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                                                          [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-12276
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 4:15-cv-00148-RH-GRJ



YVELAN PIERRE,

                                                               Plaintiff-Appellant,

                                       versus

D. PADGETT,
Department of Corrections Officer,
J. SLAUGHTER,
Department of Corrections Officer,
J. LAHR,
Department of Corrections Officer,
SADLER,
Department of Corrections Officer,
FREEMAN,
Department of Corrections Officer, et al.,

                                                            Defendants-Appellees,

CLAY,
Department of Corrections Officer,

                                                                         Defendant.
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                            ________________________

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

                                   (April 3, 2020)

Before JILL PRYOR, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Proceeding pro se, Plaintiff Yvelan Pierre, an inmate incarcerated with the

Florida Department of Corrections, filed a 42 U.S.C. § 1983 excessive-force case

against several correctional officers (“Defendants”), alleging that they beat him up

and pepper-sprayed him while he was shackled. Concluding that Plaintiff’s

evidence established no more than a de minimis physical injury under the Prison

Litigation Reform Act (“PLRA”), the district court granted partial summary

judgment to Defendants on Plaintiff’s claims for compensatory and punitive

damages. The court then held a bench trial on Plaintiff’s nominal-damages claim.

At the end of the trial, the court found in favor of Defendants, ruling that they had

not violated Plaintiff’s constitutional rights and were entitled to qualified immunity

in any event. Plaintiff challenges those rulings on appeal. After careful

consideration, we affirm.




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I.        BACKGROUND

          Plaintiff filed a verified complaint against six correctional officers from

Taylor Correctional Institution (Sergeant Sadler, and Officers D. Padgett, D.

Slaughter, J. Lahr, Matthew Coulliette, and Freeman),1 claiming that they had

violated his First, Eighth, and Fourteenth Amendment rights by using excessive

force against him in retaliation for his filing of grievances.2 He alleged that, after

filing a Staff-Abuse Report, he was scheduled to be transferred from Taylor

Correctional Institution to another correctional facility. In preparation for his

transfer, Defendants placed Plaintiff in ankle shackles and handcuffs secured by a

black box. Then, according to Plaintiff, Officers Clay and Slaughter threatened

that: “You think this is over don’t you? Well we got something for you, we’re

going to beat your ass.” Plaintiff alleged that Officers Lahr, Slaughter, and

Freeman attacked him without provocation during the transfer, hitting the back of

his head, dropping him to the ground, and then punching, kicking, dragging, and

pepper-spraying him while he was down. Plaintiff further alleged that Sergeant

Sadler and Officer Coulliette joined in the beating, and that Officer Padgett

brought a camera but was told by Sergeant Sadler to wait until the beating was

done before recording. Finally, Plaintiff alleged that Defendants addressed him


1
 Plaintiff’s complaint erroneously identified Officer Coulliette as “Officer Clay.” The error
was corrected after Plaintiff discovered “Officer Clay’s” real name.
2
     Plaintiff is an inmate serving a life sentence.

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using a racial slur, and that Sergeant Sadler had said, “I told you we was going to

get you. I told you I would have the last say.” As a result of the incident, Plaintiff

claimed that he had suffered “emotional stress, duress, and mental anguish.” He

sought $30 million in compensatory damages and $10 million in punitive damages.

      After discovery, Defendants moved for summary judgment, arguing in

relevant part that Plaintiff was not entitled to compensatory or punitive damages

because he had not suffered a “physical injury” within the meaning of the PLRA,

and that he could not recover nominal damages because his complaint did not

request such relief. Plaintiff opposed the motion, attaching his Post-Use-of-Force-

Exam Record, which noted that Plaintiff had several abrasions, some bruising, a

small amount of blood in his right nostril, two small nodules over and behind his

right ear, and some redness and burning on his face caused by a chemical agent.

The exam record also noted that Plaintiff had complained of pain in his lower back

and neck, but that there was no redness, bruising, swelling, or deformity.

