View Full Version : How would an inmate file a lawsuit?


Mz. Mocha
03-10-2011, 10:47 PM
Greetings ALL! My boyfriend is in a South Dakota county jail... A couple days ago he was placed on 24 hour lockdown. They asked him to move, he said "No"--end result, lockdown! Anyway, while in lockdown, they did not turn his water on or feed him, among other things... When he got out, they realized why he didn't want to move and allowed him to stay where he was. They admitted fault. However, baby wasn't happy. He wants to file a lawsuit. How would he go about doing this??

PTO-97580
03-11-2011, 07:38 AM
Whatever DOC he is in will have an administrative remedy process and most jurisdictions require that an inmate satisfy that process before a lawsuit can be filed.

Mz. Mocha
03-11-2011, 10:01 AM
Thanks, Anthony... He filed a grievance and now we're trying to figure out--what's next...

Colorado_Lawyer
03-11-2011, 12:17 PM
He cannot file a lawsuit for violation of his civil rights in confinement unless he suffered an actual physical injury. Not being happy is not an actual physical injury. Tell him to forget it and to be more cooperative next time.

Mz. Mocha
03-11-2011, 12:30 PM
Colorado Lawyer... Cute, but no. It wouldn't be based on physical injury, it would be based on the grounds of either negligence or abuse. He's not in confinement.

If I'm not mistaken, an inmate has rights, if those rights are violated--there is usually cause for legal action. Not having food or water = a violation of rights, does it not?? The fact that he's incarcerated is irrelevant.

Thanks for your input anyway...

MrsOsborne
03-11-2011, 01:24 PM
At MizMocho, Colorado Lawyer is still right, they dont do anything unless it's a physical injury. They admitted they were wrong, and that's about all he is going to get. They have done it to my fiance & as much hell as me & my mother raised, it did nothing except make us feel like we tried.

Colorado_Lawyer
03-11-2011, 05:02 PM
NO, you are not understanding. It is federal law that a prisoner in confinement MAY NOT file a federal civil rights lawsuit regarding the conditions of confinement UNLESS he suffered an actual physical injury. Therefore, no matter how bad the abuse, unless there is a physical injury, no cause of action. If he files one anyway, his lawsuit will be dismissed and he will be assessed a strike for a frivolous action.

He cannot sue for negligence either. Negligence is a state law tort, and prison officials are immune from liability for negligence under state law.

Therefore, he has no lawsuit.

Colorado Lawyer... Cute, but no. It wouldn't be based on physical injury, it would be based on the grounds of either negligence or abuse. He's not in confinement.

If I'm not mistaken, an inmate has rights, if those rights are violated--there is usually cause for legal action. Not having food or water = a violation of rights, does it not?? The fact that he's incarcerated is irrelevant.

Thanks for your input anyway...

Mz. Mocha
03-11-2011, 09:19 PM
LOL!! Wooooow!!! He basically has no "real" rights. UN-FREAKING-BELIEVABLE!!! I am speechless... Thanks guys...

Colorado_Lawyer
03-11-2011, 09:24 PM
That about sums it up. It is the result of decades of inmates abusing the system by flooding the federal courts will all types of frivolous or BS claims every time their feelings were hurt. In response, and in order to stem the tide, Congress passed the Prison Litigation Reform Act, which requires an actual physical injury as a prerequisite to filing a civil rights lawsuit.

H2o
03-11-2011, 10:16 PM
Colorado Lawyer, With all due respect, you are full of crap. I've read your posts and you do know your business with respect to criminal law and you know about appeals; however, you do not know about civil rights. Turner v. Safley interprets prisoners' constitutional rights, and, in a recent 9th cir. case, Foster v. Runnels, a prisoner won his deliberate indifference case because a California prison didn't feed him for two days. Please brush up on civil rights law before dispensing bad advice.

I also resent your implication that the majority of prisoner lawsuits are frivolous. That is wrong.

Paralegal USA
03-11-2011, 11:13 PM
Colorado Lawyer, With all due respect, you are full of crap. I've read your posts and you do know your business with respect to criminal law and you know about appeals; however, you do not know about civil rights. Turner v. Safley interprets prisoners' constitutional rights, and, in a recent 9th cir. case, Foster v. Runnels, a prisoner won his deliberate indifference case because a California prison didn't feed him for two days. Please brush up on civil rights law before dispensing bad advice.

I also resent your implication that the majority of prisoner lawsuits are frivolous. That is wrong.

The plaintiff in Foster v. Runnels DID NOT win his deliberate indifference case. The 9th Circuit merely agreed with plaintiff that defendant was not entitled to qualified immunity and that it was therefore inappropriate for the district court below to have granted summary judgment in defendant's favor. The case was remanded back to the district court for further proceedings on the complaint. That is NOT a "win."

Colorado_Lawyer
03-11-2011, 11:25 PM
If you are not fed long enough and sustain a physical injury as a result, then the suit would pass muster under the Prison Litigation Reform Act. However, the OP's boyfriend did not sustain a physical injury, he was just unhappy. Therefore, any cause of action is barred pursuant to he Prison Litigation Reform Act (PLRA).

H20 is confusing two different issues: In order to state a claim for a civil rights violation under 42 USC 1983, there must be deliberate indifference to the prisoner's constitutional rights. But, even if deliberate indifference, then under the PLRA, there must be a physical injury before you can claim damages for emotional distress. And also, in any case, the defendants must not have qualified immunity -- in other words, the constitutional rights they are alleged to have violated are well established and recognized so that they are on notice that their conduct is unlawful.

I have a case right now where my client refused to perjure himself in a death penalty case (the victim and the defendants were prisoners at his prison). In retaliation, he was put in the hole and kept in solitary confinement for two years in the hope that he would change his mind. (the death penalty trial is now over with an acquittal). There is definitely deliberate indifference and no qualified immunity BUT I have the problem of the physical injury requirement of the PLRA. I alleged that due to the lack of exercise and fresh air, he developed severe headaches and lost his level of physical fitness, etc. We are not litigating whether that is a sufficient physical injury to get past the PLRA.

