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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EUGENE LONG,

Plaintiff,

vs. Case No. 3:10cv356/LC/CJK

K. W. DIERMYER, et al., 

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed an amended civil

rights complaint under 42 U.S.C. § 1983. (Doc. 9). Upon review of the amended

complaint, the court concludes that plaintiff is barred under 42 U.S.C. § 1997e(e)

from recovering the relief he seeks. Therefore, dismissal of this case is warranted. 

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is an inmate of the Florida penal system currently confined at Santa

Rosa Correctional Institution (“Santa Rosa CI”). (Doc. 9, p. 2). His amended

complaint names two defendants, both Santa Rosa CI officials: Lieutenant K. W.

Diermyer and Sergeant G. R. Murphy. (Id.). Plaintiff alleges that on May 5, 2010, 

he declared a mental health emergency to an unknown correctional officer. (Id., p.

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5). The officer responded by ordering plaintiff to “get off the door,” so plaintiff 1

began kicking his cell door to get defendant Murphy’s attention. Murphy came to

plaintiff’s cell, where plaintiff again declared a mental health emergency. After

Murphy refused to call the mental health unit, plaintiff asked to see defendant

Diermyer. Murphy told plaintiff that if he continued kicking his cell door he would

undoubtedly see defendant Diermyer, so plaintiff began kicking his cell door again. 

Defendant Diermyer arrived, reviewed plaintiff’s “face sheet” and told plaintiff to

cease his behavior. Plaintiff agreed and informed Diermyer he had a mental health

emergency. Diermyer responded that he would call someone to counsel plaintiff, then

left. Approximatelytwentyminuteslater, Diermyer and Murphy returned, opened the

food flap on plaintiff’s cell door and, on Diermyer’s command, Murphy sprayed a

chemical agent into plaintiff’s cell. Plaintiff approached the door and showed

Diermyer his asthma pump and medical pass containing a restriction for “no

chemicals.” Defendant Diermyer began removing plaintiff from his cell, but after

defendant Murphy said he wanted to spray plaintiff one more time because he “didn’t

get him in the face,” Diermyer put plaintiff back in his cell and advised Murphy he

had better “spray him good” this time, because plaintiff had asthma and they needed

to get him out of the cell. (Id., p. 5). Murphy sprayed plaintiff again. Diermyer

stopped Murphy from spraying plaintiff a third time. Plaintiff was taken to the

shower, seen by a nurse and counseled by mental health staff. (Id., p. 6). After

plaintiff returned to his cell, he took “a handful of pills.” He wasseen by a nurse and

The page numbers appearing on ECF are different from the page numbers of the amended 1

complaint. All references to page numbers are to the pagination of the amended complaint.

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taken to the medical department, where his stomach was pumped and he was again

seen by mental health staff. 

Based on the foregoing allegations, plaintiff asserts three claims. (Id., p. 7). 

First, he claims a violation of his First Amendment rights arising from Murphy’s and

Diermyer’s failure to call the mental health unit upon plaintiff’s declaration of a

mental health emergency. Second, he claims Diermyer and Murphy subjected him

to cruel and unusual punishment in violation of the Eighth Amendment by using the

chemical agent. Third, plaintiff claims Diermyer violated his First Amendment rights

when Diermyer threatened to spray plaintiff again if plaintiff grieved the incident. 

As relief, plaintiff seeks monetary compensation in the amount of $1,000.00 against

each defendant. (Id.) (requesting “Reward 1,000 from each Defendant.”).

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the court may dismiss the

case if satisfied that the action is “(i) frivolous or malicious; (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). Dismissalsfor failure to state a claimare governed

by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v.

Farcass, 112 F.3d 1483, 1485 (11 Cir. 1997). In determining whether the complaint th

states a claim upon which relief may be granted, the court accepts all factual

allegations in the complaint as true and evaluates all reasonable inferences derived

from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc.,

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29 F.3d 1480, 1483 (11 Cir. 1994). The complaint may be dismissed if the facts as th

pleaded do not state a claim to relief that is plausible on its face. See Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007)

(retiring the negatively-glossed “no set offacts” language previously used to describe

the motion to dismiss standard and determining that because plaintiffs had “not

nudged their claims across the line from conceivable to plausible, their complaint

must be dismissed” for failure to state a claim). A complaint is also subject to

dismissal under Rule 12(b)(6) when its allegations – on their face – show that an

affirmative defense barsrecovery on the claim. Marsh v. Butler Cnty., Ala., 268 F.3d

1014, 1022 (11 Cir. 2001); see also Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct.

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910, 920-21, 166 L. Ed. 2d 798 (2007) (same; explaining, for example, that if a

complaint’s allegations show that relief is barred by the applicable statute of

limitations, the complaint is subject to dismissal for failure to state a claim).

