3:24-cv-00284•DELICES v. TUCKER
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1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION VILES DELICES, Plaintiff, vs. Case No.: 3:24cv284/LC/ZCB PRESTON TUCKER, Defendant. _____________________________/ REPORT AND RECOMMENDATION This is a pro se prisoner civil rights case filed under 42 U.S.C. § 1983. Plaintiff, Viles Delices, is an inmate of the Florida Department of Corrections (FDOC). His complaint asserts an Eighth Amendment claim of excessive force and a First Amendment claim of retaliation against FDOC Officer Preston Tucker. (Doc. 1). Plaintiff also asserts state law claims for intentional infliction of emotional distress and breach of fiduciary duty. (Id.). Defendant has moved for partial summary judgment (Doc. 43), and Plaintiff has responded in opposition (Doc. 46). For the reasons below, Defendant’s motion for partial summary judgment should be granted in part and denied in part. Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 1 of 19
2 I. Factual Background A. Plaintiff’s version of events1 On July 4, 2020, at around 1:30 a.m., Plaintiff was in his cell at Santa Rosa Correctional Institution. (Doc. 1 at 3-4). He claims an officer came to his cell, told him to pack up his property, and exit his cell. (Id. at 4). As Plaintiff exited his cell, he claims he “was met by Defendant Tucker,” who ordered him to submit to hand restraints (Id. at 4-5). Plaintiff claims he complied and was handcuffed with his hands behind his back. (Id. at 5). Defendant then escorted Plaintiff outside of the dormitory. (Doc. 32-1 at 1). Defendant told Plaintiff he could “make all [of] this stop if Plaintiff drop[ped] the lawsuit against” Defendant’s fellow officers. (Id.). Plaintiff refused. (Id.). Plaintiff alleges Defendant then became “aggressive” and “used his knee to strike Plaintiff in the back of [Plaintiff’s] left knee.” (Doc. 1 at 5). Plaintiff claims he fell to his knees. (Id.). Plaintiff alleges Defendant then “repeatedly kicked” Plaintiff in the 1 Plaintiff’s version of events is taken from his complaint (Doc. 1) and affidavit attached to his motion for summary judgment (Doc. 32-1), which were signed under penalty of perjury. Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 2 of 19
3 back of his legs and slammed his face into the fence. (Id.). Defendant allegedly refused to take Plaintiff to medical for an assessment after the attack. (Id.). Plaintiff claims that he suffered “multiple contusions” and lacerations to the back of his legs and knees, lacerations to his lips, and abrasions to his face and forehead. (Id.). Plaintiff states that a nurse came to assess him later, but she refused to document his injuries because Defendant was a supervisor at the prison. (Doc. 32-1 at 2). After the incident, Plaintiff received a disciplinary report. (Doc. 1 at 6). Plaintiff claims Defendant fabricated this report in retaliation for Plaintiff’s lawsuit against fellow FDOC officers. (Id. at 6-7). According to Plaintiff, Defendant used excessive force in violation of the Eighth Amendment and retaliated against him in violation of the First Amendment. (Id. at 4-7). He also brings state law claims for intentional infliction of emotional distress and breach of fiduciary duty. (Id. at 8-9). Plaintiff seeks nominal, compensatory, and punitive damages. (Id. at 9-10). Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 3 of 19
4 B. Defendant’s version of events Defendant tells a different story about what happened. Defendant states that he has no recollection of interacting with Plaintiff on July 4, 2020, but Defendant disputes that he has ever threatened, intimidated, denied medical treatment to, or used force against a prisoner for filing a lawsuit against himself or fellow colleagues. (Doc. 35-2). Defendant has also submitted Plaintiff’s disciplinary report.2 (Doc. 35-1). The disciplinary report states that on July 4, 2020, Defendant was called to Plaintiff’s dormitory due to Plaintiff refusing to go to his assigned cell. (Doc. 35 at 2; Doc. 35-1 at 1). While counseling Plaintiff about returning to his cell, Defendant claims Plaintiff stated “I’m not 2 In considering a summary judgment motion, a court may only consider evidence that is admissible or that could be presented in an admissible form. Denney v. City of Albany, 247 F.3d 1172, 1189 n.10 (11th Cir. 2001). The disciplinary report, as an out of court statement, is hearsay that cannot be used to prove the truth of the matter asserted in the report unless a hearsay exception applies. Fed. R. Evid. 801(c); see also Santos v. White, 18 F.4th 472, 477 (5th Cir. 2021) (recognizing the prison disciplinary reports submitted by defendants were hearsay that could not be offered to prove the truth of the matter asserted). Defendant has not offered an exception to the hearsay rule that applies to the disciplinary report. Therefore, the Court has only relied on Defendant’s declaration in deciding Defendant’s summary judgment motion and has not considered the disciplinary report. Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 4 of 19
