              Case: 17-10797     Date Filed: 10/16/2019   Page: 1 of 23


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 17-10797
                            ________________________

                     D.C. Docket No. 7:15-cv-00013-HL-TQL



DEMETRUIS DELFON CARTER,

                                                   Plaintiff - Appellant,

versus

WARDEN MARTY ALLEN,
Individually and in his official capacity,
OFFICER ANDERSON,
Individually and in his official capacity,
OFFICER WESTLAKE,
Individually and in his official capacity,
OFFICER BARBER,
Individually and in his official capacity,

                                                   Defendants - Appellees,

DEPUTY WARDEN CALVIN ORR,
individually and in his official capacity,
et al.,

                                                  Defendants.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                          ________________________
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Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM
PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,
BRANCH, and GRANT, Circuit Judges.



BY THE COURT:

      A petition for rehearing having been filed and a member of this Court in

active service having requested a poll on whether this case should be reheard by

the Court sitting en banc, and a majority of the judges in active service on this

Court having voted against granting a rehearing en banc, it is ORDERED that this

case will not be reheard en banc.




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WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc:

       I agree with our decision not to rehear this appeal en banc to overrule Al–

Amin v. Smith, 637 F.3d 1192 (11th Cir. 2011), for a practical reason. As Chief

Judge Carnes once explained, “when deciding whether to take the extraordinary

step of going en banc,” we should remember that “[o]ur role is to determine

whether the plaintiff before the court is entitled to relief.” Boxer X v. Harris, 459

F.3d 1114, 1116 (11th Cir. 2006) (Carnes, J., concurring in the denial of rehearing

en banc). And nobody argues that Demetruis Carter is so entitled.

       To be sure, Carter and my dissenting colleague raise serious questions about

our current interpretation of the “Limitation on recovery” subsection of the Prison

Litigation Reform Act, 42 U.S.C. § 1997e(e). But even if our interpretation

deserves to be reconsidered, the vehicle problems in this appeal make the issue

academic. That is, even if we overruled Al–Amin, it would make no difference to

Carter or to the judgment against his claim. Indeed, an en banc decision overruling

Al–Amin in this appeal would either be an advisory opinion or, if not, would be as

close to the line as we could possibly go without crossing it. And if the issues

Carter has presented are exceptionally important, then surely there must be appeals

in which they would matter to the outcome. If we are to reconsider our

interpretation of section 1997e(e), we should do so in one of those appeals, not this

one.


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      Section 1997e(e) provides that “[n]o Federal civil action may be brought by

a prisoner . . . for mental or emotional injury suffered while in custody without a

prior showing of physical injury or the commission of a sexual act.” It is

universally agreed that the words “action . . . for . . . injury suffered” refer to

claims for damages, so this provision places a conditional limitation on the

categories of damages that may be recoverable by prisoners.

      But as Carter explains in his petition for rehearing, our understanding of the

scope of the limitation differs from that of our sister circuits in two ways. First,

although four other circuits agree with us that section 1997e(e) bars compensatory

damages for First Amendment claims unaccompanied by a showing of physical

injury, see Geiger v. Jowers, 404 F.3d 371, 374–75 (5th Cir. 2005); Royal v.

Kautzky, 375 F.3d 720, 722–23 (8th Cir. 2004); Searles v. Van Bebber, 251 F.3d

869, 875–76 (10th Cir. 2001); Allah v. Al–Hafeez, 226 F.3d 247, 250–51 (3d Cir.

