IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RICHARD HOLLINGSWORTH, #276260, *

*

Plaintiff, *

*

vs. * CIVIL ACTION NO. 13-00480-WS-B

*

KIM T. THOMAS, et al., *

*

Defendants. *

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and 

in forma pauperis, filed a complaint under 42 U.S.C. § 1983. 

This action has been referred to the undersigned for appropriate 

action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 

72.2(c)(4). Upon review of Plaintiff’s complaint, it is 

recommended that Plaintiff’s claims against Defendants Carroll 

and Byrd be dismissed without prejudice from this action, prior 

to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

for failure to state a claim upon which relief can be granted,1

and that Plaintiff’s remaining claims against Defendants 

Commissioner Kim T. Thomas, Warden Gary Hetzel, and Captain 

Ronzella Howard, based on conditions of confinement, proceed in 

this action. 

 1 The claims against Defendants Carroll and Byrd are for 

compensatory and punitive damages for the use of excessive force 

and for the failure to intervene, and for injunctive relief to 

“[e]xpunge all disciplinaries and incident reports pertaining to 

the assault[.]” (Doc. 1 at 9).

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I. Complaint. (Doc. 1).

Plaintiff brought this action containing claims that are 

based on two distinct sets of facts. The first set of facts is 

based on an incident in which Plaintiff’s right hand was hit by 

a guard, and the second set of facts is based on the conditions 

of confinement in segregation at Holman Correctional Facility. 

Plaintiff’s claims arising from these distinct sets of facts

should have been brought in separate actions.2 However, due to 

the deficiencies in Plaintiff’s claim regarding his right hand, 

the Court will address that claim although it is distinct from 

his claim regarding the conditions of confinement in 

segregation. 

Plaintiff’s allegations describing the injury to his right 

hand are described below, and his factual assertions are taken

as true for the purposes of this Report and Recommendation. 

 2 See Skillern v. Georgia Dept. of Corrs. Comm’r, 379 F. App’x 

859, 860 (11th Cir. 2010) (unpublished) (finding that the 

district court did not abuse it discretion in dismissing the 

inmate’s case when he failed to comply with magistrate judge’s 

order to comply with Rule 20(a) by showing “the claims against 

the defendants arose out of the same transaction, occurrence, or 

series of transactions or occurrences[.]”); see also George v. 

Smith, 507 F.3d 605, 607 (7th Cir. 2007) (holding that “multiple 

claims against a single party are fine . . . but unrelated 

claims against different defendants belong indifferent suits[,]” 

not only to prevent unwieldy litigation “but also to ensure 

that prisoners pay the required filing fees”).

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Brown v. Pastrana, 446 F. App’x 270, 272 (11th Cir. 2011) 3

(unpublished) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)). On September 4, 

2013, Plaintiff was confined to a segregation cell when 

Defendants Carroll and Byrd, along with the floor supervisor, 

Sgt. Earl, began serving breakfast. (Doc. 1 at 4). When Sgt. 

Earl served Plaintiff, Plaintiff requested that his “feed hole” 

be left open and that the warden be contacted so Plaintiff could 

speak with the warden “about the deplorable living condition in 

the Holman Segregation Annex.” (Id.). Sgt. Earl ordered 

Defendants Carroll and Byrd to leave Plaintiff’s “feed hole” 

open. (Id.). The “feed holes” were reopened to collect the 

trays, with Officer Owens having the responsibility for closing 

the “feed holes.” (Id., at 4-5). Plaintiff informed Officer 

Owens that Sgt. Earl had given instructions to leave his “feed 

hole” open. (Id., at 5). Thereupon, Officer Owens contacted 

Sgt. Earl by two-way radio, and was told to leave Plaintiff’s 

“feed hole” open. (Id.).

At approximately 11:30 a.m., Defendants Carroll and Byrd,

along with Sgt. Earl and Officer Owens, returned to serve lunch. 

(Id.). Sgt. Earl gave the order again that Plaintiff’s “feed 

 3 “Unpublished opinions are not considered binding precedent, but 

they may be cited as persuasive authority.” 11TH CIR. R. 36-2

(2005).