5 going back in that cell. I’m going to f*** someone up.” (Id.). Plaintiff was found guilty of the disciplinary charge for a spoken threat. II. Summary Judgment Standard Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. At bottom, the summary judgment question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. When answering that question, courts view the evidence in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 380 (2007). But the nonmoving party bears the burden of coming forward with sufficient evidence on each element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A mere “scintilla” of evidence is insufficient to meet that burden. Young v. City of Palm Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 5 of 19
6 Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004). Likewise, speculation or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). III. Discussion In his motion for partial summary judgment, Defendant argues that: (1) Plaintiff is not entitled to compensatory damages; (2) Plaintiff fails to state a claim for breach of fiduciary duty; (3) Plaintiff’s nominal damages should be limited to $1; and (4) Plaintiff is not entitled to punitive damages. (Doc. 43). The Court will address each argument in turn. A. Compensatory Damages Defendant first argues that Plaintiff is not entitled to compensatory damages because Plaintiff has not shown that he suffered more than a de minimis injury from the alleged excessive force. The Court agrees. The Prisoner Litigation Reform Act of 1995 states in relevant part: “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 . . . .” 42 U.S.C. 1997e(e). This provision Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 6 of 19
7 “does not prohibit all requests for damages, only those brought ‘for mental or emotional injury . . . without a prior showing of physical injury.’” Hoever v. Marks, 993 F.3d 1353, 1358 (11th Cir. 2021) (quoting 42 U.S.C. § 1997e(e)). Although § 1997e(e) does not define “physical injury,” the Eleventh Circuit requires that a plaintiff allege a physical injury that is greater than de minimis but it need not be significant. Thompson v. Smith, 805 F. App’x 893, 900-01 (11th Cir. 2020). But “[t]he meaning of the phrase ‘greater than de minimis’ . . . is far from clear.” Chatham v. Adcock, 334 F. App’x 281, 284 (11th Cir. 2009). For instance, mere discomfort associated with confinement is de minimis. Dixon v. Toole, 225 F. App’x 797, 799 (11th Cir. 2007); see also Furman v. Warden, 827 F. App’x 927, 933 (11th Cir. 2020) (recognizing that “routine discomfort is part of the penalty that criminal offenders pay for their offenses against society”) (cleaned up). Injuries that are greater than de minimis often “go beyond ‘routine discomfort’ and often include injuries requiring medical attention or resulting in permanent injury.” Id. (collecting cases). Generally, minor abrasions, cuts, and bruises that do not require medical treatment are de minimis injuries. See, e.g., Mann v. McNeil, Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 7 of 19
8 360 F. App’x 31, 32 (11th Cir. 2010) (holding the injuries the plaintiff complained of—“including the vague injuries to his back, the scrapes and marks on his knees and legs”—were de minimis injuries); Nolin v. Isbell, 207 F.3d 1253, 1258 n.4 (11th Cir. 2000) (holding bruises received during an arrest were non-actionable de minimis injury); Luong v. Hatt, 979 F. Supp. 481, 486 (N.D. Tex. 1997) (“A physical injury is an observable or diagnosable medical condition requiring treatment by a medical care professional. It is not a sore muscle, an aching back, a scratch, an abrasion, a bruise, etc., which lasts even up to two or three weeks.”). Here, Plaintiff alleges he suffered from contusions to the back of his legs and knees, lacerations to his knees and lips, and abrasions to his face and forehead. (Doc. 1 at 5). Although Plaintiff states he requested a medical evaluation after the incident, he does not allege that he required medical attention for these injuries. Indeed, it appears from the record that these injuries healed on their own without medical intervention. Plaintiff did not submit a sick call until August 23, 2020, over a month after the incident, and none of his sick call requests after the incident contained complaints for any type of contusion, laceration, or abrasion. (Doc. 43-3 at 212, 216, 217, 224, Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 8 of 19
