Click Back Button to Return to Publication
CHARLES LEROY MILLEDGE, Plaintiff - Appellant, v. RON McCALL, Chief of
Security, Defendant - Appellee, and SERGEANT FACTOR; MARK McKINNA, Warden;
MONTANO, Correctional Officer; SERGEANT MEDINA; JACK SEXTON, Deputy Warden;
MONDRAGON, Correctional Officer; JOHN DOE (1); JOHN DOE (7); JANEDOE (1), (2),
Defendants.
No. 01-1417
43 Fed. Appx. 196; 2002 U.S.
App. Lexis 14780
July 22, 2002, Filed
NOTICE:
RULES OF THE TENTH CIRCUIT COURT
OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE
RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
After examining the briefs and appellate record, this panel has
unanimously determined that oral argument would not materially assist in the
determination of this appeal. See FED. R. APP. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is ordered submitted without oral argument.
Charles Leroy Milledge, a
prisoner appearing pro se, filed an action for damages under 42 U.S.C. § 1983
against Ron McCall, a correctional officer of the Crowley County Correctional
Facility located in Colorado. Mr. Milledge alleged Mr. McCall ordered him
strip-searched in the presence of female correctional officers, thereby
depriving him of constitutional rights and causing embarrassment. Reasoning
that the Prison Litigation Reform Act prohibits prisoner suits that claim
mental or emotional injury absent a prior showing of physical injury, the
district court dismissed Mr. Milledge's complaint because no physical injury
was alleged. 42 U.S.C. § 1997e(e).
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
Mr.
Milledge's complaint contains numerous claims against Mr. McCall and others.
Only Mr. McCall was served, and he moved to dismiss the complaint against him
in accordance with FED. R. CIV. P. 12(b)(6)
for failure to state a claim upon which relief could be granted. The
district court dismissed all claims
against Mr. McCall. By later order, claims against unserved parties were also
dismissed but without prejudice.
This court reviews de novo a district court's grant of a motion to
dismiss under [*198] FED. R. CIV. P. 12(b)(6); all allegations contained in the
complaint are considered in the light most favorable to the nonmoving party,
and the motion should not be granted unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim that would entitle
him to relief. Stidham v. Peace Officer
Standards & Training, 265 F.3d 1144, 1149 (10th Cir. 2001). In this case,
we compare the factual assertions to the relevant statute in order to determine
if dismissal of the complaint was appropriate.
The
Prison Litigation Reform Act provides that "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). While Mr.
Milledge never asserted that he was subjected to physical injury by the strip
search, he now argues that the Prison Litigation Reform Act does not apply
because he was incarcerated in a private correctional facility.
Apart from the fact that the language
of 42 U.S.C. § 1997e(e) speaks in terms of a "jail, prison, or other
correctional facility," thereby contemplating institutions such as private
incarceration facilities, the paramount issue is not whether the institution is
a "prison," but whether Mr. Milledge is a "prisoner" as
defined by 42 U.S.C. § 1997e(h):
"As used in this section, the term 'prisoner' means 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." (emphasis added).
While the term
"facility" is not defined in 42 U.S.C. § 1997e, its meaning is
clarified in 42 U.S.C. § 1997(1)(A), a definitions section applicable to the
entire subchapter: "The term 'institution' means any facility or
institution .. . which is owned, operated, or managed by, or provides services
on behalf of any State or political subdivision of a State . . . ." The
Crowley County Correctional Facility provides services on behalf of the State
of Colorado and also, at least in the case of Mr. Milledge, on behalf of the
State of Wyoming. Therefore, Mr. Milledge is a prisoner lawfully held within a
facility as defined by 42 U.S.C. § 1997e(h), and the terms of 42 U.S.C. §
1997e(e) consequently apply to his claim. As such, Mr. Milledge cannot pursue
his claim for damages because no physical injury has been shown.
We take note of this court's
earlier ruling that the limitations imposed by 42 U.S.C. § 1997e(e) do not bar
a claim for injunctive or declaratory relief based only on emotional injury.
Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 808 (10th Cir. 1999). The
court there liberally construed the pleadings to find an implicit claim for
injunctive relief, and held that if a plaintiff's claim was barred by §
1997e(e), he may still seek redress of emotional injury through injunctive
relief. Mr. Milledge does not expressly seek injunctive or declaratory relief,
and no facts asserted in his complaint could reasonably support such a
construction.
Likewise, a claim for nominal
damages cannot be reasonably inferred from Mr. Milledge's complaint. While the
United States Supreme Court has held that
nominal damages are recoverable on a constitutional claim of deprivation
of procedural due process without proof of actual injury, that holding is
inapplicable here because procedural due process is not implicated, and even
the most generous reading of Mr. Milledge's pleadings could not support a claim
for nominal damages. Carey v. Piphus, [*199] 435 U.S. 247, 266-67, 55 L. Ed. 2d
252, 98 S. Ct. 1042 (1978).
On the other hand, Mr. Milledge
did pray for punitive damages; however, that claim must fail as well. While it
is true that a "right to procedural due process is 'absolute' in the sense
that it does not depend upon the merits of a claimant's substantive assertions
. . . ," a claim for punitive damages most certainly depends upon the
merits of the claimant's substantive assertions and is subject to the physical
injury requirement of 42 U.S.C. § 1997e(e). Carey at 266-67.
Additionally, the complaint contains numerous claims against others that
may also include Mr. McCall by implication, but because those claims do not allege
that Mr. Milledge acted as a participant, either directly or in a supervisory
role, Mr. McCall was properly dismissed as to those claims. Grimsley v. MacKay,
93 F.3d 676, 679 (10th Cir. 1996).
The
court notes that after Mr. McCall filed his Answer Brief, Mr. Milledge filed an
Amended Plaintiff-Appellant's Opening Brief. Putting substance over form, we
regard it as a reply brief and allow it to be filed and considered even though
untimely.
In
his briefs, Mr. Milledge raises issues regarding an order from the district
court dismissing unserved parties without prejudice. Significantly, that order
was entered after Mr. Milledge had filed his Notice of Appeal. We will only
consider the issue properly designated in Mr. Milledge's Notice of Appeal, i.e.,
the Order of Dismissal as to Ron McCall. The Federal Rules of Appellate
Procedure require that the notice of appeal designate the judgment, order, or
part thereof being appealed. FED. R. APP. P. 3(c)(1)(B). While the rules should
be liberally construed, a notice of appeal is ineffective as to orders entered
subsequent to the filing of the notice. Because there is no notice of appeal or
functional equivalent addressing the later order, this court is without
jurisdiction to consider the order dismissing unserved parties. Nolan v. United
States Dep't of Justice, 973 F.2d 843, 846-47 (10th Cir. 1992).
The
judgment of the district court dismissing the complaint against Ron McCall is
AFFIRMED. Mr. Milledge's Motion to Proceed in forma pauperis is granted, and he
shall be permitted and directed to make partial payments on fees and costs
authorized by the court as specified in 28 U.S.C. § 1915.
ENTERED FOR THE COURT
Terrence L. O'Brien
Circuit Judge
* This order and judgment is
not binding precedent except under the doctrines of law of the case, res
judicata and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Click Back Button to Return
to Publication