Wendall Jermaine Hall v. Lieutenant Peter Merola ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14247
____________________
WENDALL JERMAINE HALL,
Plaintiff-Appellant,
versus
LIEUTENANT PETER MEROLA,
Defendant-Appellee,
SERGEANT CHARLES WATSON, et al.,
Defendants.
____________________
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2 Opinion of the Court 20-14247
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:15-cv-01054-BJD-PDB
____________________
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
ROSENBAUM, Circuit Judge:
This is one Heck of an appeal. That’s because resolution of
the appeal turns in large part on the proper application of the Su-
preme Court precedent known as Heck v. Humphrey.1 In a nutshell,
Heck precludes a convicted person from pursuing a civil claim for
damages under § 1983 if, because of what the elements of his civil
claim require him to prove, a decision in his favor on that claim
would necessarily call into question the validity of his criminal con-
viction.
Here, we must determine whether resolution of Plaintiff-
Appellant Wendall Hall’s § 1983 lawsuit against correctional offic-
ers would necessarily require a determination going to the validity
of a prison disciplinary finding against Hall. If so, we must affirm
the district court’s dismissal of Hall’s lawsuit. If not, we must va-
cate and remand in part.
Hall sued three Defendant-Appellee correctional officers un-
der § 1983 for alleged violations of his First and Eighth Amendment
rights. While Hall was in his prison cell, two correctional officers
1 512 U.S. 477 (1994).
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20-14247 Opinion of the Court 3
sprayed a chemical agent on him. The parties contest why the of-
ficers did this: Hall says it was in retaliation for his protected
speech; the correctional officers respond that it was to stop Hall
from tampering with a sprinkler in his cell. Ultimately, Hall was
found guilty of tampering with the sprinkler. Shortly after that,
Hall alleges that a supervising officer instructed the prison staff not
to feed him—again, in retaliation for Hall’s protected speech. Hall
sued the two officers and the supervising officer for violating his
First and Eighth Amendment rights.
The district court dismissed Hall’s claims against the two
correctional officers under Heck v. Humphrey because it concluded
that the success of Hall’s claims required a showing that his prison-
disciplinary conviction was invalid. But although the district court
dismissed Hall’s claims for compensatory and punitive damages
against the supervising officer, it allowed Hall’s demand for nomi-
nal damages to go to trial. Over Hall’s objection, the district court
instructed the jury that it could award Hall only nominal damages.
The jury returned a verdict for the supervising officer.
After a thorough review of the record and with the benefit
of oral argument,2 we vacate the district court’s dismissal of Hall’s
claims against the two correctional officers: Heck does not bar
Hall’s Eighth Amendment claim, and even if Heck applies to Hall’s
First Amendment claim, Hall is entitled to leave to amend. As for
2 We appointed Patrick C. Valencia to represent Hall on appeal. We appreci-
ate Mr. Valencia’s service to the Court.
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4 Opinion of the Court 20-14247
Hall’s claims for compensatory and punitive damages, we agree
with Hall that the district court erred in dismissing them. That’s
so because the Prison Litigation Reform Act doesn’t apply to this
removed action. And though we conclude that the district court’s
jury instruction was erroneous, we find that error harmless. So we
vacate and remand in part and affirm in part.
I. BACKGROUND
A. Factual Background
In 2014, Wendall Hall was incarcerated in Florida’s Colum-
bia Correctional Institution.3 Doc. 9 at 1. On January 31, two cor-
rectional guards, Officers Watson and Wright, went to the door of
Hall’s cell. Id. at 14. According to the complaint, the officers told
Hall that they were going to “gas” him because he was “a black
n[*****], who ha[d] many past disciplinary reports for masturba-
tion” and because Hall had “file[d] [l]awsuits and grievances against
correctional officers and [was] testifying in trial against [another
correctional officer,] Officer Bennett.” Id.
True to their word, the officers returned to Hall’s cell,
opened the food flap, and sprayed Hall in his face and chest with
chemical agents, causing Hall to suffer “severe physical pain in his
face, chest, eyes” and to be “unable to see out of his eyes, [have]
3 Because the district court dismissed Hall’s claims against the two correc-
tional officers (Officers Watson and Wright) at the motion-to-dismiss stage,
for purposes of our review, we must consider the allegations in Hall’s com-
plaint as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). The facts may or
may not be as Hall’s complaint alleges.
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blurry vision, [and suffer] difficulty and severe physical pain when
breathing, severe burning and itching of skin, bleeding out of but-
tocks and severe chest pain and long[-]lasting mental pain [and] se-
vere mental injury.” Id.Hall denied tampering with the sprinkler in his cell, id.—the
reason the officers later gave for spraying Hall.
A week later, on February 7, another officer—Lieutenant Pe-
ter Merola—went to Hall’s cell to say that he was “going to order
his officers not to feed [Hall] any food” to “teach [Hall] a lesson
about filing so many grievances.” Id. at 15. Lieutenant Merola also
made good on his word. Id. Correctional officers did not give Hall
any food on February 8th and 9th and told Hall that they were not
giving him food on Lieutenant Merola’s orders. Id.
B. Procedural History
Hall sued Officers Wright and Watson and Lieutenant Mer-
ola in state court in July 2015. He asserted First and Eighth Amend-
ment claims against Officers Watson and Wright for deploying
chemical agents against him because he filed grievances and gave
testimony in a case against another prison guard. And Hall alleged
that Lieutenant Merola had violated his First and Eighth Amend-
ment rights by instructing officers not to feed Hall in retaliation for
filing grievances. Hall sought compensatory and punitive dam-
ages.
The defendants removed the case to federal court, invoking
federal-question jurisdiction. After removal, at the defendants’ re-
quest, the magistrate judge required Hall to file a new complaint
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6 Opinion of the Court 20-14247
on the Middle District of Florida’s standard prisoner civil-rights
complaint form. Hall complied, filing an “Amended Complaint.”
The officers moved to dismiss the claims against them, as-
serting three reasons. First, Officers Watson and Wright said the
claims against them were barred by Heck. They attached a discipli-
nary report that adjudicated Hall guilty of attempting to break the
sprinkler in his cell. The report also explained that, when Hall re-
fused to stop, the officers used force to compel Hall to stop. The
report stripped Hall of 20 days of “gain time” and ordered 30 days
of “disciplinary confinement.” Because Hall had been found guilty
of tampering, the officers said, Heck barred the claims against them
based on their spraying of chemical agents on him. Second, all
three officers (including Lieutenant Merola) said that Hall wasn’t
entitled to compensatory or punitive damages because, under the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e), pris-
oners could recover those damages only in cases with actual physi-
cal injuries, which Hall hadn’t alleged. And third, they asserted
Eleventh Amendment (but not qualified) immunity.