9 228, 234). These are the types of de minimis injuries that prevent Plaintiff from seeking compensatory damages under § 1997e(e). See, e.g., Staten v. Barlow, No. 3:17cv697/LC/EMT, 2019 WL 1386930, at **7-9 (N.D. Fla. Mar. 13, 2019) (concluding that lacerations on plaintiff’s face, a swollen lower lip, and hematoma on plaintiff’s forehead that fully healed within two weeks were de minimis injuries under § 1997e(e)), adopted by 2019 WL 1383801. The Eleventh Circuit’s decision in Pierre v. Padgett, 808 F. App’x 838 (11th Cir. 2020), is instructive. In Pierre, the plaintiff alleged that officers “violated his First, Eighth, and Fourteenth Amendment rights by using excessive force against him in retaliation for his filing of grievances.” Id. at 840. The plaintiff claimed the officers “attacked him without provocation during [a] transfer, hitting the back of his head, dropping him to the ground, and then punching, kicking, dragging, and pepper-spraying him while he was down.” Id. He sought compensatory damages for emotional pain and suffering. Id. At the summary judgment stage, the defendants argued that the plaintiff could not recover compensatory damages because he had not suffered a physical injury within the meaning of § 1997e(e). Id. at 840-41. In response, the plaintiff Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 9 of 19
10 provided his Post-Use-of-Force-Exam Record showing that he “had several abrasions, some bruising, a small amount of blood in his right nostril, two small nodules over and behind his right ear, and some redness and burning on his face caused by a chemical agent.” Id. at 841. The exam also noted that the plaintiff complained of lower back and neck pain, but no redness, bruising, swelling or other deformity was noted. Id. The district court ruled that the plaintiff’s injuries were de minimis, and, as such, the plaintiff could not recover compensatory damages under § 1997e(e). Id. at 841. On appeal, the Eleventh Circuit affirmed the district court, explaining that the plaintiff suffered “only scrapes, scratches, and minor bruising or swelling,” which “are not atypical nor usually noteworthy in the ordinary course of daily life.” Id. at 843. The court further characterized the plaintiff’s injuries as “insignificant” and noted that plaintiff’s injuries “healed without the need for any medical treatment.” Id. The same conclusion is warranted here. Plaintiff allegedly suffered only minor bruising, abrasions, and lacerations that appear to have healed without the need for medical treatment. Such injuries “are not Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 10 of 19
11 atypical nor usually noteworthy in the ordinary course of daily life.” Id. at 843. During his deposition, Plaintiff also alleged he had increased pain in his left knee and reduced distance vision resulting from the incident. (Doc. 43-4 at 29-30). Defense counsel asked Plaintiff what injuries he suffered from the incident. (Id. at 29). Plaintiff responded: “I suffer cuts, . . . I don’t have a long vision no more, because I can’t see that far and I have injury to my knee. I still feel pain to my knees.” (Id. at 29-30).3 Turning first to Plaintiff’s allegation that he suffered a knee injury from the July 4, 2020, interaction with Defendant. As mentioned earlier, Plaintiff did not submit a sick call request until August 23, 2020. (Doc. 43-3 at 234). In this sick call, Plaintiff complained of ongoing back pain that caused a sharp pain in his leg. (Id.). Although Plaintiff claimed in sick calls that his pain did not start until or got worse after July 4, 2020, the record belies his claim. (Id. at 224, 234). A review of Plaintiff’s medical records shows that Plaintiff began complaining of continued back pain, which often included sharp pain in his legs, since January 2019. (Doc. 43-3 at 245, 250, 335, 340, 343, 346, 349, 352, 355, 359). In his 3 These injuries are not included in Plaintiff’s complaint. (Doc. 1). Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 11 of 19