H2o
03-12-2011, 01:05 AM
ParalegalUSA You are right. It was not technically a win. Coloradolawyer Inmates win cases for due process violations or first amendment violations all the time. There does not necessarily have to be physical harm. If they don't feed someone for three weeks, but there is no measurable physical harm, do you think it would be a colorable action? It's a rhetorical question, but MzMocha, I think you should speak to a good jailhouse lawyer who knows civil rights law. I say this because not many "real" lawyers know anything about civil rights. There is not big money in it.

Colorado_Lawyer
03-12-2011, 02:09 AM
No, you can get an INJUNCTION but not DAMAGES if there is no physical injury. Here is what section (e) of the PLRA (42 USC 1997e) states:

(e) Limitation on recovery. No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.

So, there are no recoveries of damages for first amendment violations "all the time" since the PLRA went into effect. I cannot remember exactly when it went into effect. 1997? 1998? So, if you are looking a a case that was filed before the PLRA went into effect, it is irrelevant to this issue.



ParalegalUSA You are right. It was not technically a win. Coloradolawyer Inmates win cases for due process violations or first amendment violations all the time. There does not necessarily have to be physical harm. If they don't feed someone for three weeks, but there is no measurable physical harm, do you think it would be a colorable action? It's a rhetorical question, but MzMocha, I think you should speak to a good jailhouse lawyer who knows civil rights law. I say this because not many "real" lawyers know anything about civil rights. There is not big money in it.

H2o
03-12-2011, 12:42 PM
ColoradoLawyer - PLRA is clear, you cannot sue for mental or emotional damages UNLESS there is physical harm. Constitutional violations are not mental or emotional damages, they are violations of your constitutional rights. You are thinking of this as a state torts issue, and it's not the same at all. I know many people who have received damage awards for violations of constitutional rights without any physical harm whatsoever. Look into this because it will help your client.

MIKAER
03-12-2011, 03:05 PM
no, you are not understanding. It is federal law that a prisoner in confinement may not file a federal civil rights lawsuit regarding the conditions of confinement unless he suffered an actual physical injury. Therefore, no matter how bad the abuse, unless there is a physical injury, no cause of action. If he files one anyway, his lawsuit will be dismissed and he will be assessed a strike for a frivolous action.

He cannot sue for negligence either. Negligence is a state law tort, and prison officials are immune from liability for negligence under state law.

Therefore, he has no lawsuit.
the prison law offices is currently addressing constitutional issues of lock down i would contact them

Colorado_Lawyer
03-12-2011, 05:42 PM
You cannot just sue somebody because your "rights" were violated. You have to have to allege damages before you have a cause of action for anything other than nominal damages. Damages come in four general categories: nominal damages, economic damages, redress for physical injuries/physical pain and suffering and redress for emotional pain and suffering. If your "rights" were violated, there is no cause of action if the violation of rights did not cause damages. Thus, if no out of pocket loss or economic harm, physical injuries, or emotional injuries, then NO CAUSE OF ACTION except for nominal damages. Nominal damages are $1 so if you want to waste $350 filing fee to get a $1 nominal damages award, be my guest. Also, under the PLRA, court awarded attorney fees cannot exceed 150% of the damages award. Therefore, attorney fees would be $1.50, so good luck finding an attorney.




ColoradoLawyer - PLRA is clear, you cannot sue for mental or emotional damages UNLESS there is physical harm. Constitutional violations are not mental or emotional damages, they are violations of your constitutional rights. You are thinking of this as a state torts issue, and it's not the same at all. I know many people who have received damage awards for violations of constitutional rights without any physical harm whatsoever. Look into this because it will help your client.

H2o
03-12-2011, 05:50 PM
You cannot just sue somebody because your "rights" were violated. You have to have to allege damages before you have a cause of action for anything other than nominal damages. Damages come in four general categories: nominal damages, economic damages, redress for physical injuries/physical pain and suffering and redress for emotional pain and suffering. If your "rights" were violated, there is no cause of action if the violation of rights did not cause damages. Thus, if no out of pocket loss or economic harm, physical injuries, or emotional injuries, then NO CAUSE OF ACTION except for nominal damages. Nominal damages are $1 so if you want to waste $350 filing fee to get a $1 nominal damages award, be my guest. Also, under the PLRA, court awarded attorney fees cannot exceed 150% of the damages award. Therefore, attorney fees would be $1.50, so good luck finding an attorney.

I wonder why people are winning federal lawsuits against prisons for listening to their legal calls and getting large settlements. ColoradoLawyer , I understand damages. You are the one who does not understand constitutional law, and then you come here giving bad advice. It is like a divorce lawyer trying to do a murder defense.

H2o
03-12-2011, 05:51 PM
If the government infringes on my right of free speech, do I have to break a leg to collect damages? Stick to what you know.

H2o
03-12-2011, 05:52 PM
the prison law offices is currently addressing constitutional issues of lock down i would contact them

Yes, due process and equal protection. Coloradolawyer should look it up.

Colorado_Lawyer
03-12-2011, 06:20 PM
They aren't collecting anything but nominal damages. They might also get an injunction to stop the illegal conduct (but in the OP's case, her boyfriend was already released from the hole).

You seem to be convinced that you know more than I do. So, what are the cases you are talking about that were filed after the PLRA went into effect? If you have a specific case name and federal court, I will be happy to look it up on PACER to see what happened in the case.

If the government infringes on my right of free speech, do I have to break a leg to collect damages? Stick to what you know.

PTO-97580
03-12-2011, 07:01 PM
Point here is if the OP wants to pursue this, they should seek legal advice. We are not going to get into a pissing match over a disputed point of civil law.

H2o
03-12-2011, 11:38 PM
Try, for example, Paul Browning v MCI et al in Nevada District Court, Reno. There are hundreds of examples!

Colorado_Lawyer
03-13-2011, 12:12 AM
Mr. Browning did not file a claim for compensatory damages for emotional distress. He filed a claim for violation of his first amendment rights, and asked for injunctive relief and out of pocket losses due to the defendants' conduct. Remember, no physical injury is needed for an injunction or economic damages. This case never went to trial, and instead was settled. The defendants did reimburse Mr. Browning for his out of pocket damages as part of the settlement. There was no damages award for emotional distress.

Remember, in the OP's original post, there could be no issue of an injunction because the boyfriend was released from the hole after 24 hours. And, there were no out of pocket damages. She was asking if her boyfriend could file a lawsuit because he was angry that his rights were violated (ie emotional distress). The answer is NO, that would be barred by the PLRA. And, if Mr. Browning had sought damages for emotional distress that would have been barred by the PLRA as well.

