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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ERNEST LEE GATLING,

Plaintiff,

vs. Case No. 3:10cv172/MCR/CJK

WALTER A. MCNEIL,

 Secretary, Florida Department of Corrections,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed an amended civil

rights complaint under 42 U.S.C. § 1983. (Doc. 27). Upon review of the amended

complaint, the court concludes that plaintiff is barred under 42 U.S.C. § 1997e(e)

from recovering the relief he seeks. Therefore, dismissal of this case is warranted. 

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff was an inmate of the Florida penal system confined at Santa Rosa

Correctional Institution (“Santa Rosa CI”) at the time he initiated this action. (Doc.

1). He has since been released. (Doc. 26). His amended complaint names three

defendants: the Secretary of the Florida Department of Corrections, whom plaintiff

identifies as “Mr. and Mrs. E. Stine;” as well as two correctional officers at Santa

Rosa CI – Captain Schwarz and Officer Kilgore. Plaintiff complains that from 2007

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until his release from custody in July of 2010, various correctional officers retaliated

against him for filing grievances. The alleged retaliatory acts consisted of verbally

taunting plaintiff with “insinuations” of food tampering, placing plaintiff on “the

loaf” for one-week periods, and tampering with plaintiff’s mail. (Doc. 27, pp. 5-10). 

Plaintiff does not allege that the Secretary of the DOC knew of, or personally

participated in any of the conduct. He asserts defendants Schwarz and Kilgore each

participated in one retaliatory act – Schwarz threatened to put plaintiff on the loaf if

plaintiff filed grievances complaining of food tampering, and Kilgore tampered with

plaintiff’s mail. (Id., pp. 7, 9-10 in ECF). Claiming violation of his Eighth

Amendment rights and DOC regulations, plaintiff seeks “the amount of $200,000.00

in damages “for sighted [sic] violations.” (Id., p. 11 in ECF).

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the court may dismiss 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). Dismissalsfor failure to state a claimare 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 factual

allegations in the complaint as true and evaluates all reasonable inferences derived

from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc.,

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29 F.3d 1480, 1483 (11 Cir. 1994). The complaint may be dismissed if the facts as th

pleaded do not state a claim to relief that is plausible on its face. See Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007)

(retiring the negatively-glossed “no set offacts” 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 barsrecovery on the claim. Marsh v. Butler Cnty., Ala., 268 F.3d

1014, 1022 (11 Cir. 2001); see also Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct.

th

910, 920-21, 166 L. Ed. 2d 798 (2007) (same; explaining, for example, that if a

complaint’s allegations show that relief is barred by the applicable statute of

limitations, the complaint is subject to dismissal for failure to state a claim).

Taking the allegations of the amended complaint as true and construing them

in the light most favorable to plaintiff, they show that plaintiff’s claims are barred by

42 U.S.C. § 1997e(e). The Prison Litigation Reform Act (“PLRA”) 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). Addressing the

implications of § 1997e(e), the Eleventh Circuit has concluded: “the phrase ‘Federal

civil action’ means all federal claims, including constitutional claims.” Napier v.

Preslicka, 314 F.3d 528, 532 (11 Cir. 2002) (citing Harris v. Garner, 216 F.3d 970, th

984-85 (11th Cir. 2000) (en banc)). This action, brought by plaintiff under 42 U.S.C.

§ 1983, is a “Federal civil action” under this definition. It is undisputed that plaintiff

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filed his original complaint while imprisoned, and that the harm complained of

occurred while he was in custody. Plaintiff's damages claims are based on the

emotional distress he suffered as a result of the defendants’ alleged retaliatory

conduct, and/or the fact of the alleged constitutional violationsthemselves(divorced

from any mental or emotional injury they caused). The complaint alleges no physical

injury resulting fromthe defendants’ conduct. Therefore, plaintiffis prohibited under

the PLRA from bringing his damages claims. Harris v. Garner, 190 F.3d 1279,

1287-88 (11 Cir. 1999) (“Harris I”), vacated in part and reinstated in part on reh'g,

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216 F.3d 970 (11 Cir. 2000) (en banc) (“Harris II”) (affirming district court’s th

dismissal of claims for compensatory and punitive damages as barred by § 1997e(e));

Al-Amin v. Smith, 637 F.3d 1192 (11 Cir. 2011) (holding that “the overall tenor of th

Harris and its progeny, when taken together, unmistakably supports” the conclusion

that § 1997e(e) applies to constitutional claims and precludes the recovery of

compensatory and punitive damages in the absence of the requisite physical injury);

Williams v. Brown, No. 08-16230, 347 Fed. Appx. 429, 436 (11 Cir. 2009)

th

(unpublished opinion) (holding that prisoner could not recover compensatory or

punitive damages with respectto his constitutional retaliation claim, because he failed

to alleged the requisite physical injury). Section § 1997e(e) applies with full force

and effect to plaintiff, notwithstanding the fact that he has since been released. 

Harris II, 216 F.3d at 981, 985 (holding that inmates’ release from prison after

original complaint was filed was irrelevant to application of § 1997e(e), because

“[t]he status that counts, and the only status that counts, for purposes of section

1997e(e) is whether the plaintiff was a ‘prisoner confined in a jail, prison, or other

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correctional facility’ at the time the federal civil action was ‘brought,’ i.e., when it

was filed”).

Accordingly, it is respectfully RECOMMENDED:

That this case be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii), and the clerk be directed to close the file.

At Pensacola, Florida this 6th day of June, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

fourteen (14) 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

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