Zehner v. Trigg

• Decision Date: 31 December 1997
• Docket Number: No. 97-1251,97-1251
• Citation: 133 F.3d 459
• Parties: Kurt ZEHNER, Jerry Glenn, John Alvarado, et al., individually and on behalf of similarly situated inmates, Plaintiffs-Appellants, v. Clarence TRIGG, Bruce Brown, John Schilling, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 459

133 F.3d 459

Kurt ZEHNER, Jerry Glenn, John Alvarado, et al individually and on behalf of similarly situated inmates, Plaintiffs-Appellants, v. Clarence TRIGG, Bruce Brown, John Schilling, et al Defendants-Appellees.

No. 97-1251.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1997.

Decided Dec. 31, 1997.

John Emry (argued), Franklin, IN, for Plaintiffs-Appellants.

Andrew L. Hedges (argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.

Before CUMMINGS, EASTERBROOK and ROVNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiffs consist of offenders who were employed by the Indiana Department of Corrections at the Indiana Youth Center in Plainfield, Indiana. They were assigned to work in the kitchen there. During the two-year period prior to the filing of the complaint, plaintiffs were exposed to asbestos while working in the kitchen. They do not assert physical injuries but claim mental and emotional injuries as a result of the exposure.

Defendant correction officials moved for judgment on the pleadings because plaintiffs did not allege a "physical injury" as required by Section 803(d) of the Prison Litigation Reform Act ("PLRA"), codified as 42 U.S.C. § 1997e(e).

Section 1997e(e) is entitled "Limitation on Recovery" and 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 district court dismissed the action without prejudice because no plaintiff developed a physical illness caused by the exposure to asbestos and therefore their recovery was barred by § 1997e(e). 952 F.Supp. 1318 (S.D.Ind.1997). We affirm.

I. Retroactivity of Prison Litigation Reform Act

Plaintiffs contend that the new Section 1997e(e) should not apply to their case, because it was already pending when the PLRA became effective. Although they inexplicably fail to mention it, this Court's decision in Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996), affords considerable support to the argument. ¹ The problem, however, is that plaintiffs failed to present this argument when the district court asked for responses addressing the effect of § 1997e(e) on the case; this failure waived appellate review of the issue. See Johnson by Johnson v. Duneland Sch. Corp., 92 F.3d 554, 557 (7th Cir.1996).

II. Plaintiffs Have Not Shown the Requisite Physical Injury

Section 1997e(e) does not permit recovery for custodial mental or emotional damages "without a prior showing of physical injury." However, plaintiffs are not claiming damages for physical injury, as the district judge pointed out (952 F.Supp. at 1322-1323, 1335). Therefore, they may not recover under Section 1997e(e). Puthe v. Exxon Shipping Co., 2 F.3d 480, 484 (2d Cir.1993); Ball v. Joy Technologies, Inc., 958 F.2d 36, 38-39 (4th Cir.1991).

III. Constitutionality of the PLRA

Before addressing the constitutionality of the PLRA, it should be noted that plaintiffs did not give this Court the requisite notice that they were drawing into question the constitutionality of an Act of Congress, so that our Clerk could certify that fact to the Attorney General of the United States, as required by Rule 44 of the Federal Rules of Appellate Procedure. However, at oral argument the Indiana Deputy Attorney General advised us that he had discussed the case with a representative of the federal Department of Justice. Therefore, we will consider the constitutional question despite this omission. Before proceeding to do so, it should be noted that Indiana's brief consists of passages copied verbatim from the district court's admirable opinion. Such parroting is hardly admirable brief writing.

A. CONGRESS' POWER TO RESTRICT REMEDIES FOR CONSTITUTIONAL VIOLATIONS

The Supreme Court has held that mental and emotional distress can constitute a compensable injury in suits for damages under 42 U.S.C. § 1983 based upon violations of constitutional rights. See Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052-1053, 55 L.Ed.2d 252. The statute at issue in this case, however, declares that such a suit cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms. See 42 U.S.C. § 1997e(e). The plaintiffs argue that in enacting the statute, Congress has improperly stripped the federal courts of their power to remedy constitutional violations. The district court, however, held the statute constitutional because it left the courts with power to enforce constitutional guarantees through remedies other than damages. The court's analysis on this point is correct.

