommendation to deny Defendants' Motion to Dismiss. (Doc. 44).
Plaintiff filed a Motion for Summary Judgment on May 26, 2015. (Doc. 72). Defendants filed their response to Plaintiff's Motion for Summary Judgment on June 10, 2015, and Plaintiff filed an untimely Reply on August 10, 2015. (Docs. 79, 87).
Defendants filed their Motion for Summary Judgment on June 8, 2015. (Doc. 73). On June 10, 2015, the clerk of court notified Plaintiff of Defendants' Motion for Summary Judgment and advised Plaintiff of his obligations under the law. (Doc. 78). Plaintiff filed his Response to Defendants' Motion for Summary Judgment on June 29, 2015. (Doc. 81). Defendants filed a Reply on July 9, 2015, and Plaintiff filed a Surreply without permission from the Court on July 20, 2015. (Docs. 85, 86). Defendants filed a Notice of Supplemental Authority on October 16, 2015. (Doc. 88).
Pursuant to Local Rule 7.3.1, briefing of a motion concludes when the movant files a reply brief. Surreply briefs are not favored. Plaintiff did not follow the procedure outlined in Local Rule 7.3.1(C), which requires a party to move for permission to file a surreply brief. "A district court's decision to permit the filing of a surreply is purely discretionary and should generally only be allowed when a valid reason for such additional briefing exists, such as where the [defendant] raises new arguments in its reply brief." First Specialty Ins. Co. v. 633 Partners, Ltd., 300 F. App'x 777, 788 (11th Cir. 2008) (internal quotations omitted).
Accordingly, the Court will consider Plaintiff's Surreply, filed without permission from the Court (Doc. 86), only to the extent his Surreply addresses any new arguments raised by Defendants in their Reply Brief.
In his Complaint, Plaintiff alleges that around 9:45 a.m. on July 3, 2012, Defendants, employees at Autry State Prison (ASP), assaulted Plaintiff with closed fists on his face and body while Plaintiff was in handcuffs. (Doc. 1, p. 4). Plaintiff asserts that he suffered a "busted lip and nose and also injuries to my head (knot `perminant' [sic])[.]" Id. According to the Complaint, after Defendants assaulted Plaintiff, Defendant Hart retrieved a shank from a desk in the Correctional Emergency Response Team (CERT) Office, and planted said shank on Plaintiff's person to justify the alleged attack. Id.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
Fed. R. Civ. P. 56(c)(1). All facts and reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Cruz v. Publix Super Markets, 428 F.3d 1379, 1382 (11th Cir. 2005).
The movant "always bears the initial responsibility of informing the district court of the basis for its motion," and identifying those portions of the record, including pleadings, discovery materials, and affidavits, "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact." Brown v. Houser, 2015 WL 5228005, at * 11 (N.D. Ala. Sept. 4, 2015). Once the movant meets its burden, the non-movant must designate specific facts showing a genuine issue of material fact. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).
"If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it." Fed R. Civ. P. 56(e)(3). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48 (1986) (emphasis in original)).
In asserting that he is entitled to summary judgment, Plaintiff refers to documents filed on March 20, 2015. (Doc. 64). Defendants responded by asserting that Plaintiff failed to abide by Local Rule 56, and that Plaintiff's Motion fails because Defendants are entitled to summary judgment. (Doc. 79).
In asserting they are entitled to summary judgment, Defendants submit Plaintiff's deposition, Defendants' responses to Plaintiff's interrogatories, the affidavits of Defendant Hart and Jackie Strickland, and a video recording. (Docs. 73-3-73-6; 75; 77). In response to Defendants' Motion, Plaintiff provides a "declaration", various case related documents, documents from the Georgia Department of Corrections, Defendants' responses to Plaintiff's requests for admission and interrogatories, and two letters. (Docs. 81-2-81-16). Rule 56 of the Federal Rules of Civil Procedure allows the Court to consider the entire record when ruling on a motion for summary judgment. "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
Plaintiff was housed at Autry State Prison on July 3, 2012. (Doc. 73-3, Plaintiff's Depo., p. 20). Plaintiff testified that on July 3, 2012, a Lieutenant Peterson stopped Plaintiff while Plaintiff returned to his dorm. Id. at p. 31. Plaintiff testified that Lieutenant Peterson conducted a frisk search, but "nothing was on [Plaintiff] once again." Id. at p. 32.