      A magistrate judge prepared a Report and Recommendation (“R&R”),

recommending that the district court grant Defendants’ motion for summary

judgment as to compensatory and punitive damages, but not as to nominal

damages. The magistrate judge reasoned that the PLRA precluded claims for

compensatory and punitive damages absent a showing of more than a de minimis

physical injury, and that Plaintiff’s injuries, which did not require medical


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treatment and included only scratches, abrasions, and some minor bruising, did not

meet that standard. 3 Reading Plaintiff’s filings liberally, however, the magistrate

judge concluded that he had requested nominal damages. Plaintiff did not timely

object to the R&R, and the district court adopted the magistrate judge’s

recommendations.

       Plaintiff then moved for reconsideration, attaching belated objections to the

R&R. He argued that establishing excessive force under the Eighth Amendment

did not require a showing of more than a de minimis physical injury, and that his

injuries were more than de minimis in any event. On March 22, 2017, the court

granted Plaintiff’s motion for reconsideration, considered his untimely objections,

and adhered to its prior ruling. The court noted that, although force rather than

injury was the relevant factor for an Eighth Amendment claim, the PLRA

prohibited prisoners from recovering damages absent a showing of a more than de

minimis physical injury. As for the significance of Plaintiff’s injuries, the court

readopted the magistrate judge’s determination that they were no more than de

minimis.




3
  See Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015) (“Under the [PLRA] and our
caselaw, an incarcerated plaintiff cannot recover either compensatory or punitive damages for
constitutional violations unless he can demonstrate a (more than de minimis) physical injury.”).

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       After the court issued an order directing the clerk to seek pro bono counsel

to represent Plaintiff in his trial for nominal damages, 4 Plaintiff moved to strike or

correct the court’s order, arguing that he should be permitted to seek compensatory

and punitive damages at trial. On November 28, 2017, the court denied Plaintiff’s

motion to strike, noting that it had already ruled that he could only seek nominal

damages.

       Because no right to a jury trial attaches to a claim for nominal damages, the

district court issued an order stating that it would hold a bench trial. Plaintiff did

not object to that order, but did file a separate motion to stay the proceedings

pending an interlocutory appeal, arguing that the court’s ruling on damages had

denied him his Seventh Amendment right to a jury trial. The court denied the

motion. At the conclusion of the bench trial, the court found in favor of

Defendants, concluding that Plaintiff had failed to prove a constitutional violation

and that, in any event, the officers were entitled to qualified immunity due to the

absence of clearly established law prohibiting their conduct.

       On March 22, 2018, the court entered judgment in favor of Defendants.

Plaintiff then moved to alter or amend the judgment or for a new trial, arguing,

among other things, that the court erred in concluding that he could recover only



4
  As Plaintiff represented himself at trial pro se, we assume that pro bono counsel was not
available.

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nominal damages, and that the court’s factual findings at trial were against the

great weight of evidence. On April 30, 2018, the district court denied the motion

to alter or amend the judgment or for a new trial.

      Plaintiff filed a notice of appeal on May 31, 2018. The notice specified that

he was appealing from (1) “the order denying Plaintiff[’]s motion to strike and

correct court order November 28, 2017,” (2) “the [final] judgment rendered in

favor of all the Defendants March 22, 2018,” and (3) “the order denying

[P]laintiff[’]s motion for new trial and [to] alter or amend the judgment April 30,

2018.” We appointed counsel to represent Plaintiff before this Court.

II.   DISCUSSION
      On appeal, Plaintiff raises two arguments. First, he contends that the district

court erred in granting Defendants partial summary judgment on his claims for

compensatory and punitive damages. Second, he argues that the district court

erred in entering judgment for Defendants after a bench trial because the record did

not support the court’s findings of fact. After considering a jurisdictional issue

raised by Defendants, we address each of Plaintiff’s arguments. We discern no

error below, and therefore affirm the district court’s rulings.

      A.     Jurisdiction
      As an initial matter, Defendants argue that we lack jurisdiction to review the

district court’s summary judgment ruling that Plaintiff could not recover


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compensatory or punitive damages because Plaintiff’s notice of appeal did not

reflect an intent to appeal that ruling. We disagree. “[A]n appellate court has

jurisdiction to review only those judgments, orders or portions thereof which are

specified in an appellant’s notice of appeal.” Weatherly v. Ala. State Univ., 728

F.3d 1263, 1271 (11th Cir. 2013) (quotation marks omitted). Generally, “we will

not expand [a notice of appeal] to include judgments and orders not specified

unless the overriding intent to appeal these orders is readily apparent on the face of

the notice.” Id. (quotation marks omitted). However, “we always construe pro se

pleadings liberally,” and because “only a final judgment or order is appealable, the

appeal from a final judgment draws in question all prior non-final orders and

rulings which produced the judgment.” Davila v. Gladden, 777 F.3d 1198, 1208–

09 n.5 (11th Cir. 2015) (quotation marks omitted).

