our call the case of matthew thompson versus the smith and others may please the court my name is chad done and i along with armand derfner represent matthew thompson the appellant in this case according to a jury mr thompson while housed at the liberty correctional institute in the state of florida was retaliated against by guards for exercising his st amendment right to grieve for better prison conditions this retaliation included taking m papers to this day they haven't been returned and the jury found that mr thompson was subjected to an unconstitutional spraying of o c spray pepper spray or poison gas the district court on motions for a new trial issued an order finding that the behavior of the defendants in the constitutional violations in this case were egregious despite this mr thompson as yet without a remedy to the serious constitutional violations that he suffered the district court would not permit the jury to award personal injury damages or compensatory damages or punitive damages the district court also read the prison litigation reform act to limit mr thompson's attorney's fees to fifteen dollars one hundred and fifty percent of the ten dollars nominal damages the jury was permitted to award the district court also did not award litigation expenses for the trial and finally the district court denied mr thompson an injunction to search for and report on the ultimate location and disposition of any of his legal records those four issues are presented in this case and ultimately what mr thompson is here pleading with you is to provide him a meaningful remedy for egregious constitutional violation i'll start st with the injury question there is there is no court in this country that has in a reported decision whether binding or persuasive found that injuries such as these are not compensable this there is one circuit case from judge bob's home circuit the th circuit called jennings versus mitchell it was decided in two thousand and four and it seems that that case has set many a judge on an errant path in this regard and jennings versus mitchell in a five or six paragraph opinion a pro se unrepresented prisoner went before the court complaining of a spring that he faced there are no facts described in the opinion and in that case in one sentence the court says that it finds that the spring of o c spray was de minimus it's an unpublished opinion from that point forward a number of other district courts ever lied upon that case and and lately on each other to conclude that the spraying with a poison gas is in fact not an injury under the prison litigation reform act but this court also has some decisions that are of import here the st is the dam lee case and in the daily cases court considered a number of challenges by a number of prisoners to prison conditions and one of those was the spraying of the spray and what the court found is that it didn't cause a permanent injury but nevertheless the court described at length the types of pain and anguish the types of injury that an inmate goes through when they're faced with being sprayed with o c it's not fair though to say that that case resolves the question the issue in that case was whether or not o c spray could be used constitutionally under any circumstances but this court's rationale for justifying the use of that spray is helpful because the court's rationale is that the spray is to be used in place of more lethal or perhaps more harmful force so if there is a justification for beating for example or or shooting with a service weapon the idea is that o c spray can be used to avoid those outcomes it is a less of an injury no doubt but it is not de minimu and this court has three opinions that essentially try to lay out what is demesne amiss the standard that this court has adopted to determine under the prison litigation reform act whether an injury is compensable as it has to be more than de minimu it need not be significant the three cases the st one is unreported it's called dixon versus tool it seems to collect a number of cases on that case this court said requiring an inmate to sleep on a concrete bunker is not a suffered some bruises in this court said that that was a de minimus injury counsel him in his view this would it would it be fair or would it be an appropriate judgment to say that not every pepper spray is more than de minimus but that some might be and that the proper standard would be that at least sometimes if the evidence is adequate it ought to go to the jury i found with my system learned clerks instructions in the case involving prophet paulson p a u l c i n which that's exactly what the judge did is that they struck did the jury that they should find whether or not the particular events amounted to more than de minimus but less than significant would that be an appropriate way to go with this yes in fact it's our position that this should be handled in the normal course and be left as a fact question for the jury to resolve which is what we asked for and in this case and i'll give the court an example that perhaps fits within judge question for example and mates and this happens regularly those cases on those inmates will be an in a cell with another inmate who has done what is necessary to be a deserving i suppose of the spray they spray the end mate that is disruptive or disobedient and some of the spray gets on the other individual who is in the cell now in that case it's not unconstitutional spraying  the injury to the other person was incremental or incidental to an authorised spring elsewhere but and the injuries are life often they just involve a drop or two or perhaps a little bit of excess gas in that case the jury ought to be able to determine assuming there's sufficient summary judgment evidence that there was in fact no injury and if the jury determines based upon hearing all the evidence that there was an injury and that it was an unconstitutional spring this court can still review any damages awarded  reasonably and in this case counsel that you can assist me as opposed to a quote conventional or one spray a incapacitat the best argument i saw for you is they sprayed him twice they forced him to shower in there some cases they showers are good he obviously thought it wasn't they forced him to shower and they didn't clean up the cell to the extent that when he was put back another