According to Plaintiff's deposition testimony, Defendants Hart and Jackson then approached Plaintiff, and told Plaintiff to put his hands on a fence. Id. at p. 33. Defendants Hart and Jackson then took Plaintiff's belt and handcuffed him. Id. Defendants escorted Plaintiff to the east side of the gym, and upon entry into the gym, Defendant Jackson punched Plaintiff in the back of the head. Id. at pp. 35, 38. Defendants then moved Plaintiff to the CERT office and both Defendants "assaulted" Plaintiff with closed fists. Id. at pp. 39-40. Plaintiff has a permanent knot from Defendant Jackson on the left side of his forehead. Id. At some point the handcuffs were removed, and Defendant Hart hit Plaintiff in the stomach and the lip. Id. at p. 40.
Plaintiff maintains that Defendant Hart retrieved something that "looked like an ice pick" from a desk drawer in the CERT office. Id. at p. 44. Plaintiff testified that Defendant Hart gave Defendant Jackson the shank, Defendants beat Plaintiff again, and Defendants then "called a code." Id. at p. 47.
Defendants assert in their affidavit and interrogatory responses that they used force against Plaintiff because they received information of gang activity at the prison, and Plaintiff was subsequently found with a homemade weapon in his waistband. (Doc. 73-5, Hart Aff., ¶¶ 5-6; Doc. 75-4, Def. Intern Resp., pp. 5-6). Defendant Hart submits that Plaintiff struck Defendant Hart with the shank, and Defendant Hart then used force to "take him to the ground. But inmate Owens remained combative even after being placed on the ground." (Doc. 73-5, Hart Aff., ¶¶ 7-8). Defendant Hart submits that Plaintiff was placed in hand and leg restraints, but that no other force was used other than the "force that was required to defend against his assault on [Defendant Hart] with the shank and to restrain and gain control over him." Id. at ¶¶ 8-9.
Medical records related to the incident show that Plaintiff sustained a three centimeter hematoma to the frontal cranium, a five centimeter occipital hematoma cranium, and a deviation to his nose, scapula abrasion, and hematoma to his bottom lip. (Doc. 73-5, Hart Aff., p. 20; Doc. 73-3, Plaintiff Depo., p. 121). The nurse reported "numerous hematomas, significant swelling, minimal bleeding and controlled." Id. In his deposition, Plaintiff testified that "[a]t the end of the day, I had a busted lip, busted nose, big knot on my head, big knot in the back of my head, abrasions, all type of boot prints all on my — my back, all type of stuff." (Doc. 73-3; Plaintiff Depo., p. 42). Plaintiff testified that he has a permanent knot on the left of his forehead. Id. at p. 39. Plaintiff suffered scrapes and abrasions, no teeth were knocked out, and no stitches were required. Id. at pp. 57-59. Plaintiff did not require any follow-up medical care. Id. at p. 59. After the incident, Plaintiff received periodic mental health checks and did not voice any medical concerns or complaints. Id. at pp. 71-72.
Plaintiff received a disciplinary report as a result of the incident on July 3, 2012. (Doc. 73-5, Hart Aff., ¶¶ 17-18). After a disciplinary hearing, Plaintiff received a sanction of fourteen days in isolation. Id. at ¶¶ 18. Plaintiff did not appeal the hearing results. Id.
Plaintiff filed a Motion for Summary Judgment. (Doc. 72). Defendants filed a Response, and Plaintiff filed an untimely Reply. (Docs. 79, 87). In their Response, Defendants contend that Plaintiff's Motion for Summary Judgment should be denied because he did not abide by the requirements of Local Rule 56, and because Defendants are entitled to summary judgment. (Doc. 79). As explained in Part V(B) below, Defendants are not entitled to summary judgment.
Defendants are correct that Plaintiff did not follow the procedure outlined in in Local Rule 56, as he failed to "attach to the motion a separate and concise statement of the material facts to which the movant contends there is no genuine dispute to be tried." Furthermore, when viewing the facts in the light most favorable to Defendants, Plaintiff has not shown that there is an absence of a genuine dispute as to any material fact with regard to Defendants' alleged excessive use of force.