      Here, because Plaintiff’s notice of appeal challenged “the judgment rendered

in favor of all the Defendants March 22, 2018”—that is, the court’s final

judgment—we have jurisdiction to review prior non-final rulings that produced

that judgment, including the district court’s summary judgment ruling, which

resulted in a bench trial rather than a jury trial. Id. (holding that we had

jurisdiction to review a motion-to-dismiss ruling where the pro se plaintiff’s notice

of appeal did not mention the motion to dismiss but “specifically referenced ‘the

[final] judgment entered . . . on February 6th 2013’”); see also Barfield v. Brierton,


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883 F.2d 923, 930 (11th Cir. 1989) (“The plaintiff seeks review of the entire final

judgment which implicates all non-final orders preceding it, including the stay.”).

We therefore proceed to the merits of Plaintiff’s appeal.

      B.     Summary Judgment

      On summary judgment, the district court ruled that Plaintiff could not

recover compensatory or punitive damages under the PLRA because the scratches,

abrasions, and minor bruising he received amounted to no more than a de minimis

physical injury. Plaintiff challenges this ruling on appeal. We discern no error and

affirm the district court’s grant of partial summary judgment.

      Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “We review a district court’s grant of

summary judgment de novo considering all the facts and reasonable inferences in

the light most favorable to the non-moving party.” Mann v. Taser Int’l, Inc., 588

F.3d 1291, 1303 (11th Cir. 2009).

      Section 1997e(e) of the PLRA provides that a prisoner may not bring a civil

action “for mental or emotional injury suffered while in custody without a prior

showing of physical injury.” 42 U.S.C. § 1997e(e). We have interpreted that

provision as preventing a prisoner from recovering compensatory or punitive

damages unless he can show that he suffered a physical injury. Brooks v. Warden,


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800 F.3d 1295, 1307 (11th Cir. 2015). Thus, absent a physical injury, a prisoner

may recover only nominal damages on a successful claim. Id. at 1307–08.

Further, we have held that, “in order to satisfy section 1997e(e) the physical injury

must be more than de minimis, but need not be significant.” Harris v. Garner, 190

F.3d 1279, 1286 (11th Cir.), op. reinstated in relevant part on reh’g en banc, 216

F.3d 970 (11th Cir. 2000).

      In his briefing, Plaintiff confuses the requirements for recovering damages

under the PLRA with the standards for proving an Eighth Amendment excessive-

force claim. Because the “core judicial inquiry” for an Eighth Amendment claim

concerns “the nature of the force” rather than “the extent of the injury,” it is true

that a prisoner need not prove that he suffered a more than de minimis injury to

establish an Eighth Amendment violation. Wilkins v. Gaddy, 559 U.S. 34, 39–40

(2010). But, as the district court explained, to recover compensatory and punitive

damages under the PLRA, it is not enough to establish an Eighth Amendment

violation. A prisoner must also establish a “physical injury,” meaning an injury

that is more than de minimis. 42 U.S.C. § 1997e(e); Brooks, 800 F.3d at 1307;

Harris, 190 F.3d at 1286. Thus, when Plaintiff argues that the district court erred

in granting Defendants partial summary judgment on damages because, “[n]o

matter how minimal the ultimate injury turned out to be to [Plaintiff], the use of

force against him was excessive,” he misses the point.


