133 F.3d 459 (7th Cir. 1997), 97-1251, Zehner v. Trigg

Docket Nº:97-1251.
Citation:133 F.3d 459
Party Name: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.
Case Date:December 31, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 459

133 F.3d 459 (7th Cir. 1997)

Kurt ZEHNER, Jerry Glenn, John Alvarado, et al.,

individually and on behalf of similarly situated

inmates, Plaintiffs-Appellants,


Clarence TRIGG, Bruce Brown, John Schilling, et al.,


No. 97-1251.

United States Court of Appeals, Seventh Circuit

December 31, 1997

Argued Oct. 27, 1997.

Page 460

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

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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.


    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...

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