                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                          ________________________        U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                            SEPTEMBER 21, 2009
                                No. 08-15754
                            Non-Argument Calendar            THOMAS K. KAHN
                                                                  CLERK
                          ________________________

                    D. C. Docket No. 05-00565-CV-J-32-HTS

WILLIAM HALE,

                                                              Plaintiff-Appellant,

                                     versus

SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS,

                                                             Defendant-Appellee,

L.E. GRIFFIS, et al.,

                                                                     Defendants.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                             (September 21, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
      William Hale, a Florida prisoner proceeding pro se, appeals the dismissal of

some of his claims and the grant of summary judgment against him as to the

remaining claims in his civil rights action, filed pursuant to 42 U.S.C. § 1983,

concerning his status in close management (“CM”). In his complaint, Hale alleged

that the individual defendants conspired to retaliate against his filing of grievances

by retaining him in the most restrictive level of CM. Hale also alleged that the

procedures for reviewing whether a prisoner should be retained in CM did not

meet the minium requirements of constitutional procedural due process.

      On appeal, Hale argues that the district court abused its discretion by not

considering his response to one defendant’s motion to dismiss. Hale also presents

multiple arguments for why the district court erred when, pursuant to 42 U.S.C. §

1997e(e), the district court dismissed his complaint against the individual

defendants on the basis that he could not seek certain damages because he failed to

allege that he had suffered a physical injury. Hale argues that (a) we should

reconsider our requirement that the physical injury should be more than de

minimis; (b) he alleged that he was physically injured by asserting that he was

subjected to prolonged CM confinement and substandard prison conditions; (c) his

loss of gain-time was not an emotional or mental injury and, thus, § 1997e(e) did

not apply to that aspect of the claim; and (d) he should be allowed to seek nominal

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and punitive damages.1 Hale’s final issue is that the district court erred when it

found that summary judgment was appropriate because Hale could not show that

he was denied due process.

              I. Hale’s Second Opposition To The Motion To Dismiss

       Hale argues that the district court abused its discretion by failing to consider

his filed Opposition to Defendant Dementre Robinson’s Motion to Dismiss. First,

one group of the defendants filed a Motion to Dismiss, which was adopted by

certain other defendants. Hale filed an Opposition to that Motion to Dismiss.

After Defendant Robinson received service of the amended complaint, he also

filed a Motion to Dismiss. The district court ruled on both Motions to Dismiss

before it received Hale’s Opposition to Defendant Dementre Robinson’s Motion to

Dismiss. Because the district court did not consider Hale’s Opposition to

Defendant Dementre Robinson’s Motion to Dismiss, Hale contends that the

district court abused its discretion.

       The district court did not abuse its discretion when it did not consider

Hale’s Opposition to Defendant Dementre Robinson’s Motion to Dismiss. In its


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                 We will not consider Hale’s argument that he suffered from stigma by being
placed in close management and that stigma was not an emotional or mental injury because he
raises this argument for the first time on appeal. See In re Worldwide Web Systems, Inc., 328
F.3d 1291, 1301 (11th Cir. 2003) (stating that, in general, we do not consider arguments raised
for the first time on appeal).

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order ruling on the Motions to Dismiss, the district court cited and quoted from

Hale’s Opposition to the first Motion to Dismiss. In his Opposition to Defendant

Dementre Robinson’s Motion to Dismiss, Hale stated that “Hale can only assert

that Mr. Robinsons [sic] Motion to Dismiss must be denied because of all matters

previously bought [sic] in Hale’s opposition as to all other defendants and claims.”

Therefore, because Hale did not present any new arguments in his Opposition to

Defendant Dementre Robinson’s Motion to Dismiss, and in fact directly relied on

his first Opposition to all of the other defendants’ Motion to Dismiss, the district

court did not abuse its discretion in failing to consider Hale’s Opposition to

Defendant Dementre Robinson’s Motion to Dismiss.

                              II. 42 U.S.C. § 1997e(e)

      We review a grant of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for

failure to state a claim de novo, “accepting the allegations in the complaint as true

and construing them in the light most favorable to the plaintiff.” Swann v.

