Palmer v. Hampton

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LE SAMUEL PALMER, A/K/A

KING ZULU M. ALI SHABAZZ,

Plaintiff,

v.

Case No. 3:19-cv-780-J-34MCR

L. HAMPTON, et al.,

Defendants.

ORDER

I. Status

Plaintiff Le Samuel Palmer, an inmate of the Florida penal system, initiated this

action on June 28, 2019, by filing a pro se Civil Rights Complaint (Doc. 1). He filed an

Amended Complaint (AC; Doc. 6) on August 16, 2019.1 In the AC, Palmer asserts claims

pursuant to 42 U.S.C. § 1983 against Defendants L. Hampton, W. Oliver, M. Decubellis,

J. Bryan, and E.A. Biascochea. He alleges that Defendants Hampton, Oliver, Decubellis,

and Bryan, as members of a cell extraction team at Union Correctional Institution,

assaulted him when they removed him from his cell on May 23, 2019, which resulted in

head, hand, and genital injuries. See AC at 5-6. Additionally, he states that Defendant

Biascochea authorized the chemical spraying and cell extraction. See id. at 5. As relief,

Palmer requests monetary, injunctive, and declaratory relief.

1 The Court cites to the document and page numbers as assigned by the Court’s

Electronic Case Filing System.

This matter is before the Court on Defendants’ Motion to Dismiss Amended

Complaint (Motion; Doc. 16). The Court advised Palmer that granting a motion to dismiss

would be an adjudication of the case that could foreclose subsequent litigation on the

matter and gave him an opportunity to respond. See Order (Doc. 7). Palmer filed a

response in opposition to the Motion. See Reply to Defendants’ Motion to Dismiss

Amended Complaint (Response; Doc. 18). Thus, Defendants’ Motion is ripe for review.

II. Plaintiff’s Allegations2

As to the underlying facts, Palmer asserts that Defendant Biascochea ordered him

to submit to hand restraints and a strip search on May 23, 2019. See AC at 5. According

to Palmer, Biascochea directed Lieutenant Jackson to order Defendants Hampton, Oliver,

Decubellis, and Bryan to spray Palmer with chemical agents. See id. Palmer states that

he gave Hampton his clothes and submitted to a strip search after they sprayed him with

chemical agents. See id. He avers that Hampton told Lieutenant Jackson that Palmer had

not complied with the strip-search procedure, and therefore, Jackson ordered Hampton,

Oliver, Decubellis, and Bryan to extract Palmer from his cell. See id. According to Palmer,

Defendants Oliver, Decubellis, and Bryan punched and kicked him, and Hampton sat on

Palmer’s back, as he punched the back of Palmer’s head with handcuffs. See id. Palmer

asserts that Hampton grabbed, pulled, and twisted Palmer’s genitals. See id. He states

2 The AC is the operative pleading. In considering a motion to dismiss, the Court

must accept all factual allegations in the AC as true, consider the allegations in the light

most favorable to the plaintiff, and accept all reasonable inferences that can be drawn

from such allegations. Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d 1291, 1297 (11th

Cir. 2015) (quotations and citations omitted). As such, the recited facts are drawn from

the AC and may differ from those that ultimately can be proved.

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that he reported the sexual abuse to Biascochea, who ignored the accusation. See id. at

6. Palmer maintains that he, unlike close management (CM) inmates in U and V

dormitories, was housed in subpar conditions. See id. According to Palmer, officers

housed him in S dormitory away from other CM inmates, and denied him clothes, bedding,

soap, and toothpaste. See id. Additionally, he asserts that he had to use paper cups and

cardboard utensils, which caused cuts on his mouth. See id. Last, he avers that officers

put a spit mask over his head when they escorted him to the shower that was

approximately ten feet away. See id.

III. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual allegations set

forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s

World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable

inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701,

705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading

requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004)

(citations omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint

should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which

it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough

facts to state a claim that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

facial plausibility when the pleaded factual content allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do[.]” Twombly, 550 U.S. at 555 (internal quotations omitted); see also

Jackson, 372 F.3d at 1262 (explaining that “conclusory allegations, unwarranted

deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”)

(internal citation and quotations omitted). Indeed, “the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at 678, 680.

Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint

contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face[.]’” Id. at 678 (quoting Twombly, 550 U.S. at 570). And, while “[p]ro

se pleadings are held to a less stringent standard than pleadings drafted by attorneys and

will, therefore, be liberally construed,” Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998), “‘this leniency does not give the court a license to serve as de facto

counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an

action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011)3

(quoting GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)

3 “Although an unpublished opinion is not binding . . . , it is persuasive authority.”

United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see generally

Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding

precedent, but they may be cited as persuasive authority.”).

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(internal citation omitted), overruled in part on other grounds as recognized in Randall,

610 F.3d at 706).

IV. Summary of the Arguments

In the Motion, Defendants assert that Palmer failed to disclose a previous three-

strikes dismissal, and therefore, the Court should dismiss the case under 28 U.S.C. §

1915(e)(2)(B)(i). See Motion at 3-4. They also state that Palmer’s allegations “are

confusing, chronologically inconsistent and internally contradictory,” id. at 5, and his

claims are implausible, see id. at 6. Additionally, they assert that the Eleventh Amendment

bars Palmer’s claims for monetary damages against them in their official capacities. See

id. at 6. Finally, they maintain that Palmer is not entitled to compensatory and punitive

damages under 42 U.S.C. § 1997e(e) because he has not alleged any physical injury

resulting from Defendants’ acts and/or omissions. See id. at 6-10. In his Response,

Palmer states that Defendants’ three-strikes argument is without merit. See Response at

3-4. He also maintains that he states plausible Eighth and Fourteenth Amendment claims

against Defendants. See id. at 4-6. Finally, he states that he is not seeking monetary

damages against Defendants in their official capacities. See id. at 5.

V. Discussion

A. Three-Strikes

The Prison Litigation Reform Act (PLRA) amended 28 U.S.C. ' 1915 by adding the

following subsection:

(g) In no event shall a prisoner bring a civil action or

appeal a judgment in a civil action or proceeding under this

section if the prisoner has, on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an

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action or appeal in a court of the United States that was

dismissed on the grounds that it is frivolous, malicious, or fails

to state a claim upon which relief may be granted, unless the

prisoner is under imminent danger of serious physical injury.

28 U.S.C. ' 1915(g) (emphasis added). Section 1915(g), commonly referred to as the

“three strikes” provision, requires this Court to consider prisoner actions dismissed before,

as well as after, the enactment of the PLRA. The Eleventh Circuit has interpreted §

1915(g) to mean that dismissals on only three specific grounds constitute a strike: frivolity,

maliciousness, and failure to state a claim upon which relief may be granted. See Daker

v. Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278, 1284-85 (11th Cir. 2016).

In the Motion, Defendants assert that Palmer failed to disclose Palmer v. Brown,

4:19-cv-306-RH-HTC, a three-strikes dismissal, in his AC, and therefore, the case is due

to be dismissed. See Motion at 3-4. The United States District Court for the Northern

District of Florida adopted the Magistrate Judge’s July 11, 2019 Report and

Recommendation (Report) and dismissed the case under the three-strikes provision on

August 14, 2019. Palmer signed his AC on August 8th, and filed it on August 16, 2019.

The Northern District had not yet dismissed case number 4:19-cv-306-RH-HTC when

Palmer signed the AC on August 8th. Accordingly, to the extent Defendants seek

dismissal on this basis, the Motion is due to be denied.

B. Eight Amendment Excessive Use of Force

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the

defendant deprived him of a right secured under the United States Constitution or federal

law, and (2) such deprivation occurred under color of state law. Salvato v. Miley, 790 F.3d

1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011)

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(per curiam) (citation omitted); Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010)

(per curiam) (citations omitted). Additionally, the Eleventh Circuit requires “‘an affirmative

causal connection between the official’s acts or omissions and the alleged constitutional

deprivation’ in § 1983 cases.” Rodriguez v. Sec’y, Dep’t of Corr., 508 F.3d 611, 625 (11th

Cir. 2007) (quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)). In the

absence of a federal constitutional deprivation or violation of a federal right, a plaintiff

cannot sustain a cause of action against the defendant.

With respect to the appropriate analysis in an excessive use of force case, the

Eleventh Circuit has explained.