There are not "hundreds" of examples of prisoners getting damages because their constitutional rights were violated, in the absence of a physical injury -- at least since the PLRA went into effect in 1994. However, there are plenty of examples of injunctions. In order to get injunctive relief, the harm must be continuing, and this type of relief cannot be obtained if the injury or unconstitutional conduct only occurred in the past and it is only speculative that it would continue in the future.

Here is some case law regarding this:

B.Prior Showing of Physical Injury
97. Generally

Provision of PLRA directing that no federal civil action may be brought by prisoner for mental or emotional injury suffered while in custody without prior showing of physical injury applied to constitutional torts as well as non-constitutional tort claims. Cassidy v Indiana Dep't of Corrections (2000, CA7 Ind) 199 F3d 374, 10 AD Cas 106.

42 USCS 1997e(e) applies to claims in which plaintiff alleges constitutional violations, such that plaintiff cannot recover damages for mental or emotional injury for constitutional violation in absence of showing of actual physical injury, but 1997e(e) does not prevent a prisoner from obtaining injunctive or declaratory relief. Thompson v Carter (2002, CA2 NY) 284 F3d 411 (criticized in Shaheed-Muhammad v DiPaolo (2005, DC Mass) 393 F Supp 2d 80).

Section 1983 complaint seeking damages for alleged emotional and mental injuries must be dismissed without prejudice, where plaintiffs cannot any physical injuries, because prisoners and former prisoners may not obtain such damages for injuries occurring while in custody without showing "physical injury" within meaning of new 42 USCS 1997e(e). Zehner v Trigg (1997, SD Ind) 952 F Supp 1318 (criticized in Hollimon v DeTella (1997, ND Ill) 1997 US Dist LEXIS 1083) and (criticized in Calhoun v DeTella (1997, ND Ill) 1997 US Dist LEXIS 1745) and affd (1997, CA7 Ind) 133 F3d 459 (criticized in Caldwell v District of Columbia (2001, DC Dist Col) 201 F Supp 2d 27).

Reasoning of Greig cannot be extended to physical injury requirement of 42 USCS 1997e(e) which is substantive limitation on type of actions that can be brought by prisoners; its purpose is to weed out frivolous claims where only emotional injuries are alleged--this purpose is accomplished whether 1997e(e) is applied to suits brought by inmates incarcerated at time of filing or by former inmates incarcerated at time of alleged injury but subsequently released. Cox v Malone (2002, SD NY) 199 F Supp 2d 135, affd (2003, CA2 NY) 56 Fed Appx 43 and (criticized in Kelsey v County of Schoharie (2005, ND NY) 2005 US Dist LEXIS 17057).

Unpublished Opinions

Unpublished: Because inmate did not allege physical injury in his 42 USCS 1983 action against correctional officers, 42 USCS 1997e(e) precluded his claim for compensatory damages for any mental or emotional injury suffered as result of confiscation of his legal work at gunpoint. Taylor v Milton (2005, CA5 Miss) 124 Fed Appx 248, motion den, cert dismd (2005) 546 US 804, 126 S Ct 185, 163 L Ed 2d 37.

Unpublished: Since pro se inmate's claim that medical personnel and medical center were deliberately indifferent to his health and safety did not allege physical harm, his allegation did not rise to constitutional violation. Newland v Nafrawi (2007, CA5 Tex) 214 Fed Appx 390.

Unpublished: In 42 USCS 1983 case, pro se state inmate could not recover from any alleged emotional injury from having his hair cut short since he had not alleged any physical harm as required by 42 USCS 1997e(e); furthermore, hair length and shaving requirements did not violate his constitutional rights. Woods v Chapman (2007, CA5 Tex) 239 Fed Appx 35, cert den (2008, US) 128 S Ct 890, 169 L Ed 2d 744.

Unpublished: In 42 USCS 1983 case in which pro se state inmate alleged that warden had withheld self-help litigation manual that he had ordered through mail, in violation of First, Fourth, Fifth, Eighth, and Fourteenth Amendments, district court's 28 USCS 1915A dismissal for failure to state claim was granted because pro se inmate argued merits of his constitutional claims; he did not explain or address how district court erred in dismissing his complaint for failing to allege physical injury as required by 42 USCS 1997e(e). Thompson v Adamson (2007, CA11 Ga) 247 Fed Appx 178.

Unpublished: District court erred in holding that 42 USCS 1997e prohibited plaintiff state prisoner from recovering any damages without prior showing of physical injury as 1997e did not bar prisoner's right to recover nominal or punitive damages for constitutional violation by defendant prison staff. Berenguel v Bell (2008, CA5 Tex) 2008 US App LEXIS 13597.


98. Physical injury not alleged

Prison inmate's claims of verbal abuse, and his claim that he was forced to once beg for food that he eventually received, were not actionable because neither claim alleged physical injury to inmate. Calhoun v Hargrove (2002, CA5 Tex) 312 F3d 730.

Plaintiff inmate's First Amendment claim alleging mental anguish, emotional distress, psychological harm, and insomnia from dispute with defendant prison officials over withheld mail, with no claim of physical injury, fell under 42 USCS 1997e(e)'s bar, precluding damages for emotional or mental injuries suffered from purported First Amendment violation. Geiger v Jowers (2005, CA5) 404 F3d 371 (criticized in Percival v Rowley (2005, WD Mich) 2005 US Dist LEXIS 46282) and (criticized in Porter v Caruso (2008, WD Mich) 2008 US Dist LEXIS 64347).

Because prisoner did not allege physical injury, under 42 USCS 1997e(e) he could not assert claims for mental or emotional injury with regard to his confinement in administrative segregation. Harden-Bey v Rutter (2008, CA6 Mich) 524 F3d 789, 2008 FED App 176P.

Malicious prosecution claims of federal inmate are barred by 42 USCS 1997e(e), even though he alleges his wrongful prosecution for assault was part of conspiracy to cover up officers' planned physical assault of him, where he failed to show physical injury in connection with his malicious prosecution claims. Turner v Schultz (2001, DC Colo) 130 F Supp 2d 1216.

