Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EUGENE LONG, 

 Plaintiff,

vs. 3:10cv429/RV/MD

J.A. BOWMAN, et al.

 Defendants.

REPORT AND RECOMMENDATION

This cause filed pursuant to Title 42 United States Code Section 1983 is presently

before the court on plaintiff’s amended civil rights complaint (doc. 8). Leave to proceed in

forma pauperis was granted and no initial partial filing fee was assessed (doc. 4). 

Since plaintiff is proceeding in forma pauperis, the court is required to dismiss the

case at any time if it determines that the “action or appeal” 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.A. § 1915(e)(2)(B). A complaint

is frivolous under section 1915(e) “where it lacks an arguable basis either in law or in fact.” 

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). 

“[T]he statute accords judges not only the authority to dismiss a claim based on an

indisputably meritless legal theory, but also the unusual power to pierce the veil of the

complaint’s factual allegations and dismiss those claims whose factual contentions are

clearly baseless.” Id., 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). 

Because the language of § 1915(e)(2)(B)(ii) tracks the language of FED. R. CIV. P.

12(b)(6), dismissals for failure to state a claim are governed by the same standard as
Page 2 of 5

Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th

Cir. 1997). The allegations of the complaint are taken as true and are construed in the light

most favorable to the plaintiff. See Pielage v. McConnell, 516 F.3d 1282 (11 Cir. 2008); th

Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342, 1352 (11 Cir. 2006); Davis th

v. Monroe County Bd. Of Educ., 120 F.3d 1390, 1393 (11 Cir. 1997). Plaintiff must allege th

more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of

action” and his complaint must include factual allegations sufficient “to raise a right to relief

above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65,

1973 n.14, 167 L.Ed.2d 929 (2007) (declining to apply a heightened pleading standard, 

and abrogating Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (“a

complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle

him to relief.” 355 U.S. at 45-46, 78 S.Ct. 99.)) A complaint is subject to dismissal for

failure to state a claim “when its allegations, on their face, show that an affirmative defense

bars recovery on the claim.” Douglas v. Yates, 535 F.3d 1316, 1321 (11 Cir. 2008) th

(quoting Cottone v. Jenne, 326 F.3d 1352, 1357 (11 Cir. 2003)). Leave to amend a

th

complaint is futile when the complaint as amended would still be properly dismissed or be

immediately subject to summary judgment for the defendant. Cockrell v. Sparks, 510 F.3d

1307, 1310 (11 Cir. 2007) (citing Hall v. United Ins. Co. Of Am., 367 F.3d 1255, 1263 (11 th th

Cir. 2004)). Upon review of plaintiff’s complaint, the court concludes that plaintiff has not

presented an actionable claim, despite having received instruction from the court and an

opportunity to amend, and that sua sponte dismissal is therefore warranted. Vanderberg

v. Donaldson, 259 F.3d 1321, 1323 (11 Cir. 2001). th

Plaintiff was incarcerated at Santa Rosa Correctional Institution at the time the

events giving rise to this complaint took place. Named as defendants in the amended

complaint are C.O. Bowman, Sgt. Given, and Lt. Williams. Plaintiff alleges that after he

received a disciplinary report he was denied the opportunity to go to the hearing and

present witnesses, and was improperly found guilty based only on the officer’s statement

and an incomplete investigation. He claims that his resulting placement in confinement

Case No: 3:10cv429/MCR/MD
Page 3 of 5

caused him unspecified mental and physical injury. He asserts that his first and fourteenth

amendment rights were violated. Plaintiff seeks $184,000 in damages from each

defendant.

1

As was previously explained to the plaintiff, title 42 U.S.C. § 1997e(e) provides that

“[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.” This is an affirmative defense, not a jurisdictional limitation. 

Douglas v. Yates, 535 F.3d 1316, 1321 (11 Cir. 2008). A complaint is subject to dismissal th

for failure to state a claim “when its allegations, on their face, show that an affirmative

defense bars recovery on the claim.” Yates, 535 F.3d at 1321 (quoting Cottone v. Jenne,

326 F.3d 1352, 1357 (11 Cir. 2003)). The Eleventh Circuit has explained: “[Section] th

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). Furthermore, “the phrase ‘Federal civil action’ means all th

federal claims, including constitutional claims.” Napier, 314 F.3d at 532. This § 1983

action brought by plaintiff is a “Federal civil action” under this definition. Second, it is

undisputed that plaintiff filed his complaint while imprisoned. The harm complained of

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

The third prong of the test requires some at least minimal discussion. As noted

above, plaintiff asserts that being placed in close management caused him “mental,

physical injury.” The nature of the alleged injury is not apparent from the allegations in the

complaint. And, mere placement in confinement is insufficient to satisfy the injury

component of the test. Cf. Sandin v. Conner, 515 U.S. 472, 478, 115 S.Ct. 2293, 132

L.Ed.2d 418 (1995) (a change in confinement not protected by the Due Process Clause). 

In order to allege an actionable injury under 42 U.S.C. § 1997e(e), plaintiff must allege

more than a de minimis physical injury. Harris v. Garner, 190 F.3d 1279, 1286-87 (11 Cir. th

1999) (“We therefore join the Fifth Circuit in fusing the physical injury analysis under

Plaintiff has om itted his request for a transfer to a different institution which was included in his

1

initial com plaint.

Case No: 3:10cv429/MCR/MD
Page 4 of 5

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.”), reh’g granted, opinion vacated, 197 F.3d 1059 (11 Cir. 1999), opinion th

reinstated in pertinent part on reh’g, 216 F.3d 970 (11 Cir. 2000), cert. denied, 532 U.S. th

1065, 121 S.Ct. 2214, 150 L.Ed.2d 208 (2001); Osterback v. Ingram, 2000 WL 297840,

13 Fla. L. Weekly D 133 (N.D. Fla. 2000), aff’d, 263 F.3d 169 (11 Cir. 2001) (Table) th

(holding that a prisoner plaintiff may not recover compensatory or punitive damages for

mental or emotional injury without establishing that he suffered more than de minimis

physical injury), cert. denied, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002). In the instant

complaint, plaintiff neither claims nor alleges facts to remotely suggest a physical injury

arising from defendants’ conduct. Consequently, he is presently prohibited by § 1997e(e)

from bringing his damages claims. 

Even after plaintiff has been instructed about the applicable legal standards, his

complaint fails to state an actionable claim. The court is thus satisfied that plaintiff cannot

successfully bring his action as a violation of 42 U.S.C. § 1983, and that dismissal is

warranted. 

Accordingly, it is respectfully RECOMMENDED:

That this cause be dismissed for failure to state a claim pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii).

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

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case No: 3:10cv429/MCR/MD
Page 5 of 5

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy thereof. 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 objections shall be served upon all 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: 3:10cv429/MCR/MD