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hole” was to remain open. (Id.). After lunch was served, 

Defendants Carroll and Byrd returned without the other officers 

to pick up the trays and to close the “feed holes.” (Id.).

Defendant Byrd passed Plaintiff’s cell, and was a few feet away, 

when Defendant Carroll approached Plaintiff’s cell. (Id.). When 

“Plaintiff attempted to remind Defendant Carroll of the floor 

supervisor’s orders, [Defendant Carroll] pulled out his 

extendable riot baton and began delivering strikes to the 

Plaintiff’s right hand, with all of his body weight causing 

severe pain.” (Id.). Plaintiff pulled “his hand away after a 

direct strike to his right wrist and a second direct strike to 

the fingers of his right hand.” (Id.). Defendant Byrd did not 

intervene as Plaintiff screamed in pain, he just observed. 

(Id.). 

Sgt. Earl took Plaintiff to the infirmary where Plaintiff 

was given pain medicine and his right wrist was wrapped. (Id.). 

Afterwards, Plaintiff could not wear handcuffs for several days 

and remained in “severe pain.” (Id.).

Plaintiff claims that he did not threaten the officers or 

break any prison rules. (Id.). Plaintiff further alleges, 

“Defendant Carroll has a history of excessive force use against 

inmates[]” (id.), and “Defendant Carroll assaulted Plaintiff for 

the sole purpose of causing pain.” (Id., at 10). Plaintiff also 

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identified inmates who witnessed the assault. (Id., at 5). 

With respect to the excessive force claim, Plaintiff 

request to have “[e]xpunge[d] all disciplinaries and incident 

reports pertaining to the assault from plaintiff[‘]s jacket[; to 

be] [a]ward[ed] $75,000 jointly and severally against Defendants

Carroll and Byrd in compensatory damages and the same in 

punitive damages.” (Id., at 9).

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the 

Court is screening his superseding Amended Complaint (Doc. 60) 

under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a 

claim may be dismissed as “frivolous where it lacks an arguable 

basis in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 

109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). A claim is frivolous 

as a matter of law where, inter alia, the defendants are immune 

from suit, id., 490 U.S. at 327, or the claim seeks to enforce a 

right that clearly does not exist. Id.

Moreover, a complaint may be dismissed under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which 

relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 

(11th Cir. 1997). To avoid dismissal for failure to state a 

claim upon which relief can be granted, the allegations must 

show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

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557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has 

facial plausibility when the plaintiff pleads factual content 

that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 

(2009). That is, “[f]actual allegations must be enough to raise 

a right to relief above the speculative level” and must be a 

“‘plain statement’ possess[ing] enough heft to ‘sho[w] that the 

pleader is entitled to relief.’” Twombly, 550 U.S. at 555, 557, 

(second brackets in original). But “[t]hreadbare recitals of 

the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id. Furthermore, when a successful 

affirmative defense, such as a statute of limitations, appears 

on the face of a complaint, dismissal for failure to state a 

claim is also warranted. Jones v. Bock, 549 U.S. 199, 215, 127 

S. Ct. 910, 166 L. Ed. 2d 798 (2007). 

When considering a pro se litigant’s allegations, a court 

holds them to a more lenient standard than those of an attorney,

Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d

652 (1972), but it does not have “license . . . to rewrite an 

otherwise deficient pleading [by a pro se litigant] in order to 

sustain an action.” GJR Investments v. County of Escambia, Fla., 

132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds 

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by Randall v. Scott, 610 F.3d 791, 710 (11th Cir. 2010) (relying 

on Iqbal, 556 U.S. 662). A plaintiff’s factual allegations are 

treated as true, but conclusory assertions and a recitation of a 

cause of action’s elements are not. Iqbal, 566 U.S. at 681, 129 

S. Ct. at 1951. In addition, a pro se litigant “is subject to 

the relevant law and rules of court including the Federal Rules 

of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th 

Cir.), cert. denied, 493 U.S. 863 (1989).

