Physical Injury Required for All Prisoner Suits Seeking Compensatory and
Punitive Damages

By David M. Reutter

In an unpublished opinion, the Eleventh Circuit Court of Appeals has held
the PLRA bars compensatory and punitive damages in all prisoner cases that
fail to demonstrate a physical injury, regardless of the constitutional
right violated. Florida prisoner Mark Osterback filed a 42 U.S.C. §1983
action against prison officials and employees at the Gulf and Washington
Correctional Institutions.

The defendants confiscated and impounded two of Osterback's personal
outgoing letters in which he made vulgar and unflattering comments about
prison staff. He received two disciplinary reports (DRs) for disrespect to
officials expressed by means of words, resulting in thirty days confinement
and loss of sixty days gain time. Institutional officials denied
Osterback's grievance, but the Secretary of the Department of Corrections
overturned both DRs on appeal. The defendants then issued a third DR for
making obscene or profane statements in the first confiscated letter. After
being found guilty, the same sanctions were imposed against Osterback.
Again the Secretary overturned the DR. The first letter was returned but
the second was not.

Osterback's suit alleged violations of his First Amendment right to freedom
of expression and association; his Fifth Amendment right to be compensated
for the deprivation of his personal property (the unreturned letter); and
his Fourteenth Amendment right to due process for failing to notify him in
writing that his letters would not be mailed and by failing to give him an
opportunity to challenge the decision. As a result, he claimed damages for
transfers amongst three prisons, 519 days in various forms of confinement,
including a period of close management, physical and mental deterioration
that culminated in development of a sinus condition, severe depression, a
nervous breakdown, a suicide attempt and loss of ability to earn gain time.
The district court granted Osterback summary judgment, but held the PLRA's
provision in 42 U.S.C. §1997e(e) bars all claims for compensatory and
punitive damages where no physical injury is established. Instead,
Osterback was awarded one dollar in nominal damages.

On appeal, Osterback claimed §1997e(e), and its application to a First
Amendment claim, violates his right to due process and equal protection.
He also challenged dismissal of the Fourteenth Amendment claim. §1997e(e)
provides: No federal civil action may be brought by a prisoner & for
mental or emotional injury suffered while in custody without a prior
showing of physical injury." PLN has previously reported the Eleventh
Circuit's decision that held the physical injury" requirement applies to
Fourth, Eighth and Fourteenth Amendment claims unless physical injury is
established. See: Harris v. Garner, 216 F.3d 970 (11th Cir 2000). The
Harris Court held §1997e(e) is only a limitation on a damages remedy that
does not impair a prisoner's right to seek declatory and injunctive
damages, and serves Congress's PLRA intent of reducing the filing of not
just frivolous prisoner suits, but all prisoner suits. Osterback urged the
appeals court to create a First Amendment exception to the physical
injury" requirement of §1997e(e).

The appellate court refused and sided with the Seventh Circuit Court of
Appeals in conflicting with Canell v. Lightner, 143 F.3d 1210 (9th Cir.
1998). The Court held that §1997e(e) should be literally construed to
require establishment of physical injury by a prisoner before the award of
compensatory and punitive damages in any federal civil action. The
Eleventh Circuit refused to rule on the equal protection claim, as it was
not raised in the district court. Additionally, the appeals court held
that Osterback was on notice his mail was being withheld by the issuance of
the DRs, and there was no challenge to the award of nominal damages. The
district court's ruling was affirmed. Eleventh Circuit local rules do not
permit the citing of unpublished rulings as precedent. See: Osterback v.
Ingram, Case No. 00-10558 (11th Cir. June 7, 2001); this published case
appears at 263 F.3d 169 (table).

Subscribe today

Already a subscriber? Login

Related legal case