Black v. Brunson

DAVID BLACK, DANIEL MITCHELL, Plaintiffs, v. CHRISTOPHER BRUNSON, GARY ANTHONY FORTNER, BRYAN CLARK,and MICHAEL WIMBERLEY, Defendants.

Case No. 4:14cv88-MW/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

October 1, 2014

REPORT AND RECOMMENDATION

Defendants Fortner, Clark, and Wimberly filed a motion to dismiss the amended complaint. Doc. 17. Defendants assert three reasons for dismissal: Plaintiffs, as prisoners, may not jointly bring this case, Plaintiff Mitchell may not bring claims for actual or punitive damages, and Plaintiffs failed to exhaust administrative remedies. Id. at 4. Plaintiffs have filed a response, doc. 22, opposing each of the arguments raised.

This case asserts that when Plaintiffs were recaptured following an escape attempt from Taylor Correctional Institution, Defendants used unnecessary and excessive physical force and failed to provide Plaintiffs with "appropriate and timely medical care after they sustained serious injury." Doc. 5 at 8-10. Plaintiff Black spent 6days in the intensive care unit at a hospital in Jacksonville, Florida, recovering from his injuries. Id. at 6-7. Both Plaintiffs have since been transferred from state custody and are now held in federal custody. Id. at 2-3.

Jointly Filed Complaint

Defendants contend that because both Plaintiffs are prisoners, they are subject to the Prison Litigation Reform Act (PLRA) which precludes multiple prisoner plaintiffs from joining their claims. Doc. 17 at 5. Defendants contend each Plaintiff must separately file his own lawsuit and pay the full amount of the filing fee, if not granted in forma pauperis status. Id. Plaintiffs point out that they are not "joining hands with another inmate proceeding in forma pauperis, who is attempting to avoid either the necessity of paying an additional filing fee, or piggybacking an unrelated claim into an existing lawsuit . . . ." Doc. 22 at 2. Rather, Plaintiffs are represented by counsel and the filing fee was paid at the time of case initiation. Id. Plaintiffs also contend that the PLRA does not apply in this case because Plaintiffs are "no longer in state custody." Id.

Considering the last argument first, the PLRA is applicable whether a prisoner is in state or federal custody. Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998) (holding that the exhaustion requirement of § 1997e(a) of the PLRA now applies to both federal and state prisoners.). Even accepting Plaintiff's argument that the Plaintiff's are no longer in state custody, they remain in federal custody. See docs. 17-1, 17-2. The PLRA is applicable to this case. See also Napier v. Preslicka, 314 F.3d 528, 533 (11th Cir. 2002) (holding that the PLRA applies "to prisoner lawsuits that claim injuriessuffered during custodial episodes, even if such custody occurred outside prison walls.").

Defendants base their argument for dismissal on the holding of Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001). In Hubbard, the issue was "whether multiple prisoners, proceeding IFP, are entitled to join their claims and thus pro-rate the mandatory filing fees among the group instead of individually paying the full fee." Hubbard, 262 F.3d at 1195. The Eleventh Circuit Court of Appeals held that "the intent of Congress in promulgating the PLRA was to deter frivolous civil actions brought by prisoners by requiring each individual prisoner to pay the full amount of the required fee." Id. A crucial fact of that case, which distinguishes it from this case, is that a "majority of the 18 plaintiffs had already filed separate petitions to proceed IFP." Id. This case was initiated with full payment of the filing fee. Plaintiffs did not seek to proceed IFP. Hubbard does not stand for the proposition that one civil rights case could never be brought by two prisoners who pay the filing fee; it only precludes doing so by making subsequent partial payments under the provisions of § 1915(b). Because Plaintiffs did not proceed under § 1915, this argument should be rejected.

Physical Injury

Defendants seek to dismiss only Plaintiff Mitchell's claim for actual and punitive damages on the basis that "nowhere in the complaint does plaintiff allege that he suffered physical injury." Doc. 17 at 5-6. Defendants point out that under Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999), vacated in part on other grounds, 216 F.3d 970 (11th Cir. 2000), that a prisoner's "physical injury must be more than de minimis, but need not be significant." Doc. 17 at 6-7.

