Thomas v. Illinois

• Decision Date: 27 September 2012
• Docket Number: No. 12–2095.,12–2095.
• Citation: 697 F.3d 612
• Parties: Calvin THOMAS, Plaintiff–Appellant, v. State of ILLINOIS and Illinois Department of Corrections, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

697 F.3d 612

Calvin THOMAS, Plaintiff–Appellant,

v.State of ILLINOIS and Illinois Department of Corrections, Defendants–Appellees.

No. 12–2095.

United States Court of Appeals, Seventh Circuit.

Submitted Aug. 28, 2012.

Decided Sept. 27, 2012.

Calvin Thomas (submitted), Rockford, IL, pro se.

Before POSNER, ROVNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff brought suit under 42 U.S.C. § 1983 complaining of having been subjected to cruel and unusual punishments while an inmate of an Illinois state prison. The defendants are the state and the state agency that operates the prisons. The suit alleged that the plaintiff's cell had been infested with mice and cockroaches and that a window pane was missing and as a result rain came into his cell through the window, and that a warden or assistant warden had done a “walk through” and seen that the pane was missing yet nothing had been done to replace it.

The district judge dismissed the suit on alternative grounds: that the defendants were immune from suit by virtue of the Eleventh Amendment and that the plaintiff's complaint failed to allege any harm. The second ground is incorrect: the complaint alleges that allowing rain to enter the cell through the empty window frame created a health hazard.

The judge was correct, however, that the Eleventh Amendment bars the suit. The suit is against a state and a state agency and Congress did not abrogate the states' sovereign immunity from suit under section 1983, as it could have done. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66–70, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (“[section] 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on that question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States”); Kroll v. Board of Trustees, 934 F.2d 904, 909 and n. 5 (7th Cir.1991); Power v. Summers, 226 F.3d 815, 818 (7th Cir.2000); Richard H. Fallon, Jr. et al., Hart & Wechsler's The Federal Courts and the Federal System 1091 (5th ed. 2003). But the Will decision, supra, 491 U.S. at 70–71, 109 S.Ct. 2304, held that a state and its agencies are not suable “persons” within the meaning of section 1983 (see also Lapides v. Board of Regents, 535 U.S. 613, 617, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Carroll v. DeTella, 255 F.3d 470, 471 (7th Cir.2001)), thus providing a statutory as distinct from a constitutional defense to section 1983 suits against states and their agencies. And consistent with the principle of avoiding unnecessary constitutional decisionmaking, judges are to address the statutory defense before the constitutional, Williams v. Wisconsin, 336 F.3d 576, 580 (7th Cir.2003); Power v. Summers, supra, 226 F.3d at 818; see Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 778–81, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), which the district judge failed to do.

The plaintiff could have avoided both the statutory and the constitutional bar by naming individuals as defendants rather than just a state and an agency of the state, but he failed to do that.

So the suit is barred, but we write to correct the 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. This assumption is related to the fallacy that we exposed in our recent decision concerning alleged psychological harm from a pat down and strip search in which the defendant guard was charged with having fondled the plaintiff's testicles and penis gratuitously and offensively. Washington v. Hively, 695 F.3d 641 (7th Cir.2012). The district court had granted summary judgment in favor of the guard on the basis of cases such as Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir.2009), which state that “de minimis uses of force are nonactionable” in prisoner civil rights suits. The force used in the Washington case was indeed minimal and the only harm caused by it psychological, but the absence of significant force and of physical injury did not warrant judgment for the defendant. That is not a new principle. See also Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir.2012); Mays v. Springborn, 575 F.3d 643, 650 (7th Cir.2009) (per curiam); Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir.2003); Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir.2002); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.1997); Boddie v. Schnieder, 105 F.3d 857, 860–61 (2d Cir.1997); cf. Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir.2011). But it seems not to be fully understood, so it is worth reiterating.

The judge said that “a successful complaint of pest infestation can be distinguished [from an unsuccessful one only] by an allegation of ‘significant physical harm’ arising from the pests.” But as we emphasized in the Washington case, physical injury is not the only type of injury actionable in a prisoner's civil rights suit. It is true that because “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,” 42 U.S.C. § 1997e(e), a prisoner cannot obtain compensatory damages without proving a physical injury. But “physical injury ... is not a filing prerequisite for the federal civil action itself,” Calhoun v. DeTella, supra, 319 F.3d at 940, because the prisoner can still obtain injunctive relief, nominal damages, and punitive damages. Id. at 940–41;Washington v. Hively, supra, 695 F.3d at 643–44;Smith v. Peters, 631 F.3d 418, 421 (7th Cir.2011).

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 (recall Winston's unreasoning fear of rats in Nineteen Eighty–Four, a fear exploited by his torturers to break his spirit without actually touching him, Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir.1998)), and how long the infestation continues, a trier of fact might reasonably conclude 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. Cf. Powers v. Snyder, 484 F.3d 929, 931 (7th Cir.2007); Hearns v. Terhune, 413 F.3d 1036, 1042–43 (9th Cir.2005); Gaston v. Coughlin, 249 F.3d 156, 165–66 (2d Cir.2001); Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir.1999); Clark v. Armontrout, 28 F.3d 71, 71 (8th Cir.1994) (per curiam); Williams v. Griffin, 952 F.2d 820, 822, 825 (4th Cir.1991).

But we need to distinguish among three different types of harm that infestation of a prisoner's cell can create. One is disease. A second is psychological harm. And a third, and the only one alleged by this plaintiff, is hazard, or probabilistic harm—“loss of a chance,” as it is called, which in Doll v. Brown, 75 F.3d 1200, 1205–06 (7th Cir.1996), we “illustrated by cases in which, as a result of a physician's negligent failure to make a correct diagnosis, his patient's cancer is not arrested, and he dies—but he probably would have died anyway. The trier of fact will estimate the probability that the patient would have survived but for the physician's negligence—say it is 25 percent—and will award that...