III. Discussion.

A. Applicable Law.

“In an effort to stem the flood of prisoner lawsuits in 

federal court, Congress enacted the Prison Litigation Reform Act 

of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”).” 

Harris v. Garner, 216 F.3d 970, 971 (11th Cir. 2000), cert. 

denied, 532 U.S. 1065 (2001). Included in the PLRA is 42 U.S.C. 

§ 1997e(e), which 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). For the purposes of this section, a 

prisoner is defined as “any person incarcerated or detained in 

any facility who is accused of, convicted of, sentenced for, or 

adjudicated delinquent for, violations of criminal law or the 

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terms and conditions of parole, probation, pretrial release, or 

diversionary program.” 42 U.S.C. § 1997(h). This section, 

therefore, applies to Plaintiff who was a prisoner when he filed 

this action.

Section 1997e(e) is “[r]ead as a limitation on a damages 

remedy only[.]” Harris v. Garner, 190 F.3d 1279, 1288 (11th Cir. 

1999) (finding that the Constitution does not “mandate[] a tort 

damages remedy for every claimed constitutional violation”), 

opinion vacated by 197 F.3d 1059, opinion reinstated in part by

216 F.3d 970 (11th Cir. 2000). By enacting § 1997e(e), 

“Congress has chosen to enforce prisoners’ constitutional rights 

through suits for declaratory and injunctive relief, and not 

through actions for damages.” Id., 190 F.3d at 1289. This 

section “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 (11th Cir. 2002), cert. denied, 540 U.S. 1112 

(2004). The statute’s clear and broad language encompasses all 

claims, including constitutional claims, and provides for no 

exceptions. Al-Amin v. Smith, 637 F.3d 1192, 1197 (11th Cir. 

2011). No distinction is made between “constitutional claims 

frequently accompanied by physical injury (e.g., Eighth 

Amendment violations) and those rarely accompanied by physical 

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injury (e.g., First Amendment violations)[;]” all constitutional 

claims are treated equally. Id.

B. Claims for Compensatory and Punitive Damages.

With respect to Plaintiff’s request for $75,000 in 

compensatory damages and $75,000 in punitive damages from 

Defendants Carroll and Byrd, § 1997e(e) requires Plaintiff have 

suffered a physical injury before he can recover compensatory or 

punitive damages. 28 U.S.C. § 1997e(e). This physical injury 

must be greater than de minimis. Harris v. Garner, supra, 190 

F.3d at 1286. 

In reviewing Plaintiff’s allegations, the Court finds that 

Plaintiff’s allegations do not reflect that he suffered a 

physical injury that is greater than de minimis. Plaintiff’s 

allegations indicate that he was struck twice with an 

“extendable riot baton,” first on his right wrist and next on 

his right hand’s fingers. (Doc. 1 at 5). After these two 

strikes, he pulled his hand away as he screamed in “severe 

pain.” (Id., at 5). Plaintiff also alleges that he was “struck 

multiple times” (id., at 10), and Defendant Carroll delivered 

“strikes.” (Id., at 5). Considering that Plaintiff withdrew his 

hand after the second strike (id., at 5), a finding that there 

were more than two strikes would be inconsistent with his 

statement that he withdrew his hand after his wrist and fingers 

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were hit by two strikes. Thus, Plaintiff’s vague allegations of 

multiple strikes are surplusage. Furthermore, Plaintiff 

attributes no specific injury to Defendant Byrd’s failure to 

intervene.

After the incident, Plaintiff was taken to the prison 

infirmary where he received pain medication and had his wrist 

wrapped. There are no allegations of a broken bone, bruising,

swelling, or an abrasion; of the type of medication that he 

received or the type of wrapping applied; or of the length of 

time he took pain medication or wore the wrapping. Plaintiff 

mentioned that he could not wear handcuffs for “several days,”

with no reason being given for this inability, e.g., tenderness, 

swelling, bruising, wrapping was too thick. (Id., at 5). And at 

the time he filed the Complaint on October 1, 2013, he vaguely 

claims that he “remain[ed] in severe pain.” (Id., at 5). 