Hall responded that Heck wasn’t applicable because he did
“not request injunctive relief for restoring gaintime credits los[t]
from disciplinary report and d[id] not seek injunctive relief for ear-
lier or speedier release from prison so his monetary relief if
granted will not cause a speedier or earlier release of plaintiff from
prison[.]”
The district court granted the motion in part and denied it
in part. The district court agreed with Officers Watson and Wright
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that Heck barred Hall’s claims against them because Hall contended
that he “was subjected to chemical gassing for reasons other than
he was tampering with a safety device and refusing to obey verbal
orders to cease his actions—a claim that would necessarily imply
the invalidity of the punishment imposed.” The district court
noted in a footnote that this was “not a case in which Plaintiff ad-
mitted that yes, he tampered with the security device . . . but the
officers used excessive force in subduing him. Instead, Plaintiff al-
leges in his [c]omplaint that he was not tampering with a safety de-
vice in his cell and Defendants Watson and Wright chemically
gassed him for various retaliatory or discriminatory reasons.” The
district court accordingly dismissed Officers Watson and Wright
from the case.
As to the remaining defendant (Lieutenant Merola), the dis-
trict court struck Hall’s claims for compensatory and punitive dam-
ages because Hall’s claimed injuries—hunger pangs—didn’t consti-
tute a physical injury as required under the PLRA. But the district
court found that Hall had stated viable First and Eighth Amend-
ment claims against Lieutenant Merola, so it denied the defend-
ants’ motion as to those claims. The district court rejected the of-
ficers’ claims to Eleventh Amendment immunity because Hall sued
the officers in their individual capacities, not their official capaci-
ties.
Just a week later, Hall sought leave to file an amended com-
plaint. He said that he would add dates that Lieutenant Merola
ordered him not to be fed (adding February 7 and 18 to the list) and
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8 Opinion of the Court 20-14247
more facts to show that he had suffered a physical injury. As to
Officers Watson and Wright, Hall asked for leave to replead his
claims to add a denial-of-medical-care claim. Hall also argued that
his complaint wasn’t Heck-barred because Heck didn’t apply to all
claims involving prison disciplinary actions, just those that would
impact the time the prisoner would be incarcerated. Hall attached
an affidavit, sworn under penalty of perjury, that after using the
gas, the officers ordered a nurse not to treat Hall’s injuries, prolong-
ing Hall’s pain.
The district court denied Hall’s motion. In the district
court’s view, Hall sought to amend his complaint for reasons that
appeared “dubious, financially motivated, and not made in good
faith.” “Realizing that no claims for compensatory and punitive
damages remain,” the district court said, Hall was (1) seeking to
“change the character of his complaint”—to add a new claim
against Watson and Wright and (2) to enhance his allegations—to
add details his allegations of physical injury allegedly caused by
Lieutenant Merola—to circumvent the court’s ruling. The district
court added that the defendants’ assertions—that Hall had unduly
delayed amendment and that Hall was proceeding in bad faith—
were “well founded” because Hall was an experienced pro se liti-
gant and had solicited a ruling on the motion to dismiss without
seeking leave to raise new claims.
The case, now consisting solely of First and Eighth Amend-
ment claims against Lieutenant Merola and seeking only nominal
damages, continued past summary judgment and on to trial.
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In June 2018, the district court appointed Hall counsel. In
August 2018, Hall’s new counsel moved to file a Second Amended
Complaint and to reopen discovery. He explained that he wanted
to add allegations about physical injury—specifically, that Hall suf-
fered from Gastroesophageal Reflux Disease (“Reflux”) and
Crohn’s disease and had been prescribed a special diet for these con-
ditions. When these conditions flared up, he explained, Hall suf-
fered the debilitating chest pain described in the complaint. Hall’s
counsel asked to provide supporting medical records showing that
Hall had suffered a physical injury. The proposed Second Amended
Complaint also alleged that Hall hadn’t been fed from August 7,
2014 until August 10, 2014.
The district court denied the motion to file a Second
Amended Complaint. Noting that the case had been pending for
years, the court said that the proposed amended complaint at-
tempted to relitigate old issues when it sought to add allegations of
medical diseases and to inject new issues, like that Hall hadn’t been
fed in August 2014. The court explained that the case was on the
brink of trial, so, the court concluded, it would be prejudicial to
Lieutenant Merola to allow Hall to amend his complaint.
Hall proceeded to trial against Lieutenant Merola on his
First and Eighth Amendment claims. At trial, Hall testified that he
was denied food as retaliation for grievances that he filed. He said
that Lieutenant Merola’s theory—that Hall purposefully starved
himself in February 2014—was implausible because Hall had med-
ical conditions that would have made starvation dangerous. Plus,
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Hall said, he had a trial that month for which he needed to be pre-
pared. Hall also called a fellow inmate who testified that he saw
the officers refuse Hall food on the days in question. Hall submit-
ted his medical records—documenting his Reflux—into evidence.
At the end of the first day of the trial, Hall moved to rein-
state his claims for compensatory and punitive damages and, under
Rule 15(b), to conform the pleadings to include the allegations
about his Reflux. The district court denied the motion, concluding
it would prejudice Lieutenant Merola because of the surprise.
In his case, Lieutenant Merola called several jail officials and
himself—all of whom testified that Lieutenant Merola never di-
rected them to withhold food from Hall and that, even if Lieuten-
ant Merola had, they would have fed Hall anyway. Lieutenant Mer-
ola also called the warden of the jail, who testified that Lieutenant
Merola wasn’t on duty on two of the dates Hall alleged he wasn’t
fed (February 8 and 9).
After the close of evidence, the district court instructed the
jury as follows:
If your verdict is in favor of Peter Merola with respect
to each claim, you will go no further. But if your ver-
dict on one or both claims is for Wendall Hall, you
will consider the issue of damages. Where, as here,
any physical injury an inmate suffers is minimal,
the law allows an inmate to recover nominal dam-
ages. This is because a person whose constitutional
rights were violated is entitled to a recognition of that
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violation, even if he suffered only minimal injuries.
Thus, if your verdict is for Wendall Hall on either
claim, you should award Wendall Hall nominal dam-
ages not to exceed one dollar.
