Perkins v. Kansas Dept. of Corrections

Decision Date27 January 1999
Docket NumberNo. 98-3005,98-3005
Citation165 F.3d 803
PartiesDarren Eugene PERKINS, Plaintiff-Appellant, v. KANSAS DEPARTMENT OF CORRECTIONS; Les Derstein, Unit Manager, El Dorado Correctional Facility; Michael A. Nelson, Warden, El Dorado Correctional Facility; William Cummings, Risk Manager, El Dorado Correctional Facility; Charles Simmons, Secretary of Corrections, El Dorado Correctional Facility; Prison Health Services; (NFN) Ayeni, Regional Medical Director for the Kansas Department of Corrections, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Darren Eugene Perkins, pro se.

Hsingkan Chiang, Assistant Attorney General, Topeka, Kansas, for Defendants-Appellees.

Before PORFILIO, BARRETT, KELLY, Circuit Judges.

PORFILIO, Circuit Judge.

Plaintiff, a pro se prisoner who is HIV positive, 1 appeals the district court's dismissal of his civil rights action 2 seeking redress for (1) being required to wear a face mask whenever he leaves his cell; (2) being denied all outdoor exercise for more than nine months; and (3) being denied treatment for his serious medical condition. The district court granted plaintiff leave to proceed informa pauperis under 28 U.S.C. § 1915. Thereafter, the court sua sponte dismissed the action pursuant to § 1915(e)(2)(B)(ii), concluding that the complaint failed to state a claim upon which relief can be granted. The dismissal occurred before the complaint was served on defendants. Our jurisdiction over this appeal arises under 28 U.S.C. § 1291. 3

I. Standard of Review.

At the outset, we must determine the appropriate standard under which to review the district court's dismissal. Section 1915(e)(2)(B)(ii), which was added to the statute as part of the Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, §§ 801-10, 110 Stat. 1321, provides that "the court shall dismiss the case at any time if the court determines that ... the action or appeal ... fails to state a claim upon which relief can be granted." This language parallels that of Federal Rule of Civil Procedure 12(b)(6). We have traditionally applied a de novo standard of review to dismissals made under Rule 12(b)(6). See, e.g., Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th Cir.1996). We agree with our sister circuits that a similar de novo standard should govern review of dismissals under § 1915(e)(2)(B)(ii). See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998), pet'n for cert. filed, (U.S. Nov. 17, 1998) (No. 98-7214); Black v. Warren, 134 F.3d 732, 733 (5th Cir.1998); Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th Cir.1997); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir.1996). Therefore, we will review the present dismissal de novo.

Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend. See Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir.1997). In determining whether dismissal is proper, we must accept the allegations of the complaint as true and we must construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff. See Breidenbach v. Bolish, 126 F.3d 1288, 1292 (10th Cir.1997). Further, we must liberally construe the allegations of a pro se complaint. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Because we conclude that the district court prematurely dismissed certain of plaintiff's claims, we affirm in part, reverse in part, and remand for further proceedings.

II. Factual Background.

Plaintiff, who alleges that he has had AIDS since September 1993, has been housed in administrative segregation at the state prison in El Dorado, Kansas, during all times pertinent to this action. The bulk of plaintiff's claims arise out of an incident that occurred on January 27, 1997. On that day, plaintiff became angry with two prison guards and then spat on them when he went outside into the prison yard. Since then, plaintiff has been required to wear a face mask that covers his entire head whenever he leaves his cell and he has been denied all exercise outside his cell. 4

Plaintiff alleges that having to wear the face mask is demeaning and causes him great emotional and psychological distress, which further weakens his immune system and hastens his death. 5 Plaintiff alleges similar psychological and physical injuries from the denial of outdoor exercise. He says the only way he can avoid injury arising from the face mask restriction is to decline to leave his cell--even for showers and medical appointments--which he has done for extended periods of time.

Plaintiff contends he had no prior warning of the consequences of spitting on a guard and he has never been given a hearing on the face mask and exercise restrictions. He also alleges other inmates who have spat on guards, other inmates, and/or common areas of the prison have not had to endure similar restrictions. Plaintiff asserts he is being punished simply because he is HIV positive. Plaintiff claims the face mask and out-of-cell exercise restrictions violate his rights to due process and equal protection, contravene the ex post facto prohibition, and constitute cruel and unusual punishment.

Plaintiff also contends he has been denied treatment for his serious medical needs, in violation of the Eighth Amendment, because he has not been treated with a particular drug. Plaintiff concedes that he has received treatment for his HIV, but he contends he will become immune to the drugs with which he is being treated if he is not also given a different drug, called a protease inhibitor.

The district court explicitly addressed only the due process and Eighth Amendment aspects of the face mask and exercise restrictions. Noting that prison officials are given great deference in adopting and implementing policies aimed at preserving internal order, discipline, and security, the court concluded the restrictions did not give rise to a due process claim because they were imposed "in direct response to an incident of disruptive conduct for which plaintiff accepts responsibility, and the restrictions are reasonably related to the legitimate goal of maintaining order and security." R., Doc. 3 at 3 (citing Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).

The court also concluded these restrictions did not give rise to an Eighth Amendment claim because plaintiff did not establish that prison officials acted with deliberate indifference to his health or safety. See Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (adopting deliberate indifference as standard for subjective component of Eighth Amendment claims based on conditions of confinement). Specifically, the court determined that plaintiff's claim failed because he "show[ed] no excessive risk to his well-being, [and there was no] evidence to reasonably suggest defendants acted without regard to plaintiff's circumstances." R., Doc. 3 at 3.

Likewise, the court held plaintiff failed to state an Eighth Amendment claim based on the denial of medical treatment. The court concluded plaintiff's pleadings showed that prison officials recognized his condition as serious and provided him ongoing medical care for that condition; plaintiff simply disagreed with them as to the exact treatment he should receive. We will address each of these claims in turn. As an initial matter, however, we must consider the effect of the limitation provisions of 42 U.S.C. § 1997e(e) on plaintiff's claims.

III. 42 U.S.C. § 1997e(e).

Plaintiff filed the present action after the effective date of the PLRA, which provides in part that "[n]o 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). Courts have generally construed this provision as a limitation on the relief a prisoner can receive for injuries suffered while in custody. See, e.g., Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir.1997) (" § 1997e(e) only limits the relief to which plaintiffs are entitled; it does not restrict their access to the courts to press claims for which the substantive law provides an underpinning"). Therefore, although "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[, § 1997e(e) provides] that such a suit cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms." Id. at 461.

Here, the primary harm plaintiff alleges as a result of both the exercise and the face mask restrictions is mental or emotional. Plaintiff does allege physical harm as well, because he claims his mental anguish has been so severe that it has caused his physical condition to deteriorate and has hastened his death. As yet, neither the parties nor the district court have addressed whether plaintiff's allegations are sufficient to avoid the limitation contained in § 1997e(e). We, therefore, will leave this issue to the district court to decide in the first instance. We note that plaintiff has requested three types of damages in his complaint: compensatory, punitive, and nominal. On remand, the district court will have to separately determine whether § 1997e(e) prohibits plaintiff's claims for each of these types of damages. 6

If, on remand, the district court concludes that plaintiff's claims for damages are barred by § 1997e(e), plaintiff may still have an avenue of redress through injunctive relief. Although plaintiff's complaint does not include an express request for injunctive relief, a liberal construction of his allegations demonstrates a clear desire for...

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