Opinion
4:21-CV-130-CDL-MSH
04-13-2022
MICHAEL A. GLOVER, Plaintiff, v. Warden REAGAN BLACK, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendants' motion to dismiss Plaintiff Michael Glover's amended complaint (ECF Nos. 47, 46). For the reasons explained below, it is recommended that the motion be granted in part and denied in part.
Prior to Glover filing his amended complaint, Defendants moved to dismiss his recast complaint (ECF Nos. 40, 25). The Court recommends that Defendants' first motion to dismiss (ECF No. 40) be DENIED AS MOOT.
BACKGROUND
Glover's claims arise from his confinement at Rutledge State Prison (“RSP”) in Columbus, Georgia. Recast Compl. 6, ECF No. 25. Glover alleges his exposure to Covid-19 at RSP amounted to cruel and unusual punishment in violation of the Eighth Amendment. Id. at 6-9. Glover states that he provided a copy of Centers for Disease Control (“CDC”) guidelines for preventing the spread of Covid-19 to Defendants Warden Reagan Black and Deputy Warden Lithia Burks, but they failed to implement these guidelines. Id. at 6, 8, 9. For example, Black, various nurses, and other staff did not wear masks or face shields when they travelled from dorm to dorm, including going from the Covid-19-positive dorm (dorm J-4) to other dorms. Id. at 6, 8, 11, 13. Glover states that staff at RSP were not required to wear masks. Id. at 11. Prison authorities-including Defendants-failed to stagger mealtimes, so all inmates were in the dining hall at the same time. Recast Compl. 11; Am. Compl. 8. They failed to require staff to disinfect the dining hall after Covid-19-positive inmates had been there. Recast Compl. 11. The cells were not sanitized even though inmates were routinely moved from cell to cell. Id. Additionally, hand sanitizer was not available for the prisoners. Id. at 12. Finally, Glover complains that the Defendants were responsible for his placement for nine days in dorm J-3, which is next dorm J-4, the Covid-19-positive dorm. Id. at 8-9, 13; Am. Compl. 8. He states that nurses walked from J-4 to J-3 and, therefore, “the asymptomatic spread of this virus could have occurred.” Recast Compl. 13. According to Glover, ten staff members at RSP had Covid-19 and some prisoners died. Id. at 8-9, 11. He alleges his exposure to Covid-19 “mentally damaged” him. Id. at 10. Glover requests $350,000 in compensation “for being [exposed] in such a high-risk area for 9 days.” Id.
The Court recognizes that an amended complaint generally supersedes the original complaint. See Fritz v. Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356, 1358 (11th Cir. 1982). In this case however, Glover refers extensively to his recast complaint. See Am. Compl. 3, 5, 8, ECF No. 46. Thus, it appears he intends for the allegations in his amended complaint to incorporate-not supersede-those in his recast complaint. See Varnes v. Local 91 Glass Bottle Blowers Ass'n, 674 F.2d 1365, 1370 n.6 (11th Cir. 1982) (“As a general rule, an amended complaint supersedes and replaces the original complaint unless the amendment specifically refers to or adopts the earlier pleading.”). In light of this, and Glover's pro se status, the Court will refer to both Glover's recast and amended complaints. See Horton v. HSBC Bank, No. 1:11-cv-3210-TWT, 2013 WL 2452273, at *2 n.2 (N.D.Ga. June 5, 2013) (considering pro se plaintiff's original and amended complaint since it was “clear” he intended to “incorporate the allegations of his original Complaint into his Amended Complaint”).
In his recast complaint, Glover uses the word “they” when describing actions by prison officials. Recast Compl. 11. In his amended complaint, Glover clarifies that this term includes Defendants. Am. Compl. 8.
Glover also requests that the Court reprimand or suspend Burks. Recast Compl. 10. The Court previously explained to Glover that it cannot grant that relief. Order 5, Oct. 22, 2021 (citing Willis v. O'Berry, No. CV410-050, 2010 WL 4273334, at *2 (S.D. Ga. June 22, 2010) (stating that “the Court does not have the authority to intervene in . . . administrative decisions, so it cannot order that the officers involved be demoted or fired”)). Glover requests no other injunctive relief. Therefore, the only pending claim for relief is one for monetary damages.