Doc. 261 at 180 (emphasis added). Hall objected to the reference
that his injuries were minimal and asked for an “open-ended nom-
inal damages jury instruction.” The district court overruled both
requests without explanation.
The district court also instructed the jurors (in Jury Instruc-
tion 3) that they “should not assume from anything [the district
court said] that [the district court] [had] any opinion about any fac-
tual issue in this case. Except for [the district court’s] instructions
to [the jury] on the law, [the jury] should disregard anything [the
district court] may have said during the trial in arriving at [the
jury’s] own decision about the facts.” Jury Instruction 4 directed
the jurors to decide for themselves whether to believe each witness.
Jury Instruction 5 told jurors to assess witnesses’ credibility and de-
cide whether misstatements were unintentional or intentional.
And Jury Instruction 10 directed that “the fact that [the district
court] [gave] instructions concerning the issue of damages should
not be interpreted in any way as an indication that [the district
court] believe[s] that Wendall Hall should or should not prevail in
this case.”
During closing arguments, Hall’s counsel emphasized that
Hall wasn’t fed and emphasized that an injury “[did] not have to be
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a broken arm or a broken leg” to qualify as a legally cognizable in-
jury. Hall’s counsel reminded the jury that Hall had stomach-re-
lated conditions and “was at risk for being harmed as a result of not
receiving food.” And Hall’s counsel concluded that, “even without
those medical problems, going three days without food hurts. It’s
not a pleasant experience. So even holding that aside, the hunger
pains that Mr. Hall felt, not being able to stand up straight because
he was so hungry, that’s an injury under the law, folks.”
The jury returned a verdict on both counts for Lieutenant
Merola. Hall timely appealed. While this case was on appeal, Hall
was released from incarceration and was civilly committed.
II. STANDARDS OF REVIEW
We review de novo a motion to dismiss based on Heck v.
Humphrey. Dixon v. Hodges, 887 F.3d 1235, 1237 (11th Cir. 2018).
As for denial of leave to amend, we review that for an abuse
of discretion. Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1199 (11th
Cir. 2001).
On jury instructions, we will reverse “only if we are left with
a substantial and ineradicable doubt as to whether the jury was
properly guided in its deliberations.” Carter v. DecisionOne Corp.,
122 F.3d 997, 1005 (11th Cir. 1997) (citation omitted).
III. DISCUSSION
We divide our discussion into two parts. First, we discuss
Hall’s claims against Officers Watson and Wright. And second, we
analyze Hall’s claim against Lieutenant Merola.
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A. Claims Against Officers Watson and Wright
Hall contends that the district court erred in dismissing his
First and Eighth Amendment claims as barred by Heck because,
given that he isn’t in custody, Heck doesn’t apply. And even if Heck
applies, Hall continues, it doesn’t bar his Eighth Amendment claim
because prevailing on his excessive-force claim wouldn’t “neces-
sarily” invalidate his underlying conviction. Finally, Hall concludes
that he should receive leave to amend.
Officers Watson and Wright respond that Heck applies even
to claims brought after the plaintiff leaves custody. Next, they con-
tend that Hall presented his Eighth Amendment claim differently
to the district court. In other words, they say, Hall claimed in the
district court that the officers engaged in excessive force because
they gassed him for no reason at all—and if that premise were ac-
cepted, it would invalidate Hall’s conviction for tampering with the
sprinkler in his cell. But on appeal, the defendants assert, Hall im-
plicitly concedes that he was tampering with the sprinkler system
but claims for the first time that the officers’ use of gas to prevent
him from doing so amounted to excessive force. Finally, even if we
conceptualize Hall’s claim as one of excessive force in response to
Hall’s tampering with the sprinkler system, the defendants say that
they are entitled to qualified immunity because no clearly estab-
lished law put them on notice that their conduct was unlawful.
We proceed in four steps. First, we discuss the Supreme
Court’s decision in Heck. Second, we explain why Hall’s Eighth
Amendment claim survives Heck. Third, we turn to Hall’s First
Amendment claim and show that whether that claim survives Heck
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depends, not on whether Heck applies to out-of-custody plaintiffs,
but on how that claim is construed. Ultimately, we conclude that
we need not decide how to construe Hall’s First Amendment claim
because, fourth, we hold that Hall is entitled to leave to amend.
1. Heck
We begin with Heck v. Humphrey, 512 U.S. 477 (1994). In
Heck, the plaintiff—who was imprisoned for manslaughter—sued
prosecutors and a police investigator under 42 U.S.C. § 1983 for
damages because of their alleged unreasonable investigation, pur-
ported destruction of exculpatory evidence, and use of “an illegal
and unlawful voice identification procedure” at Heck’s trial. Id. at
479. Heck did not seek to be released from custody in his § 1983
action. Id.
The Court determined that Heck’s action must be dis-
missed. Id. at 490. In reaching this conclusion, the Court consid-
ered the nature of Heck’s claim—that is, whether it properly
sounded in habeas or as a § 1983 action. See id. at 480–87. To be
sure, Heck characterized it as a § 1983 claim. But the Court de-
scribed Heck’s claim as “l[ying] at the intersection” of habeas cor-
pus and § 1983. Id. at 480.
As the Court explained, “habeas corpus is the exclusive rem-
edy for a state prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release, even though
such a claim may come within the literal terms of § 1983.” Id. at
481. Section 1983, in contrast, “creates a species of tort liability.”
Id. at 483. The Court pointed out that, while Heck’s suit didn’t seek
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a speedier release, it did call into question the lawfulness of his con-
viction. Id. at 482–83. So while the Court categorized Heck’s suit
as falling under § 1983, it still found that the suit wasn’t cognizable.
Id. at 483.
That was so because the Court analogized Heck’s particular
§ 1983 claim to the common-law cause of action for malicious pros-
ecution. Id. at 484. This characterization of Heck’s specific claim
was critical to the rest of the Court’s analysis because the elements
of a common-law malicious-prosecution claim required the plain-
tiff to show termination of the prior criminal proceeding in his fa-
vor. Id. at 484. In other words, as an element of his malicious-
prosecution-like claim, a successful plaintiff must show that either
he was not convicted or that his conviction has been invalidated or
otherwise set aside. Id. Because Heck’s conviction was still valid,
the Court reasoned, permitting Heck to proceed with his action
under § 1983 would necessarily allow Heck to engage in an imper-
missible “collateral attack on [his] conviction through the vehicle
of a civil suit.” Id. (citation and quotation marks omitted).