County jail inmate could not recover compensatory damages for emotional distress arising from alleged assault by guards, where inmate's counsel in 1983 action sent letter to opposing counsel waiving inmate's claims for physical injury, and inmate was required by 42 USCS 1997e to show physical injury to claim mental or emotional injury. Jessamy v Ehren (2001, SD NY) 153 F Supp 2d 398.

Prisoner did not allege physical injury, but he did bring suit for alleged violations of his First Amendment rights, rather than for mental or emotional injury; accordingly, 42 USCS 1997e(e) did not present obstacle to action. Cancel v Mazzuca (2002, SD NY) 205 F Supp 2d 128, reconsideration den, motions ruled upon (2002, SD NY) 2002 US Dist LEXIS 15201.

Inmate failed to set forth cause of action for alleged sexual harassment by prison guard and dismissal was proper when female guard allegedly peeped through inmate's window and made obscene gestures, but there was no allegation of physical injury. Johnson v Medford (2002, WD NC) 208 F Supp 2d 590, affd (2002, CA4 NC) 37 Fed Appx 622.

Detainee's 42 USCS 1983 claims against county entities and employee alleging sexual harassment and entrapment, which court read as denial of his right not to be harmed while in custody, were dismissed where detainee failed to allege any physical injury and as result, claims were barred under Prison Litigation Reform Act. Brewster v Nassau County (2004, ED NY) 349 F Supp 2d 540.

Because inmate had not claimed serious or significant physical injury resulting from defendant prison doctors' actions in providing him medical care as required by 42 USCS 1997e(e), he failed to allege Eighth Amendment violation that would entitle him relief. Jackson v Wiley (2004, ED Va) 352 F Supp 2d 666, affd (2004, CA4 Va) 103 Fed Appx 505.

Inmate's 42 USCS 1983 claims that his constitutional rights were violated because of prison's lack of reading materials and recreational facilities, failure of commissary to stock certain food and toiletry items, prison's exposure of inmate to stench of sewerage, and prison's failure to provide bunk bed ladders, failed because inmate did not allege that these conditions caused him to suffer physical injury, as required for such claims under Prison Litigation Reform Act of 1995. Banks v York (2007, DC Dist Col) 515 F Supp 2d 89.

District court found that state inmate met his burden of showing that South Dakota officials violated his rights under Religious Land Use and Institutionalized Persons Act of 2000, 42 USCS 2000cc to 2000cc-5, when they denied his request to use succah and tape recorder to practice his Jewish faith, but not when they denied his request to use herbs, oils, incense, and some other items; however, inmate was entitled only to injunctive relief and nominal damages under Prison Litigation Reform Act of 1995, 42 USCS 1997e, because he did not show that he suffered physical injury as result of officials' action or that officials acted with evil motive or intent. Sisney v Reisch (2008, DC SD) 533 F Supp 2d 952 (criticized in Pugh v Goord (2008, SD NY) 2008 US Dist LEXIS 60998).

Inmate's claims against numerous correctional facility employees, alleging several violations of his constitutional rights failed because he did not show any physical injury from alleged violations, as required by 42 USCS 1997e(e), particularly from alleged denial of access to legal materials and alleged interference with his legal mail, in violation of his right of access to courts. Dolberry v Levine (2008, WD NY) 567 F Supp 2d 413, motion den, injunction den (2008, WD NY) 2008 US Dist LEXIS 74129.

Inmate's claims against numerous correctional facility employees, alleging several violations of his constitutional rights failed because he did not show any physical injury from alleged violations, as required by 42 USCS 1997e(e), particularly from alleged due process violation by moving him to cell block near his "enemy." Dolberry v Levine (2008, WD NY) 567 F Supp 2d 413, motion den, injunction den (2008, WD NY) 2008 US Dist LEXIS 74129.

In 42 USCS 1983 action in which inmate alleged that prison employees interfered with his mail, 42 USCS 1997e(e) barred inmate from recovering compensatory damages because inmate did not allege that he suffered any physical injury and there was no reason to think that inmate suffered any physical injury. Nash v Mc Ginnis (2008, WD NY) 585 F Supp 2d 455.

In inmate's 42 USCS 1983 suit alleging that custody officer, captain, and lieutenant violated inmate's constitutional rights by labeling him as "snitch" and impeding his filing of related grievance, inmate could not seek compensatory damages because he did not meet physical injury requirement of 42 USCS 1997e(e). Abney v Jopp (2009, WD NY) 655 F Supp 2d 231.

Unpublished Opinions

Unpublished: Where Texas inmate failed to allege that he was physically injured by prison official's compelling him to submit DNA sample, his damage claims in federal court suit were dismissed because 42 USCS 1997e(e) denied recovery for mental or emotional injury suffered while in custody without prior showing of physical injury. Sheffield v Trevino (2006, CA5 Tex) 207 Fed Appx 403.

Unpublished: Inmate's claim for mental injury damages arising from inmate's assignments to cells with other prisoners by whom inmate felt threatened was precluded by 42 USCS 1997e(e); inmate could not seek damages for mental injury without showing of physical injury. Toussaint v Good (2008, CA3 Pa) 276 Fed Appx 122.

Unpublished: Where defendant alleged that strip search he experienced upon transfer to detention facility violated Eighth Amendment, claim was properly dismissed because, absent injury related to strip search, his Eighth Amendment claim was not cognizable under 42 USCS 1997e(e). Jackson v Herrington (2010, CA6 Ky) 2010 FED App 573N.

Unpublished: Damages instruction was proper because state prisoner was not entitled to recover compensatory damages for his First Amendment retaliation claim under 42 USCS 1983 because under 42 USCS 1997e(e), prisoner did not allege any physical injury, monetary loss, or other actual injury related to retaliation claim. Hicks v Ferrero (2008, CA11 Ga) 2008 US App LEXIS 14235.

Unpublished: Because state prisoner failed to assert any physical injury in his amended complaint, federal district court correctly determined that his complaint failed to allege facts sufficient to support request for damages for depression and emotional distress pursuant to 42 USCS 1997(e). Brown v Saline County Jail (2008, CA10 Kan) 2008 US App LEXIS 26066.

Unpublished: District court did not err in determining that an inmate could not recover compensatory or punitive damages with respect to his First Amendment retaliation claim because he failed to allege the requisite physical injury under 42 USCS 1997e(e). Williams v Brown (2009, CA11 Ga) 2009 US App LEXIS 20193.

