IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

TIMOTHY LEE LONG,

Plaintiff,

vs. 4:09CV297-SPM/AK

B. CHERRY, et al,

Defendants .

 /

O R D E R

This cause is before the court upon Plaintiff's filing of a civil rights complaint

under 42 U.S.C. § 1983 (doc. 1), and an application for leave to proceed in forma

pauperis (IFP). (Doc. 3). Leave to so proceed has been granted in a separate order. 

(Doc. 9). 

Plaintiff has also moved for appointment of counsel (doc. 7), which is hereby

DENIED. Appointment of counsel in a 1983 suit is not a right, it is a privilege and is

justified only by exceptional circumstances, such as where the facts and legal issues

are so novel or complex as to require the assistance of a trained practitioner. Fowler v.

Jones, 899 F.2d 1088 (11th Cir. 1990). Plaintiff has not made such a showing at this

time.

From a review of the complaint, it is evident that the facts as presented fail to

state a claim upon which relief can be granted. Plaintiff complains that Defendants B.

Cherry and P. Jefferson gave him a random drug test that was positive without
consideration of his medication for seizures and which resulted in a disciplinary report.

Plaintiff also names as a Defendant the Florida Department of Corrections which he

should delete from an amended complaint, if he chooses to file one, since he must

name the persons whom he alleges violated his rights. 

Plaintiff complains about loss of gain time from the DR, specifically that his

sentence is now lengthened by 60 days. However, he does not ask specifically that this

gain time be restored, rather he seeks damages as relief for his “pain and suffering.” 

Attacking the length of a period of incarceration by seeking the restoration of gain time

is an attack on the length of confinement which is a habeas corpus claim and may only

be litigated through the filing of a habeas petition under 28 U.S.C. § 2254. Id.

However, if the prisoner seeks damages for loss of gaintime, these claims may be

brought in a 1983 action. See Jenkins v. Haubert, 179 F.3d 19, 27 (2nd Cir. 1999) (a

disciplinary sanction that does not affect length of confinement may be brought by 1983

suit). However, even a claim for damages will be barred if “establishing the basis for the

damages claim necessarily demontrate [d] the invalidity of the conviction.” Heck v.

Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994). A section

1983 suit may be brought challenging the wrong procedures with regard to loss of good

time, but not if the challenge is to the wrong result. Heck, 512 U.S. at 483. The claim

may be barred, however, if the nature of the challenge to the procedures could be such

as to necessarily imply the invalidity of the judgment. Edwards v. Balisok, 520 U.S. 641,

117 S.Ct 1584, 137 L.Ed.2d 906 (1997). The Eleventh Circuit has interpreted Balisok to

foreclose all claims challenging a disciplinary proceeding unless they were “purely

procedural, as in Wolff....” Harden v. Pataki, 320 F.3d 1289, 1295 n.9 (11th Cir. 2003).

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The procedural requirements for a disciplinary hearing are three-fold: (1)

advance written notice; (2) a written statement of the reasons for the disciplinary action

taken; and (3) the opportunity to call witnesses and present evidence. Wolff v.

McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2974, 41 L.Ed. 2d 935 (1974); Young v.

Jones, 37 F.3d 1457, 1459-60 (11th Cir. 1994); Bass v. Perrin, 170 F.3d 1312, 1318

(11th Cir. 1999). 

Plaintiff has asserted none of these grounds, he questions only the validity of the

DR. As such, he has not stated a claim upon which relief can be granted. 

Further, he has alleged no physical injury resulting from the actions of

Defendants. 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

injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. §

1997e(e). Despite the wording of § 1997e(e), that ”[n]o Federal civil action may be

brought,” this circuit has established that the statute limits 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.1

 Harris v. Garner, 216 F.3d 970 (11th Cir. 2000)2, reinstating in part 190 F.3d

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 “[C]ompensatory 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 Memphis Comm. Sch.

Dist, v. Stachura, 477 U.S. 299, 309-310, 106 S.Ct. 2537, 2544, 91 L.Ed.2d 249 (1986)

and Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. at 1042, 1052, 55 L.Ed.2d 252 (1978).

2

 Harris v. Garner, 190 F.3d 1279 (11th Cir. 1999) was vacated by 197 F.3d

1059, and the Opinion Reinstated in Part on Rehearing by 216 F.3d 970 (11th Cir.

2000), cert. denied 121 S. Ct. 2214 (2001). The parts of the panel opinion relevant to

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1279 (11th Cir. 1999) and Osterback v. Ingram, et al., No. 00-10558, 263 F.3d 169

(11th Cir. 2001) (Table). 215 F.3d at 1230. Nominal damages may still be recovered

even though there are no compensable damages. Slicker v. Jackson, 215 F.3d at

1231, citing Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. at 1054. Plaintiff has not

alleged any specific emotional injury and as such Plaintiff would be entitled to nominal

damages only. Id. at 266-67. 

 In amending, Plaintiff should carefully review the foregoing to determine

whether he can present allegations sufficient to state a cause of action under the

relevant law. If Plaintiff is able to file an amended complaint, he must name as

Defendants only those persons who are responsible for the alleged constitutional

violations. Plaintiff must place their full names in the style of the case on the first

page of the civil rights complaint form and in the other appropriate sections of the

form. Further, Plaintiff should clearly describe how each named Defendant is

involved in each alleged constitutional violation. In civil rights cases, more than

conclusory and vague allegations are required to state a cause of action. See, e.g.,

Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). In presenting his

claims, Plaintiff must set forth each allegation in a separately numbered paragraph,

as it is essential that the facts relating to each Defendant be set out clearly and in

detail. 

 To amend his complaint, Plaintiff must completely fill out a new civil rights

complaint form, marking it "Amended Complaint." Plaintiff is advised that the

this legal issue were reinstated. 

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amended complaint must contain all of Plaintiff's allegations and should not in any

way refer to the original or amended complaints. An amended complaint completely

replaces all previous complaints and all earlier complaints are disregarded. N.D.

Fla. Loc. R. 15.1. Plaintiff should file the amended complaint in the Court and keep

one identical copy for himself. Plaintiff need not file service copies until instructed to

do so by the court.

Accordingly, it is hereby 

ORDERED:

1. The clerk of court shall forward to Plaintiff another Section 1983 form.

2. Plaintiff must respond to this order by December 31, 2009.

3. Failure of Plaintiff to respond to this order or submit the requested

information or explain his inability to do so will result in a recommendation to the

District Judge that this action be dismissed.

4. Plaintiff’s Motion for Appointment of Counsel (doc. 7) is DENIED.

DONE AND ORDERED this 1st day of December, 2009.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

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