Southern Health Partners, Inc., 388 F.3d 834, 836 (11th Cir. 2004). “Pro se

pleadings are held to a less stringent standard than pleadings drafted by attorneys

and will, therefore, be liberally construed. But, issues not raised below are

normally deemed waived.” Tannenbaum v. United States, 148 F.3d 1262, 1263

(11th Cir. 1998) (internal citation omitted). In addition, “an appellate court must

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affirm the lower court’s judgment if the result is correct even though it is based

upon an improper ground.” Williams v. City of Dothan, Ala., 745 F.2d 1406,

1410 (11th Cir. 1984).

      A. Physical Injury Requirement

      In an action pursuant to 42 U.S.C. § 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, 215 F.3d

1225, 1231 (11th Cir. 2000). However, under 42 U.S.C. § 1997e(e), “[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). Thus,

pursuant to § 1997e(e), a prisoner bringing a § 1983 action must demonstrate a

physical injury that is more than de minimis in order to recover compensatory or

punitive damages for mental or emotional injury suffered while in custody. Harris

v. Garner, 190 F.3d 1279, 1287 (11th Cir. 1999), reh’g en banc granted, opinion

vacated, 197 F.3d 1059 (11th Cir. 1999), reinstated in relevant part on reh’g, 216

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

      Hale asks us to overturn the requirement that a prisoner must show more

than a de minimis physical injury in order to recover compensatory and punitive

                                          5
damages for mental or emotional injury under § 1983. “The law of this circuit is

‘emphatic’ that only the Supreme Court or this court sitting en banc can judicially

overrule a prior panel decision.” Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.

1997). Because neither the Supreme Court nor an en banc panel of this Court has

overruled our prior precedent on this issue, our prior precedent rule takes effect

and we may not reconsider our prior holding. Hale did not produce evidence that

he has suffered anything more than minimal or temporary physical effects from his

confinement in CM. Thus, the district court was correct to dismiss Hale’s claims

for compensatory and punitive damages.

      B. Gain-Time

      Gain-time is “time credited to reduce a prisoner’s term.” Douglas v. Yates,

535 F.3d 1316, 1319 (11th Cir. 2008) (quotation omitted). When a state prisoner

is challenging the duration of his confinement and the relief sought is a speedier

release from imprisonment, the “sole federal remedy is a writ of habeas corpus.”

Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841 (1973). A prisoner

may not seek monetary damages for the loss of gain-time in an action pursuant to

42 U.S.C. § 1983 while still imprisoned because awarding damages for a loss of

gain-time would imply that the prisoner’s loss of gain-time was invalid, and thus

he cannot seek monetary damages for the loss of gain-time until the loss of gain-

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time has been invalidated. Edwards v. Balisok, 520 U.S. 641, 646-48, 117 S. Ct.

1584, 1588-89 (1997) (citing Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct.

2364, 2372 (1994)).

      The district court erred when it failed to recognize that the loss of gain-time

is not a mental or emotional injury. Nevertheless, Hale’s claim for restoration of

gain-time or monetary damages for the loss of gain-time may not proceed. Hale’s

sole federal remedy for the restoration of gain-time is a federal writ of habeas

corpus. In addition, Hale may not seek monetary damages for his loss of gain-time

until his loss has been invalidated because the granting of relief would imply that

the length of his sentence was invalid. Thus, we affirm the district court’s

dismissal of Hale’s claim for restoration of gain-time or monetary damages for the

loss of gain-time.