2000), five others have held that First Amendment claims permit compensatory

damages that redress the injury to the liberty interest itself—independent of any

physical, mental, or emotional harm—and are, therefore, not subject to the

limitation on recovery, see Wilcox v. Brown, 877 F.3d 161, 169–70 (4th Cir. 2017);

Aref v. Lynch, 833 F.3d 242, 267 (D.C. Cir. 2016); King v. Zamiara, 788 F.3d 207,

212–13 (6th Cir. 2015); Rowe v. Shake, 196 F.3d 778, 781–82 (7th Cir. 1999);

Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998). Second, we and one other


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circuit have held that the limitation on recovery governs all claims for punitive

damages, see Al–Amin, 637 F.3d at 1199; Davis v. District of Columbia, 158 F.3d

1342, 1348 (D.C. Cir. 1998), but nine circuits have held that, as my dissenting

colleague argues, the special deterrent role of punitive damages means that they are

not “for . . . injury suffered,” emotional or otherwise. See King, 788 F.3d at 216–

17; Kuperman v. Wrenn, 645 F.3d 69, 73 & n.5 (1st Cir. 2011); Hutchins v.

McDaniels, 512 F.3d 193, 198 (5th Cir. 2007); Royal, 375 F.3d at 723; Calhoun v.

DeTella, 319 F.3d 936, 941–42 (7th Cir. 2003); Oliver v. Keller, 289 F.3d 623,

629–30 (9th Cir. 2002); Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002);

Searles, 251 F.3d at 881; Allah, 226 F.3d at 251–52.

      At present, I am not ready to stake a firm position about whether—or to

what extent—our precedents are incorrect. It is not easy to say precisely what it

means for a claim to be ‘for’ mental or emotional injury. To be confident in our

answer, we would have to think carefully about the conceptual relationship

between rights, injuries, and damages; conceivably, the correct application of

section 1997e(e) might vary depending on the nature of the prisoner’s claim. For

example, I am inclined to agree with my dissenting colleague that punitive

damages for violations of what the Supreme Court has called “‘absolute’ rights”—

that is, those rights for which no proof of consequential harm is required to

establish a violation, Carey v. Piphus, 435 U.S. 247, 266 (1978)—are not “for


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mental or emotional injury suffered” any more than are nominal damages in the

same context. I am also inclined to agree that punitive damages for the violation of

a nonabsolute right are not “for mental or emotional injury” when the harm

necessary to establish a violation is not mental or emotional in nature. But some

nonabsolute claims might require a different analysis. For instance, some claims

might, by their very nature, require that the defendant have inflicted mental or

emotional harm. And in those circumstances, where there can be no liability of any

kind without proof of such harm, it seems plausible (but not certain) to me that

even nominal and punitive damages might fairly be considered “for mental or

emotional injury.”

      Whatever the right answers to these questions may be, nothing that we could

say about them in this appeal would make a difference to the parties. To see why,

let us review the procedural history. After a jury returned a verdict that doomed his

First Amendment retaliation claim, Carter raised two arguments that he was

entitled to a new trial, both of which the panel correctly rejected.

      First, Carter challenged an allegedly erroneous jury instruction. Because

Carter had not objected to the instruction at trial, we could not have granted a new

trial on this ground without finding plain error. See Panel Op. at 10. The panel held

that there was no error, plain or otherwise, see id., and my dissenting colleague

does not quarrel with that holding.


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      Second, Carter argued that the district court abused its discretion when it

denied his motion for appointed counsel, but the panel persuasively explained that

the district court made a reasonable decision. See Panel Op. at 14–18. And my

dissenting colleague does not suggest that we should reconsider that holding.

      Separately, Carter argued that the district court erred when, following our

precedents, it ruled before trial that he could not recover either compensatory or

punitive damages because he had not alleged a physical injury. But Carter

acknowledged—as he had to—that this issue mattered only if he was entitled to a

new trial on at least one of the two grounds he advanced. As he puts it, “If Mr.

Carter prevails on re-trial . . . [he] should be permitted to recover both

compensatory and punitive damages.”

