Kemner v. Hemphill, 4:00-cv-24.

Page 1264

199 F.Supp.2d 1264

Richard KEMNER, Plaintiff, v. Captain HEMPHILL, Defendant.

No. 4:00-cv-24.

United States District Court, N.D. Florida.

May 3, 2002.

Clyde M. Taylor, Jr., Clyde M. Taylor, III, Clyde M Taylor, Jr., PA, Tallahassee, FL, for plaintiff.

Richard Kemner, Blountstown, FL, pro se.

Kelly Overstreet Johnson, Broad & Cassel, Tallahassee, FL, Caryl Sue Kilinski, Attorney General, Tallahassee, FL, Joe Belitzky, Office of the Attorney General, Tallahassee, FL, Laureen Ella Galeoto, Broad & Cassel, Tallahassee, FL, for defendant.

ORDER

SHERRILL, United States Magistrate Judge.

This case is before me upon consent of the parties and referral by the district judge. Defendant has filed a memorandum of law, doc. 93, which will simultaneously be construed as a motion for partial judgment on the pleadings. Defendant contends that Plaintiff's claim for compensatory and punitive damages cannot survive the "physical injury" requirement of the PLRA, 42 U.S.C. § 1997e(e). That statute 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.

Plaintiff has responded. Doc. 95.

Prior to the enactment of § 1997e(e), the United States Supreme Court had twice considered the kinds of injury which will support an award of compensatory damages for violation of constitutional rights. The cases are Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) and Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). Summarizing these cases, the Eleventh Circuit has noted 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." Slicker v. Jackson, 215 F.3d 1225, 1229 (11th Cir.2000) (emphasis by the court), citing Stachura, 477 U.S. at 309-310, 106 S.Ct. at 2544, and Carey, 435 U.S. at 264, 98 S.Ct. at 1052. "Carey and Stachura plainly require that compensatory damages in a § 1983 suit be based on actual injury caused by the defendant rather than on the `abstract value' of the constitutional rights that may have been violated." 215 F.3d at 1230. "Actual injury," however, is not the same as "physical injury," and includes emotional injury standing alone. "Actual" injuries typically are physical, emotional, or fiscal in character. Id., at 1231. Nominal damages may still be recovered even though there are no compensable damages. Id., citing Carey, 435 U.S. at 266, 98 S.Ct. at 1054. This was the legal landscape which preceded the enactment of § 1997e(e).

Harris v. Garner, 216 F.3d 970 (11th Cir.2000), reinstating in part 190 F.3d 1279 (11th Cir.1999), is this circuit's most significant case construing § 1997e(e). In Harris v. Garner, 190 F.3d 1279, supra (hereinafter "Harris I"),¹ several prisoners brought suit alleging Fourth, Eighth, and Fourteenth Amendment due process claims arising from searches conducted by prison officials. 190 F.3d at 1282. The court considered: (1) whether § 1997e(e) applied to litigants who were in prison at the time they filed their claims concerning injuries suffered while incarcerated but who were subsequently released before a decision was made;² (2) whether § 1997e(e) required exhaustion even if it would be futile; (3) the level of injury necessary to sustain a claim under § 1997e(e)'s physical injury requirement; and (4) the constitutionality of § 1997e(e). Harris I, 190 F.3d at 1282. As for the last three issues, the court held that: (1) exhaustion was required even if going through the procedures was futile; (2) physical injury analysis should use the Eighth Amendment standard in considering the level of injury that must be alleged for § 1997e(e) purposes; in other words, injury "must be more than de minimis, but need not be significant;" and (3) the damages limitation of § 1997e(e) does not offend the Due Process Clause, the Equal Protection Clause, or violate an inmate's right of access to the courts. 190 F.3d at 1290.³

Thus, the most significant question posed by the wording of § 1997e(e), that "[n]o Federal civil action may be brought," has been resolved in this circuit. Despite the way it is worded, the statute limits the types of relief, not causes of action. If there is no "physical injury" alleged, then mental or emotional monetary damages, as well as punitive damages, cannot be recovered but declaratory and injunctive relief may be available.

The issue here, therefore, is whether Plaintiff alleges "physical injury" of the type Congress intended in § 1997e(e). The amended complaint alleges that Plaintiff had advised Defendant that he was being harassed and threatened by inmates in his dormitory. Doc. 13. Plaintiff alleges he was not moved from his cell despite several requests to do so, and during the night of May 30, 1998, another inmate (Upshaw) came into Plaintiff's cell and directed Plaintiff's cellmate to leave. While the cellmate was gone, Plaintiff was sexually assaulted by Upshaw for nearly two hours and he forced Plaintiff to perform oral sex on him. Plaintiff alleges that he "suffered physical pain, cuts, scrapes, and bruises," as well as "mental anguish, fright, and shock, embarrassment, humiliation and mortification, in addition to psychological injuries that are permanent." Doc. 13, p. 10.