The Court received Glover's original complaint on January 7, 2021 (ECF No. 1). Because his original complaint failed to state a claim against a named defendant, the Court ordered him to recast. Order 6, Aug. 31, 2021, ECF No. 19. The Court received his recast complaint on September 17, 2021 (ECF No. 25). After preliminary review, his Eighth Amendment claims against Black and Burks were allowed to proceed for further factual development. Order 6, Oct. 22, 2021, ECF No. 28. Defendants moved to dismiss Glover's recast complaint on January 24, 2022 (ECF No. 40). The Court received Glover's amended complaint on February 7, 2022, and Defendants moved to dismiss it on February 22, 2022 (ECF Nos. 46, 47). Glover timely responded to Defendants' motion, and Defendants filed a reply (ECF Nos. 51, 52, 59). Defendants' motion is ripe for review.
DISCUSSION
Defendants move to dismiss, contending Glover 1) failed to exhaust his administrative remedies, 2) fails to state a claim, 3) cannot recover monetary damages against them in their official capacities, and 4) cannot recover monetary damages against them because he suffered no physical injury. Defs.' Br. in Supp. of 2d Mot. to Dismiss Am. Compl. 2-9, ECF No. 47-1. The Court agrees that Glover failed to exhaust his administrative remedies and recommends dismissal on that basis. In the event this recommendation is not adopted, however, the Court will also address Defendants' remaining grounds for dismissal.
I. Exhaustion
A. Exhaustion Standard
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). When a grievance procedure is provided for prisoners, “an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added). “To exhaust administrative remedies in accordance with the PLRA, prisoners must properly take each step within the administrative process. If their initial grievance is denied, prisoners must then file a timely appeal.” Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (internal citation and quotation marks omitted). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The critical function of the grievance process is that it provides the institution with notice of a problem such that they have an opportunity to address the problem internally.” Toenniges v. Ga. Dep't of Corr., 600 Fed.Appx. 645, 649 (11th Cir. 2015) (per curiam).
The argument that a plaintiff has failed to satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant, 530 F.3d at 1375 (“[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]”). Further, since dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Id. at 1376. “[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's versions of the facts as true.” Id. If, taking plaintiff's facts as being true, the defendant is entitled to dismissal for failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not subject to dismissal at the first step . . . the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.” Id. The defendant bears the burden of proof during this second step. Id. In resolving the factual dispute, a Court is authorized to make credibility determinations. See Bryant, 530 F.3d at 1377-78 (finding that district court did not clearly err in determining that plaintiff's allegation that he was denied access to grievance forms was not credible); see also Whatley v. Smith, 898 F.3d 1072, 1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate's grievances was not filed).
A prisoner need only exhaust administrative remedies that are available. Ross v. Blake, 578 U.S. 632, 642 (2016). In Ross, the Supreme Court held that an administrative procedure is unavailable under the PLRA when either (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates[, ]” (2) it is “so opaque that it becomes, practically speaking, incapable of use[, ]” or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643-44. For a remedy to be available, it “must be capable of use for the accomplishment of its purpose.” Turner, 541 F.3d at 1084 (quotation marks omitted). The burden is on the defendant to show that an administrative remedy is available, but “once that burden has been met, the burden of going forward shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was subjectively and objectively unavailable to him.” Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020) (internal quotation marks omitted) (citing Turner, 541 F.3d at 1085). District courts must use the two-step Turner analysis when addressing the availability of the grievance process. See Jenkins v. Sloan, 826 Fed.Appx. 833, 839 (11th Cir. 2020) (per curiam) (directing district courts to apply “the two-step Turner test when addressing the question of exhaustion and the availability of the grievance process”).
B. RSP Administrative Procedures
Defendants have submitted the declaration of Tonjia Singleton, the Grievance Coordinator at RSP, to establish that administrative remedies are available at RSP. Singleton Decl. ¶ 2, ECF No. 47-2. Singleton's responsibilities include overseeing the grievance process at RSP and acting as custodian of institutional grievance records. Id. According to Singleton, RSP follows the Georgia Department of Corrections (“GDC”) Standard Operating Procedures (“SOPs”) regarding grievances. Id. ¶ 3.