      Because the panel had rejected both of Carter’s arguments for a new trial, its

discussion of the punitive-damages issue was arguably dictum. After all, that issue

made no conceivable difference to the disposition of the appeal—the panel would

have affirmed without remand even if it had agreed with Carter’s remedial

arguments and we had no binding precedent on point. True, to constitute a holding,

a conclusion need not be absolutely necessary to the disposition, as the example of

alternative holdings illustrates. See Bryan A. Garner et al., The Law of Judicial

Precedent § 10, 122–25 (2016). But the punitive-damages issue in this appeal was

more than superfluous; it was irrelevant to anything the panel had left to decide


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after concluding that Carter was not entitled to a new trial. In similar

circumstances, we have often used the word “moot” to describe issues that, thanks

to our resolution of other issues, no longer possess any possible practical

significance. See, e.g., Vista Mktg., LLC v. Burkett, 812 F.3d 954, 964 (11th Cir.

2016); Travelers Prop. Cas. Co. of Am. v. Moore, 763 F.3d 1265, 1270 (11th Cir.

2014).

       Legal questions are best debated and decided in cases with real stakes. See

Baker v. Carr, 369 U.S. 186, 204 (1962) (explaining that litigants with “personal

stake[s] . . . assure that concrete adverseness which sharpens the presentation of

issues”); McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998)

(Carnes, J., concurring specially) (“It is the nature of judges, like most human

beings, to be more cautious, deliberative, and judicious—characteristics that

should be brought to bear in deciding important issues—when what [we] say

makes a difference to someone before [us].”). And this principle bears special

significance when the legal questions in play are intricate—or more intricate than

they appear at first glance—which may be true of the questions Carter has raised

about the interpretation of section 1997e(e). After all, they have given rise to two

circuit splits.

       For these reasons, although I might be amenable to reconsidering our

interpretation of section 1997e(e) in an appropriate appeal, I think it is imprudent


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to do so in this appeal where the issue is as good as moot. If any question we could

consider in this appeal is one “of exceptional importance,” 11th Cir. R. 35-3, then

surely some appeal will arise in which how we answer that question might make a

difference to the parties.




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MARTIN, Circuit Judge, dissenting from the denial of rehearing en banc1:

       In every other circuit, inmates can seek compensatory damages or punitive

damages or both for violations of their First Amendment rights. Not so in the

Eleventh Circuit. This Court’s precedent interprets the Prison Litigation Reform

Act (“PLRA”), 42 U.S.C. § 1997e, to bar inmates from seeking compensatory or

punitive damages for First Amendment claims when those claims do not include a

physical injury. Al-Amin v. Smith, 637 F.3d 1192, 1198–99 (11th Cir. 2011). But

First Amendment violations are not likely to come accompanied by physical

injury. Thus our precedent leaves inmates with nominal damages as their only

remedy for violations of this bedrock constitutional right, no matter how egregious

the violation.

       It would be one thing if the PLRA required this result. But it does not. Our

precedent departed from the PLRA’s plain language, and its error has become

entrenched. At this point, any panel of this Court can simply cite to Al-Amin and

thereby dispose of an inmate’s compensatory or punitive damages claim, with no

thought given to whether the statute actually requires this result. I hoped the en

banc Court would take the opportunity presented by Demetruis Carter’s case to

change course, since the panel opinion ruled against him specifically on this issue.


1
 Although they did not think Demetruis Carter’s case was a good vehicle for en banc review,
Judges Adalberto Jordan and Jill Pryor agree with the statutory analysis set forth in this dissent
and believe that the issues are worthy of en banc consideration in an appropriate case.
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See Carter v. Allen, 762 F. App’x 827, 836 (11th Cir. 2019) (per curiam)

(unpublished) (rejecting Mr. Carter’s argument for punitive damages). Now that

the en banc Court has declined to reconsider Mr. Carter’s panel opinion, it will

continue to prop up our circuit’s rule withholding compensatory or punitive

damages on inmates’ First Amendment claims. This rule will come from Mr.

Carter’s case despite the fact that a jury rejected his First Amendment claim and

never considered the issue of damages associated with a First Amendment

violation. Id. at 832–34. And for inmates who do win their First Amendment

claims, our precedent will continue to bar them from receiving damages awards

that the statute, on its face, allows.