prisoner complained and tried to clean it up is that kind of a fair statement of your strongest points of why this is an extraordinary person it is but there's two other missing elements one of which is he was left in the cell after having been sprayed for somewhere between thirty and forty five minutes which we don't know because the clocks weren't saying and also in terms of the showers not complaining about having to shower he had protected himself because he'd been warned by the guards they were going to teach him a lesson and so the only thing he got sprayed with was his hands in his face and you see on the video there when he showers he leans in to just watch those areas because he was told that if they run into your growing armpit they'll they'll burn substantially and the guard forced him to strip down that's what i meant about  showering now given that i have three minutes left i'd like to move on and talk about the fee issue for a moment there are three basic reasons that the district court was in error for limiting the attorneys fees to one hundred and fifty percent of ten dollars or fifteen dollars the that no court in this nation has said that the congress is statute explicitly limits attorneys fees now every court though to be fair that has looked at this other circuits have found that there's a limitation of one hundred and fifty percent on attorneys fees but they use language like that the th circuit for example in the in the brain cases the statutes not a model of clarity the st court says we're going to have to figure out the important essence of it judge hangal in this case said it was awkward lee drafted the rd in the th circuit found it similar and what is significant about these cases that they were trying to determine what congress intent was but in three newer cases cases that come from the u s supreme court since all these circuit decisions the u s supreme court has spoken more clearly about the about these issues and i want to point out just to make it clear there is no binding precedent in this court and there's no other panel opinion at the th circuit on this issue but no court has said that the statute specifically limits these attorneys fees and the u s supreme court in the murphy case that came from last term says that you read the statute literally regardless of the result and in the epic systems vs lewis case also from last term the supreme court says that that the co give effect to all of the statutes that apply and in this case the standard forty two dollars u s c one thousand nine hundred and eighty eight attorneys fees statute and civil rights cases applies in equal force with the statute that the district court appointed here thomas and that case what the what the supreme court was faced was was the argument that a statute under the fair debt collection practices act required that attorneys fees and costs could only be awarded if there was a finding of bad  that case the the supreme court said the statute doesn't say that it doesn't say only if and just as here the statute doesn't say you may only be given one hundred and fifty percent of your judgment for attorney's fees so in the final thirty seconds i'd like to just mention the i mean it would sort of be a weird result though if we construe it the way or suggest and right and i don't believe so the statute did the exact language i mean wouldn't render part of the statute superfluous but that's exactly why i issues on our brief thank you find the evidence in this case suggesting the legal papers revolves around testimony from price and thompson so the testimony at trial was that thompson was called from the law library center gate where he met privately i know i am familiar with that i just want to know have you looked for him where are they i mean i mean he's entitled to his legal papers you agree there he would but the problem is is that he never sued for the return of them there's never been and there's never been an allegation in this case the defendants have had to defend against related to the return of those papers i just so i mean what happened to him you just don't i don't know there was there's a there's a discrepancy about whether or not legal papers were returned to him judge pointed out at one point during one of the hearings at trial that it appeared that there were legal papers in mr thompson cell mr thompson says that those are different legal papers the officer said that they were the same legal papers they believe they were the same ones it's i don't know that officers do not know what happened to it because like the jury found that they had retaliated against him by taking his  legal papers and by spraying him no not sprain your honor though the retaliation for the legal papers happened a couple of days prior to the spring i know but wasn't that ok wasn't this spraying also in retaliation for the grievances no there was no finding by the jury that said that what the finding was was that he was sprayed in violation of the th amendment in and based on cruel and unusual punishment not a retaliation claim the verdict form doesn't say that but it only would have been it only would have been a violation of the th amendment if they were doing it for improper purposes which would have been what he had alleged which was in retaliation for his grievances and am i missing something here  the there was the only claims against it for retaliation for filing grievances based on the verdict form based on everything that's been presented throughout the pendency of the entire case as well as the jury instructions was the taking of the papers by price the retaliation claim is only against price and cites it's not against god for sykes for the use of force at a later date right but the th amendment claim alleges that the reason he was sprayed was because he was filing grievances against them in my view maybe i'm confused you can help me with this the facts the facts didn't present that the facts presented that he was he was placed in confinement while he was placed in prior to being placed in confinement he was the legal papers were left at the officer station that's the take that was the retaliation ok but let's focus for a moment on the  s was there or was there not evidence that the reason he was sprayed was in retaliation for his grievances against the officers i don't believe there was any