Unpublished: Inmate had not established an actionable claim under 28 USCS 1346 because the inmate had alleged mental and emotional suffering but had not provided evidence of a physical injury; 42 USCS 1997e similarly restricted the inmate's right to seek compensatory damages for solely mental or emotional injuries. Michtavi v United States (2009, CA3 Pa) 2009 US App LEXIS 20872.

Unpublished: On plaintiff prisoner's claim that defendant prison officials denied him recreation and exercise, he had not shown that his allegations rose to level of Eighth Amendment violation, and under 42 USCS 1997e(e) he was not entitled to damages since he admitted he had not suffered physical injury. Field v Corr. Corp. of Am., Inc. (2010, CA5 Miss) 2010 US App LEXIS 2810.

Unpublished: Where plaintiff inmate sought compensatory damages on his freedom of religion claims against defendant prison officials, his claims were barred by 42 USCS 1997e(e) because he did not allege that he suffered physical injury. Busick v Neal (2010, CA5 Miss) 2010 US App LEXIS 10768.

Unpublished: Pursuant to U.S. Const. amend. 8 and 42 USCS 1997e(e), because plaintiff prisoner did not claim to have suffered any physical injury as result of nurse's disclosure of his medical information, he could not maintain that claim. Wallin v Dycus (2010, CA10) 2010 US App LEXIS 11263.


99. Physical contact alleged insufficient

Inmate's 1983 claims for mental and emotional injuries are dismissed with leave to amend, where only alleged physical contact is that he had "bodily fluids thrown on" him, because in order to recover for mental or emotional injury he must allege prior physical injury pursuant to 42 USCS 1997e(e). Evans v Allen (1997, ND Ill) 981 F Supp 1102 (criticized in Caldwell v District of Columbia (2001, DC Dist Col) 201 F Supp 2d 27).




Try, for example, Paul Browning v MCI et al in Nevada District Court, Reno. There are hundreds of examples!

Tom_Greene
03-13-2011, 01:09 AM
Try, for example, Paul Browning v MCI et al in Nevada District Court, Reno. There are hundreds of examples!

Browning won a little over 25 dollars from what I could find. I guess a win is a win though. :rolleyes:

Colorado_Lawyer
03-13-2011, 12:00 PM
I attached the settlement agreement. He got $8000 plus the repair of his radio/tape deck, plus a new color TV, a new watch and an ipod. Because he could state a claim for relief for injunctive relief (unlike the OP), his case made it beyond the initial screening process by the Federal Magistrate. (A complaint that asks for damages only, and does not allege a physical injury will not make it past the initial screening process.) The Defendants then moved for summary judgment and were denied in part. Therefore, there was going to be a trial, which would have cost the Defendant tens of thousands of dollars, which they wanted to avoid. So, they were willing to pay some money. $7500 is pocket change for a corporation like MCI, although is a huge sum of money to spend at a prison commissary by a death row inmate, so I guess everyone was happy. Also, Browning got an ipod, which he wouldn't have been able to obtain otherwise. I hope he lived long enough to enjoy these things.

So, the moral of the story is that some money is possible without a physical injury, but the inmate has to have a viable claim for injunctive relief in order to even get to the point where the Attorney General is willing to settle for some money. This doesn't happen hundreds of times, maybe just a couple of times a year. But remember, the Plaintiff must first be able to state a claim for relief -- by alleging a physical injury, actual out of pocket losses or a valid claim for injunctive relief. It is difficult to state a valid claim for injunctive relief based just on an allegation that constitutional rights were violated in the past. To get an injunction, you have to do more than just allege that the DOC could repeat its conduct in the future, you have to allege that the violations are on going or that there is a specific and direct threat that the rights violation will be repeated.


Browning won a little over 25 dollars from what I could find. I guess a win is a win though. :rolleyes:

Mz. Mocha
03-13-2011, 01:07 PM
LOL! Ahhhh, there's the confusion... He doesn't want to file a lawsuit because he was angry, I added that. His anger has nothing to do with it. They withheld his food and water. I was just asking does he have a case because they didn't give him food or water for an extended period of time. We want to know if this is a violation of his "civil" rights.

thatwiz
03-13-2011, 01:12 PM
Are you serious? prisons pretty much do what they want and how does someone document that they haven't been fed in a few days. is it your word against the Co who says he brought the tray???? Who you will think will be believed-not the inmate. If someone starved to death-thats another issue, but a few missed meals -you can't even prove or how does one get proof????

Mz. Mocha
03-13-2011, 01:17 PM
Are you serious? prisons pretty much do what they want and how does someone document that they haven't been fed in a few days. is it your word against the Co who says he brought the tray???? Who you will think will be believed-not the inmate. If someone starved to death-thats another issue, but a few missed meals -you can't even prove or how does one get proof????


He has some proof. Couldn't get into it over the phone but he wouldn't want to proceed if he didn't. He's not petty at all. It's not about money or anything "frivolous", he just wants "justice"...

MIKAER
03-13-2011, 01:24 PM
Are you serious? prisons pretty much do what they want and how does someone document that they haven't been fed in a few days. is it your word against the Co who says he brought the tray???? Who you will think will be believed-not the inmate. If someone starved to death-thats another issue, but a few missed meals -you can't even prove or how does one get proof????

Kitchen records would show distribution of trays, OP does your party have any disabilitis or suspected disabilities ? Do he have a medical need for fluids or an imbalnce the would requiring moitoting such as a medication with a known side efffect (hot bed client) or disability such as diabetes that required special diet?

MIKAER
03-13-2011, 01:34 PM
He has some proof. Couldn't get into it over the phone but he wouldn't want to proceed if he didn't. He's not petty at all. It's not about money or anything "frivolous", he just wants "justice"...
Contact PLO they will at least give you guidelines oh how to address a complaint or file for investigation. "frivolous" is a legal term and was used to manipulate many voters, thus leaving many innocent peole who had been foced to sigh plea bargains minimal rights to appeal...

Colorado_Lawyer
03-13-2011, 03:12 PM
We seem to be going round and round. I will try to explain again: I know I was putting words in your mouth when I said he was angry. The situation is not ongoing, so he cannot ask for an injunction; therefore he has to ask for damages. In order to ask for damages, you have to have been injured and want money to redress the injuries. But, what injury did he suffer? There are three categories of injuries: economic (out of pocket losses), physical injuries, and pain and suffering.