The core judicial inquiry in an Eighth Amendment excessive force case is "not whether a certain quantum of injury was sustained, but rather whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). Courts must consider the following factors to determine whether the force was applied maliciously and sadistically to cause harm: "a) the need for the application of force; b) the relationship between the need and the amount of force that was used; c) the extent of the injury inflicted upon the prisoner; d) the extent of the threat of safety of staff and inmates; and e) any efforts made to temper the severity of a forceful response." Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009).
The record shows that Plaintiff and Defendants dispute what transpired during the event in question, offering differing narratives of the July 3, 2012 incident. This case presents "two competing contradictory stories of what happened," and the Court cannot "improperly weigh[] the witnesses' credibility by favoring [the defendant's] account over [the plaintiff's]." Hall v. Bennett, 447 F. App'x 921, 924 (11th Cir. 2011). This presents a credibility determination meant for a trier of fact.
The undersigned therefore RECOMMENDS that Plaintiff's Motion for Summary Judgment (Doc. 72) be
Defendants maintain they are entitled to summary judgment on the grounds that (1) Plaintiff's recovery is barred by § 1997e(e) of the Prison Litigation Reform Act (PLRA) because Plaintiff did not suffer more than a de minimis injury, and (2) Plaintiff failed to exhaust his administrative remedies. (Doc. 73-2). In their Notice of Supplemental Authority, Defendants withdraw their argument as to nominal damages, but maintain that Plaintiff's claims for compensatory and punitive damages are barred under the PLRA. (Doc. 88).
Under the 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 or the commission of a sexual act. . . ." 42 U.S.C. § 1997e(e). The Eleventh Circuit held in Al-Amin v. Smith, that "punitive damages are precluded under the PLRA in the absence of physical injury." 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 plaintiff failed to meet § 1997e(e)'s physical injury requirement. Moreover, at least one published opinion has affirmatively stated that, according to the law of our Circuit, the PLRA precludes the recovery of punitive damages in the absence of physical injury.") (internal citations omitted).
Recently, in Brooks v. Warden, the Eleventh Circuit held the following:
800 F.3d 1295, 1307-08 (11th Cir. 2015) (internal citations omitted).
Plaintiff explicitly seeks compensatory and punitive damages in his Complaint. (Doc. 1, p. 5; Docs. 25, 27). Defendants assert that Plaintiff did not suffer more than a de minimis injury, and is thereby precluded from recovering compensatory or punitive damages, and that any recovery should be limited to nominal damages.
Plaintiff claims he has suffered a physical injury, mental injury, and a dramatic change in his health. (Docs. 1; 25; 27; 81-1, p. 17). As Plaintiff is not exclusively seeking damages for mental or emotional harm, dismissal is not required under 1997e(e). Plaintiff is not barred from recovering compensatory or punitive damages for his actual physical injuries. Hart v. Bell, 2011 WL 1584601, at *6 (M.D. Tn. Apr. 27, 2011) report and recommendation adopted sub nom. Hart v. McCall, No. CIV. 3:10-0520, 2011 WL 2078084 (M.D. Term. May 26, 2011) ("Furthermore, the Plaintiff has not merely requested damages for emotional or mental injury. He has requested compensatory damages for his actual physical injuries and has also requested punitive damages. Section 1997e(e) does not prevent recovery of these remedies."); Nix v. Carter, 2013 WL 432566, at *2 M.D. Ga. Feb. 1, 2013) ("Plaintiff is also seeking damages for the actual physical injuries he received from the alleged excessive use of force. This Court can find no authority limiting a prisoner's damages for the actual physical injury he may have suffered, even if the injury was de minimis."); Pames v. Pierce, 2014 WL 4773999, at *4 (S.D. Ohio Sept. 24, 2014) ("Here, plaintiff does not allege only mental and emotional injury. To the contrary, plaintiff alleges in the complaint that he also suffered physical injury as a result of the alleged use of excessive force by defendant. Moreover, plaintiff seeks damages for pain and suffering in addition to emotional distress. Accordingly, because plaintiff's civil action is not limited to allegations of emotional or mental injury, dismissal of plaintiff's civil action pursuant to 42 U.S.C. § 1997e(e) is not warranted.").