testimony related to that i would need to review the record again but i don't believe there was any testimony from even the plaintiff related to he was sprayed because of grievances what what happened didn't the officer say we're going to teach you a lesson i mean  of according what lesson were they going to teach him i thought it was that they were trying to protect the officers from grievances that i mean that's what i understood the record but i may misunderstood the i'm going to take a lesson was a statement that alleged by mr thompson that the officer said the officers at trial said they never said that statement right but we have to look at the evidence in the light most favorable to the jury verdict don't write it but end the  so wouldn't that be in the light most favorable to the jury verdict i mean i don't see how they could have returned a verdict on cruel and unusual punishment or deliberative or deliberate in indifference or whatever it was a violation of the th amendment they couldn't have returned a verdict for o c spraying unless it was done sadistically and maliciously i mean if it had been done in response to some kind of behavioral problem they would have been well within their rights wouldn't they that's correct and that's also so can we agree dan that in order for the jury to have returned this verdict they must have believed the testimony that he was sprayed in order to teach him a lesson for filing grievances yes that would have had that would have had to have been the only way that they can interpret that statement that is correct your honor the problem is that the retaliation claim and the th amendment claim are not air mixed in that they involve different sets of officers on a different day and i'm i right counsel that the jury verdict for says number one were thompson's legal papers taken in retaliation for his filing of grievances and then question five as was thompson unlawfully sprayed with chemical agents over necessarily to the i'm not i'm not sure which way that cuts if any because if if the pepper spraying was more than de minimus then we ought to reverse right yes  it wasn't well and the question here is is it your position that no pepper spray can never be more than de minimus now and i was going to question up put to the other side was was isn't there some range in  which it could in fact be more than de minimus or not and it's a question of fact and that was one of the questions that i was going to answer and i was the very st thing i wrote down and that i was going to answer now it is not that the pelleas position here today that i sprang that a spring with chemical agents under any circumstances necessarily dimensions there is going to be a range of factors that interplay in that some of the factors include the degree of injury the degree of injury in this particular case was consistent with what would normally be associated with pepper spray mr thompson testified that the degree of injury that he suffered was he said he was fine and then he took shower any experience burning that's that's the minimum is that that is that is the definition of a de minimus injury within the circuits rulings on previous cases so you're not traveling on the just says physical injury at the statute doesn't say it has to be permanent physical injury that's that's absolutely correct and it would not be the appellate position that that would be the case but pepper spray has been acknowledged  cited by opposing counsel as being an alternative form of controlling inmates which is non lethal and manner that's not to say that a peppers that pepper spray could not rise to the level of a greater than de minimus injury there have been circumstances where that has happened where the school there's a th circuit case where the inmate they get him so that let's say hypothetically let's say hypothetically that a inmate has a breathing condition that would be exacerbated by the use doesn't have to die for you says more than of course not about it let's say that they i that's an extreme example let's say that they suffer some type some type of degree of injury where they would have to suffer or where they would have to receive extensive medical treatment or not even extensive some degree of medical treatment this court has cited to a case in an appendix case prior to where it's out of the th circuit it's a federal it's a federal supplement case so it's a district court case but it's long in that case the court stated that if it would be something would the injury require not require a free world person to visit an emergency room or have a doctor attend to give an opinion diagnosis and or medical treatment for the injury in effect would home treatment suffice in this case we have shortness of breath immediately there are mediately happening  by his own testimony being fine and an accountant shouldn't i mean those are all fact questions right i mean you're not saying judges ought to be make in those decisions well let's see would this require treatment in an emergency room well of course not but when looking at when looking at any of course not meaning it should go to a jury no it should it should be it was should be based on what the plaintiff is saying the injuries are what medical records indicate what the actual injuries were  statements about typically after the shower about how he felt certainly as i read it would be something that i might want to go see a doctor about about the burning it was temporary in say for two or three days i mean that's a long time that's what that's what he stated it you've already agreed with me that it's not a permanent versus nonpermanent standard that's more than you've acknowledged that's not in the statute that's not the analysis correct so whether it's lasting or not it is not it's one of the factors that should be implementable in whether something is diminished it's not the end all be all it definitely should not be that  saying for example let's just take an extreme example he gets sprayed he showers they they have him shower within thirty seconds of his being sprayed and this shower him who works miracles and he never feels any pain right ok that's in contrast to he get sprayed he sits around in a cell and covered in o c spray and then he goes to take to shower off the parts that are covered and then they make them do the rest of his body so