The court begins from the premise that "Congress may not effectively nullify the rights guaranteed by the Constitution by prohibiting all remedies for the violation of those rights." 952 F.Supp. at 1329. The premise, however, does not mean that a remedy of damages must be available for every constitutional violation. In the § 1983 context, qualified and absolute immunities for government officials can mean that a given constitutional violation will not have a remedy in damages. Such immunities illustrate how statutory and common law exceptions can permissibly restrict the range of remedies available for certain violations.

The district court also mentions Eleventh Amendment immunity as an example showing that not every constitutional violation is compensable by damages. See id. This example is inappropriate, however, because the fact that a separate constitutional provision (the Eleventh Amendment) may render damages unavailable to remedy constitutional violations is not determinative of the question whether Congress may make such damages unavailable by statute.

The district court correctly notes that Congress itself created the § 1983 damages remedy at issue here. The Supreme Court has never held that this remedy is constitutionally required, and it would be odd to conclude that Congress may not take away by statute what it has given by statute. See 952 F.Supp. at 1330. Moreover, Congress enacted § 1983 pursuant to its power under Section 5 of the Fourteenth Amendment to enforce substantive provisions of the Amendment. Ngiraingas v. Sanchez, 495 U.S. 182, 187, 110 S.Ct. 1737, 1740-41, 109 L.Ed.2d 163. Section 5 grants Congress broad power to determine how to enforce those provisions, and the courts are circumscribed in their power to interfere. See, e.g., City of Rome v. United States, 446 U.S. 156, 176, 100 S.Ct. 1548, 1561, 64 L.Ed.2d 119; Katzenbach v. Morgan, 384 U.S. 641, 648-650, 86 S.Ct. 1717, 1722-1723; see also Missouri v. Jenkins, 515 U.S. 70, 113, 115 S.Ct. 2038, 2061, 132 L.Ed.2d 63 (O'Connor, J., concurring) (contrasting Congress' broad power under § 5 with courts' limited powers to enforce civil rights).

The plaintiffs rely heavily on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673. In that case the Court stated that a "damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees." Id. at 651, 100 S.Ct. at 1415. The plaintiffs would read this statement to imply that removing the damages remedy renders the vindication of constitutional rights impossible, thereby emasculating the rights themselves. The district court's response to this argument is correct, but it is amplified herein.

In Owen, the City of Independence sought to invoke qualified immunity against § 1983 damages based on the fact that its agents allegedly were acting in good faith when they violated the plaintiff's constitutional rights. See id. at 624-625, 100 S.Ct. at 1402. The Court rejected the claim of immunity, holding that because damages were an important remedy for constitutional violations, it would not interpret congressional silence as importing such a nontraditional immunity into § 1983. See id. at 650-651, 100 S.Ct. at 1415-16. The Court explicitly noted, however, that immunities that were well established when the original version of § 1983 was passed were incorporated into it. See id. at 637, 100 S.Ct. at 1408-1409. Moreover, the Court implied that Congress could have granted even the non-traditional immunity the City was seeking, if only it had expressed clearly its intention to do so. See id. at 650, 100 S.Ct. at 1415 (refusing to recognize municipal immunity "[a]bsent any clearer indication that Congress intended so to limit the reach of [ § 1983]"). In the present case, Congress' intent to restrict the damages remedy in § 1983 cases could scarcely be more clear. Therefore Owen supports the view that § 1997e(e) is a permissible restriction on the availability of damages for constitutional violations.

The district court notes near the conclusion of its discussion on the issue of Congress' power that "[t]here is a point beyond which Congress may not restrict the availability of judicial remedies for the violations of constitutional rights without in essence taking away the rights themselves." 952 F.Supp. at 1331. Because other remedies, such as "injunctive relief backed up with meaningful sanctions for contempt," exist even when damages are not available, "[t]hat point has not been reached by enactment of § 1997e(e) as applied here." Id. As a legal conclusion, this point is unassailable. As a practical matter, however, it does not quiet all misgivings about the statute. For the plaintiffs, injunctive relief offers no comfort whatsoever. If they have been poisoned by the defendants' actions, no injunction can stop them from becoming ill. More to the point, no injunction can save them from the fear that they might one day become ill. If these plaintiffs are to be compensated for that fear at all, it must be by damages.

But the legal point remains: the Constitution does not demand an individually effective remedy for every constitutional violation. See id. at 1329. If it did,...