DELICES v. TUCKER

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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.
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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.
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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).
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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.
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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
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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
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“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,
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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,
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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
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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
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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).
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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
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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
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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
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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
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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.
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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
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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.
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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.
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