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

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DANIEL WAYNE FOX,

Plaintiff,

vs. Case No. 3:11cv234/RV/CJK

DEB ROBARDS, et al., 

Defendants.

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. 4). The Court has reviewed the

complaint and concludes that this case should be dismissed because plaintiff’s claims

for injunctive relief are moot and plaintiff’s damages claims are barred by statute.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is an inmate of the Florida Department of Corrections currently

confined at Santa Rosa Correctional Institution. (Doc. 20). Plaintiff was confined

at the Escambia County Jail (“Jail”) at the time he initiated this action. (Doc. 1). 

Plaintiff’s amended complaint names three defendants: the Escambia County Jail

Medical Department and two nurses at the Jail – Deb Robards and Rebecca Kenny. 

(Doc. 4, pp. 1, 2). Plaintiff claims the defendants subjected him to cruel and unusual

punishment when they denied him his “V.A. meds” for two months while they

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obtained plaintiff’s medicalrecords fromthe Veterans’ Administration. Plaintiff does

not identify his medications, but describes his medical conditions as cirrhosis of the

liver, degenerative disc disease, emphysema, bi-polar, fibromyalgia and sebhorraic

dermatitis (Id., pp. 5-7). Plaintiff claims the defendants’ conduct caused him to

“spen[d] unnecessary amount of time trying to stay alert & coherrent [sic] and a lot

of time being turned down.” (Id., p. 7). As relief, plaintiff seeks injunctive relief –

that defendants Robards and Kenny be fired and plaintiff’s “meds restored & left that

way while I’m here.” (Id., p. 7). Plaintiff also seeks $1,000,000.00 damages for “xtreme pain & suffering.” (Id.).

DISCUSSION

The in forma pauperis statute, 28 U.S.C. § 1915, requires the Court to dismiss

this 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

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). The Court accepts all

tth

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

if the facts as pleaded do not state a claim to relief that is plausible on its face. See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929

(2007) (retiring the negatively-glossed “no set of facts” language previously used to

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

“not nudged their claims acrossthe line fromconceivable to plausible, their complaint

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

dismissal for failure to state a claim 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 (11th Cir. 2001); see also Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct.

910, 920-21, 166 L. Ed. 2d 798 (2007) (reiterating that principle).

Taking the allegations of plaintiff’s amended complaint astrue and construing

them in the light most favorable to plaintiff, it is apparent that plaintiff’s claims for

injunctive relief are moot. See, e.g., Zatler v. Wainwright, 802 F.2d 397, 399 (11th

Cir. 1986) (inmate’s release from prison mooted claim for declaratory and injunctive

relief against head of prison); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985)

(an inmate’s claim for injunctive and declaratory relief in a § 1983 action fails to

present a case or controversy once the inmate has been transferred); Dudley v.

Stewart, 724 F.2d 1493, 1494 (11th Cir. 1984) (transfer from county jail to state

prison mooted claims for injunctive and declaratory relief against county jailers).

It is also apparent from the face of the complaint that plaintiff’s damages

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). 

“[T]he phrase ‘Federal civil action’ means all federal claims, including constitutional

claims.” Napier v. Preslicka, 314 F.3d 528, 532 (11th Cir. 2002). This action,

brought by plaintiff under 42 U.S.C. § 1983, is a “Federal civil action” under this

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definition. Plaintiff was an inmate of the Escambia County Jail at the time he filed

this action. (Doc. 1). The harm of which plaintiff complains occurred while plaintiff

was in custody. (Doc. 4). Plaintiff’s damages claims, which cannot be liberally

construed as requesting nominal damages, are based on the mental injury plaintiff

suffered as a result of defendants’ conduct. The complaint identifies no physical

injury arising from defendants’ conduct, much less injury that is more than de

minimis. See Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999) (“Harris I”)

(concluding that in order to satisfy § 1997e(e) “the physical injury must be more than

de minimis, but need not be significant.”), reh’g en banc granted and opinion

vacated, 197 F.3d 1059 (11th Cir. 1999), opinion reinstated in relevant part, 216

F.3d 970 (11th Cir. 2000) (“Harris II”). As plaintiff’s damages claims are barred as

a matter of law, this suit should be dismissed. Harris I, 190 F.3d at 1287-88

(affirming district court’s dismissal of claims for compensatory and punitive damages

as barred by § 1997e(e)), reinstated on reh’g, Harris II, 216 F.3d at 972; see also

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

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). 

Accordingly, it is respectfully RECOMMENDED:

1. That this case be DISMISSED WITHOUT PREJUDICE under 28 U.S.C.

§ 1915(e)(2)(B)(ii), for plaintiff’s failure to state a claim upon which relief may be

granted.

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2. That the Clerk be directed to close the file.

At Pensacola, Florida this 14th day of May, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATEJUDGE

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 (11th Cir. 1988).

Case No: 3:11cv234/RV/CJK

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