United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BERT W. MILLING, Jr., Magistrate Judge.
Plaintiff Kenneth Ray Goram, a probationer under the supervision of Mobile County Community Corrections Center, proceeding pro se and in forma pauperis, filed a complaint under 42. U.S.C. § 1983. This action was referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). After careful consideration of the pleadings on record, it is recommended that this action be dismissed without prejudice prior to service of process as frivolous pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(i), and as failing to state an adequate claim for recoverable damages pursuant to 42 U.S.C. § 1997e(e).
I. Facts and Proceedings
Based on the record before it, the Court summarizes the allegations as follows. Plaintiff names Probation Officer Lonnie Jefferson (hereinafter "Defendant Jefferson") as the only Defendant in this action. In conjunction with his Complaint, Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis (Doc. 2), which was granted, even though he was still required to pay a partial filing fee. (Doc. 4). Even though the Motion for Leave to Proceed In Forma Pauperis was granted, the review process required by 28 U.S.C. 1915A is ongoing in order to determine if the complaint is frivolous, malicious or fails to state a claim upon which relief may be granted.
On July 30, 2009, Plaintiff was convicted of "attempt to commit a controlled substance" and was sentenced to "15 years split 18 months." (Doc. 1 at 7). After what the Court gathers to have been a probation revocation, Plaintiff states that he "walked from the jail from being released" to report to his probation officer, Lonnie Jefferson. ( Id. at 4). Upon walking in his office, Plaintiff alleges Defendant Jefferson stated "another white boy, " and due to that statement, Plaintiff "felt like he didn't have an equal opportunity to complete the probation imposed" at his sentencing. ( Id. ). Plaintiff also contends that Defendant Jefferson stated in open court that Plaintiff was a "waist [sic] of time, " told Plaintiff's brother that he was a liar, and told Plaintiff's mother that "he didn't have to do a f*cken [sic] thing." (Doc. 1 at 4-6).
For relief, Plaintiff requests to "get the prejudice out of the probation office for everone [sic] can have equal opportunity and award Mr. Goram a payable settalment [sic] for the mental angerish [sic] of the situation $50, 000.00 cash prejudice act." (Doc. 1 at 8).
a. 42 U.S.C. § 1997e(e)
"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.), 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 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 addresses suits by prisoners and states in pertinent part that, "[n]o 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." § 1997e(e). This section 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. 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.), 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). Moreover, 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. Id.
Under § 1997e(e), a claim for nominal damages may proceed, but if such a claim were successful, the amount to be awarded would be only nominal. Id. Plaintiff requested $50, 000.00 in damages (Doc. 1 at 8), which is not a nominal damages request. See Carey v. Piphus, 435 U.S. 247, 266-67 (1978) (holding if plaintiffs were entitled to nominal damages for the mere violation, the damages should not exceed one dollar); Kyle v. Patterson, 196 F.3d 695, 697 (7th Cir. 1999) ("[N]ominal damages, of which $1 is the norm, are an appropriate means of vindicating rights whose deprivation has not caused actual, provable injury."); Qualls v. Santa Rosa County Jail, No. 3:10cv54/MCR/MD, 2010 WL 785646, at *3 n.1 (N.D. Fla. Mar. 4, 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"); Harrison v. Myers, CA No. 10-0566-KD-N, 2011 WL 3204372, at *7 (S.D. Ala. July 13, 2011) (unpublished) (finding that the prisoner's request of $2, 500 was not for nominal damages inasmuch as 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. Nov. 23, 2010) (unpublished) (finding that "$2, 000.00 surely surpasses the limit of what constitutes a minimal' amount of compensation by any definition of the term nominal'").
With no request for nominal damages, the remaining types of damages are compensatory and punitive damages. However, Plaintiff may only recover compensatory and punitive damages if he sustained an injury that is greater than de minimis . Harris v. Garner, supra, 190 F.3d at 1286. Though Plaintiff does not specifically identify his request for $50, 000.00 as being for either compensatory or punitive damages, rather a "payable settalment [sic] for the mental angerish, " the Court finds that even a liberal construction of Plaintiff's Complaint does not satisfy the "more than de minimus injury" inquiry to sustain a claim for compensatory or punitive damages as a result of being called "another white boy, " despite being Native American. In fact, Plaintiff does not identify any type of injury that he suffered at the hands of Defendant Jefferson; rather, his allegations are mere speculation and conjecture as to how he thinks he may be treated over the course of his probation. Such speculation and conjecture the Court finds to be conclusory and wholly unsupported by the record. It is well settled that conclusions cannot be taken as true and have no probative value in the litigation context. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); see also Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000)("[t]his court has consistently held ...