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Eleventh Circuit Holds Failure to Prove Physical Injury Accompanies Emotional Injury is Affirmative Defense

By David M. Reutter

The Eleventh Circuit Court of Appeals has held that 42 U.S.C. 1997e’s prohibition against a prisoner bringing a federal civil action for emotional injury without a prior showing of physical injury is an affirmative defense.

Before the Court was the appeal of Florida prisoner Lawrence W. Douglas, who is incarcerated at the private Bay Correctional Institution. The basis of his claim was that he was subjected to retaliation after he filed a grievance. That grievance came after Douglas received a disciplinary report for leaving an addiction treatment program.

Douglas had requested a cell change to avoid being implicated in his cellmate’s “tax-fraud scheme.” He was told relocation could only occur if he left the program. After being found guilty of leaving the program, he was deprived of 201 days of gaintime. Following his grievance challenging that punishment, Douglas was harassed and verbally threatened with injury. He was also subjected to unfounded disciplinary action and more severe forms of confinement. Upon release from confinement, he was threatened with more punishment if he did not “drop all action” about his grievances.

Upon filing his civil rights action, the Florida federal district court screened it under in forma pauperis requirements. Accepting the magistrate’s recommendation that Douglas’s complaint should be dismissed for failure to state a cause of action, the district court dismissed the action with prejudice. Douglas appealed.

The Prison Litigation Reform Act provides: “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. The Eleventh Circuit has previously held this statute requires dismissal “without prejudice to their being re-filed at a time when the plaintiffs are not confined.”

Before the Court was the question of whether the statute deprives a district court of subject matter jurisdiction. The Eleventh Circuit held it does not. Following the opinion in Jones v. Boek, 127 S. Ct. 910, the Court held the statute creates an affirmative defense, not a jurisdictional limitation.

The Court’s holding does not, however, mean the district court erred in considering the applicability of 1997(e) on its own initiative. A complaint is subject to dismissal for failure to state a claim “when its allegations on their face, show that an affirmative defense bars recovery on the claim.” Douglas’s complaint reveals he is a prisoner who requests damages for emotional injury without a prior showing of physical injury. The district court had authority to dismiss the complaint without prejudice.

While 1997(e) supports dismissal without prejudice, the Court had to address the district court’s dismissal with prejudice. The Eleventh Circuit held that dismissal was proper as to all but one defendant because Douglas failed to allege facts to support those defendants retaliated against him. As to Assistant Warden James A. Yates, Douglas alleged facts to show Yates knew his subordinates were utilizing retaliation and he failed to stop it. Thus, the matter could only be dismissed without prejudice as to Yates.

Accordingly, the district court’s order was affirmed in part and reversed and remanded to dismiss the claim against Yates without prejudice. In this type of situation, the only type of relief available to Douglas is nominal and punitive damages. See: Douglas v. Yates, 535 F.3d 1316 (11th Cir. 2008).

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Related legal case

Douglas v. Yates