So the Court held that Heck could not proceed with his
claim. Id. at 490. Rather, the Court explained, “to recover damages
for [an] allegedly unconstitutional conviction or imprisonment, or
for other harm caused by actions whose unlawfulness would ren-
der a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been [invalidated or otherwise
set aside].” Id. at 486–87 (footnote omitted). And a district court
must dismiss a prisoner’s § 1983 suit seeking damages if “a
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judgment in favor of the plaintiff would necessarily imply the inva-
lidity of his conviction or sentence,” unless the conviction or sen-
tence has already been invalidated. Id. at 487. As relevant here,
the Supreme Court later extended the Heck rule to apply to prison
disciplinary convictions. Edwards v. Balisok, 520 U.S. 641, 645–48
(1997).
2. Eighth Amendment Claim
Hall first says that Heck does not bar his excessive-force
claim. We agree.
“Heck bars a § 1983 claim only when it is a ‘logical necessity’
that judgment for the plaintiff in that suit would contradict the ex-
isting punishment.” Dixon, 887 F.3d at 1239 (quoting Dyer v. Lee,
488 F.3d 876, 879 (11th Cir. 2007)). Factual allegations bar claims
under Heck in only narrow circumstances: “where the allegation in
the § 1983 claim is a specific one that both necessarily implies the
earlier decision is invalid and is necessary to the success of the §
1983 suit itself.” Id. “When a plaintiff alleges a fact that, if true,
would conflict with the earlier punishment, but that fact is not nec-
essary to the success of his § 1983 suit, the Heck bar does not apply.”
Id.
Applying that guidance here, we must conclude that the dis-
trict court erred. If a factual allegation contradicts a guilty verdict,
our case law requires district courts to consider whether the fact is
“necessary” to the success of the § 1983 suit itself. Dixon, 887 F.3d
at 1239. Here, Hall’s factual allegation—that he wasn’t tampering
with the sprinkler system—could be false and Hall could still
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succeed on his lawsuit if Officers Watson and Wright used more
force than constitutionally permissible in stopping Hall from tam-
pering with the sprinkler system. That is, Hall’s denial of tamper-
ing with the sprinkler isn’t “necessary” to the success of his exces-
sive-force claim. As Judge Easterbrook explained in Gilbert v. Cook,
“[i]f [Hall] had been willing to concede” that he was guilty, “he
would have had clear sailing” on his § 1983 claim. 512 F.3d 899, 901
(7th Cir. 2008). But a Hall confession—“a confession that might
facilitate a criminal prosecution on top of the prison discipline”—
is not “a precondition to a civil remedy against public officials who
respond with excessive force.” Id. 4
4 Judge Newsom’s thoughtful concurrence on this point is, really, we think
just a question of semantics. Here’s why: Hall sued for excessive force. The
question is whether Hall’s factual allegation—that he didn’t tamper with the
sprinkler—means that Heck bars his claim. Judge Newsom agrees that, if Hall
admitted tampering, then there’d be no problem with Hall’s suit because an
officer can use more force that constitutionally permissible—that is, excessive
force—in effecting discipline that is otherwise warranted. Newsom Concur-
rence at 2. But that agreement means Hall’s denial that he tampered with the
sprinklers isn’t “necessary” to success in his suit. In other words, if we re-
moved that factual allegation, or flipped it to an admission, Hall’s suit could
succeed just the same. All Hall needs to do is show that the officers used ex-
cessive force. So the denial isn’t logically necessary. Consider our prior prec-
edent, Dixon, where the plaintiff was found guilty in prison disciplinary pro-
ceedings of battery on a correctional officer but sued that same officer for ex-
cessive force. 887 F.3d 1235, 1239–40 (11th Cir. 2018). He—as Hall does
here—denied committing an underlying infraction. Id. We said that the denial
didn’t bar his claim because “[t]he success of this claim is not necessarily de-
pendent on whether Dixon lunged at Pollock or not. His disciplinary punish-
ment, of course, establishes that he did. But that factual finding is not
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Officers Watson and Wright don’t dispute this analysis. In-
stead, they raise two counterarguments.
First, they say, Hall didn’t make this argument in the district
court, so it isn’t properly before us. We disagree. In responding to
the Officers’ motion to dismiss, Hall argued that he wasn’t seeking
to overturn his disciplinary finding that he tampered with the safety
device. He said that his suit, if successful, wouldn’t expunge his
disciplinary conviction, overturn it, or restore lost “goodtime”
credits; all he would get, he said, was money. His tampering
charge, he concluded, was “incidental” to his claims of excessive
force. The argument is properly preserved.
Second, the Officers respond that they are entitled to quali-
fied immunity. But the Officers did not raise this issue in the district
court. Instead, they raised only the issue of Eleventh Amendment
determinative of whether Pollock used excessive force against Dixon.” Id. at
1239–40 (footnote omitted). The point is this: a factual allegation that denies
the truth of a disciplinary conviction doesn’t mean that Heck bars the suit if—
as is the case here—the plaintiff could succeed if he or she admitted the truth
of the disciplinary conviction. See id. at 1238 (“A prisoner may be punished for
battery on a prison guard, and that prison guard may be held liable for exces-
sive force on the prisoner in subduing him; both may be true.”). To the extent
Judge Newsom contends that Hall couldn’t succeed on an “I didn’t do it” the-
ory, we agree that Hall couldn’t use a § 1983 suit to overturn his disciplinary
conviction. But that doesn’t mean his excessive-force claim is Heck-barred be-
cause the validity or invalidity of Hall’s disciplinary conviction is irrelevant to
whether the officers used excessive force against him. See id. at 1240 (“It is
logically possible both that [the prisoner] lunged at [the guard] and that [the
guard] used excessive force against him.”).
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immunity. Given this omission, they have forfeited this argument.
See Caban-Wheeler v. Elsea, 71 F.3d 837, 842 (11th Cir. 1996).
3. First Amendment
We next turn to Hall’s First Amendment claim. Hall alleged
that Officer Wright violated the First Amendment by “unlawfully
gassing [Hall] with chemical agents because [Hall] file[d] lawsuits
and grievances against correctional officers.”