So, what type of injury resulted from the unconstitutional withholding of food and water? He did not suffer any out of pocket losses. According to you, while he was angry about it, he did not suffer an actual physical injury. (This is where the "angry" comes in. Anger is not a sufficient physical injury.) This leaves pain and suffering, which I am sure that he legitimately suffered. But, the problem is that pursuant to the Prison Litigation Reform Act, he cannot ask for damages for pain and suffering unless he suffered a physical injury.

He cannot sue for state law causes of action, such as negligence, because state law employees are immune from suit. Since they are not immune for federal civil rights action, then this is your only option.

Therefore, all he can do is file a federal civil rights action and ask for a Declaration that his constitutional rights were violated and ask for nominal damages. Nominal damages are $1-$10. So, if he wants to pay the $350 filing fee to get his Declaration and nominal damages (for the principle of the matter), he can certainly do that.

I hope that this clears up the confusion.


LOL! Ahhhh, there's the confusion... He doesn't want to file a lawsuit because he was angry, I added that. His anger has nothing to do with it. They withheld his food and water. I was just asking does he have a case because they didn't give him food or water for an extended period of time. We want to know if this is a violation of his "civil" rights.

H2o
03-13-2011, 04:00 PM
This is so ridiculous! Have you ever heard of punitive damages? Now go do the research and look for the TRUTH instead of what you want the truth to be because you don't believe that prisoners should have rights and that their claims are frivolous.

A few names for you:

Canell
Siggers-El
Boesing

Large punitive damage awards, no physical injury.

thugwife
03-13-2011, 05:42 PM
My dog aint in this fight but in Arizona (I believe) the prison system only feeds their inmates ONCE a day. (without googling it, I am guessing where it is) if they cant sue over not getting 3 meals a day, what makes you think your man has a leg to stand on?

I hate reading shit like this, seriously.

My man got nailed for 25 on a first offense drug charge while 81 of his co-de's have did less than 2 and some have reoffended on drug charges over and over again, and he hasnt made parole the first time up, yet.

Wonder if I can sue? Because right now a law was passed that trafficking offenses under 4 g's is 3-5 (I believe, without going to look) that would mean the state would owe him a shit ton of money, and TIME.

I aint poking fun at you, because I know you mean well, but if EVERY inmate tried to sue over things that didnt go their way, it would be ALOT more overcrowding than the problem we have now.

Its prison doll, most inmates HAVE NO RIGHTS. You are stripped of most of that when you go in along with your clothes.

You said he is seeking no monetary gain, well whats in it for him? JUSTICE? What is that anyways?

Colorado_Lawyer
03-13-2011, 05:57 PM
Do you have actual case citations rather than just one of the names of the parties? If so, I would be interested in seeing it. Don't get me wrong here. I don't like or believe in this result.

A search on Lexis Nexis turned up twenty-three 42 USC 1983 cases where a prisoner named Canell was the Plaintiff. In 19 of these cases, the prisoner's complaint was dismissed or the prison officials were granted summary judgment. The other four cases were before the PLRA went into effect in 1995.

In Siggers-El litigation, I see no mention of damages award at all, just an orders regarding qualified immunity and then granting summary judgment for the defendants. So, do you have a citation or an order in this case? Because I would like to see it.

The Boesing case is not on point at all because the PLRA does not apply. He sued the police officers who arrested him for excessive force. The PLRA applies to prisoner suits who are challenging the terms and conditions of their confinement as unconstitutional.

While the United States Supreme Court has not yet ruled on this issue, some of the federal circuit courts of appeal have held that in 42 USC 1983 cases, there can be no award of punitive damages without compensatory damages. Other circuits at least imply that it is possible to have punitive damages without alleging compensatory damages (e.g. Mahach-Watkins v. Depee, 593 F.3d 1054 (9th Cir 2010).

Here the bigger problem: The federal courts have held over and over again (including the United States Supreme Court) that punitive damage awards that are out of proportion to compensatory damages violate the due process clause and are unconstitutional. There is one case where punitive damages were $145 million and compensatory damages were only $1 million -- due process violation.

So, if a prisoner has no physical injury resulting from the unconstitutional actions of the prison officials, then he theoretically could get punitive damages, but the punitive damages have to be proportionate. So, $1 nominal damages, maybe $5-$50 punitive damages. Not very encouraging. I forgot to mention in my previous post that if the prisoner wins, he would get on order for the Defendants to reimburse the $350 filing fee, but not attorney fees. Attorney fees are limited to 150% of damages, and there are plenty of cases, where because there was no physical injury, the prisoner got his $1 nominal damages and his attorney got a buck fifty. This pretty much kills any interest in attorneys taking on prisoner claims unless there has ben an actual and significant physical injury (or the case is appropriate for injunctive relief).

I am continuing to research this issue, because it is a key issue in one of my cases, so if you have actual case citations, I would appreciate it. If I find out something else, I will come and post it.

Colorado_Lawyer
03-13-2011, 05:59 PM
I have heard this too, or maybe it is one hot meal and one sack lunch. If so, this is an example of a CONTINUING CONSTITUTIONAL VIOLATION and the prisoners could state a cause of action for injunctive relief without having to first suffer an actual physical injury.

My dog aint in this fight but in Arizona (I believe) the prison system only feeds their inmates ONCE a day. (without googling it, I am guessing where it is) if they cant sue over not getting 3 meals a day, what makes you think your man has a leg to stand on?

I hate reading shit like this, seriously.

My man got nailed for 25 on a first offense drug charge while 81 of his co-de's have did less than 2 and some have reoffended on drug charges over and over again, and he hasnt made parole the first time up, yet.

Wonder if I can sue? Because right now a law was passed that trafficking offenses under 4 g's is 3-5 (I believe, without going to look) that would mean the state would owe him a shit ton of money, and TIME.

I aint poking fun at you, because I know you mean well, but if EVERY inmate tried to sue over things that didnt go their way, it would be ALOT more overcrowding than the problem we have now.

Its prison doll, most inmates HAVE NO RIGHTS. You are stripped of most of that when you go in along with your clothes.

You said he is seeking no monetary gain, well whats in it for him? JUSTICE? What is that anyways?