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       Here, we agree with the district court that Plaintiff’s physical injuries were

no more than de minimis. He suffered only scrapes, scratches, and minor bruising

or swelling. In the scheme of things, these are trivial harms, which Plaintiff

happened to sustain during an altercation with correctional officers, but which are

not atypical nor usually noteworthy in the ordinary course of daily life.5 Compare

Nolin v. Isbell, 207 F.3d 1253, 1258 n.4 (11th Cir. 2000) (concluding, in the

context of a Fourth Amendment excessive-force case, that “minor bruising which

quickly disappeared without treatment” was the kind of “minimal . . . injury

involved in a typical arrest”), with Saunders v. Duke, 766 F.3d 1262, 1270 (11th

Cir. 2014) (concluding, in a Fourth Amendment excessive-force case, that

“lacerations, injuries to [the plaintiff’s] teeth and jaw, damage to his left eardrum,

and emotional distress” were not de minimis injuries). Plaintiff’s relatively

insignificant injuries are certainly not what the PLRA had in mind when it required



5
   Although Plaintiff contends that being pepper-sprayed established a more than de minimis
physical injury, the evidence presented at summary judgment did not show that the pepper spray
caused any harm beyond a temporary burning sensation. Absent some additional injury other
than momentary discomfort, we fail to see how the discomfort associated with being pepper-
sprayed transforms the harm Plaintiff suffered into a more than de minimis “physical injury” any
more than the discomfort caused by scratches and bruises renders those relatively trivial injuries
more than de minimis. C.f. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1245 (11th
Cir. 2003) (noting that “pepper spray ordinarily causes only temporary discomfort”); cf. Danley
v. Allen, 540 F.3d 1298, 1308 (11th Cir. 2008) (“Any injuries or discomfort Danley suffered as a
necessary result of a dose of pepper spray were neither substantial nor long lasting.”), overruled
in part on other grounds as recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).
Notably, the record does not suggest that Plaintiff required medical treatment to address any
minimal harm caused by the pepper spray.

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the existence of a “physical injury” as a prerequisite for filing a lawsuit for “mental

or emotional injury suffered.” 42 U.S.C. § 1997e(e); see Harris, 190 F.3d at 1286

(noting that “Congress was clearly trying to preclude some part of the litigation

routinely pursued by prison inmates from being brought,” and that “allowing

prisoners to surmount this new statutory hurdle with purely trivial allegations of

physical injury would make no sense”). Indeed, it is undisputed that Plaintiff

healed without the need for any medical treatment, which explains why he only

sought damages for “emotional stress, duress, and mental anguish.”

        Accordingly, the district court did not err in ruling on summary judgment

that Plaintiff failed to establish a “physical injury” under the PLRA, and thus that

he could not recover compensatory or punitive damages. Brooks, 800 F.3d at

1307.

        C.    Bench Trial
        As noted, the district court conducted a bench trial to determine whether the

Defendants had used excessive force in violation of Plaintiff’s constitutional rights.

The court concluded that Plaintiff had failed to prove that the force used by the

defendant officers was constitutionally excessive. On appeal, Plaintiff contends

that the district court erred in reaching this conclusion. We disagree. Following a

bench trial, we review the district court’s factual findings for clear error and its

conclusions of law de novo. Renteria-Marin v. Ag-Mart Produce, Inc., 537 F.3d


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1321, 1324 (11th Cir. 2008). “We will not find clear error unless our review of the

record leaves us with the definite and firm conviction that a mistake has been

committed.” U.S. Commodity Futures Trading Comm’n v. S. Tr. Metals, Inc., 894

F.3d 1313, 1322 (11th Cir. 2018) (quotation marks omitted).

      “Under the Eighth Amendment, force is deemed legitimate in a custodial

setting if it is ‘applied in a good-faith effort to maintain or restore discipline’ and

not ‘maliciously and sadistically to cause harm.’” Sears v. Roberts, 922 F.3d 1199,

1205 (11th Cir. 2019) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). “To

determine if an application of force was applied maliciously and sadistically to

cause harm, a variety of factors are considered including: ‘the need for the

application of force, the relationship between that need and the amount of force

used, the threat reasonably perceived by the responsible officials, and any efforts

made to temper the severity of a forceful response.’” Skrtich v. Thornton, 280 F.3d

1295, 1300 (11th Cir. 2002) (quoting Hudson, 503 U.S. at 7). “Not only that, but

we must also give a wide range of deference to prison officials acting to preserve

discipline and security, including when considering decisions made at the scene of

a disturbance.” Sears, 922 F.3d at 1205 (quoting Cockrell v. Sparks, 510 F.3d

1307, 1311 (11th Cir. 2007)).