12 previous sick calls, Plaintiff blamed his pain on a prior use of force from December 27, 2018. (Id.). Plaintiff’s complaints before July 4, 2020, were nearly identical to his complaints after July 4, 2020. Indeed, from October 2019 to December 2019, Plaintiff submitted multiple sick calls a month about his back, including sharp pain in his legs. That was not the case after July 4, 2020. (Id. at 216, 217, 224, 228, 234). Despite Plaintiff’s claims of worsening pain, the treating medical professionals found that no additional medical treatment was warranted. Plaintiff was routinely provided over the counter pain medication—such as Acetaminophen or Ibuprofen—and was found to have normal gait and no swelling on his back both before and after July 4, 2020. (Id. at 222, 226, 232, 243, 248, 333). Therefore, Plaintiff’s “allegations of periodic worsening pain fail to edge his claim of physical injury over the de minimis threshold[.]” Staten, 2019 WL 1386930, at *8; see also Quinlan v. Pers. Transp. Servs. Co., 329 F. App’x 246, 248-49 (11th Cir. 2009) (holding pre-trial detainee’s complaints of temporary chest pain, headache, and difficulty breathing while in transport van, as well as subsequent “continuous back pain in [his] lower back that periodically cause[d] [him] to walk hunched over” were de minimis physical injuries Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 12 of 19
13 under § 1997e(e), because none of the conditions required immediate medical attention or evidenced physical injury besides discomfort). The record similarly belies Plaintiff’s allegations of loss of vision from the July 4, 2020, altercation. Plaintiff’s complaints of vision problems began in 2015, five years before the incident underlying his complaint in this case. (Doc. 43-3 at 315, 456). Notably, on October 3, 2020, Plaintiff had a periodic eye screening where he indicated that his vision had not changed since his last visit. (Id. at 447). Plaintiff’s last optometry visit took place November 2, 2018. (Id. at 376-78). Thus, Plaintiff’s conclusory and unsupported statement from his deposition that Defendant’s actions caused vision loss is insufficient to establish a genuine issue of material fact as to whether he suffered more than a de minimis injury. Accordingly, the Court agrees with Defendant that Plaintiff is not entitled to compensatory damages for any emotional or mental injuries that allegedly resulted from this incident. B. Breach of Fiduciary Duty Next, Defendant argues he is entitled to summary judgment on Plaintiff’s breach of fiduciary duty claim under Florida law. Defendant Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 13 of 19
14 argues he owed no fiduciary duty to Plaintiff, nor did he breach any such duty. (Doc. 43 at 13-14). Plaintiff does not substantively respond to this argument in his response to Defendant’s motion for summary judgment. The Florida Supreme Court has characterized a fiduciary relationship in the following manner: The relation and duties involved need not be legal; they may be moral, social, domestic or personal. If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief. The origin of the confidence is immaterial. Doe v. Evans, 814 So. 2d 370, 374 (Fla. 2002) (cleaned up). The court further explained that “‘[a] fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of that relation.’” Id. (quoting Restatement (Second) of Torts § 874 cmt. B (1979)). Here, Plaintiff has only made conclusory allegations that Defendant owed him a fiduciary duty. He points to no statute or caselaw establishing a fiduciary duty between a prisoner and a corrections officer. Nor has he alleged that there was a relationship of trust and confidence between him and Defendant or that Defendant was under a duty to act Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 14 of 19
15 for his benefit. Additionally, this Court has been unable to find any Florida or federal case finding a fiduciary relationship existed between a corrections officer and prisoner. Because Plaintiff offers nothing more than conclusory allegations that Defendant owed him a fiduciary duty, Defendant is entitled to summary judgment on Plaintiff’s claim for breach of fiduciary duty. See Green v. Crews, No. 4:14cv395/MW/CAS, 2014 WL 5419873, at *3 (N.D. Fla. Oct. 23, 2014) (recommending dismissal of plaintiff’s “conclusory” claim for breach of fiduciary duty when plaintiff did “not allege that any specific duty owed to him ha[d] been violated”). C. Nominal Damages Defendant next requests that Plaintiff be limited to nominal damages of $1.00 should Plaintiff be successful on his claims at trial. Nominal damages are “a trivial sum awarded for symbolic, rather than compensatory, purposes.” Flanigan’s Enters. Inc. v. City of Sandy Springs, 868 F.3d 1248, 1255 (11th Cir. 2017), abrogated on other grounds by Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass’n, Inc., 115 F.4th 1266 (11th Cir. 2024). There is not a consensus, however, on an exact amount that nominal damages should be. It Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 15 of 19
