IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WALTER JULIOUS PORTERFIELD,

#13997-003, :

Plaintiff, :

vs. : CIVIL ACTION 16-18-CG-M

GROVER SMITH, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff Walter J. Portfield, a prison inmate proceeding

pro se and in forma pauperis, initiated this action by filing a 

Complaint under 42 U.S.C. § 1983 together with an Application to 

Proceed In Forma Pauperis. This action was referred to the 

undersigned for appropriate action pursuant to 28 U.S.C. § 

636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). After careful 

consideration, it is recommended that this action be dismissed 

without prejudice, 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. 

I. Posture of Action.

This action was initially filed in the United States 

District Court for the Northern District of Alabama and was 

subsequently transferred to this Court. When Plaintiff filed 

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this action, he was incarcerated at the Escambia County 

Detention Center, located in Brewton, Alabama, (doc. 1 at 3), 

and then was transferred to the custody of the Alabama 

Department of Corrections at Easterling Correctional Facility. 

(Doc. 12). Subsequently, he was transferred to the custody of 

the United States Bureau of Prisons and incarcerated at Federal 

Correctional Institution in Marianna, Florida. (Doc. 25). 

During this action’s pendency, the Court received several 

amended complaints from Plaintiff, which were in the form of 

letters. (Docs. 4, 5, 7). Because of the number of amended 

complaints and the variety of claims contained in them, the 

Court ordered him to file on this Court’s complaint form a 

fourth amended complaint, which would contain one claim and any 

claims closely related to it and which would supersede his prior 

Complaint and its amendments. (Doc. 20). Plaintiff’s Fourth 

Amended Complaint is now before the Court. (Doc. 33).

In the Fourth Amended Complaint, Plaintiff names as 

Defendants Sheriff Grover Smith and Captain Emma Williams,1 who

are Escambia County Detention Center officials. (Doc. 33 at 5). 

He alleges that his mail from his attorney and from his family

was withheld in violation of his due process rights under the 

 1 Section III of the complaint form advises that “[t]he persons 

who are listed as defendants in section III of the complaint are 

deemed by the Court to be the only defendant to this action.” 

(Doc. 33 at 1, D).

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Fifth Amendment and his equal protection rights under the 

Fourteenth Amendment. (Id.). He made complaints to the 

Postmaster General at the Brewton Post Office about this. 

(Id.). He blames Captain Williams for these problems because 

everything that comes to the jail must go first to her. (Id.). 

The last incident occurred between December 26, 2015, and 

December 31, 2015, when Captain Williams blocked his phone 

privileges because he kept calling his family complaining of not 

receiving their letters and his attorney’s letters. (Id.).

Additionally, Plaintiff mentions that he had to “send all of his 

legal mail home when he was transferred from state custody to 

federal custody.” (Id. at 6). He also charges Sheriff Smith 

with “withholding legal/personal mail, violating [his] 5th and 

14th Amendment [rights,]” but provides no specific factual 

information to support this claim. (Id. at 5). For relief, 

Plaintiff asks for compensatory damages in the amount of 

$1,000,000. (Id. at 7).

II. Analysis.

A. Screening Standards for an IFP Complaint.

Because Plaintiff is proceeding in forma pauperis, the 

Court is reviewing his Fourth Amended Complaint (Doc. 33) under 

28 U.S.C. § 1915(e)(2)(B). Under this section an action or 

appeal is to be dismissed if it is frivolous or malicious, fails 

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to state a claim on which relief may be granted, or seeks 

monetary damages relief from a defendant who is immune from 

damages. 28 U.S.C. § 1915(e)(2)(B). A frivolous claim is one 

that may be dismissed “where it lacks an arguable basis in law 

or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).2 And a 

complaint may be dismissed for failure to state a claim upon 

which relief can be granted when the allegations do not show 

plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 

(2007). To show plausibility “[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.’” Id. at 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.” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009). 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 (2007). 

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

 2

 Neitzke’s interpretation of 28 U.S.C. § 1915(d) is 

applied to § 1915(d)’s superseding statute, 28 U.S.C. § 

1915(e)(2)(B). Bilal v. Driver, 251 F.3d 1346,1348-49 (11th 

Cir.), cert. denied, 534 U.S. 1044 (2001). 

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gives them a liberal construction holding them to a more lenient 

standard than those of an attorney. Haines v. Kerner, 404 U.S. 

519, 520 (1972). A court, however, 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 by Randall v. Scott, 610 F.3d 701, 

710 (11th Cir. 2010). Furthermore, a court treats factual 

allegations as true, but it does not treat as true conclusory 

assertions or a recitation of a cause of action’s elements. 

Iqbal, 566 U.S. at 68. 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).

B. Failure to State a Claim upon Which Relief Can Be 

Granted.

1. Legal Standards Under 42 U.S.C. § 1997e(e).

“A complaint is subject to dismissal for failure to state a 

claim ‘when its allegations, on their face, show that an 

affirmative defense bars recovery on the claim.’” Douglas v. 

Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) (quoting Cottone v. 

Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003)). An affirmative 

defense is created by 42 U.S.C. § 1997e(e), id., when it

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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 or the commission of a sexual 

act (as defined in section 2246 of Title 18).” 42 U.S.C. § 

1997e(e). This section provides a basis for the dismissal of 

plaintiff’s present claims.

Section 1997e(e) was enacted by Congress “[i]n an effort to 

stem the flood of prisoner lawsuits in federal court[.]” Harris 

v. Garner, 216 F.3d 970, 971 (11th Cir.), cert. denied, 532 U.S. 

1065 (2001). This section is “[r]ead as a limitation on 

recovery 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 this section, Congress chose to “preclude[ ] some 

actions for money damages[,]” id. at 1283, and “to enforce 

prisoners’ constitutional rights through suits for declaratory

and injunctive relief[,]” id. at 1289, and nominal damages. 

Brooks v. Warden, 800 F.3d 1295, 1307-09 (11th Cir. 2015).

Section 1997e(e) applies “only to lawsuits involving (1) 

Federal civil actions (2) brought by a prisoner (3) for mental 

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or emotional injury (4) suffered while in custody.” Napier v. 

Preslicka, 314 F.3d 528, 532 (11th Cir.), cert. denied, 540 U.S. 

1112 (2004). The statute encompasses all claims with no 

exceptions being provided. Al-Amin v. Smith, 637 F.3d 1192, 

1197 (11th Cir. 2011) (holding no distinction is made between 

“constitutional claims frequently accompanied by physical injury 

(e.g., Eighth Amendment violations) and those rarely accompanied 

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

constitutional claims are treated equally). Nor does the mental 

or emotional injury need to be pled in order for the statute to 

be applicable. Id. at 1197 & n.5 (holding otherwise a 

prisoner’s pleading or not pleading of mental or emotional 

injury would achieve talismanic importance and lead to illogical 

results). Thus, in order to avoid dismissal under § 1997e(e), a 

prisoner’s claim “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).

2. Application of Law to the Facts. 

In the present action, Plaintiff makes a straightforward 

request for $1,000,000 in damages as compensation. (Doc. 33 at 

7). Plaintiff identified no injury, much less a physical 

injury, that is greater than de minimis in his Fourth Amended 

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Complaint. In order for this action for compensatory damages to 

proceed, Plaintiff must have demonstrated that he suffered a 

physical injury greater than de minimis. Id. at 1313.

Examining the requested relief in the ad damnum clause, the 

amount of $1,000,000 is in the nature of a compensatory or 

punitive damages request. That is, $1,000,000 is inconsistent 

with a nominal damages request. See Carey v. Piphus, 435 U.S. 

247, 266-67 (1978) (holding nominal damages should not exceed 

one dollar); Kyle v. Patterson, 196 F.3d 695, 697 (7th Cir. 

1999) (holding $1 is the norm for nominal damages); Harrison v. 

Myers, CA No. 10-0566-KD-N, 2011 WL 3204372, at *7 (S.D. Ala. 

2011) (finding the prisoner’s request of $2,500 was not for 

nominal damages inasmuch nominal damages implies a mere token or 

trifling); In re Bayside Prison Litigation, CA 09–2365(RBS/JS), 

2010 WL 4916716, at *4 (D.N.J. 2010) (finding that “$2,000.00 

surely surpasses the limit of what constitutes a ‘minimal’ 

amount of compensation by any definition of the term 

‘nominal’”); Qualls v. Santa Rosa County Jail, No. 

3:10cv54/MCR/MD, 2010 WL 785646, at *3 n.1 (N.D. Fla. 2010) 

(unpublished) (dismissing the plaintiff’s complaint as it 

“cannot be liberally construed as requesting nominal damages, 

because he specifically requested only $250,000 in compensatory 

and/or punitive damages”). 

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Therefore, in the absence of Plaintiff having demonstrated

a physical injury, and with Plaintiff requesting compensatory 

damages in the amount of $1,000,000, § 1997e(e) bars this 

action. See Al-Amin, 637 F.3d at 1199 (finding that § 1997e(e) 

barred the plaintiff’s mail claim for punitive damages); 

Thompson v. Adamson, 247 F. App’x 178, 179 (11th Cir. 2007)

(affirming the dismissal of the plaintiff’s mail claim for 

compensatory and punitive damages).3

III. Conclusion.

Based upon the foregoing reasons, it is recommended that 

this action be dismissed without prejudice, 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. See Napier, 

314 F.3d at 532 (holding a dismissal pursuant to § 1997e(e) 

shall be without prejudice).

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. 

 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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§ 636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. GenLR 72(c). The 

parties should note that under Eleventh Circuit Rule 3-1, “[a] 

party failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. 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 Judge is not specific. 

DONE this 21st day of July, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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