Additional evidence presented in this case reveals that when inmate Upshaw came into Plaintiff's cell he "began to kiss and rub up against" Plaintiff. Doc. 30, ex. C, p. 3. When Plaintiff was forced to perform oral sex on Upshaw, he "ejaculated and this caused [Plaintiff] to throw up." Id. Following the assault, Plaintiff's cellmate was returning to the cell and while approaching, heard Plaintiff vomiting. Id.; see also doc. 55, exhibits 1, E.

The next day, at approximately 12:30 in the afternoon, another inmate saw Plaintiff hiding in another cell. Doc. 55, ex. D. Plaintiff appeared to be in shock. That inmate told Plaintiff to wait in the cell while he went to get the Captain. Id. Plaintiff was then taken to the medical department and subsequently transferred to another institution for his protection. Doc. 30, ex. C, p. 1.

Defendant contends that being "forced to perform oral sex upon another [male] inmate" is "analogous to body cavity searches performed upon inmates by prison officials." Doc.93, p. 4. Defendant cites a number of cases which have held visual body cavity searches, strip searches, and frisks do not constitute "physical harm." Id.

Pursley v. DeTella, No. 97-4197, 2000 WL 262626 (7th Cir. Mar. 3, 2000) is one of these cases. It held that a claim that a body cavity search was not "unreasonable" under Fourth Amendment and, thus, failed to state a Fourth Amendment claim at all. 2000 WL 262626, at *2, citing Bell v. Wolfish, 441 U.S. 520, 558-560, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).⁴ To the degree the inmate attempted to argue an Eighth Amendment claim for the first time on appeal, the court noted that he "never alleged that he suffered any physical injury; he only alleged that the defendants' actions caused him to suffer mental and emotional distress." Id., at *3. Thus, the court concluded that his Eighth Amendment claim was barred by 42 U.S.C. § 1997e(e).

This unpublished decision, however, does not say that any physical contact was made with the inmate, and it is assumed that the search was visual only as the court relied upon Bell v. Wolfish. Since reasonable visual body cavity searches are permissible for security purposes, the case is not on point. Other cases of this sort are similarly inapposite. Wilson v. Shannon, 982 F.Supp. 337, 339-340 (E.D.Pa. 1997) (holding that strip search with no physical contact at all was not a valid Fourth or an Eighth Amendment claim) Montero v. Crusie, 153 F.Supp.2d 368, 377-378 (S.D.N.Y.2001) (allegations concerning "pat frisking" failed to state a claim under the Eighth Amendment).⁵

In Seaver v. Manduco, 178 F.Supp.2d 30 (D.Mass.2002), the court dismissed the plaintiffs' claims of harassment under the authority of § 1997e(e) where the harassment was "primarily if not entirely verbal" in nature. 178 F.Supp.2d at 37. Although dismissing the claims as alleged, the court noted the possibility that the nature and consequences of discriminatory harassment could potentially "permit recovery of damages against defendants in their individual capacities even where no physical injury is proved." Id. As to plaintiffs' claims concerning a visual cavity search, the court was troubled by the extent of the invasion of privacy alleged, but ultimately concluded that it need not interpret § 1997e(e) because qualified immunity was applicable. Id., at 37-38. This case, therefore, did not determine the application of § 1997e(e) to a visual body cavity search.

Defendant has also cited Liner v. Goord, 196 F.3d 132 (2d Cir.1999), seeking to distinguish it. There, the court reversed the lower court's dismissal of a claim that defendant had "a policy or practice that permits corrections officers to conduct intrusive body searches without `therapeutic supervision.'" 196 F.3d at 135 (emphasis added). Characterizing these searches as "sexual assaults," the Second Circuit concluded that the district court failed to consider that sexual abuse was a potentially viable claim under the Eighth Amendment. Id., citing Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997). Secondly, the court held that § 1997e(e) did not bar the claims. Id. "[A]ccepting the allegations in the complaint, the alleged sexual assaults qualify as physical injuries as a matter of common sense. Certainly, the alleged sexual assaults would constitute more than de minimis injury if they occurred." Id.

Defendant contends that "[t]he Liner opinion, however, is best viewed in light of a previous...