16 appears the amount can vary, from one dollar to one hundred dollars. See, e.g., Carey v. Piphus, 435 U.S. 247, 266-67 (1978) (limiting nominal damages to $1); Eleventh Circuit Pattern Jury Instructions (Civil Cases) Civil Rights Constitutional Claims Instruction 5.13 (“If [name of plaintiff] has failed to prove that [he/she] suffered more than a minimal physical injury, then you must award nominal damages of $1.00.”)4; KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1262 (11th Cir. 2006) (affirming “the award of nominal damages in the amount of $100).5 “What is clear is that such an award must be of a trivial or nominal amount.” Jordan v. Fewell, No. 4:18cv149/RH/CAS, 2019 WL 5460199, at *1 (N.D. Fla. Sept. 26, 2019), adopted by 2019 WL 5457996 (Oct. 24, 2019). Because liability has yet to be established, the Court need not determine the precise amount of nominal damages Plaintiff could be 4 “Although generally considered a valuable resource, reflecting the collective research of a panel of distinguished judges, [the pattern jury instructions] are not binding; Eleventh Circuit case law takes precedence.” United States v. Dohan, 508 F.3d 989, 994 (11th Cir. 2007) (cleaned up). 5 In KH Outdoor, LLC v. City of Trussville, the Eleventh Circuit affirmed the award of $100 in nominal damages but expressly declined to address whether $100 was excessive because the parties did not raise the issue on appeal. 465 F.3d at 1262 n.2. Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 16 of 19
17 awarded if he prevails at trial. Instead, the Court believes it is appropriate to defer ruling on that issue until the time of trial. See, e.g., Malone v. Wynn, No. 5:23cv74/MCR/MJF (Doc. 109) (recommending denying defendant’s request to limit plaintiff’s recovery to only $1.00 in nominal damages and deferring the issue until trial); Jordan, 2019 WL 5460199, at **1-2 (refusing to decide the precise amount plaintiff would be entitled to in nominal damages, but recognizing the amount may not exceed $100). D. Punitive Damages Finally, Defendant argues Plaintiff’s request for punitive damages is statutorily barred by 18 U.S.C. § 3626. (Doc. 43 at 15-22). Courts in this District and others across the country have rejected this argument. See, e.g., Blake v. Ortega, No. 3:23cv8554/LC/HTC, 2024 WL 2000107, at *4 (N.D .Fla. Mar. 18, 2024), adopted by, 2024 WL 1996014 (N.D. Fla. May 6, 2024) (rejecting defendants’ argument that § 3626 “imposes a categorical prohibition on an award of punitive damages”); Jones v. Eustice, No. 5:23cv140/TKW/MJF, 2024 WL 4026180, at *1 (N.D. Fla. Sept. 3, 2024) (same); Hart v. Hardbower, No. 5:23cv75/TKW/MJF, 2024 WL 4495507, at *1 (N.D. Fla. Oct. 15, 2024) (adopting the magistrate Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 17 of 19
18 judge’s recommendation “that 18 U.S.C. § 3626 ‘does not impose a categorical prohibition on an award of punitive damages’”); Miller v. Willis, No. 3:21cv832, 2024 WL 2815641, at *6 (M.D. Fla. June 3, 2024) (rejecting defendants argument that § 3626(a)(1)(A) bars punitive damages); Christensen v. Rouselle, No. 3:22cv976, 2024 WL 4932768, at *7 (M.D. Fla. Dec. 2, 2024) (same); Brown v. Semple, No. 3:16cv376, 2018 WL 4308564, at *14 (D. Conn. Sept. 10, 2018) (same). For the reasons articulated in those decisions, the Court rejects the argument that Plaintiff is statutorily barred from recovering punitive damages. IV. Conclusion For the reasons above, it is respectfully RECOMMENDED that: 1. Defendant’s motion for partial summary judgment (Doc. 43) be GRANTED in part to the extent that Plaintiff’s breach of fiduciary duty claim be dismissed and his claim for compensatory damages resulting from mental or emotional harm be dismissed. 2. Defendant’s motion for partial summary judgment (Doc. 43) be DENIED in part to the extent that it sought dismissal of the punitive damages claim and a limitation of the amount of nominal damages Plaintiff could receive at trial. Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 18 of 19
19 3. This matter be referred back to the undersigned for further proceedings. At Pensacola, Florida this 21st day of January 2026. /s/ Zachary C. Bolitho Zachary C. Bolitho United States Magistrate Judge Notice to the Parties Objections to these proposed findings and recommendations must be filed within fourteen days of the date of this Report and Recommendation. Any different deadline that may appear on the electronic docket is for the Court’s internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. Case 3:24-cv-00284-MCR-HTC Document 48 Filed 01/21/26 Page 19 of 19
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