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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ALVIN C. THOMPSON, 

 Plaintiff,

vs. 3:10cv409/MCR/MD

RALPH BUTLER

 Defendants.

REPORT AND RECOMMENDATION

Plaintiff has submitted his partial initial filing fee, and this cause is before the court

upon plaintiff’s civil rights complaint filed pursuant to Title 42 U.S.C. §1983. Leave to

proceed in forma pauperis was granted and the initial partial filing fee has been paid (doc.

5 & 6). 

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). 

Dismissals on this ground may be ordered when the legal theories are “indisputably

meritless,” or when the claims rely on factual allegations that are “clearly baseless.” Id. at

327, 109 S.Ct. at 1833; Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118
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L.Ed.2d 340 (1992); Williams v. Secretary for Department of Corrections, 131 Fed. Appx.

682, 2005 WL 1130351 (11 Cir. 2005) (citing Carroll v. Gross, 984 F.2d 392, 393 (11 Cir. th th

1993) (per curiam) (internal quotations omitted)). 

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

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.)) Leave to amend a 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. th

2007) (citing Hall v. United Ins. Co. Of Am., 367 F.3d 1255, 1263 (11 Cir. 2004)). Upon th

review of plaintiff’s complaint, the court concludes that plaintiff has not presented an

actionable claim 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 (“SRCI”) at the time

the events giving rise to this complaint took place. He names Property Officer Ralph Butler

as the lone defendant in this case. Plaintiff alleges that Officer Butler violated his due

process rights on May 10, 2010. Plaintiff asserts that upon his return to SRCI, Butler told

him to sign a blank Inmate Personal Property List form, before the property was actually

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inventoried. In making this request, plaintiff contends that Butler violated his due process

rights under the Florida and federal constitutions, as well as his right to equal protection

of the law. Plaintiff complains that because of the manner in which the inventory was

done, he lost several important pieces of paper containing addresses and other personal

information. Plaintiff seeks compensatory damages, punitive damages, attorney’s fees and

any other relief the court deems just and proper.

The Due Process Clause prohibits state action that deprives a United States citizen

of life, liberty, or property without due process of law. U.S. Const. amend. XIV. A person

alleging a violation of his right to due process must establish that he was deprived of an

interest cognizable under the DueProcess Clause, and that the procedures attendant upon

that deprivation were not constitutionally sufficient. Kentucky v. Dep’t of Corrections v.

Thompson, 490 U.S. 454. 459-60, 109 S.Ct. 1904, 104 L.Ed 2d 506 (1989); Board of

Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Deprivations

of property resulting from random, unauthorized acts of government officials do not

become due process violations when there exist adequate remedies under state law for

plaintiff to seek redress for the deprivation. Parratt v. Taylor, 451 U.S. 527, 543-44, 101

S.Ct 1908, 1912, 68 L. Ed.2d 420 (1984); Carcamo v. Miami-Dade County, 375 F.3d 1104

(11 Cir. 2004) (citing Zinermon v. Burch, 494 U.S. 113, 132, 110 S.Ct. 975, 987, 108 th

L.Ed.2d 100 (1990)); Rodriguez-Mora v. Baker, 792 F.2d 1524, 1527 (11 Cir. 1986); Hall th

v. Sutton, 755 F.2d 786, 787 (11 Cir.1985). A judicial post-deprivation cause of action th 1

may satisfy due process. Carcamo, 375 F.3d at 1106. Since Florida Statutes section

768.28 (2000) provides a remedy for the deprivation of plaintiff's property caused by

negligent or wrongful acts or omissions of state employees, he cannot maintain a §1983

action based on the alleged deprivation.

In order to properly plead an equal protection claim, a plaintiff need only allege that

similarly situated persons have been treated disparately through state action. Thigpen v.

Bibb County, Ga., Sheriff's Dept., 223 F.3d 1231, 1237-39 (11 Cir. 2000); Amnesty

th

This is equally true whether the deprivation was the result of an intentional or a negligent act. See

1

Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

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Intern., USA v. Battle, 559 F.3d 1170, 1180 (11 Cir. 2009) (citing GJR Investments, Inc. th

v. County of Escambia, Fla., 132 F.3d 1359 (11 Cir. 1998). Thus the identification of th

these individuals comprise a part of the claim itself. Id. In this case, plaintiff has alleged

that the same procedure was followed for all inmates. Therefore, no equal portection claim

can lie. 

Even if plaintiff had stated a constitutional violation, his claim for monetary damages

for mental anguish he suffered as a result of the loss of his personal papers is prohibited

by 42 U.S.C. § 1997e(e). 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 for failure to state a th

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)). As the Eleventh Circuit has explained: “[Section] 1997e(e) applies only th

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 (11th

Cir. 2002). The Eleventh Circuit has determined that “the phrase ‘Federal civil action’

means all 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. Further,

it is undisputed that plaintiff filed his complaint while imprisoned. Plaintiff’s complaint

alleges only “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. Therefore, a claim for

damages absent any allegation of physical injury is subject to dismissal without prejudice.

Finally, plaintiff’s attempt to seek punitive damages absent any showing of injury,

whether physical, mental or emotional, would not be permissible in this circuit. See e.g. 

Harris v. Garner, 216 F.3d 970, 987 n.5 (11 Cir. 2000) (section 1997e(e) precludes th

prisoners from bringing actions for compensatory and punitive damages, but does not

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apply to actions for declaratory or injunctive relief); 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), cert. th

denied, 536 U.S. 906, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002) (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). Even if plaintiff

were entitled to seek punitive damages, the facts as alleged do not establish his

entitlement to such damages. Punitive damages are available only for conduct which is

“shown to be motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56,

103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Lambert v. Fulton County, Ga., 253 F.3d 588, 598

(11 Cir. 2001); Wright v. Sheppard, 919 F.2d 665, 670 (11 Cir. 1990). There are no such th th

allegations in this case.

Based on the foregoing, the plaintiff cannot successfully bring this action as a

violation of 42 U.S.C. § 1983 or recover the damages he seeks in this jurisdiction.

Therefore, the plaintiff’s complaint should be dismissed, so that he may pursue his state

law claims in the proper forum, if appropriate. 

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 16 day of November, 2010.

th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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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: 3:10CV409/MCR/MD