[O]ur core inquiry is “whether force was applied in a good faith

effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1,

112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). In determining

whether force was applied maliciously and sadistically, we

look to five factors: “(1) the extent of injury; (2) the need for

application of force; (3) the relationship between that need

and the amount of force used; (4) any efforts made to temper

the severity of a forceful response; and (5) the extent of the

threat to the safety of staff and inmates[, as reasonably

perceived by the responsible officials on the basis of facts

known to them]. . .” Campbell v. Sikes, 169 F.3d 1353, 1375

(11th Cir. 1999) (quotations omitted).

McKinney v. Sheriff, 520 F. App’x 903, 905 (11th Cir. 2013) (per curiam). “When

considering these factors, [courts] ‘give a wide range of deference to prison officials acting

to preserve discipline and security, including when considering decisions made at the

scene of a disturbance.’” Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (per

curiam) (quoting Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007)).

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“The Eighth Amendment’s prohibition of cruel and unusual punishments

necessarily excludes from constitutional recognition de minimis uses of physical force,

provided that the use of force is not of a sort repugnant to the conscience of mankind.”

Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (internal quotations and citations omitted).

Indeed, not “every malevolent touch by a prison guard gives rise to a federal cause of

action.” Id. at 9 (citation omitted). Notably, a lack of serious injury is relevant to the inquiry.

See Smith v. Sec’y, Dep’t of Corr., 524 F. App’x 511, 513 (11th Cir. 2013) (per curiam)

(quoting Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam)). The United States

Supreme Court explained.

“[T]he extent of injury suffered by an inmate is one factor that

may suggest ‘whether the use of force could plausibly have

been thought necessary’ in a particular situation.” Ibid.[4]

(quoting Whitley,[5] supra, at 321, 106 S.Ct. 1078). The extent

of injury may also provide some indication of the amount of

force applied. . . . An inmate who complains of a “‘push or

shove’” that causes no discernible injury almost certainly fails

to state a valid excessive force claim. Id., at 9 (quoting

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).[6]

Injury and force, however, are only imperfectly

correlated, and it is the latter that ultimately counts. An inmate

who is gratuitously beaten by guards does not lose his ability

to pursue an excessive force claim merely because he has

the good fortune to escape without serious injury.

Wilkins, 559 U.S. at 37-38.

4 Hudson, 503 U.S. at 7.

5 Whitley v. Albers, 475 U.S. 312 (1986).

6 See Johnson, 481 F.2d at 1033 (“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.”).

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Defendants seek dismissal of Palmer’s Eighth Amendment claims against them,

arguing that his assertions are too confusing, contradictory, and inconsistent to support a

plausible claim for relief. See Motion at 4-6. In his Response, Palmer asserts that his AC

is “understandable enough to notify” Defendants about his claims against them.

Response at 4. Viewing the facts in the light most favorable to Palmer, as the Court must,

the Court is not so convinced that his claims are subject to dismissal. Palmer has alleged

facts sufficient to state plausible claims under the Eighth Amendment. In reaching this

conclusion, the Court observes that Palmer asserts that Biascochea authorized and/or

directed the May 23, 2019 chemical spraying and cell extraction based on false

accusations that he had not complied with orders, resulting in Palmer suffering with hand,

head, and genital injuries. The Court declines to find that these allegations if proven would

fail to state a plausible claim for a violation of the Eighth Amendment. As such,

Defendants' Motion is due to be denied as to Palmer’s Eighth Amendment claims against

them.

C. Physical Injury Requirement

Next, the Court turns to Defendants’ assertions that Palmer is not entitled to

compensatory and punitive damages under 42 U.S.C. § 1997e(e) because he has not

alleged any physical injuries that are more than de minimis, resulting from Defendants’

acts and/or omissions. In Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015), the Eleventh

Circuit addressed the availability of compensatory and punitive damages as well as

nominal damages in suits brought by prisoners under § 1983. The Eleventh Circuit stated:

[Plaintiff]’s claim, however, is further governed by the Prison

Litigation Reform Act of 1995 [(PLRA)], Pub.L. No. 104-134,”

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§§ 802-10, 110 Stat. 1321, 1366-77 (1996). The PLRA places

substantial restrictions on the judicial relief that prisoners can

seek, with the goal of “reduc[ing] the number of frivolous

cases filed by imprisoned plaintiffs, who have little to lose and

excessive amounts of free time with which to pursue their

complaints.” Al-Amin v. Smith, 637 F.3d 1192, 1195 (11th Cir.