As to Plaintiff's claim for compensatory and punitive damages resulting from emotional or mental harm, genuine issues of material fact remain as to the extent of Plaintiff's injuries. The Court acknowledges that Plaintiff's injuries were not severe, but the Court cannot determine as a matter of law that Plaintiff's injuries were de minimis. See Nix v. Carter, No. 5:10-CV-256, Doc. 97 (where the district judge held in deciding a motion in limine that he could not find that the plaintiff's red, swollen, and bruised face that lasted for three days was de minimis as a matter of law, and thus the PLRA did not limit the damages the plaintiff could seek at trial).
Defendants cite to several cases in support of their contention that Plaintiff is barred from recovering punitive and compensatory damages under § 1997e(e) for his mental and emotional injury. See Quintan v. Personal Transport Serv. Co., 329 F. App'x 246, 249 (11th Cir. 2009) (the plaintiff's claims for compensatory and punitive damages did not surmount section 1997e's bar when the plaintiff complained of temporary chest pain, headache, difficulty breathing and periodic episodes of back pain, because those complaints were not more than de minimis, as they did not require immediate medical attention or evidence physical injury besides discomfort); Jeter v. Sample, 2015 WL 874801, at *5 (N.D. Ohio Feb. 27, 2015) ("A `slightly swollen' lip that has a cut with `scant bleeding,' no evidence of pain, and no evidence that medical attention is required is no more than a de minimis injury . . . Accordingly, even if Jeter could show that he suffered a physical injury caused by Sample's actions, his physical injury was no more than de minimis and he is not entitled to recover for his alleged mental or emotional injury."); Parker v. DuBose, 2013 WL 4735173, at *2 (N.D. Fla. Sept. 3, 2013) (the plaintiff could not recover compensatory or punitive damages based on the mental and emotional injury the plaintiff suffered as a result of the alleged excessive force, as "Plaintiff's alleged black eye, bloody lip, scrapes, abrasions and `backpains' do not amount to more than de minimis physical injury and are not sufficient to meet the physical injury requirement of § 1997e(e) . . . As defendants note, the de minimis nature of plaintiff's injury is further demonstrated by the fact that plaintiff himself has made the determination to forgo treatment (ibuprofen) for his alleged back pain because the $5.00 medical co-pay exceeds what he is willing to `pay[.]'").
Viewing the facts and all reasonable inferences therefrom in the light most favorable to Plaintiff, the Court cannot find that Plaintiff suffered only a de minimis physical injury. Defendants also cite to Johnson v. Breeden, where the Eleventh Circuit held that a head injury causing swelling and seizure, along with lacerations and contusions to the face, shoulders, and upper back was more than a de minimis injury. 280 F.3d 1308, 1312, 1321 (11th Cir. 2002). Plaintiff's medical records show that Plaintiff suffered a three centimeter hematoma to the frontal cranium, a five centimeter occipital hematoma cranium, and a scapula abrasion, and hematoma to his bottom lip. (Doc. 73-5, Hart Aff., p. 20; Doc. 73-3, Plaintiff Depo., p. 121). A nurse reported "numerous hematomas, significant swelling, minimal bleeding and controlled [sic]." Id. Plaintiff testified he suffered scrapes and abrasions. (Doc. 73-3, Plaintiff Depo., pp. 57-59). However, Plaintiff testified that no teeth were knocked out, no stitches were required, he did not require any follow-up medical care, and after the alleged incident, Plaintiff received periodic mental health checks and did not voice any medical concerns or complaints. (Doc. 73-3, Plaintiff Depo., pp. 57-59, 71-72).
As in Nix, the Court finds this to be a "close case," but cannot determine that Plaintiff's injuries are de minimis as a matter of law. See No. 5:10-CV-256, Doc. 97, p. 3; see also Hudson v. McMillian, 503 U.S. 1, 10 (1992) ("Yet the blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes."); Smith v. Vavoulis, 373 F. App'x 965, 967 (11th Cir. 2010) (explaining that the objective component of the excessive force inquiry was a "closer question" but ultimately holding that burning from mace, bruises, a deep cut on his wrist, swelling, knots on his head, and bleeding from the mouth, all of which healed without any medical treatment, were similar to the injuries alleged in Hudson, and therefore were not de minimis for Eighth Amendment purposes); Knighten v. Stanton, No. CA 12-0717-WS-C, 2014 WL 1331026, at *7 (S.D. Ala. Mar. 31, 2014) (adopting the magistrate judge's recommendation that the injuries suffered by the plaintiff, "(bruises, swelling of numerous parts of the body, production of pain on range of motion testing, and a temporary inability to hear out of the left ear) are similar to the ones described in Hudson and Smith and, therefore, are not de minimis").