Colorado_Lawyer
03-13-2011, 11:16 PM
IMPORTANT UPDATE!!!!

I may be an old dog, but not too old to learn something new. I am in Colorado which is in the Tenth Circuit. It turns out that there is a split of authority in the federal courts of appeals regarding the applicability of the PLRA to constitutional claims. Now I can see why H2o was so mad. We were both right -- for our respective federal Circuits.

The are 12 Circuit Courts of Appeals in the federal system, and until the US Supreme Court weighs in on a particular issue, often the Circuits will conflict. And that is the case here. Ten of the Circuits (including my Circuit, the Tenth Circuit) holds that the PLRA applies to 1983 cases to redress constitutional violations against prisoners. Therefore, no compensatory damages unless there is also a physical injury.

However, there are two circuits in the minority that have a different rule, and do not apply the PLRA to constitutional violations. Those two Circuits are the 7th and 9th Circuit Court of Appeals. The Original Poster, Mz Mocha is in Chicago. Illinois is in the 7th Circuit, so what I told her is wrong. No need for a physical injury, and her boyfriend has a cause of action for the violation of his constitutional rights. H2o is in Nevada, and Nevada is in the 9th Circuit -- which is why she is so adamant that I was wrong. It turns out that I was wrong for the states in the 9th Circuit, and the cases she is looking at, the precedent that would apply to her loved one do hold that there can be a damages award without a physical injury because the PLRA does not apply to constitutional violations.

Unfortunately, the 7th and 9th Circuits are in the minority, and the PLRA is applied to prisoner civil rights cases in the other 10 Circuits. In case someone is interested, here are the states in the 7th and 9th Circuits: California, Nevada, Oregon, Washington, Arizona, Idaho, Montana, Wisconsin, Illinois and Indiana. If you live in these states, it is much easier to file a federal civil rights action as a prisoner because the PLRA does not apply.

A word of warning, however: Sooner or later, the US Supreme Court (SCOTUS) will step in and resolve the conflict among the circuits. Because the SCOTUS is more conservative now, and the 9th Circuit is considered to be exceptionally liberal, I expect that when the SCOTUS rules, it will adopt the majority rule, and the 9th and 7th Circuit rule will be overruled. However, in the mean time, the PLRA does not apply in the 9th and 7th Circuits. I hope that it is a long time before the Supreme Court steps in, or that when they do, they adopt the minority rule. If they adopt the minority rule, then attorneys can get paid more than 150% of the damages and can actually be paid their hourly rate -- so of course, I want this to happen.

One more thing: Regarding punitive damages, there is also a split in the Circuits, with the Tenth, Ninth and Third Circuits holding that the PLRA is inapplicable to punitive damages. Therefore, no need for a physical injury before a prisoner can be awarded punitive damages. However, there is that other problem I talked about in a previous post -- the constitutional requirement that punitive damages be proportional to compensatory damages, and I am not sure what this will end up meaning as far as very large punitive damages awards.

PrisonConsultnt
03-20-2011, 05:54 PM
Colorado Lawyer has great points. The one that sticks out to me is that so many inmates file that these never hold merit anymore. While I was in Federal prison I saw so many people filing lawsuits for everything under the sun. They never get anywhere. There was no physical abuse done that can be documented which is a huge part. Tell him to move on before he pisses someone off and really gets abused.

myfreedom2010
03-21-2011, 09:53 AM
LOL! Ahhhh, there's the confusion... He doesn't want to file a lawsuit because he was angry, I added that. His anger has nothing to do with it. They withheld his food and water. I was just asking does he have a case because they didn't give him food or water for an extended period of time. We want to know if this is a violation of his "civil" rights.

Hi there - I would like to add my "two cents" - first of all he is currently in a "county jail" as you stated - therefore all this back and forth of the Federal/DOC rights or no rights is irrevelant - however if he is property of DOC or Federal Prison and is awaiting transfer than it is relevant - however I don't believe he is at this point....

You stated he was in the "hole" - I have been to jail and than on to DOC and I can tell you - YOU are not getting the entire story here!

He most likely went to the hole for any reasons including but not limited too:

Suicide Watch
Behavior Problems
Disruption Problems

The list goes on and on....I can tell you that WATER is READILY available in the hole especially in the county Jails - if they are put in the "hole" for disciplinary reasons than they have a toilet/sink/bed - if he went to "suicide watch" he will not having ANYTHING and will be treated as such...

What most "outsiders" fail to realize is the actual jail/prison systems....That is why an "insider" is good person to give advice...

He can't sue them for this....there is no basis or merit for a lawsuit....Now if he had suffered major medical problems, died, etc...than there might be a basis for a lawsuit.....

To be honest I believe he probably was in the "hole" for behavioral reasons and therefore probably was being disruptive and had to be dealt with...

In prison even in the hole they got all the meals as general population got! They were not deprived....

Sorry but I had to put my "insight" in here....

Colorado_Lawyer
03-21-2011, 09:24 PM
Hi there - I would like to add my "two cents" - first of all he is currently in a "county jail" as you stated - therefore all this back and forth of the Federal/DOC rights or no rights is irrevelant -



No, you are not correct. The federal civil rights laws apply when government officials violate constitutional rights -- the government official can be municipal, county, or state. No state OR LOCAL official may act in deliberate indifference to a person's federal constitutional rights. Municipal Police officers, County Sheriffs, County Government officials, School District officials, etc. are sued all the time under the federal civil rights laws, it is not limited to state employees.

myfreedom2010
03-22-2011, 12:40 PM
No, you are not correct. The federal civil rights laws apply when government officials violate constitutional rights -- the government official can be municipal, county, or state. No state OR LOCAL official may act in deliberate indifference to a person's federal constitutional rights. Municipal Police officers, County Sheriffs, County Government officials, School District officials, etc. are sued all the time under the federal civil rights laws, it is not limited to state employees.

What I was stating is if he is not DOC or Federal Prisoner than therefore he will not fall under them....

I wasn't referring to his "rights" under the federal civil rights laws....

I understand our "constitutional rights" as an inmate - however this situation doesn't fall under an inmates "constitutional rights" - when you go to the hole you are afforded the same rights as general population as long as you are NOT under suicide watch....

Most outsiders tend to not understand this and take what their inmate is saying and twist it....All "seg" and "hole" inmates get food, water, medical treatment, etc....This conception is sorely misconstrude.....