The parties disagree about whether Heck applies to Hall now
that Hall is no longer in custody on his criminal convictions. 5 They
spend much of their briefs on the topic—a question that has
5 Hall completed his sentence in July 2019 and says that he is now civilly com-
mitted. So Hall is “in custody” for habeas purposes. See Duncan v. Walker, 533
U.S. 167, 176 (2005) (explaining that a state order of civil commitment satisfies
the “in custody” requirement); United States v. Searcy, 880 F.3d 116, 120 (4th
Cir. 2018) (“A person may also challenge his civil commitment collaterally
through habeas corpus proceedings.”). But importantly, Hall isn’t “in cus-
tody” for the conviction he is complaining about—the sprinkler tampering
charge—so habeas for that claim isn’t available. That is because, to file a ha-
beas petition, Hall must be “in custody” because of the conviction he attacks.
See Stanbridge v. Scott, 791 F.3d 715, 717 (7th Cir. 2015) (“Stanbridge’s civil com-
mitment is merely a collateral consequence of his criminal conviction, and
thus insufficient to render Stanbridge in custody pursuant to that [criminal]
conviction.”); cf. Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 401–02
(2001) (“Coss is no longer serving the sentences imposed pursuant to his 1986
convictions, and therefore cannot bring a federal habeas petition directed
solely at those convictions” while distinguishing that a prior conviction used
to enhance a current sentence could be collaterally attacked). Because Hall has
completed his state criminal sentence (for which he lost “gaintime” credits),
he isn’t “in custody” because of that sentence.
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20 Opinion of the Court 20-14247
divided our sister circuits. But we can decide this appeal without
resolving this thorny question.
As we’ve mentioned, Hall alleged that Officers Wright and
Watson violated the First Amendment by “unlawfully gassing
[Hall] with chemical agents because [Hall] file[d] lawsuits and
grievances against correctional officers.” Officers Wright and Wat-
son argue that this claim is most similar to a malicious-prosecution
claim, though they don’t say why. And Hall himself never explains
which common-law tort he thinks is most analogous to his claim.
As for us, we don’t think it’s clear that a malicious-prosecu-
tion claim is the best fit here. After all, when we look at Hall’s
claim, Hall doesn’t seem to be complaining that he was aggrieved
by the disciplinary report (and accompanying loss of “gaintime”)
but rather by the use of the gas itself. To be sure, if Hall’s claim is
that the guards fabricated a sprinkler-system charge to justify their
use of gas on him, then his claim would seem to be most analogous
to a malicious-prosecution claim because the wrong would be
about the alleged misuse of the prison disciplinary system. We
agree that that claim would be barred. See Williams v. Radford, 64
F.4th 1185, 1195 (11th Cir. 2023) (“Under our precedent, if an in-
mate is ‘found guilty of an actual disciplinary infraction after being
afforded due process,’ and ‘there was evidence to support the disci-
plinary panel's fact finding,’ he cannot assert a retaliation claim.”)
(quoting O’Bryant v. Finch, 637 F.3d 1207, 1215 (11th Cir. 2011)).
But on the other hand, if Hall’s claim complains that the
guards used chemical agents on him to retaliate against him for his
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20-14247 Opinion of the Court 21
First Amendment protected speech (in the form of filing prison
grievances), then the most analogous tort might be battery because
the wrong in that case is about the use of force.
And battery can be part of a First Amendment-retaliation
claim. “To state a § 1983 First Amendment retaliation claim, a
plaintiff generally must show: (1) she engaged in constitutionally
protected speech, such as her right to petition the government for
redress; (2) the defendant’s retaliatory conduct adversely affected that
protected speech and right to petition; and (3) a causal connection exists
between the defendant’s retaliatory conduct and the adverse effect
on the plaintiff's speech and right to petition.” DeMartini v. Town of
Gulf Stream, 942 F.3d 1277, 1289 (11th Cir. 2019) (emphasis added).
The analogous common-law tort, then, is the retaliatory conduct—
the second prong.
In the usual case, the retaliatory conduct is an arrest or a
prosecution. Nieves v. Bartlett, 139 S. Ct. 1715, 1726 (2019). That is,
the government arrests or prosecutes someone for their protected
speech. Id. In those cases, we look to the common-law torts of
false arrest or malicious prosecution. Williams v. Aguirre, 965 F.3d
1147, 1158 (11th Cir. 2020) (explaining a warrantless arrest is anal-
ogous to false arrest and an arrest with a warrant is analogous to
malicious prosecution).
But a First Amendment retaliation claim can use any sort of
adverse action at its second element: a civil lawsuit, see DeMartini,
942 F.3d at 1298–99, 1301, or the termination of employment, Lane
v. Franks, 573 U.S. 228, 243 (2014), for instance. Or, as relevant here,
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22 Opinion of the Court 20-14247
the use of force. We see no reason why Hall cannot rely on the use
of force to satisfy the “adverse action” prong.
Other circuits agree. The Eighth Circuit, for instance, has
recognized that excessive force could constitute an adverse action
in a First Amendment claim. See Burbridge v. St. Louis, 2 F.4th 774,
781 (8th Cir. 2021) (“The adverse action alleged here [in this First
Amendment retaliation case] is the use of excessive force. On ap-
peal, Officer Biggins argues only that he did not use excessive force
and thus there was no adverse action. . . . Rather, as explained
above, his sole argument for reversal is that if Drew’s excessive
force claim fails, the First Amendment claim necessarily fails as
well.”). So has the Seventh. See, e.g., Coady v. Steil, 187 F.3d 727, 733
(7th Cir. 1999) (“The remaining question before us is whether it was
‘clearly established’ on March 18, 1995 that a government official
could not retaliate against a subordinate’s protected exercise of po-
litical speech by hitting him.”).
Indeed, the Seventh Circuit thought “it [was] clear that being
punched in the face would deter anyone from exercising his or her
First Amendment rights.” Id. We have no trouble reaching the
same conclusion about being sprayed in the face with gas.
So that raises the question of which claim Hall is advancing.
Is Hall complaining that Officer Wright instigated a disciplinary ac-
tion against him for his speech? Or is Hall instead saying that Of-
ficer Wright used gas against him to punish him for his speech? The
former might be barred by Heck as analogous to a malicious-prose-
cution claim without a favorable termination, but the latter would
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20-14247 Opinion of the Court 23
not. As it turns out, though, we don’t need to decide which claim
Hall is bringing because we must give him leave to replead.
4. Leave to Amend
Hall also seeks leave to amend his complaint against Officers
Watson and Wright. We agree that the district court abused its dis-
cretion in denying Hall an opportunity to amend here. As a pro se
litigant, Hall was entitled to at least one chance to amend his com-
plaint under our precedent.
Rule 15(a) provides that a party may amend its pleading once
as a matter of course within 21 days after serving it and, after that,
with the opposing party’s written consent or the court’s leave
(which the court should freely give leave when justice so requires).