The SOPs mandate that an inmate must follow a two-step process in order to exhaust his remedies: (1) file an original grievance no later than ten days from the date the inmate knew or should have known of the facts giving rise to the grievance; and (2) file an appeal to the Central Office. Singleton Decl. Exs., at 13. The warden has forty calendar days within which to respond to an original grievance, though a one-time ten-day extension may be granted. Id. at 16. An inmate may file an appeal within seven days after the warden issues a decision or after the time allowed for the warden to make a decision expires. Id. at 19. The Commissioner has 120 days within which to respond to a grievance appeal. Id. at 20. With certain exceptions not applicable here, an inmate “may file a grievance about any condition, policy, procedure, or action or lack thereof that personally affects the [inmate].” Id. at 9. A grievance, however, may not raise more than one “issue/incident.” Id. at 14.
Singleton's declaration and exhibits were attached as a single document (ECF No. 47-2). Therefore, instead of referring to the page numbers of each specific exhibit, the Court cites the electronic screen page number shown at the top of each page by the Court's CM/ECF software.
C. Plaintiff's Grievance
According to Singleton, Glover submitted a single grievance related to Covid-19 safety protocols at RSP on April 27, 2020. Singleton Decl. ¶¶ 11-12. This grievance identified eight violations of CDC, GDC, and Georgia Governor's guidelines put in place in March and April 2020, for preventing the spread of Covid-19. Singleton Decl. Exs., at 30-31, 35. These alleged violations were failures to 1) increase the availability of hand soap and sanitizers; 2) enhance sanitation and cleaning protocols; 3) enhance the screening process for inmates, including daily temperature checks; 4) enhance the screening process for contractors working at the prison, including requiring them to wear proper protective gear; 5) post notices regarding symptoms and exposure risk factors; 6) post notices to not play games such as cards; 7) provide information and education to inmates about Covid-19; and 8) prevent a crew of electrical workers from entering RSP on April 20, 2020, without proper face protection. Id. at 30-31. On May 9, 2020, Black rejected the grievance because it contained more than one issue. Id. at 33. Glover timely appealed the rejection on May 11, 2020. Id. at 28. On June 8, 2020, the Central Office also rejected the grievance for raising more than one issue. Id. at 34.
D. Analysis
Defendants contend Glover failed to exhaust his administrative remedies because he did not file a timely grievance about his nine-day confinement adjacent to a Covid-19positive dorm. Defs.' Br. in Supp. of 2d Mot. to Dismiss 6. They argue that his grievance history shows no grievance filed during any nine-day period in March 2020 and that even if his confinement ended on March 31, 2020, he did not file a grievance by April 10, 2020, as required by the SOPs. Id.; Singleton Decl. Exs., at 26. Further, Defendants contend that Glover's April 27, 2020, grievance omitted any mention of a nine-day period next to a Covid-19-positive dorm. Defs.' Br. in Supp. of 2d Mot. to Dismiss 6 n.2. Therefore, they argue that he did not properly exhaust his administrative remedies as required by the PLRA. Id. at 6.
Glover responds that he properly completed the two-step grievance process. Pl.'s Resp. to 2d Mot. to Dismiss 3-5, ECF No. 51; Pl.'s Suppl. Resp. to 2d Mot. to Dismiss 2 3, ECF No. 52; Pl.'s Suppl. Resp. to 2d Mot. to Dismiss Attach. 1, ECF No. 52-1; Am. Compl. 4-5, 8-9. Because at the first stage of the exhaustion analysis the Court must take Glover's version of the facts as being true, his claims cannot be dismissed for lack of exhaustion at this first step. Turner, 541 F.3d at 1082. Therefore, the Court will proceed to the second step of the Turner analysis and make specific findings of fact.
The only remaining claim for relief in this case is Glover's claim for monetary damages related to his nine-day detention in dorm J-3, which was adjacent to J-4, the Covid-19-positive dorm. Assuming it was timely, Glover's April 27, 2020, grievance, did not mention this nine-day period. It also did not mention his allegations that prison personnel moved back and forth between dorms without exercising appropriate protocols, including wearing masks. Instead, his grievance is vague and conclusory, listing broad CDC guidelines and alleging generally that RSP failed to follow them. Singleton Decl. Exs., at 30-31, 35. The only specific allegation is that a work crew came into the prison without wearing face masks. Id. at 31. A prisoner is “required to ‘provide as much relevant information as he reasonably can in the administrative grievance process.'” Williams v. Barrow, 559 Fed.Appx. 979, 986 (11th Cir. 2014) (per curiam) (quoting Brown, 212 F.3d at 1207). Glover's grievance failed to do that and failed to provide prison officials with “notice of a problem such that they ha[d] an opportunity to address the problem internally.” Toenniges, 600 Fed.Appx. at 649. Therefore, the Court recommends dismissing Glover's complaint for failure to exhaust his administrative remedies.