Colorado_Lawyer
03-22-2011, 05:00 PM
I just want to be sure there is no confusion here, because maybe I do not understand what you are saying.

It makes no difference whether in a DOC or county facility, he has the same rights and the federal civil rights laws apply. The exact same case law and standards apply. The difference is a federal prisoner vs one being held in state or local custody. The federal prisoner cannot file a federal civil rights lawsuit under 42 USC 1983. 42 USC 1983 actions are not available against federal officers and officials (including FBOP).

All a federal prisoner can do is file a Bivens action, and the standards and case law are different. It is actually more difficult for the federal prisoner because of that "special factors counseling hesitation" exception that the US Supreme Court has carved out.

What I was stating is if he is not DOC or Federal Prisoner than therefore he will not fall under them....

I wasn't referring to his "rights" under the federal civil rights laws....

I understand our "constitutional rights" as an inmate - however this situation doesn't fall under an inmates "constitutional rights" - when you go to the hole you are afforded the same rights as general population as long as you are NOT under suicide watch....

Most outsiders tend to not understand this and take what their inmate is saying and twist it....All "seg" and "hole" inmates get food, water, medical treatment, etc....This conception is sorely misconstrude.....

magnacarta860
01-06-2013, 03:33 PM
Sir,

does not 42 ucs 1997e(e)' physical injury requirement violate the seperation powers doctrine? let's see, the supreme court in Hayburns case, 2 Dall, at 413.("[N]o decision of any court of the United States can, under any circumstances, . . . be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested").
in light of this precedent adjucation did not the supreme court in Hudson v. mcmillain, 1 us 503 (1992) say " I do not read anything in the Court's opinion to limit injury cognizable under the Eighth Amendment to physical injury" id. at 16.
Does not 42 usc 1997e(e) attempt to revise the supreme court adjucation in Hudson v. mcmillain, 1 us 503 (1992) by placing an physical injury requirement on Eight Amendment cases?
Furthermore as JUSTICE BLACKMUN stated, "the Eighth Amendment prohibits the unnecessary and wanton infliction of 'pain,' rather than 'injury.'" id. at 16
THEREFORE, 42 ucs 1997e(e) does not only violate the Seperation of Powers Doctrine but it is also totally inapplicable to Eighth Amendment case's.

yourself
01-06-2013, 07:11 PM
Sir,

does not 42 ucs 1997e(e)' physical injury requirement violate the seperation powers doctrine? let's see, the supreme court in Hayburns case, 2 Dall, at 413.("[N]o decision of any court of the United States can, under any circumstances, . . . be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested").
in light of this precedent adjucation did not the supreme court in Hudson v. mcmillain, 1 us 503 (1992) say " I do not read anything in the Court's opinion to limit injury cognizable under the Eighth Amendment to physical injury" id. at 16.
Does not 42 usc 1997e(e) attempt to revise the supreme court adjucation in Hudson v. mcmillain, 1 us 503 (1992) by placing an physical injury requirement on Eight Amendment cases?
Furthermore as JUSTICE BLACKMUN stated, "the Eighth Amendment prohibits the unnecessary and wanton infliction of 'pain,' rather than 'injury.'" id. at 16
THEREFORE, 42 ucs 1997e(e) does not only violate the Seperation of Powers Doctrine but it is also totally inapplicable to Eighth Amendment case's.

1. don't necropost a 42 entry thread - I'm not going to read it, and a lot of other people aren't going to bother.

2. do learn the difference between civil remedy and criminal remedy, and when the "cruel and unusual punishment" portion of the 8th actually applies.

3. read up on statutory construction - it might help you actually rectify an area of law you're finding confusing.

For those of you who want the Cliff's Notes - the last section of the 8th prohibits cruel and unusual punishments - banishments, corporal remedy (it's why we don't thrash people within an inch of their lives), tattooing, or any of the archaic, non death penalty remedies like removing noses, lips, hands, branding, etc - all those really heinous things you read about in history (and some countries still practice). Further, it limits how we do kill people, when we execute them, to the most humane methods possible - no stoning, no pressing since the Salem Witch days, etc.

Since the Constitution, most laws in the US and its states have been encoded into statutes, aka legislatively created laws enforced by LEO and the judiciary. Judges can't create crimes or civil causes of remedies, and legislatures can't mandate that a particular person is guilty of a crime or civilly liable through the creation of statute.

Laws can be classified as criminal or civil. All of our inmates have suffered a criminal liability - incarceration, fines, etc. Just because a person is confined due to liability in a criminal court doesn't mean that s/he loses all civil rights. That means that inmates can sue when they suffer a loss through some civil remedies. Inmates have a right to healthcare, so when it's withheld, and the proper grievance procedure is followed without satisfaction, an inmate can sue in civil court. The appropriate remedy in civil court is monetary, having nothing to do with the criminal remedy. Inmates can participate in family law courts, sue for intentional torts, sue for civil rights violations, etc. None of that mitigates the criminal sentence - it just means that they can recover for their injury, physical, property, dignitary, etc in civil court.

Recovery in civil court has nothing to do with the 8th Amendment cruel and unusual provision. It's civil, not criminal.

Further, the laws regarding statutory construction MANDATE that the laws be read in a way that they don't contradict each other.

To come to the conclusion that the poster queries, one must remove the distinction between civil and criminal law and deliberately construe two or more laws to necessarily be contradictory to one and other.

Anyway, that's what I get from that one post without bothering to read the other 41 posts. Further, I'm answering because ColoradoLawyer hasn't posted in probably a year or so. She (not "sir"), is much missed on this forum.

I probably won't bother to answer more on this question as it represents a fundamental misunderstanding of US law. Reading up on the differences between criminal and civil law, and reading up on the Rules of Statutory construction would clarify this stuff, as well as why, outside the death penalty, 8th amendment arguments are not used in court - they constitute something of an absurdity. Should somebody have a real curiosity about the history of the 8th's cruel and unusual provision, there's plenty out there, but I do recommend an understanding of the difference between criminal and civil law before progressing to more complex areas like application of the 8th to civil remedy.

yourself
01-06-2013, 07:13 PM
last note - here's a law review article from Yale dealing with the 1997

http://www.law.yale.edu/documents/pdf/Boston_PLRA_Treatise.pdf