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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

BRIAN PATRICK STREET,

Plaintiff,

vs. Case No.: 5:09cv406/RS/MD

STEVEN KOROSECZ, et al.,

Defendants.

_____________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

Plaintiff has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (doc. 1)

and a motion for leave to proceed in forma pauperis (doc. 2). For the limited purpose

of dismissal of this action, leave to proceed in forma pauperis will be granted.

Since plaintiff is proceeding in forma pauperis, the court maydismiss the case

if satisfied that the action is “(i) frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). Dismissals for failure to state a claim are governed

by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v.

Farcass, 112 F.3d 1483, 1485 (11 Cir. 1997). In determining whether the complaint th

states a claim upon which relief may be granted, the court accepts all the factual

allegations in the complaint as true and evaluates all inferences derived from those

facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d

1480, 1483 (11 Cir. 1994). The complaint may be dismissed if the facts as pleaded th

do not state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.
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Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007)

(retiring the negatively-glossed “no set of facts” language previously used to

describe the motion to dismiss standard and determining that because plaintiffs had

“not nudged their claims across the line from conceivable to plausible, their

complaint must be dismissed” for failure to state a claim). A complaint is also

subject to dismissal under Rule 12(b)(6) “when its allegations, on their face, show

that an affirmative defense bars recovery on the claim.” Cottone v. Jenne, 326 F.3d

1352, 1357 (11 Cir. 2003); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. th th

2001).

Plaintiff is a federal inmate currently confined at the Federal Correctional

Institution in Marianna, Florida (“FCI-Marianna”). His complaint names six

defendants, all employees of the Federal Bureau of Prisons (“BOP”). Plaintiff states

that upon his arrival at FCI-Marianna on August 6, 2008, he met with “S.I.S.”

investigators concerning a sexual assault that occurred at FCI-Englewood, as well 1

as harassment by an officer who worked there. Plaintiff complains that within days

of that meeting, he was informed by his unit counselor, defendant Korosecz, that his

daughter and granddaughter had been removed from his visiting list due to security

concerns. Believing that this action was a “a prejudicial retaliatory violation of [his] 2

Eighth Amendment rights,” plaintiff seeks $1 million per month since August of 2008

for the “unjust stress” and “pain and suffering” he has suffered. (Doc. 1).

Although plaintiff filed his complaint on the form for use in actions arising

under 42 U.S.C. § 1983 which pertains to conduct committed by a person acting

under color of state law, plaintiff neither claims nor alleges facts to suggest that

defendants were acting under color of state law. Rather, plaintiff alleges the

defendants were acting under color of federal authority. The cause of action

FCI-Englewood is a federal correctional facility in Littleton, Colorado.

1

Plaintiff asserts that his daughter and granddaughter had been approved for visitation by a 2

different BOP institution (FCI-Three Rivers in Three Rivers, Texas) approximately six months earlier.

Case No: 5:09cv406/RS/MD
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available to a prisoner claiming a violation of his civil rights by a federal official is

28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Thus, plaintiff’s

complaint is construed as arising under Bivens. 

Upon review, the undersigned finds that plaintiff’s complaint is barred by 42

U.S.C. § 1997e(e) because it fails to sufficiently allege that the plaintiff suffered any

physical injury as a result of the alleged constitutional violation. The Prison

Litigation Reform Act 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.” 42 U.S.C. § 1997e(e). As the Eleventh Circuit has explained: “[Section]

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.” Napier v.

Preslicka, 314 F.3d 528, 532 (11 Cir. 2002). The Eleventh Circuit has decided that th

“the phrase ‘Federal civil action’ means all federal claims, including constitutional

claims.” Napier, 314 F.3d at 532. This Bivens action brought by plaintiff is a

“Federal civil action” under this definition. Further, it is undisputed that plaintiff

filed his complaint while imprisoned. Plaintiff’s complaint alleges only “unjust

stress” and “pain and suffering,” i.e., mental and emotional injuries, so as to satisfy

the third predicate for the application of § 1997e(e). Finally, the harm complained of

occurred while plaintiff was in custody, so as to satisfy the fourth predicate.

Based on the foregoing, plaintiff is prohibited under the PLRA from bringing

his damages claims while imprisoned unless he alleges physical injury. Further, 3

The Eleventh Circuit’s decision in Hughes v. Lott, 350 F.3d 1157 (11 Cir. 2003), does not

3 th

apply here. Id., at 1162 (holding that § 1997e(e) does not bar suits by prisoners who have not alleged

a physical injury if they seek nominal damages). Plaintiff’s complaint cannot be liberally construed

as requesting nominal damages, because he specifically requests only compensatory damages. See,

e.g., Sears v. Rabion, No. 03-13558, 97 Fed.Appx. 906 (Table) (11 Cir. Feb. 18, 2004) (affirming district

th

court’s sua sponte dismissal of complaint under § 1997e(e), noting that plaintiff’s complaint could not

be liberally construed as requesting nominal damages, because he specifically requested

compensatory and punitive damages).

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he must allege more than a de minimis physical injury. Harris v. Garner, 190 F.3d

1279, 1286-87 (11 Cir. 1999) (“We therefore join the Fifth Circuit in fusing the th

physical injury analysis under section 1997e(e) with the framework set out by the

Supreme Court in Hudson [v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156

(1992)] for analyzing claims brought under the Eighth Amendment for cruel and

unusual punishment, and hold that in order to satisfy section 1997e(e) the physical

injury must be more than de minimis, but need not be significant.”), vacated in part

and reinstated in part on reh’g, 216 F.3d 970 (11 Cir. 2000); Smith v. Allen, 502 F.3d th

1255, 1271 (11 Cir. 2007) (stating that under the law of this Circuit, § 1997e(e)

th

precludes an inmate’s claims for compensatory and punitive damages without a

showing of more than a de minimis physical injury). 

The plaintiff here has failed to allege that he suffered any physical injury,

much less one that was more than de minimis. As plaintiff is presently prohibited

by § 1997e(e) from bringing his damages claims, this suit should be dismissed

without prejudice. See Douglas v. Yates, 535 F.3d 1316 (11 Cir. 2008) (holding that 4 th

the district court has authority to sua sponte dismiss a complaint without prejudice

under § 1997e(e)) (citing 28 U.S.C. § 1915(e)(2)(B)(ii)).

 Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 2) is GRANTED for the

limited purpose of dismissing this action. 

The Eleventh Circuit’s decision in Hughes v. Lott, 350 F.3d 1157 (11 Cir. 2003), does not

4 th

apply here. Id., at 1162 (holding that § 1997e(e) does not bar suits by prisoners who have not alleged

a physical injury if they seek nominal damages). Plaintiff’s complaint cannot be liberally construed

as requesting nominal damages, because he specifically requests only compensatory and punitive

damages. See, e.g., Sears v. Rabion, No. 03-13558, 97 Fed.Appx. 906 (Table) (11 Cir. Feb. 18, 2004)

th

(affirming district court’s sua sponte dismissal of complaint under § 1997e(e), noting that plaintiff’s

complaint could not be liberally construed as requesting nominal damages, because he specifically

requested compensatory and punitive damages).

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And it is respectfully RECOMMENDED:

That this cause be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii), and the clerk

be directed to close the file.

At Pensacola, Florida this 6 day of January, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITEDSTATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

 object may limit the scope of appellate review of factual findings. See 28 U.S.C.

§ 636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 5:09cv406/RS/MD