While Glover's narrative of events begins in March 2020 when he allegedly notified Defendants of Covid-19 guidelines, he never specifies exactly when he was housed in dorm J-3. Recast Compl. 6. Thus, the Court cannot determine whether his placement occurred within ten days prior to his April 27, 2020, grievance such that it would be timely under the SOPs. Defendants-who are represented by the Georgia Attorney General-would presumably have access to Glover's movement history and could show definitively when he was housed in J-3. The Court further notes that Glover's grievance was not rejected for untimeliness but for raising more than one issue. Singleton Decl. Exs. 33-34. Defendants do not cite a failure to abide by the one-issue rule as grounds for dismissal. Because the Court concludes Glover's grievance did not address the issues raised in his complaint, it need not address whether the rejection of his grievance for raising more than one issue rendered administrative remedies unavailable under the particular circumstances of this case. See Harvard v. Inch, 411 F.Supp.3d 1220, 1247-48 (N.D. Fla. 2019) (finding administrative remedy unavailable where grievance was improperly rejected for failing to comply with the one issue rule).
II. Failure to State a Claim
Defendants move to dismiss, in the alternative, for failure to state an Eighth Amendment claim. Defs.' Br. in Supp. of 2d Mot. to Dismiss 6-7. A complaint is subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure if it fails “to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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.” Id. Although the Court recommends dismissing of Glover's complaint for failure to exhaust his administrative remedies, it concludes he otherwise states a claim.
Glover's claims that prison officials have failed to adequately protect him from exposure to the coronavirus are scrutinized under the Eighth Amendment, which protects convicted prisoners from cruel and unusual punishment. Cf. Helling v. McKinney, 509 U.S. 25, 32-33 (1993) (analogizing claims based on exposure to high levels of environmental tobacco smoke to claims about “demonstrably unsafe drinking water” or “exposure of inmates to a serious, communicable disease”). An inmate's claims that prison officials are “knowingly exposing” inmates to a serious disease can state an actionable § 1983 claim. See Powers v. Snyder, 484 F.3d 929, 931 (7th Cir. 2007) (observing that “knowingly exposing a prisoner to hepatitis or other serious diseases” could “amount to cruel and unusual punishment in violation of the federal Constitution”). In order to prove such a claim, a prisoner must satisfy both an objective and subjective element. Helling, 509 U.S. at 35. Objectively, the prisoner must show “a substantial risk of serious harm.” Swain v. Junior, 961 F.3d 1276, 1285 (11th Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Subjectively, the prisoner must show that prison authorities demonstrated “deliberate indifference” to the risk. Id. To establish deliberate indifference, the prisoner must show “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.” Id.
The Court previously determined that Glover's recast complaint stated a claim for preliminary screening purposes. Order 5, Oct. 22, 2021. However, Defendants argue Glover fails to show either the objective or subjective elements of a deliberate indifference claim. Defs.' Br. in Supp. of 1st Mot. to Dismiss 12, ECF No. 40-1; Defs.' Br. in Supp. of 2d Mot. to Dismiss 7. The Court disagrees. As to the objective element, Glover alleges that RSP failed to follow safety protocols to prevent the spread of Covid-19. He provides numerous examples of such failures and states some prisoners at RSP died. Recast Compl. 6, 8, 11-13. This is sufficient to allege a substantial risk of serious harm. See Swain, 961 F.3d at 1285 (“Here, the defendants seem to agree-wisely, we think-that the risk of COVID-19 satisfies this [objective] requirement.”).
Defendants' second motion to dismiss appears premised on the amended complaint superseding the recast complaint. Defs.' Br. in Supp. of 2d Mot. to Dismiss 1. As discussed above, however, the Court concludes that Glover intended the amended complaint to incorporate or supplement the recast complaint, not supersede it. Therefore, the Court considers Defendants' arguments in their first motion to dismiss directed at the recast complaint.