      C. Nominal Damages

      While § 1997e(e) precludes a prisoner from seeking compensatory or

punitive damages without a prior showing of physical injury, it does not preclude a

prisoner from seeking nominal damages. Smith v. Allen, 502 F.3d 1255, 1271

(11th Cir. 2007). “Nominal damages are appropriate if a plaintiff establishes a

violation of a fundamental constitutional right, even if he cannot prove actual

injury sufficient to entitle him to compensatory damages.” Hughes v. Lott, 350

                                          7
F.3d 1157, 1162 (11th Cir. 2003). Morever, a district court may award nominal

damages to remedy a First Amendment violation. Pelphrey v. Cobb County, Ga.,

547 F.3d 1263, 1282 (11th Cir. 2008).

      The district court erred when it found that Hale was not seeking nominal

damages because it failed to construe his pro se pleadings liberally. Tannenbaum,

148 F.3d at 1263. An inmate states a First Amendment claim where he alleges he

was retaliated against for filing a grievance. See Wildberger v. Bracknell, 869

F.2d 1467, 1468 (11th Cir. 1989) (reversing dismissal of retaliation claim and

noting that if the appellant established on remand that he was disciplined for filing

a grievance, then he would have raised a constitutional issue). The prisoner can

establish retaliation by demonstrating that “the prison official’s actions were the

result of his having filed a grievance concerning the conditions of his

imprisonment.” Farrow, 320 F.3d at 1248 (quotation omitted). Hale has alleged

that prison officials retaliated against him because of his filing grievances. Thus,

we partially vacate the dismissal of the complaint and remand with instructions for

the district court solely to consider Hale’s claim for nominal damages.

                           III. Procedural Due Process

      We review a district court’s grant of summary judgment de novo. Steele v.

Shah, 87 F.3d 1266, 1269 (11th Cir. 1996). In making this determination, we will

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view the record before the district court in the light most favorable to the non-

moving party to determine if a genuine issue of material fact existed. Id. The

moving party bears the initial burden of establishing that there are no genuine

issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.

2548, 2553 (1986). If the moving party is successful, the burden shifts to the non-

moving party to come forward with evidence beyond the pleadings that

demonstrates the presence of a genuine issue of material fact. Id. at 324, 106 S.

Ct. at 2553.

      The Fourteenth Amendment prohibits a state from depriving “any person of

life, liberty, or property, without due process of law.” U.S. Const. amend. XIV.

When determining whether a plaintiff’s right to procedural due process was

violated, we engage in a two-step process. See Sheley v. Dugger, 833 F.2d 1420,

1424-25 (11th Cir. 1987). First, we determine whether the plaintiff had a liberty

interest at stake. Id. at 1424. Second, we determine whether the process the

plaintiff received “satisfied the minimum requirements of the due process clause.”

Id. at 1425. In this case, the district court assumed that Hale had a liberty interest

in being free from unjustified retention in CM. Accordingly, we assume, without

deciding, the same.

      When determining whether a plaintiff was denied due process, we apply “a

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three-part balancing test in which we weigh the private interests at stake in a

governmental decision, the governmental interests involved, and the value of

procedural requirements.” Sheley, 833 F.2d at 1426 (quotation omitted). Hale

challenges his retention in CM. With regard to a prisoner being retained in

administrative segregation, we have previously noted that in Hewitt v. Helms, 459

U.S. 460, 477 n.9, 103 S. Ct. 864, 874 n.9 (1983), overruled on other grounds by

Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, the Supreme Court alluded in

dicta to the type of process required:

      Prison officials must engaged in some sort of periodic review of the
      confinement of such inmates. This review will not necessarily require that
      prison officials permit the submission of any additional evidence or
      statements. The decision whether a prisoner remains a security risk will be
      based on facts relating to a particular prisoner – which will have been
      ascertained when determining to confine the inmate to administrative
      segregation – and on the officials’ general knowledge of prison conditions
      and tensions, which are singularly unsuited for “proof” in any highly
      structured manner.

      Sheley, 833 F.2d at 1426. Based on the standards described above, Hale

cannot show that the procedures used during CM review fell below the minimum

required for constitutional procedural due process. Therefore, we affirm the

district court’s grant of summary judgment on Hale’s due process claim.

                                  IV. Conclusion

      For the reasons described above, we affirm in part, and vacate and remand

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in part for proceedings consistent with this opinion.



AFFIRMED IN PART, VACATED AND REMANDED IN PART




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