Even though Plaintiff leads the Court to believe that 

Defendant Carroll’s striking of his hand was unprovoked and done 

for the sole purpose of inflicting pain (id., at 11), 

Plaintiff’s request to have removed from his “jacket” “all 

disciplinaries and incident reports pertaining to the assault”

undercuts this assertion. In the allegations, Plaintiff makes 

no reference to a disciplinary or incident report, and no 

disciplinaries or incident reports were attached to the 

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Complaint. Therefore, Plaintiff’s conclusion that the sole 

purpose was to inflict pain is discounted because it is not a 

fact, but a conclusion, and therefore is not taken as true. The 

Court also recognizes that it is beneficial for an inmate to 

draft a complaint that skirts the decision in Sandin v. Conner, 

515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), which 

renders many claims to be without legal merit when a 

disciplinary conviction is challenged. Id., 515 U.S. at 478-83 

(holding that inmate generally does not have a liberty interest 

when he is placed in disciplinary segregation and therefore the 

disciplinary conviction cannot be challenged on due process 

grounds).

In determining whether Plaintiff suffered an injury that is 

greater than de minimis, the Court reviewed decisions from other 

courts that considered whether an injury is de minimis or not an 

injury at all. See In re Bayside Prison Litigation, 2010 U.S. 

Dist. LEXIS 124624, *18, 2010 WL 4916716 (D. N.J. November 18, 

2010) (finding that the inmate’s pain and swelling of the pinky 

finger for two days after the officer hit his left hand with a 

stick was a de minimis injury inasmuch as the swelling was only 

for a couple of days, and there was no lasting pain or physical 

distress or restriction even though the pinky finger was 

slightly deformed); Siglar v. Hightower, 112 F.3d 191, 193 (5th 

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Cir. 1997) (finding that a bruised ear which lasted for three 

days was a de minimis injury); Nolin v. Isbell, 207 F.3d 1253, 

1258 n.4 (11th Cir. 2000) (bruises received during an arrest 

were a de minimis injury); McDonald v. Neal, CA No. 13-0128-CGM, 2013 U.S. Dist. LEXIS 172822, 2013 WL 6410402 (S.D. Ala. Dec. 

9, 2013) (finding the allegations of an officer poking the 

plaintiff with a nightstick, slapping him two to three times 

across the face, and shoving him into the wall did not present a 

physical injury); Brown v. Croce, 967 F. Supp. 101, 104 (S.D.

N.Y. 1997) (finding that two slaps to the face with no injury 

resulting were de minimis); Harris, 190 F.3d at 1286-87 (finding 

a “dry shave” was not a physical injury that was more than de 

minimis); Mann v. McNeil, 360 Fed. App’x 31, 32 (11th Cir. 2010) 

(unpublished) (finding that “the injuries that [plaintiff] 

complain[ed] of - including the vague injuries to his back, the 

scrapes and marks on his knees and legs, the lack of personal 

items, the lapse of time in reordering medication, the windowcleaning assignment, and the discontinuance of his pass for 

showers twice a day – amount[ed] to de minimis physical 

injuries” thereby barring damages for mental anguish and 

suffering), cert. denied, 131 S. Ct. 517 (2010); Mobley v. 

Grasco, 2011 U.S. Dist. LEXIS 81136, * 6-8, 2011 WL 3163159 

(N.D. Fla. July 1, 2011) (finding the claim of “pain and 

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suffering” did not allege an injury); Osterback v. Johnson, No. 

2003 U.S. Dist. LEXIS 25987, 2003 WL 25571396, at *6 (M.D. Fla.

June 2, 2003) (finding the plaintiff’s “slight weight loss (11 

pounds), nausea, back pain, a sinus condition, appetite loss and 

headaches allegedly ‘exacerbated by the poor living conditions’” 

did not satisfy § 1997e(e)’s physical injury requirement), 

aff’d, 112 Fed. App’x 4 (11th Cir. 2004); Waller v. Ray, 2009 

U.S. Dist. LEXIS 63810, 2009 WL 2232457, at *2 (W.D. Va. 2009) 

(finding that the guard’s pushing and shoving of an inmate was 

at the most de minimis discomfort); see also Wilkins v. Gaddy, 

559 U.S. 34, 38, 130 S. Ct. 1175, 175 L. Ed. 2d 995 (2010) (“An 

inmate who complains of a ‘push or shove’ that causes no 

discernible injury almost certainly fails to state a valid 

excessive force claim.”) (quoting Johnson v. Glick, 481 F.2d 

1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it 

may later seem unnecessary in the peace of a judge’s chambers, 

violates a prisoner’s constitutional rights.”)). 