Regarding the subjective component, Glover alleges in March 2020, he provided Defendants with a copy of CDC guidelines for preventing the spread of Covid-19. Recast Compl. 6. He further alleges that in their roles as Warden and Deputy Warden for Care and Treatment respectively, Black and Burks were responsible for setting the “rules” at RSP and yet failed to implement CDC protocols. Id. at 6, 8-9; Am. Compl. 3. This included guidelines regarding wearing of protective gear, staggering mealtimes, sanitization, and isolation of Covid-19-positive inmates. Recast Compl. 11-13; Am. Compl. 8. Additionally, Glover contends Black and Burks were “personally responsible” for his placement next to the Covid-19 positive dorm. Recast Compl. 8-9; Am. Compl. 3, 5-6. Finally, he alleges that Black and other members of staff would travel from dorm to dorm-including going from the Covid-19-positive dorm to other dorms-without wearing masks or face shields. Recast Compl. 6, 8, 11, 13. These allegations are sufficient to show Defendants' liability based on their personal involvement in exposing Glover to Covid-19 and their refusal to implement Covid-19 protocols. See Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (explaining that supervisory liability occurs either when the supervisor personally participates in the constitutional violation or a causal connection can be established between the supervisor's actions and the violation, including when the supervisor's improper custom or policy resulted in deliberate indifference to constitutional rights).
The only Covid-19-specific case cited by Defendants in their briefing is Swain, which did not address a motion to dismiss for failure to state a claim. Further, the Court cannot find any circuit court cases addressing the sufficiency of a Covid-19 claim. Some district courts have held that a generalized fear of contracting Covid-19 is insufficient to state a § 1983 claim. See, e.g., Fields v. Davis, No. 6:20cv423, 2022 WL 818746, at *6 (E.D. Tex. Feb. 24, 2022) (“Plaintiff's subjective fear of contracting Covid-19 is not sufficient to support a claim under the Eighth Amendment. It is well-settled that the general fear of contracting Covid-19 or that Covid-19 is spreading is insufficient to state a claim under section 1983.”), recommendation adopted by 2022 WL 811053 (E.D. Tex. Mar. 16, 2022). The Court has held that an inmate does not state a § 1983 claim where he alleges only a fear of an inmate assault instead of an actual assault. Shabazz v. Barrow, No. 7:05-cv-46-HL, 2006 WL 826712, at *3 (M.D. Ga. Mar. 29, 2006). However, the Court cited Babcock v. White, 102 F.3d 267, 273 (7th Cir. 1996) which specifically limited its holding to the context of inmate violence. Here, in light of Glover's allegations about Defendants' responsibility for establishing Covid-19 policies at RSP and disregard thereof, the Court concludes that he has alleged more than a generalized fear so as to survive a motion to dismiss.
III. Eleventh Amendment Immunity
Defendants move to dismiss Glover's claims against them in their official capacity because such claims are barred by the Eleventh Amendment. Defs.' Br. in Supp. of 2d Mot. to Dismiss 2-3. The Court agrees.
Defendants were employees of GDC at the time of the relevant events. GDC employees are entitled to Eleventh Amendment immunity for claims against them in their official capacities. “Official capacity suits for damages against employees of a state agency are suits against the state agency.” Ferguson v. Ga. Dep't of Corr., 428 F.Supp.2d 1339, 1352 (M.D. Ga. 2006). “A suit against a governmental entity which is considered an ‘arm of the state'-such as the [GDC]-is a suit against the State.” Id. (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70 (1989)). “[T]he Eleventh Amendment to the United States Constitution bars a § 1983 action against the State of Georgia and the [GDC] unless the State either consents to suit or waives its sovereign immunity with regard to § 1983 claims-neither of which has happened here.” Id. Glover's claims for monetary damages against Defendants in their official capacity are barred by the Eleventh Amendment, and Glover cannot recover monetary damages against Defendants in their official capacity.
Additionally, GDC employees, as state officials acting in their official capacities, are not considered “persons” for purposes of § 1983. Will, 491 U.S. at 71; see also Ferguson, 428 F.Supp.2d at 1352-53. Since § 1983 requires that a “person” deprive a plaintiff of his constitutional rights, the lack of a “person” in this case establishes an independent ground for the denial of Glover's claims. Will, 491 U.S. at 71. It is therefore recommended that Defendants' motion be granted on this ground and that Glovers claims against them in their official capacity be dismissed.
