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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

SERGIO GONZALEZ-VARONA,

Plaintiff,

vs. CASE NO. 5:09CV267-RS/AK

CAPTAIN LEROY MCELROY, et al,

Defendants.

 /

O R D E R

Plaintiff has filed an amended complaint, which upon due consideration, does not

state adequate claims against Defendants McElroy and Mitchell for service upon them. 

(Doc. 14). Plaintiff claims that he was subject to chemical agent spray being used

against someone else in his unit which aggravated his asthma. He claims that he told

Defendants McElroy and Mitchell, who ignored him, until his cell mate called them and

told them he was in serious trouble at which time Officer Lanigan called the medical

unit. An EKG revealed this his heart rate “was elevated considerably.” For relief, he

seeks a change in DOC policy that would identify inmates with health problems by “face

sheets,”so that they could be removed from an area prior to use of chemical agents; he

also seeks nominal damages and punitive damages.
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Although the Court instructed him to repeat his claims against these defendants

and provide service copies, that instruction was premature. Plaintiff also submitted only

one service copy with the amended complaint and he has named two defendants. 

There are actually several problems with the claims raised by Plaintiff against

these two defendants. He has not provided enough information about their alleged

deliberate indifference to go forward on these claims. 

Deliberate indifference to the serious medical needs of prisoners violates the

Eighth Amendment's prohibition of cruel and unusual punishment. Estelle v. Gamble,

429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). The concept of deliberate

indifference must be more than negligence, but is satisfied by something less than

actions undertaken with an intent to cause harm. Farmer v. Brennan, 511 U.S. 1216,

114 S. Ct. 1970, 1978, 128 L. Ed. 2d 811 (1994). Subjective recklessness, as defined

in criminal law, is the standard which must be shown for an official's actions to rise to

the level of deliberate indifference. Id. Combining the standards from Farmer and

Estelle, the Eleventh Circuit has recently clarified that, ultimately, there are four

requirements to bringing an Eighth Amendment claim for the denial of medical care: an

objectively serious need, an objectively insufficient response to that need, subjective

awareness of facts signaling the need, and an actual inference of required action from

those facts." Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000). Thus, information

crucial to stating a claim for deliberate indifference are factors like how these

defendants knew or should have known that he had a serious need for medical care,

how long did it take before a response was made, i.e. when did he go to the medical

No. 5:09cv267-RS/AK
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unit, and what were the findings by the medical unit that would support his allegations of

a serious and unmet medical need. He describes an elevated heart rate, which without

more is not a serious medical need. In fact, section 1997e(e) provides: "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). Despite the wording of § 1997e(e), that ”[n]o

Federal civil action may be brought,” this circuit has established that the statute limits

relief, not causes of action. If there is no physical injury alleged, then mental or

emotional monetary damages, as well as punitive damages, cannot be recovered, but

declaratory and injunctive relief may be available.1

 Harris v. Garner, 216 F.3d 970 (11th

Cir. 2000)2, reinstating in part 190 F.3d 1279 (11th Cir. 1999) and Osterback v. Ingram,

et al., No. 00-10558, 263 F.3d 169 (11th Cir. 2001) (Table). 215 F.3d at 1230. Nominal

damages may still be recovered even though there are no compensable damages. 

Slicker v. Jackson, 215 F.3d at 1231, citing Carey v. Piphus, 435 U.S. 247, 266, 98

S.Ct. at 1054. 

1

 “[C]ompensatory damages under § 1983 may be awarded only based on actual

injuries caused by the defendant and cannot be presumed or based on the abstract

value of the constitutional rights that the defendant violated.“ Slicker v. Jackson, 215

F.3d 1225, 1229 (11th Cir. 2000) (emphasis by the court), citing Memphis Comm. Sch.

Dist, v. Stachura, 477 U.S. 299, 309-310, 106 S.Ct. 2537, 2544, 91 L.Ed.2d 249 (1986)

and Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. at 1042, 1052, 55 L.Ed.2d 252 (1978).

2

 Harris v. Garner, 190 F.3d 1279 (11th Cir. 1999) was vacated by 197 F.3d

1059, and the Opinion Reinstated in Part on Rehearing by 216 F.3d 970 (11th Cir.

2000), cert. denied 121 S. Ct. 2214 (2001). The parts of the panel opinion relevant to

this legal issue were reinstated. 

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Plaintiff has described no resulting injury from the alleged actions of these

defendants. Also, he seeks injunctive relief which is not available from these

defendants. He requests that DOC policy be changed, but these are two corrections

officers at Jackson CI who do not have the authority to change policy. 

These claims are seriously bordering on the frivolous. The Court will grant

Plaintiff one more chance to state his claims with more facts and to perhaps state a

claim for relief, but as the amended complaint stands now Plaintiff is suing two

defendants for waiting a few hours before taking Plaintiff to a medical unit where the

results of this delay was an elevated heart rate. If these are indeed the facts upon

which Plaintiff bases his claims, he should consider dismissing this lawsuit.

Accordingly, it is

ORDERED:

1. Plaintiff shall on or before February 19, 2010, file a second amended

complaint as set forth above.

2. Failure to comply with this Order will result in a recommendation to the district

judge that this cause be dismissed for failure to prosecute.

DONE AND ORDERED this 26th day of January, 2010.

 s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

No. 5:09cv267-RS/AK