FED. R. CIV. P. 15(a).
Rule 15 “severely restrict[s]” the district court’s discretion to
deny leave to amend. Woldeab v. Dekalb Cnty. Bd. of Educ., 885 F.3d
1289, 1291 (11th Cir. 2018) (citation omitted). In particular, before
dismissing a complaint, a district court “must” give a pro se party
“at least” one chance to amend the complaint if a more carefully
drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108,
1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy
Indus. Am. Corp., 314 F.3d 541, 542 & n.1 (11th Cir. 2002) (en banc).
Hall’s first motion for leave to amend sought to add a claim
that Officers Watson and Wright were deliberately indifferent to
his serious medical needs—namely, that they had had ordered a
nurse not to treat Hall’s wounds after they had deployed gas, pro-
longing the pain the gas caused. The district court denied the
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24 Opinion of the Court 20-14247
motion because it found that Hall was seeking “to raise entirely
new claims concerning the denial of medical care . . . that were not
raised in his Amended Complaint.” The district court also stated
that the defendants’ assertions “that there has been undue delay
and bad faith in making this request” were “well founded.”
We disagree for three reasons. First, this motion was Hall’s
first request for leave to amend. While the operative complaint was
an “Amended Complaint,” it was “amended” only because the
magistrate judge had struck Hall’s original complaint for not using
the Middle District of Florida’s approved prisoner-civil-rights form
complaint. But given that Hall had sued in state court (and the
defendants had removed the action to federal court), that Hall’s
complaint was not on the approved form wasn’t a shortcoming at-
tributable to Hall. In other words, the Amended Complaint was
Hall’s first complaint. And absent a showing of futility or lack of
desire to amend, Hall had to be given at least one chance to amend
his claims. See Bank, 928 F.2d at 1112.
Second, the district court erred in concluding that Hall had
unduly delayed seeking leave to amend. 6 As we’ve noted, the dis-
trict court ruled on the motion to dismiss on May 17, 2016. Hall
moved for leave to amend just a week later. We cannot say that a
week’s delay is “undue.” The delay between the filing of the mo-
tion to dismiss (in October 2015) and Hall’s motion for leave to
6 We assume without deciding that bad faith and undue delay can be reasons
to deny a pro se plaintiff at least one opportunity to amend.
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20-14247 Opinion of the Court 25
amend (in May 2016) just reflects the time the district court used to
adjudicate the motion. Cf. In re Engle Cases, 767 F.3d 1082, 1109
(11th Cir. 2014) (“Although generally, the mere passage of time,
without more, is an insufficient reason to deny leave to amend a
complaint, undue delay may clearly support such a denial.”) (cita-
tion omitted).
We also don’t think that Hall improperly delayed seeking
amendment between filing his complaint in state court in July 2015
and moving for leave to amend in May 2016, because we are cogni-
zant that “the original complaint was filed by the plaintiff pro se
while a prisoner in the state prison system.” Stevens v. Gay, 792 F.2d
1000, 1005 (11th Cir. 1986). Nor had a court-ordered discovery
deadline passed that would have barred discovery into Hall’s new
allegations. See Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008)
(affirming denial of leave to amend after the end of discovery). No
doubt the defendants would have preferred denial of leave to
amend. But at bottom, “[t]he lengthy nature of litigation, without
any other evidence of prejudice to the defendants or bad faith on
the part of the plaintiffs, does not justify denying the plaintiffs the
opportunity to amend their complaint.” Bryant v. Dupree, 252 F.3d
1161, 1164 (11th Cir. 2001).
Third, we are skeptical that the district court properly con-
cluded that Hall sought leave to amend in bad faith. Bad faith can
be shown where “an attorney knowingly or recklessly raises a friv-
olous argument[] or argues a meritorious claim for the purpose of
harassing an opponent. A party also demonstrates bad faith by
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26 Opinion of the Court 20-14247
delaying or disrupting the litigation[.]” Barnes v. Dalton, 158 F.3d
1212, 1214 (11th Cir. 1998). We’ve affirmed sanctions based on bad
faith even against non-lawyer parties. Cf. Johnson v. 27th Ave. Caraf,
Inc., 9 F.4th 1300, 1314 (11th Cir. 2021).
Here, though, the record contains no indication that Hall
sought to advance a frivolous legal theory: he wanted to add alle-
gations that Officers Wright and Watson prevented a nurse from
treating his injuries from the use of gas. That seems to us to be a
perfectly legitimate Eighth Amendment claim—maybe meritori-
ous, maybe not, but not frivolous. Nor does the record include any
indication that Hall sought to harass Officers Wright and Watson
in particular. As far as we can tell, this lawsuit is Hall’s first against
them. Finally, to the extent that the district court found Hall’s de-
sire to amend to be “financially-motivated”; we’d be remiss if we
didn’t note that the majority of litigation has at least some financial
motivation. In other words, given the costs of litigation generally,
that Hall wanted to proceed with his claims only if he could recover
more than nominal damages does not strike us as showing bad
faith.
In sum, we think the district court abused its discretion in
not giving Hall at least one chance to amend his claims against Of-
ficers Watson and Wright.
B. Claim Against Lieutenant Merola
Hall argues the district court erred in four ways in its rulings
on Hall’s claim against Lieutenant Merola. First, he says that the
district court was wrong to dismiss his claims for punitive and
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20-14247 Opinion of the Court 27
compensatory damages. Second, he contends that the district court
erred in denying his counseled motion for leave to amend. Third,
he argues that the district court erred in denying his mid-trial Rule
15(b) motion to conform his complaint to the evidence. And,
fourth, he urges us to conclude that the district court erred in in-
structing the jury that Hall was entitled to only nominal damages.
We will take each in turn.
1. Compensatory and Punitive Damages
As preliminary matter, Hall asserts that the district court
erred in dismissing his claims for compensatory and punitive dam-
ages under § 1997e(e) because that statute applies to only actions
filed in federal court. And his action, he points out, was filed in
state court and removed to federal court. We agree.
Section 1997e(e) imposes a “limitation on recovery” and
states that “[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 show-
ing of physical injury or the commission of a sexual act.” 42 U.S.C.
§ 1997e(e) (emphasis added).