IV. Monetary Damages
Defendants move to dismiss Glover's claim for monetary damages. Defs.' Br. in Supp. of 2d Mot. to Dismiss 7-9. They contend he cannot recover monetary damages because he suffered no physical injury and because his “fear of contracting Covid-19 based on nine days of alleged exposure to the virus is . . . speculative.” Id. at 8-9.
Glover is clearly not entitled to recover compensatory damages for his fear of contracting Covid-19. He did not actually contract the virus and suffered no physical injuries. Instead, he alleges that he was “mentally damaged.” Recast Compl. 10. Thus, recovery for compensatory damages is barred. See 42 U.S.C. §1997e(e) (“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 ....”); Hoever v. Marks, 993 F.3d 1353, 1358 (11th Cir. 2021) (noting that §1997e(e) bars claims “for compensatory damages stemming from purely mental or emotional harms”); Ford v. Jacksonville Sheriff's Off., No. 3:20-cv-1220-BJD-JRK, 2021 WL 1627464, at *2 (M.D. Fla. Apr. 27, 2021) (finding plaintiff could not recover compensatory damages where his only claimed injury was “having feared contracting Covid-19”); Johnson v. Upton, No. 5:20-cv-138, 2021 WL 1705221, at *2 (S.D. Ga. Apr. 6, 2021) (recommending dismissal where plaintiff's “sole claim” was that “Defendants caused him to live in fear of contracting Covid-19, which is not a physical injury”), recommendation adopted by 2021 WL 1700464 (S.D. Ga. Apr. 29, 2021).
The issue remains, however, as to whether Glover could conceivably recover nominal damages. The Eleventh Circuit has held that nominal damages are recoverable for a constitutional violation even in the absence of a physical injury. Brooks v. Warden, 800 F.3d 1295, 1307-08 (11th Cir. 2015). Although Glover did not specifically request nominal damages in his complaint, that does not bar his recovery. See Furman v. Warden, 827 Fed.Appx. 927, 935 (11th Cir. 2020) (per curiam) (“For a non-lawyer, pro se litigant (at least), a plea for compensatory damages or for general damages, includes nominal damages: the greater includes the lesser.” (citing cases)).
Nominal damages would be $1.00. 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.”).
Defendants argue that Glover is not entitled to even nominal damages. Defs.' Br. in Supp. of 1st Mot. to Dismiss 9. However, the cases they cite to support their argument do not address nominal damages. Instead, those cases hold that inmates may not recover compensatory damages in an exposure case where there is no physical injury and only a fear of future harm. See Henderson v. Shehan, 196 F.3d 839, 849 (7th Cir. 1999) (holding that inmate exposed to second-hand smoke could not recover “monetary compensation for the mere ‘failure to prevent exposure to risk of harm'” (quoting Babcock, 102 F.3d at 272-73); Fontroy v. Owens, No. CIV.A. 86-4958, 1996 WL 571149, at *3 (E.D. Pa. Oct. 2, 1996) (noting in exposure-to-asbestos case that because § 1983 “does not specify whether damages are available for fear of future harm absent present physical injury, ” the district court must look to state law and concluding such recovery was barred as speculative under Pennsylvania law). Nominal damages, however, are not a compensation for a loss but “serve to ‘vindicate deprivations of certain absolute rights that are not shown to have caused actual injury.'” Brooks, 800 F.3d at 1308 (quoting Carey v. Piphus, 435 U.S. 247, 266 (1978)). Therefore, if Glover's complaint is not otherwise dismissed, the Court recommends that Defendants motion to dismiss-to the extent it seeks to bar recovery for nominal damages-be denied.
CONCLUSION
For the reasons explained above, it is recommended that Defendants' motion to dismiss (ECF No.47) be GRANTED IN PART AND DENIED IN PART. It is recommended that Glover's complaint be dismissed for failure to exhaust his administrative remedies. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. See M.D. Ga. L.R. 7.4. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
Glover has also filed a “motion for relief” that simply re-states his request for compensatory damages (ECF No. 38). The Court recommends this motion be DENIED AS MOOT.
The parties are hereby notified that, pursuant to 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.”
SO RECOMMENDED.