Case: 13-11272   Date Filed: 01/14/2014   Page: 1 of 5


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11272
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:11-cv-00423-RV-CJK

JAVADO AUDRIC THOMPSON,

                                                         Plaintiff-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
M. NICHOLS,
ARNP,
W. D. RUMMEL,
MD CHO,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (January 14, 2014)

Before PRYOR, FAY and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Javado Audric Thompson, a Florida prisoner proceeding pro se, appeals the

district court’s dismissal of his third amended 42 U.S.C. § 1983 civil rights

complaint. For the reasons that follow, we reverse and remand.

       Thompson filed a third amended § 1983 complaint against Nurse M. Nichols

and Dr. W.D. Rummel, two medical care providers at the Santa Rosa Correctional

Institution (Santa Rosa). 1 In this complaint, Thompson alleged that his diet at

Santa Rose caused him to suffer from headaches, weakness, cold sweats, dizziness,

weight loss, numbness in his left arm, and high blood sugar that caused fainting.

According to Thompson, Nichols failed to change his diet or provide other

adequate treatment, and retaliated against him after he filed grievances by refusing

medical care. Thompson further alleged that Dr. Rummel, as the chief health care

provider at Santa Rosa, knew of Thompson’s ailments, was on notice of Nichols’s

actions via grievances and requests for sick call, and denied all of Thompson’s

grievances. As a result of these acts, Thompson alleged that he experienced his




1
  In his second amended complaint, Thompson requested compensatory damages and injunctive
relief. The district court issued an order advising Thompson that his request for injunctive relief
was moot because he had been transferred from Santa Rosa. The court further advised
Thompson that his request for damages could not stand under 42 U.S.C. § 1997e(e) in the
absence of a showing of physical injury. The court gave Thompson the opportunity to amend his
complaint a third time to address these deficiencies. The third amended complaint did not
request injunctive relief and sought only compensatory damages. To the extent that Thompson’s
appellate brief can be read to address the denial of injunctive relief, we affirm because
Thompson’s transfer to another facility mooted his request for that remedy. Spears v. Thigpen,

, 1328 (11th Cir. 1988).
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symptoms for over a year, and he requested $120,000 for his pain and suffering

and emotional distress.

       The magistrate judge recommended that Thompson’s third amended

complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

claim upon which relief may be granted because Thompson had not shown the

requisite physical injury under 42 U.S.C. § 1997e(e). 2 The district court adopted

the recommendation, over Thompson’s objections, and dismissed the complaint

without prejudice. This is Thompson’s appeal.

       We review de novo a district court’s dismissal of a complaint for failure to

state a claim under § 1915(e)(2)(B)(ii), accepting the allegations in the complaint

as true. Douglas v. Yates, 

, 1319-20 (11th Cir. 2008). The standards

that govern a dismissal under Federal Rule of Civil Procedure 12(b)(6) apply to

dismissals under § 1915(e)(2)(B)(ii). 

Pro se pleadings are construed

liberally. 

action pursuant to § 1983, a plaintiff may recover damages for

monetary loss, physical pain and suffering, mental and emotional distress,

impairment of reputation, and personal humiliation. Slicker v. Jackson, 

   The district court also adopted the magistrate judge’s finding that the complaint could not be
liberally construed to seek nominal damages. Thompson does not challenge this finding on
appeal and thus we do not address it. See Holland v. Gee, 

, 1066 (11th Cir. 2012)
(“The law is by now well settled in this Circuit that a legal claim or argument that has not been
briefed before the court is deemed abandoned and its merits will not be addressed.” (alteration
and internal quotation marks omitted)).
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1225, 1231 (11th Cir. 2000). But, “[n]o 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). To satisfy § 1997e(e), a prisoner must allege

physical injury that is more than de minimis, but the injury need not be significant.

Harris v. Garner, 

, 1282, 1286-87 (11th Cir. 1999) (concluding that

ordering a prisoner to “dry shave,” without more, did not satisfy § 1997e(e)’s

physical harm requirement), reh’g en banc granted, vacated, 

(11th

Cir. 1999), reinstated in relevant part, 

(11th Cir. 2000) (en banc).

Section 1997e(e) is an affirmative defense and the district court may sua sponte

dismiss a claim where the allegations show that it would bar recovery. 

.

      Upon review, we conclude that the district court erred in its application of

§ 1997e(e). First, if we liberally construe Thompson’s complaint, Thompson set

forth a claim for physical injury as well as emotional damages. See 42 U.S.C.

§ 1997e(e). The district court read Thompson’s complaint too narrowly in

concluding that all of Thompson’s claims for damages were based on the

emotional distress associated with his confinement. See 

; see also 

. Second, the district court erred in

determining that Thompson had alleged only de minimis physical harm and, thus,


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§ 1997e(e) barred his claims for damages caused by emotional injury. Accepted as

true, the allegations in Thompson’s complaint allege continuing severe physical

pain and other symptoms that persisted for an extended period of time and required

medical treatment.3 Although perhaps not significant, the physical injury that

Thompson alleged rose above the de minimis threshold that we set out in Harris.

See 

.

       Accordingly, we reverse and remand for further proceedings.

       REVERSED AND REMANDED.




3
  Although this court has not adopted a definition of “de minimus” under § 1997e, and we need
not do so here, one court has described it as “[a] physical injury is an observable or diagnosable
medical condition requiring treatment by a medical care professional.” See Luong v. Hatt, 979 F.
Supp. 481 (N.D. Tex. 1997). We express no opinion as to whether Thompson will ultimately
meet the physical injury standard; we simply conclude that he has alleged enough to avoid
dismissal at this stage.
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