Plaintiffs point out several relevant allegations from the amended complaint. Doc. 22 at 3-4. Paragraph 20 alleges that while Plaintiff Mitchell was lying on the ground, using his arms to fend off the attack, he was "repeatedly punched" by Defendant Fortner. Defendant Fortner then put his boot on Plaintiff Mitchell's head to prevent him from turning his head to see what Defendant Brunson¹ was doing to inmate Black. Id. Defendants Brunson and Fortner took both Plaintiffs and "threw them in the mud." Id. at ¶25. Defendant Fortner again put his boot on the pack of Plaintiff Mitchell's head and pushed it into the mud telling him to "eat mud." Id. Defendant Fortner then led Plaintiff Mitchell to a pond and held Mitchell's head underwater. Id. at ¶26. Defendant Fortner then threw Plaintiff Mitchell to the ground next to Plaintiff Black. Id. at ¶27. Plaintiff Mitchell seeks damages not just for emotional trauma and suffering, but also because he suffered "[e]xtreme physical pain." Id. at ¶41.

Plaintiffs argue that "[b]eing physically assaulted by a corrections officer while you are laying helplessly on the ground is an allegation of more than de minimus [sic] physical injury." Doc. 22 at 3. Plaintiffs content that such abusive force "is of the sort 'repugnant to the conscience of mankind.'" Id., citing Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992) (holding that use of excessive physical force against prisoner may constitute cruel and unusual punishment even though the prisoner did not suffer serious injury).

Section 1997e(e) provides: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injurysuffered while in custody without a prior showing of physical injury or the commission of a sexual act . . . ." 42 U.S.C. § 1997e(e). A "prisoner," even though he has alleged a viable constitutional claim, is prevented from seeking punitive or compensatory damages in the absence of physical injury pursuant to § 1997e(e) while in "custody." Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007), abrogated on other grounds by Sossamon v. Texas, 131 S.Ct. 1651 (2011). "[T]o 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).

In the leading case on this issue from the Eleventh Circuit, the court held that § 1997e(e) precludes compensatory and punitive damages for prisoner complaints that do not allege the requisite physical injury which "must be more than de minimis, but need not be significant." Harris v. Garner, 190 F.3d 1279, 1286-87 (11th Cir. 1999), vacated in part and reinstated in part, Harris v. Garner, 216 F.3d 970, 984-85 (11th Cir. 2000) (en banc). Nominal damages are still recoverable. Smith, 502 F.3d at 1271. The court rejected the idea that "any allegation of physical injury" was sufficient, finding that such an interpretation "would almost render the congressional exclusion an empty set." Harris, 190 F.3d at 1286.

"Harris v. Garner left open the question of 'whether de minimis uses of physical force might satisfy section 1997e(e) if they [were] of the sort 'repugnant to the conscience of mankind' ' because the issue was not presented in that case." 190 F.3dat 1287, n.7,² quoted in Kemner v. Hemphill, 199 F.Supp.2d 1264, 1269 (N.D. Fla. 2002) (holding that sexual battery of prisoner by another prisoner was physical force and, "even if considered to be de minimis from a purely physical perspective, [it] is plainly 'repugnant to the conscience of mankind.' "); see also Gomez v. Chandler, 163 F.3d 921, 924, n.4 (5th Cir. 1999) (noting it was arguable that Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997), left "open the possibility that a physical injury which is only de minimis may nevertheless suffice for purposes of the Eighth Amendment and section 1997e(e) if the force used is of the kind 'repugnant to the conscience of mankind.' ").

Although prior to passage of the PLRA, Justice O'Connor explained the contours of an excessive force claim in Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 1000 (1992):

In the excessive force context, society's expectations are different. When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. See [Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986)]. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury. Such a result would have been as unacceptable to the drafters of the Eighth Amendment as it is today. SeeEstelle, supra, 429 U.S. at 102, 97 S.Ct. at 290 (proscribing torture and barbarous punishment was 'the primary concern of the drafters' of the Eighth Amendment); Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1879) ("[I]t is safe to affirm that punishments of torture ... and all others in the same line of unnecessary cruelty, are forbidden by [the Eighth Amendment]").

That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. SeeJohnson v. Glick, 481 F.2d, at 1033 ("Not every push or shove, even if it may

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