We’ve held that “bringing” an action means “commencing”
it, not “maintaining” it. Maldonado v. Baker Cnty. Sheriff’s Off., 23
F.4th 1299, 1304 (11th Cir. 2022). Here, Hall filed suit in state court,
and the defendants removed the action to federal court. In other
words, Hall didn’t bring his civil action in federal court, so §
1997e(e) doesn’t apply. The district court therefore erred in dis-
missing Hall’s claims for compensatory and punitive damages
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28 Opinion of the Court 20-14247
pursuant to § 1997e(e). But given that the jury found that Hall
wasn’t entitled to even nominal damages, the error doesn’t warrant
reversal. More on this below. See infra at 34.
2. Counseled Pre-trial Motion for Leave to Amend
Hall also argues that the district court erred in denying his
second motion for leave to amend, the one filed shortly after his
appointed lawyer joined the case. Hall’s counsel’s proposed Second
Amended Complaint sought to add new facts from Hall’s deposi-
tion: that Hall had lost weight and that he had Crohn’s disease and
acid reflux. Hall also wanted to add new dates to when he said that
Lieutenant Merola ensured he wasn’t fed, adding August 7 to Au-
gust 10 in addition to the dates in February. The district court de-
nied the motion because Hall either wanted to add new dates
(which would require more discovery) or sought to bolster his alle-
gations to establish physical harm so he could seek compensatory
and punitive damages. The district court found that Hall had un-
duly delayed in seeking to add these new facts on the eve of trial
and after three years of litigation.
As we’ve said, leave to amend should be “freely given when
justice so requires it.” But at the same time, it is “not an automatic
right.” Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008). A dis-
trict court may “in the exercise of its inherent power to manage the
conduct of litigation before it, deny such leave where there is sub-
stantial ground for doing so,” such as “undue prejudice to the
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20-14247 Opinion of the Court 29
opposing party by virtue of allowance of the amendment.” Id.(quoting Faser v. Sears, Roebuck & Co., 674 F.2d 856, 860 (11th Cir.
1982)). 7
The district court did not abuse its discretion in denying
Hall’s second motion for leave to amend. Hall sought leave to
amend in August 2018—over three years after he had originally
filed suit and less than two months before trial. The case was ready
for trial on the claims that Hall had originally made. Cf. Burger King
Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999) (affirming denial
of leave to amend forty months after the filing of the counterclaim
where the only explanation was the retention of a new attorney).
Hall sought to add new dates when Lieutenant Merola allegedly
did not feed him. And that would have necessitated deposing new
witnesses or re-deposing old ones. Plus, Lieutenant Merola might
have needed to retain an expert witness to explain or rebut Hall’s
claims as to his medical conditions. On the eve of trial, denying
leave to amend was well within the district court’s discretion.
3. Rule 15(b) Motion to Conform
Hall also argues that the district court erred in denying his
mid-trial Rule 16(b) motion to amend the complaint to conform to
the evidence already admitted at trial.
Rule 15(b) provides that, when a party objects to the admis-
sion of evidence that wasn’t raised in the pleadings, the court
7 These cases involve counseled plaintiffs, and at the time of these motions,
Hall had counsel.
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30 Opinion of the Court 20-14247
“may” permit amendment when it “will aid in presenting the mer-
its and the objecting party fails to satisfy the court that the evidence
would prejudice that party’s action or defense on the merits.”
FED. R. CIV. P. 15(b)(1). To prevent prejudice, “[t]he court may
grant a continuance to enable the objecting party to meet the evi-
dence.” Id. Determining whether amendment will be prejudicial
requires determining “whether [the defendant] had a fair oppor-
tunity to defend and whether [the defendant] could offer any addi-
tional evidence if the case were to be retried on a different theory.”
Doe #6 v. Miami-Dade Cnty., 974 F.3d 1333, 1340 (11th Cir. 2020).
When the non-amending party does not object, the pro-
posed amendment “must be treated in all respects as if raised in the
pleadings. A party may move—at any time, even after judgment—
to amend the pleadings to conform them to the evidence and to
raise an unpleaded issue. But failure to amend does not affect the
result of the trial of that issue.” FED. R. CIV. P. 15(b)(2). We review
the denial of a Rule 15(b) motion for an abuse of discretion. Doe
#6, 974 F.3d at 1337.
We need not decide whether the district court erred in deny-
ing amendment because it makes no difference to the outcome
here. The jury heard all the evidence Hall sought to add about his
medical conditions and medical records. And still, the jury found
for Lieutenant Merola. So even if the district court erred in denying
leave to amend, any error didn’t prejudice Hall.
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20-14247 Opinion of the Court 31
4. Jury Instruction
As we’ve explained, Hall’s claim that Lieutenant Merola in-
structed other officers not to feed Hall went to trial, and the jury
found Lieutenant Merola not liable. In support of his request for a
new trial, Hall argues that Jury Instruction 9 was legally incorrect
because it limited his damages to nominal damages. In Hall’s view,
the instruction was prejudicial because it directed the jury that “any
[of Hall’s] physical injur[ies]” were minimal, thus impugning Hall’s
credibility given that Hall had testified to suffering physical injuries.
The severity of Hall’s injuries was central to his case, Hall says, be-
cause the entire case boiled down to whether the jury should have
believed Hall or Lieutenant Merola. So telling the jury that the in-
juries were minimal—and thus, in Hall’s view, not to believe Hall
when he testified to severe injuries—placed a thumb on the scale
of liability. We disagree.
As a reminder, Jury Instruction 9 read,
If your verdict is in favor of Peter Merola with respect
to each claim, you will go no further. But if your ver-
dict on one or both claims is for Wendall Hall, you
will consider the issue of damages. When, as here,
any physical injury an inmate suffers is minimal,
the law allows an inmate to recover nominal dam-
ages. This is because a person whose constitutional
rights were violated is entitled to a recognition of that
violation, even if he suffered only minimal injuries.
Thus, if your verdict is for Wendall Hall on either
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32 Opinion of the Court 20-14247
claim, you should award Wendall Hall nominal dam-
ages not to exceed one dollar.
Doc. 241 at 15 (emphasis added). The judge also directed jurors (1)
to decide for themselves whether to believe each witness; (2) to as-
sess each witness’s credibility; and (3) to not “in any way” construe
“the fact that [the district court] [gave] instructions concerning the
issue of damages” “as an indication that [the district court] be-
lieve[d] that Wendall Hall should or should not prevail in this case.”
Id. at 16
“We will not disturb a jury’s verdict unless the charge, taken
as a whole, is erroneous and prejudicial.” S.E.C. v. Yun, 327 F.3d
1263, 1281 (11th Cir. 2003). “In some instances, even an inaccurate
instruction may not mandate reversal. If the totality of the instruc-
tions properly express the law applicable to the case, there is no
error even though an isolated clause may be inaccurate, ambigu-
ous, incomplete or otherwise subject to criticism.” Christopher v.
