FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is the second motion for summary judgment brought on behalf of defendant Brian Glenn.*fn1 Plaintiff has filed his opposition to the motion and defendant Glenn has filed a reply.
I. Due Process Claim Involving Defendant Glenn
In findings and recommendation filed on February 6, 2009, recommending that defendant Glenn's first motion for summary judgment be denied, the undersigned summarized plaintiff's claim against this defendant as follows:
In his verified complaint, signed under the penalty of perjury, plaintiff alleges that defendant Glenn violated his rights to due process under the Fourteenth Amendment while plaintiff was incarcerated as a pretrial detainee at the Solano County Jail (hereinafter "County Jail"). (Compl. at 6: 16-19.) At the time of the alleged incident, defendant Glenn was a correctional officer at the County Jail. (Id. at 5.) Specifically, plaintiff claims that while being processed into the County Jail he requested, but was denied the use of, a properly working telephone as required by California Penal Code § 851.5(a).*fn2 (Id.) Plaintiff claims to have "repeatedly requested to use a phone and defendant Glenn would either ignore my requests or tell me to shut up." (Id.)
In his complaint, plaintiff sought the award of $10,000.00 in compensatory damages from defendant Glenn for the punishment he imposed on plaintiff and the emotional injury resulting from his denial of plaintiff's due process right to three phone calls upon his booking into the county jail. (Compl. at 45).
A. Defendant's Motion for Summary Judgment
In his most recent motion for summary judgment, defendant Glenn argues that 42 U.S.C. § 1997e(e)*fn3 bars plaintiff from recovering compensatory damages for the alleged infliction of emotional distress. In addition, defendant Glenn contends that there is no evidence that plaintiff suffered any physical injury as a result of his alleged refusal to give plaintiff access to a telephone upon booking in the jail. (Def.'s Mem. P. & A. at 4.)
B. Plaintiff's Opposition
Plaintiff advances three arguments in opposition to the pending summary judgment motion. First, plaintiff argues that he is seeking damages with respect to his "punishment" claim in addition to compensatory damages against defendant Glenn for the infliction of emotional injury. (Opp'n at 3-5.) Second, he asserts that § 1997e(e) is not applicable here because his claim is based on the Fourteenth Amendment. (Id.) Third, he argues that his complaint should be liberally construed to include a claim for nominal damages. (Id. at 4.) In this regard, he argues that "[e]ven though plaintiff did not specifically request nominal damages, if he were successful in this case, nominal damages could still be recovered." (Id. at 4-5.)
Defendant Glenn asserts that plaintiff has not claimed that he suffered physical injury as a result of defendant's alleged actions. (Reply at 2.) Instead, according to defendant Glenn, plaintiff alleges that he repeatedly requested to use the phone and that defendant Glenn simply ignored him or told plaintiff to shut-up. (Id.) Defendant Glenn notes that a mere claim of verbal abuse does not satisfy the physical injury requirement. (Id.) As to plaintiff's argument that he is seeking recovery for punishment imposed upon him, defendant argues that punishment is not synonymous with physical injury. (Id.) As for plaintiff's request for nominal damages, defendant Glenn argues that plaintiff's complaint is clear about the relief he seeks from each defendant and that plaintiff sought only declaratory relief, injunctive relief, compensatory damages and punitive damages. (Id. at 3.) Defendant Glenn points out that plaintiff made no request for nominal damages, and now ...