2011) (quoting Napier v. Preslicka, 314 F.3d 528, 531 (11th

Cir. 2002)). The section of the Act at issue here, 42 U.S.C. §

1997e(e), reads this way:

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. . . .

This Court has held that § 1997e(e) applies to all federal civil

actions, including constitutional claims brought under § 1983.

See Harris v. Garner (Harris II), 216 F.3d 970, 984-85 (11th

Cir. 2000) (en banc). . . .

In this case, [Plaintiff] did not allege any physical injury

. . . . Nevertheless, he sought “compensatory . . . punitive, and

nominal damages” from [Defendant]. Under the statute and

our caselaw, an incarcerated plaintiff cannot recover either

compensatory or punitive damages for constitutional

violations unless he can demonstrate a (more than de

minimis) physical injury. See Al-Amin, 637 F.3d at 1198

(punitive); Harris v. Garner (Harris I), 190 F.3d 1279, 1286

(11th Cir. 1999) (compensatory), reh'g en banc granted and

opinion vacated, 197 F.3d 1059 (11th Cir. 1999), opinion

reinstated in relevant part, 216 F.3d 970. However, we have

never had the opportunity in a published opinion to settle the

availability of nominal damages under the PLRA. We do

today, and we hold that nothing in § 1997e(e) prevents a

prisoner from recovering nominal damages for a constitutional

violation without a showing of physical injury.

Brooks, 800 F.3d at 1307-08. Thus, to satisfy § 1997e(e), a prisoner must assert physical

injury that is more than de minimis. However, the injury does not need to be significant.

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See Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F. App'x 555, 557 (11th Cir. 2014)

(citation omitted); Dixon v. Toole, 225 F. App’x 797, 799 (11th Cir. 2007).

Taking Palmer’s allegations as to his injuries as true, he asserts physical injuries

that are greater than de minimis. In the AC, Palmer asserts that the back of his head was

bleeding from the blows. See AC at 6. As relief, Palmer asks that the Court direct the

Florida Department of Corrections to “medically remove” the knot that “still remain[s]” on

his head, as a result of Defendants’ actions. Id. Additionally, Palmer asserts that

Defendant Hampton sexually assaulted him when he grabbed, pulled, and twisted

Palmer’s genitals. According to Palmer, he suffered pain while urinating as a result of the

genital injury. See id. at 6. The Court finds that Palmer’s alleged injuries cross §1997e(e)’s

de minimis threshold. See Thompson, 551 F. App’x at 557 n.3 (describing an approach

of asking whether the injury would require a free world person to visit a doctor or

emergency room) (citing Luong v. Hatt, 979 F. Supp. 481, 486 (N.D. Tex. 1997)). Thus,

Defendants’ Motion is due to be denied to the extent that the Court finds Palmer’s request

for monetary damages is not precluded under § 1997e(e) because he alleges that he

suffered physical injuries that are plausibly greater than de minimis.

D. Eleventh Amendment

Defendants also assert that, to the extent Palmer sues them in their official

capacities for monetary damages, they are entitled to Eleventh Amendment immunity.

See Motion at 6. Palmer acknowledges that he is not seeking monetary damages from

Defendants in their official capacities. See Response at 5. Accordingly, Defendants’

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Motion is due to be denied as moot as to their assertion that the Eleventh Amendment

bars Palmer’s claims for monetary damages against them in their official capacities.

In consideration of the foregoing, it is now

ORDERED:

1. Defendants’ Motion to Dismiss Amended Complaint (Doc. 16) is DENIED

as moot as to their assertion that the Eleventh Amendment bars Palmer’s claims for

monetary damages against them in their official capacities. Otherwise, the Motion is

DENIED.

2. Defendants, no later than June 1, 2020, shall answer or otherwise respond

to Palmer's claims.

DONE AND ORDERED at Jacksonville, Florida, this 29th day of April, 2020.

United States District Judge

sc 4/29

Le Samuel Palmer, FDOC #L41847

Counsel of Record

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