“In order to avoid dismissal under § 1997e(e), a prisoner’s 

claims for emotional or mental injury must be accompanied by 

allegations of physical injuries that are greater than de 

minimis.” Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 

1309, 1312-13 (11th Cir. 2002). Taking Plaintiff’s factual 

allegations as true, and construing them in the light most 

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favorable to him, Plaintiff’s allegations do not allege an

injury caused by either Defendant Carroll or Defendant Byrd that 

is greater than de minimis. Because Plaintiff failed to show a 

physical injury that is greater than de minimis, § 1997e(e) 

prohibits him from stating a claim for relief for compensatory 

and punitive damages from Defendants Carroll and Byrd. See

Stephenson v. Ellis, 2013 U.S. Dist. LEXIS 41334, 2013 WL 

1197723, at *2 (N.D. Fla. Jan. 25, 2013) (finding that the 

plaintiff failed to state a plausible claim for compensatory and 

punitive damages). Accordingly, Plaintiff’s compensatory and 

punitive damages claims against Defendant Carroll and Byrd are 

due to be dismissed without prejudice for failure to state a 

claim upon which can be granted. See Harris, 216 F.3d at 980 

(“[D]ismissal under this statutory provision of a claim that is 

filed during confinement should be without prejudice to refiling the claim if and when the plaintiff is released.”).4

C. Claim for Injunctive Relief.

In addition to his damages requests, Plaintiff requested 

injunctive relief in the form of expunction of his 

disciplinaries and incident reports related to the assault. 

(Doc. 1 at 9). This injunctive relief request is beyond the 

issues presented in this action. In his allegations, Plaintiff 

 4 The Court recognizes that Plaintiff states that he is serving a 

sentence of life without parole. (Doc. 1 at 8).

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did not complain about receiving a disciplinary or an incident 

report being written. A district court is not permitted to 

“issue an injunction when the injunction in question . . . 

‘deals with a matter lying wholly outside the issues in the 

suit.’” Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir.

1997) (quoting De Beers Consol. Mines v. United States, 325 U.S. 

212, 220, 65 S. Ct. 1130, 1134, 89 L. Ed. 2d 1566 (1945)), cert. 

denied, 523 U.S. 1138 (1998). Inasmuch as no claim is alleged

based on a disciplinary and or an incident report, Plaintiff’s 

requests for his disciplinaries and incident reports to be 

expunged with respect to the assault fails to state a claim upon 

which relief can be granted. Bruce v. Reese, 431 Fed. App’x 805, 

806 n.1 (11th Cir. 2011) (unpublished) (finding the federal 

inmate’s request for injunctive relief was properly denied 

because in his superseding amended complaint, he omitted the 

causes of actions that corresponded to the requests for 

injunctive relief and thus his requests for injunctive were 

outside the scope of the underlying action).5

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that 

the claims against Defendants Carroll and Byrd be dismissed 

 5 The Court’s reasoning regarding the excessive force claim 

against Defendant Carroll applies to the failure to intervene 

claim lodged against Defendant Byrd.

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without prejudice from this action, prior to service of process, 

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a 

claim upon which relief can be granted, and that the remaining 

claims based on conditions of confinement against Defendants 

Commissioner Kim T. Thomas, Warden Gary Hetzel, and Captain 

Ronzella Howard proceed in this action.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who 

objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. ALA. L.R. 72.4. 

The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review 

to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 

2013). In order to be specific, an objection must identify the 

specific finding or recommendation to which objection is made, 

state the basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

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Judge is not specific.

DONE this 1st day of May, 2014.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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