While Plaintiff did not require follow-up medical care and primarily suffered scrapes and abrasions, a nurse reported significant swelling and Plaintiff testified that he has a
Given that Plaintiff's Complaint cannot be construed as seeking recovery for only mental or emotional injury, and viewing the evidence in the light most favorable to Plaintiff, Defendants failed to meet their burden. Plaintiff is not barred under § 1997e(e) for recovering for the actual injuries he suffered, and the Court declines to find at the summary judgment stage that Plaintiff's injuries were de minimis, which would prevent him from recovering for compensatory and punitive damages arising out of the mental and emotional harm he may have suffered.
For the foregoing reasons, the undersigned recommends that Defendants' Motion for Summary Judgment be
Defendants also assert that Plaintiff's lawsuit is barred because Plaintiff did not exhaust all of his administrative remedies. (Doc. 73-2, p. 13). Defendants argue that because Plaintiff did not appeal the results of his disciplinary hearing, Plaintiff failed to exhaust his administrative remedies. (Doc. 73-2, p. 14).
Under the PLRA, "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." § 1997e(a). Exhaustion is required to "allow[] a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record." Jones v. Bock, 549 U.S. 199, 219 (2007).
It is true that under certain circumstances a disciplinary action is an administrative remedy which must be exhausted before suit can be brought in federal court. For example, in Metcalf v. Brady, the district court dismissed the plaintiff's due process claims, as they related to his disciplinary sanctions, because the plaintiff did not appeal the disciplinary hearing findings. 2008 WL 5119159, at *1 (E.D. Wash. Dec. 3, 2008); see also Williams v. Cooney, 2004 WL 434600, at *3 (S.D.N.Y. March 8, 2004) ("Plaintiff's original complaint . . . was stamped by this Court's Pro Se Office on March 2, 2001. This date constitutes the commencement of this action. The disciplinary hearing decision was affirmed on April 13, 2001. Therefore, Plaintiff's claim against Totten [for an unfair and biased disciplinary hearing] was not exhausted at the time he filed suit and must be dismissed pursuant to [the] exhaustion requirement of the PLRA."); Richardson v. Hillman, 201 F.Supp.2d 222, 229 (S.D.N.Y. 2002) ("Although this duration may rise to an unconstitutional level, Plaintiff has not appealed, and thus has not administratively exhausted the issuance of alleged `atypical and significant hardship' penalties."); Garret v. Guy, 2014 WL 4662281, at *2 (E.D. Ark. Sept. 16, 2014) ("By refusing to attend her disciplinary hearing or file any subsequent appeals of the verdict, Garrett deprived ADC officials of the opportunity to investigate and resolve the due process claim she is now raising against Noles in this § 1983 action.").
Here, Plaintiff was found guilty of the following charges at his disciplinary hearing: high insubordination, great possession of a weapon and high verbal gesture, and threatening. (Doc. 73-3, Plaintiff Depo., pp. 85-88, 158-59). Plaintiff was found not guilty of "great conspire, plan a disturbance or strike," and great injury to employee. Id. Plaintiff was sanctioned, and received fourteen days in isolation. Id. Plaintiff did not appeal the sanction. Id. However, Plaintiff does not appear to be challenging the findings made, punishment imposed, or due process afforded to him at the disciplinary hearing in the instant Complaint. Plaintiff is instead claiming that Defendants used excessive force against him in violation of his Eighth Amendment rights. (Doc. 1).
Defendants' argument cannot prevail. Plaintiff is required to exhaust his complaint that excessive force was used against him, not Defendants' punishment of him because he allegedly violated a prison rule. The two are not interdependent. That is, Plaintiff may have violated certain prison rules, but that does not require a finding that excessive force was not used. Noticeably absent from Defendants' Motion for Summary Judgment is any argument or evidence that Plaintiff did not exhaust his complaint that Defendants used excessive force against him.
The undersigned hereby RECOMMENDS that Defendants' Motion for Summary Judgment (Doc. 73) be
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections,
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