Taking the allegations of the amended complaint as true and construing them

in the light most favorable to plaintiff, they show that plaintiff’s claims are barred by

42 U.S.C. § 1997e(e). The Prison Litigation Reform Act (“PLRA”) 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). The Eleventh Circuit has

concluded that “the phrase ‘Federal civil action’ means all federal claims, including

constitutional claims.” Napier v. Preslicka, 314 F.3d 528, 532 (11 Cir. 2002). This

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action, brought by plaintiff under 42 U.S.C. § 1983, is a “Federal civil action” under

this definition. It is evident from the face of the pleadings that plaintiff was a

prisoner at the time he filed this action, and that the harm complained of occurred

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while plaintiff was in custody. Plaintiff's claims for monetary compensation, which

cannot be liberally construed as requesting nominal damages, are based on the

emotional distress plaintiff suffered as a result of the defendants’ alleged conduct,

and/or the fact of the alleged constitutional violationsthemselves(divorced from any

mental or emotional injury they caused). The complaint alleges no physical injury

resulting from defendants’ conduct, much less one that is more than de minimis. See

Harris v. Garner, 190 F.3d 1279, 1286 (11 Cir. 1999) (“Harris I”) (concluding that th

in order to satisfy § 1997e(e) “the physical injury must be more than de minimis, but

need not be significant.”), reh’g en banc granted and opinion vacated, 197 F.3d 1059

(11 Cir. 1999), opinion reinstated in relevant part, 216 F.3d 970 (11 Cir. 2000)

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(“Harris II”). Therefore, plaintiff is prohibited under the PLRA from bringing his

damages claims. Harris I, 190 F.3d at 1287-88 (11 Cir. 1999) (affirming district

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court’s dismissal of claims for compensatory and punitive damages as barred by §

1997e(e)), reinstated on reh'g, Harris II, 216 F.3d at 972; see also Al-Amin v. Smith,

637 F.3d 1192 (11 Cir. 2011) (holding that “the overall tenor of Harris and its

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progeny, when taken together, unmistakably supports” the conclusion that § 1997e(e)

applies to constitutional claims and precludes the recovery of compensatory and

punitive damages in the absence of the requisite physical injury). 

This conclusion is consistent with the EleventhCircuit’s disposition of similar

claims. Mann v. McNeil, 360 F. App’x 31 (11 Cir. 2010) (under Eleventh Circuit th

case law, injuries of which prisoner complained, including vague injuriesto his back,

scrapes and marks on his knees and legs, lack of personal items, lapse of time in

reordering medication, work assignment of window-cleaning, and discontinuance of

pass for showers twice a day, amounted to de minimis physical injuries; therefore §

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1997e(e) barred prisoner’s damages claim for mental or emotional injury); Hale v.

Sec’y for Dep’t of Corr., 345 F. App’x. 489, 491 (11 Cir. 2009) (affirming district

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court’s dismissal of prisoner’s claims for compensatory and punitive damages, where

prisoner did not suffer anything more than minimal or temporary physical effects

from his confinement in close management); Quinlan v. Personal Transport Serv.

Co., LLC, 329 F. App’x 246, 249 (11 Cir. 2009) (affirming district court’s dismissal

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of detainee’s compensatory and punitive damages claims for alleged violation of

Eighth and Fourteenth Amendments during transport to prison under unsafe

conditions; although detainee complained of periodic episodes of back pain, and of

temporary chest pain, headache, and difficulty breathing while in the company’s van,

the allegations did not indicate more than a de minimis physical injury sufficient to

satisfy § 1997e(e), as none of the conditions required immediate medical attention or

evidenced physical injury besides discomfort); see also, e.g., Jennings v. Mitchell, 93

F. App’x 723, 725 (6 Cir. 2004) (holding that prisoner, who was pepper sprayed, th

was barred by § 1997e(e) from pursuing Eighth Amendment claim seeking monetary

relief for mental anguish; prisoner failed to allege or show more than a de minimis

physical injury, because at no time was prisoner in actual respiratory distress; instead,

he merely was uncomfortable in the ordinary fashion of persons exposed to pepper

spray). Although these opinions are not binding precedent, see 11th Cir. R. 36-2,

they offer persuasive authority. 

Dismissal of plaintiff’s claims is also consistent with the decisions of this and

other district courts within this circuit. See, e.g., Kornagay v. Burt, No.

3:09cv281/LC/EMT, 2011 WL 839496, at *22 (N.D. Fla. Feb. 8, 2011)

(recommending dismissal of prisoner’s compensatory and punitive damages claims

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against prison officials arising from their application of chemical agent; prisoner’s

allegations that during five-day period following incident he suffered burning lungs

and skin, congested breathing, tearing eyes, nasal discharge, dizziness, the sensation

of respiratory distress, choking, and burns to his scalp, did not show more than a de

minimis physical injury to satisfy § 1997e(e)), Report and Recommendation adopted,

2011 WL 855619 (N.D. Fla. Mar. 9, 2011); Beecher v. Jones, No.

3:08cv416/MCR/EMT, 2010 WL 5058555, at *6 (N.D. Fla. Oct. 29, 2010)

(recommending dismissal under § 1997e(e) of prisoner’s claims for monetary

compensation for prison officials’ alleged unjustified use of chemical agent, where

plaintiff alleged no physical injury at all, much less injury that was more than de

minimis), Report and Recommendation adopted, 2010 WL 5055991 (N.D. Fla. Dec.

6, 2010); Palmer v. Walker, No. 2:09cv401, 2011 WL 836928, at *8 (M.D. Fla. Mar.

9, 2011) (dismissing under § 1997e(e) prisoner’s monetary damages claims against

prison officialsfor officials’ alleged unjustified application of chemical agents, where

prisoner did not allege he suffered a physical injury).

Accordingly, it is respectfully RECOMMENDED:

That this case be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii), and the clerk be directed to close the file.

At Pensacola, Florida this 9th day of June, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court's internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

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