Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Seventh Circuit: Health Hazard without Physical Injury Can State a Claim

On September 27, 2012, the Seventh Circuit Court of Appeals upheld the dismissal of a prisoner's lawsuit, but noted that seemingly de minimis harm from a vermin infestation may state a cognizable claim.

Illinois prisoner Calvin Thomas filed suit in federal court naming the state and the Illinois Department of Corrections as defendants, alleging that his cell was infested with mice and cockroaches, and rain infiltrated his cell through a broken window pane, in violation of the Eighth Amendment.

The district court dismissed the action, finding the defendants were immune from suit under the Eleventh Amendment. The court further held "that the plaintiff's complaint failed to allege any harm." Thomas appealed.

The Seventh Circuit upheld the district court's determination that the Eleventh Amendment barred the com-plaint. "The plaintiff could have avoided ... the ... bar by naming individuals as defendants rather than just a state and an agency of the state," the appellate court explained, "but he failed to do that."

Although the suit was barred due to Eleventh Amendment immunity, the Court of Appeals wrote "to correct the [district court] judge's apparent assumption that creation of a mere hazard to health, as opposed to an actual impairment of health, can never be a harm sufficient to support an Eighth Amendment violation."

While 42 U.S.C. § 1997e(e) of the Prison Litigation Reform Act (PLRA) bars prisoners from recovering com-pensatory damages without proving physical injury, the Seventh Circuit observed that that is not a filing prerequisite. More importantly, a prisoner "can still obtain injunctive relief, nominal damages and punitive damages" in the ab-sence of physical injury. See, e.g., Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003) [PLN, May 2004, p.18]; Wash-ington v. Hively, 695 F.3d 641 (7th Cir. 2012); and Smith v. Peters, 631 F.3d 418 (7th Cir. 2011).

Additionally, physical injury "is not the only type of injury actionable in a prisoner's civil rights suit." For example, there are "three different types of harm that [vermin] infestation of a prisoner's cell can create," the appellate court observed. "One is disease. A second is psychological harm. And a third ... is hazard, or probabil-istic harm – 'loss of a chance,' as it is called."

Noting that Thomas had alleged only hazard, the Seventh Circuit explained that "heavy, protracted infesta-tion of a prisoner's cell with [mice and cockroaches] might be found to be a compensable hazard even if the prisoner plaintiff had been lucky and escaped disease and had had sufficient psychological fortitude (or igno-rance) to avoid suffering mental distress whether from knowledge that he might become seriously ill as a con-sequence of the conditions in his cell or from sheer disgust."

As the Court of Appeals stated, "Depending on how extensive the infestation of a prisoner's cell is, what the infesting pests are, what odors or bites or risk of disease they create, what particular psychological sensitivities the prisoner was known to have ... and how long the infestation continues, a trier of fact might reasonably con-clude that the prisoner had been subjected to harm sufficient to support a claim of cruel and unusual punishment even if he had not contracted a disease or suffered any physical pain."

Regardless, because Thomas had named defendants that were immune from suit, the district court's order of dismissal was affirmed. See: Thomas v. Illinois, 697 F.3d 612 (7th Cir. 2012).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Thomas v. Illinois