Cutter Lab’ys, 53 F.3d 1184, 1194 (11th Cir. 1995) (citation omitted).
The charge was legally wrong: as we explained above, the
district court erred in limiting Hall to nominal damages. Finding
legal error, we turn to prejudice. 8
8 Lieutenant Merola argues that Hall did not preserve his argument. We dis-
agree. Hall objected to the nominal-damages instruction at the charge confer-
ence, and the district court stated that the objections were “noted and over-
ruled for the record and preserved for the record.”
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20-14247 Opinion of the Court 33
Viewing the jury instructions as a whole, we conclude that
Hall was not prejudiced. The jury had the chance to award Hall
nominal damages but did not do so. In making this decision, the
jury had to consider whether Lieutenant Merola instructed guards
not to feed Hall in retaliation for Hall’s filing of grievances, not how
badly Hall may have suffered if Lieutenant Merola gave such an
instruction. Even Hall’s counsel conceded during closing argu-
ments that an injury “[did] not have to be a broken arm or a broken
leg” to qualify as a legally cognizable injury. And Hall’s counsel
concluded that “even without those medical problems, going three
days without food hurts. It’s not a pleasant experience. So even
holding that aside, the hunger pains that Mr. Hall felt, not being
able to stand up straight because he was so hungry, that’s an injury
under the law, folks.” 9 In other words, as Hall’s counsel argued the
case, there was no clash between Hall’s testimony and the chal-
lenged instruction. And because Hall’s case turned, not on the
9 One more thing: Hall also argues—in his pro se brief only—that the magis-
trate judge abused her discretion in denying Hall’s motion for sanctions when
Merola did not appear for a settlement conference. We disagree. We review
a district court’s sanctions order for an abuse of discretion. Amlong & Amlong,
P.A. v. Denny’s, Inc., 500 F.3d 1230, 1237 (11th Cir. 2007). While Lieutenant
Merola disobeyed a court order to attend the settlement conference, the mag-
istrate judge found Lieutenant Merola’s explanation—that he had overslept
after working a night shift and had fallen asleep with his clothes on and his
phone beside him—credible. Especially given that this was an isolated inci-
dent, we cannot conclude that the court abused its discretion in denying Hall’s
motion for a default judgment.
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34 Opinion of the Court 20-14247
severity of his injury, but its existence, we conclude that the jury-
instruction error doesn’t warrant a new trial.
IV. CONCLUSION
We VACATE the district court’s dismissal of Hall’s claims
against Officers Watson and Wright and REMAND for leave to re-
plead and AFFIRM the jury’s verdict in favor of Lieutenant Merola.
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21-12106 Newsom, J., Concurring 1
NEWSOM, Circuit Judge, concurring in part and concurring in the
judgment:
I agree with pretty much everything in the majority opinion.
I write separately only to offer one tiny clarification.
The majority opinion correctly concludes that, in the partic-
ular circumstances of this case, Hall’s Eighth Amendment claim
isn’t barred by Heck v. Humphrey, 512 U.S. 477 (1994), and is progeny.
See Maj. Op. at 17–19. For me, though, that conclusion turns on
exactly what kind of “excessive force” claim Hall is pursuing. Has
he raised only what I’ll call an “I didn’t do it” claim—i.e., a claim
that he didn’t tamper with the sprinkler in his cell and, therefore,
that any force that Officers Watson and Wright used to subdue him
was, by definition, constitutionally excessive—or has he also raised
an “I did it but the force used to subdue me was nonetheless con-
stitutionally excessive” claim?
As the majority opinion explains, the district court seemed
to think that Hall had presented only an “I didn’t do it” claim: “The
district court noted in a footnote that this was ‘not a case in which
Plaintiff admitted that yes, he tampered with the security device . .
. but the officers used excessive force in subduing him. Instead,
Plaintiff alleges in his complaint that he was not tampering with a
safety device in his cell and Defendants Watson and Wright chemi-
cally gassed him for various retaliatory or discriminatory reasons.’”
Maj. Op. at 7 (quoting Doc. 37 at 11 n.5). If that were indeed the
only type of excessive-force claim that Hall had pleaded, Heck, in
my view, would foreclose it. In that instance, Hall’s claim would
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2 Newsom, J., Concurring 21-12106
meet both of the Heck-bar prerequisites that we specified in Dixon
v. Hodges: It would (1) “necessarily impl[y] the earlier decision is
invalid,” because the prison’s disciplinary proceeding resulted in a
decision that Hall did tamper with the sprinkler; and (2) it would
be “necessary to the success of his § 1983 suit,” because, again, the
very premise of “his” (i.e., Hall’s particular) claim would be that no
tampering occurred. 887 F.3d 1235, 1237 (11th Cir. 2018).
All of which is to say that if we were stuck with the premise
that the lone excessive-force claim that Hall pleaded was of the “I
didn’t do it” variety, I’d have to conclude that Heck barred it. But—
and for me it’s a big but—I don’t think we’re stuck with that prem-
ise. Rather, I think that Hall’s pro se complaint, liberally construed,
is properly read to present an “I did it but the force used to subdue
me was nonetheless constitutionally excessive” claim. He alleged
there—with my enumeration added for clarity—that Officers Wat-
son and Wright gassed him “[1] without any justification or suffi-
cient reason to wantonly cause him pain or injury or [2] to retaliate
against [him] for filing grievances, Lawsuits or for his past discipli-
nary history or [3] using excessive force against him.” Doc. 9 at 9-
12. Now, I’ll admit, that’s a little hard to make out, but I think that
the final phrase, which I’ve labeled No. 3, really makes only as an
alternative to the “I didn’t do it” claim in No. 1. And notably, in his
opposition to the officers’ motion to dismiss, Hall seemed—again,
being charitable—to say something similar, calling the “charge of
tampering with safety device . . . merely incidental or slight to his
further claims of excessive force against Watson and
Wright.” Doc. 13 at 8-11.
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21-12106 Newsom, J., Concurring 3
So, as I see it, Hall alleged an “I did it but . . .” claim. That
claim—unlike any “I didn’t do it” claim that he might also have
brought—is not Heck-barred because it doesn’t necessarily imply
the invalidity of the prison disciplinary proceeding. To the con-
trary, it acknowledges the result of that proceeding and insists that
Officers Watson and Wright violated the Eighth Amendment for
independent reasons.