      In reaching its conclusion that Defendants did not use excessive force, the

district court found the following facts: In March 2011, officials at Taylor


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Correctional Institution decided to transfer Plaintiff to another institution because

he had threatened officers. On April 11, the transfer process began. While

escorting Plaintiff, Officer Lahr responded to what the district court referred to as

“some jawing” by non-forcibly slapping Plaintiff in the back of the head. Plaintiff

then turned on Officer Lahr “with some vigor,” a move that Officer Lahr perceived

as an attempted head-butt. In response, Officers Lahr and Slaughter took Plaintiff

to the ground. When Plaintiff refused to comply and continued to resist, Officer

Lahr sprayed him with a chemical agent. Because Plaintiff continued resisting

while on the ground, the court concluded that the officers acted reasonably in

pepper-spraying him to restore order.

      On appeal, Plaintiff concedes that “[p]epper spray is an accepted non-lethal

means of controlling unruly inmates.” Danley v. Allen, 540 F.3d 1298, 1307 (11th

Cir. 2008), overruled in part on other grounds as recognized by Randall v. Scott,

610 F.3d 701, 709 (11th Cir. 2010). Nevertheless, he argues that, because there

was no evidence that he was resisting or disobeying orders while on the ground,

the district court erred in concluding that Defendants did not use excessive force.

See id. at 1309 (“When jailers continue to use substantial force against a prisoner

who has clearly stopped resisting—whether because he has decided to become

compliant, he has been subdued, or he is otherwise incapacitated—that use of force

is excessive.”).


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      The record, however, belies Plaintiff’s argument. At trial, Officer Lahr

testified that Plaintiff “continued to be combative” while on the ground, “fighting,”

“attempt[ing] to kick me and Officer Slaughter,” and “not ceasing [his] actions.”

Officer Lahr further testified that Plaintiff “w[asn’t] listening to what I was telling

[him,]” and that “after giving [Plaintiff] several verbal orders,” which he did not

follow, Officer Lahr “broke the seal on [his] M-4 and applied the chemical agent to

[Plaintiff’s] upper torso.” Officer Slaughter offered a similar account, testifying

that, after they “told [Plaintiff] to cease his actions or chemical agents [would] be

applied,” “Lahr broke his seal and sprayed Plaintiff,” who was “very combative

and [was] kicking and rolling around” on the ground.

      Accordingly, the district court did not clearly err in finding that, before he

was pepper-sprayed, Plaintiff had continued to actively resist even while he was on

the ground. Given that finding, the district court did not err in concluding that

Officers Lahr and Slaughter reasonably applied pepper spray to restore order. See

Danley, 540 F.3d at 1307 (“If there were nothing before us but the initial use of

pepper spray following Danley’s second failure to obey Allyn’s order to return to

the cell, we would readily conclude that there was no Fourteenth Amendment

violation.”).

      Even assuming that we were to determine that the efforts taken by

Defendants to restrain Plaintiff constituted excessive force, Plaintiff still would not


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prevail because Defendants would be entitled to qualified immunity. “Qualified

immunity attaches when an official’s conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quotation marks omitted). To

show that an official who acted within the scope of his discretionary authority is

not entitled to qualified immunity, a plaintiff must establish both that “(1) the

defendant violated a constitutional right, and (2) this right was clearly established

at the time of the alleged violation.” Townsend v. Jefferson Cty., 601 F.3d 1152,

1158 (11th Cir. 2010) (quotation marks omitted).

      The district court noted that had Plaintiff been compliant once brought to

ground—that is, had he ceased resisting orders and physically defying the

officers—the law is clearly established that the use of pepper spray at that point

would have been excessive. Yet, having credited the testimony of the officers at

the bench trial that Plaintiff had continued to kick and flail, refusing to obey the

officers’ directives to cease, the district court noted that there was no law clearly

establishing that the use of spray at this point would have constituted excessive

force. Accordingly, qualified immunity applied. We agree with the district court’s

determination on this point as well.




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III.   CONCLUSION

       For the above reasons, we affirm the district court’s grant of partial summary

judgment to Defendants on damages, as well as the district court’s final judgment

in favor of Defendants.

       AFFIRMED.




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