he'll be covered more and he goes back to a cell and sits in that saw for another few days while the sal is still covered in o c spray i mean where do you draw the line and how do you make that decision there was there was ok there returning to the cell though a relevant factor was not a separate distinction made by the jury it was a relevant factor in whether there was excessive force that is correct but went to great lengths when brought up by opposing counsel during the course of the trial to amend in a new claim related to the cleaning issue to say that that was not properly preserved or brought before the court there's no determination in the verdict or otherwise in the jury instructions related to the cleaning of the cell there was testimony from the officers that they did clean the so yes it's relevant to the determination of whether it was excessive force but it's not it wasn't in itself a separate claim related to the issue turning to turning to the nd issue related to attorney's fees there are three problems with the way that tied the amount of one hundred and fifty percent to that if that to the defendants if any an extreme reading of that would be that the defendants wouldn't be responsible for anything that's an extreme reading a more practical reading as adopted by ten circuits the appellant's of the pelleas referenced three of those circuits but all ten circuits that have touched this case thus far have put in a practical cap of one hundred and fifty percent the judgement itself the only circuits to not touch this from my understanding in a review of the case law is this circuit the federal circuit and the d c circuit and the reason for the those circuits is that the language if the award of attorney's fees is not greater than one hundred and fifty percent the will be paid by the defendant implies that if it is greater than one hundred and fifty percent then the defendants don't have to pay yes it's a negative negative pregnant  news exactly it's that would be an extreme reading of it and that would be what it is to the practical day a practical reading of it would be exactly what judge boggs stated the though it was stated in a dissent ju a sort of my or has also stated that she that there may be one hundred and fifty percent cap in the most recent case interprete ng the two sentences that issue so with all of that said the defense of the defendants w state that the plaintiff stated only suffered minimus injury in this case and which was decided on summary judgment and though the defendants not go into great detail about it the plaintiff waived such such arguments later on and that the reading of the statute should be applicable as interpreted by was appropriate in this case thank you may please the court again if acceptable would judge martin's question about what is the disposition of these legal papers the reality is we don't know the guards testified at trial they didn't know what happened and because the injunction request was denied they were never made to go search for them and make a report to the court of their alternate disposition i do want to point out on the injunction claim judge incl had two reasons to deny it the st is he claimed that mr thompson didn't properly pleaded because even used the word injunction and a part of his complaint but mr thompson asked in numerous different filings including his complaint for the return of his papers we cite these in our brief but also the district court found that because he was no longer at the liberty correctional institute that somehow or another injunctive relief was moot and there are some cases that say when you're being abused by guards in your move to a new facility you don't get an injunction against those guards but this is a different matter altogether and the state has no cases judge decided no cases saying that that type of relief i focus on this injunction issue because the court would need to reach the attorney's fees issue if it finds that there was a legal error made by judge angle in denying the injunction and remained in the case for the entry of an injunction trying to discover the disposition and at least report on it  to be limited by this no physical injury problem the judge single identified i mean then the case would go back or i it would i mean ultimately  jury determines that there is more than a de minimus injury then the issue never arises a nd time and shouldn't we wait until the issue actually arises to decide i've been convinced that would be a more granted one hundred and fifty percent doesn't apply at all the final issue i want to return to is this de minimus issue and mr concern and i are just going to have to respectfully disagree about the testimony about mr thompson's injury it was extensive it was as was mentioned over a number of days but ultimately that's sort of the problem with the disposition here is that mr vernon i are arguing a jury case before you on the nature of mr thompson's damages and mr thompson said he was fine is that your reading of that is not mine are standing back there or he says in his sworn complaint he talks about burning and then he testifies he was burnt when he got sprayed what he what i think he's referencing is that later the nurse wrote down in some note that the had no injury and perhaps that's what mr proviron references but mr tom petty evidently the jury didn't believe that as mr thompson testified at length about the various injuries that that he faced and ultimately he was in fact treated by medical professional that's what i understand about the government's argument here well if you have to go get treated and maybe that's the threshold question for an injury but and this case he was taken to a nurse and received truthful things that are that the prison protocols that if you spray somebody then you have to take the that's true but mr thompson nevertheless what was seeking the treatment you know i'll just say in closing churchill was right you governor you decide the quality of a community based upon how they treat their prisoners the character of this country is based upon a certain rights applying to all even prisoners in every other context this would be compensable and it should be here the district court should be reversed thanks thank you so much we're going to proceed to our insurance case next but we're going to take a five minute