       This should not be. I trust that future litigants will call this issue to the

attention of our en banc Court in cases where inmates’ claims warrant

compensatory or punitive damages. This will allow our Court to align our

jurisprudence with the text of the PLRA. Until we do, this Court will deny inmates

relief that Congress did not intend to preclude.

                                            I.

       Enacted “[i]n an effort to stem the flood of prisoner lawsuits in federal

court,” Harris v. Garner (“Harris II”), 216 F.3d 970, 972 (11th Cir. 2000) (en

banc), the PLRA imposes a “[l]imitation on recovery” in federal civil actions

brought by inmates, see 42 U.S.C. § 1997e(e). This limitation reads:


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      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 or
      the commission of a sexual act . . .

Id. (emphasis added).

      It is this provision that our Court has interpreted to preclude compensatory

and punitive damages for any claim absent physical injury. See Smith v. Allen,

502 F.3d 1255, 1271 (11th Cir. 2007), abrogated in part on other grounds by

Sossamon v. Texas, 563 U.S. 277, 131 S. Ct. 1651 (2011). To see how our Court

went astray, one need only review our case law interpreting this provision.

      Among the first cases that called upon our Court to interpret § 1997e(e) was

Harris v. Garner, 190 F.3d 1279 (11th Cir.) (“Harris I”), reh’g en banc granted, 197

F.3d 1059 (11th Cir. 1999), opinion reinstated in relevant part by Harris II, 216

F.3d at 970. In Harris I, the Court rejected a constitutional challenge to the PLRA.

190 F.3d at 1287–90. Along the way, it affirmed the dismissal of the claims made

by eleven inmates seeking compensatory and punitive damages against employees

of the Georgia Department of Corrections. Id. But it did not address whether the

specific injuries asserted were mental or emotional. See generally id.

      Our Court again affirmed the dismissal of a claim for punitive damages in

Napier v. Preslicka, 314 F.3d 528 (11th Cir. 2002), reh’g en banc denied, 331 F.3d

1189 (11th Cir. 2003), this time without discussion. Id. at 534. Mr. Napier sought

punitive damages against police officers who mistakenly arrested him for a charge
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other than the one for which he was already incarcerated. See id. at 531. The

district court denied Mr. Napier’s claim, and the panel on appeal affirmed

dismissal of the entire claim, thus “conclud[ing], albeit sub silentio, that Napier’s

punitive claim was barred by” the PLRA. Al-Amin, 637 F.3d at 1198–99

(describing the Napier decision).2 Then in 2007, the Smith panel cited Napier for

the proposition that compensatory and punitive damages “are precluded under the

PLRA” absent physical injury. Smith, 502 F.3d at 1271. Ultimately in 2011, the

Al-Amin panel considered itself bound to hold that the PLRA prohibits suits for

compensatory or punitive damages absent physical injury. 637 F.3d at 1198–99.

Finally, this year (2019), Mr. Carter’s panel considered itself bound by Al-Amin

and its predecessors to reject Mr. Carter’s claim for punitive damages. Carter, 762

F. App’x at 836.

       Yet a review of this precedent demonstrates that none of it engages with

what it means for a claim to be “for mental or emotional injury.” See Al-Amin,

637 F.3d at 1197 (noting Harris I “did not distinguish between cases in which a

prisoner pleads a ‘mental or emotional injury’ and those where a prisoner does not

so plead”). Properly interpreting this language, it becomes apparent our Court’s




2
 The issue in Napier was whether the PLRA’s “in custody” requirement applies to claims that
are “unrelated to the current incarceration of that plaintiff.” 314 F.3d at 530, 532. The Court
said it does. Id. at 533–34.
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precedent is wrong. I will first address punitive damages and then turn to

compensatory damages.

                                          II.

      The plain text of the PLRA does not bar inmates from seeking punitive

damages for First Amendment claims. And the text, of course, is where all

statutory interpretation begins. See Daker v. Comm’r, Ga. Dep’t of Corr., 820

F.3d 1278, 1283 (11th Cir. 2016).

      I interpret the text as follows. To begin, the title of the relevant PLRA sub-

section tells us that the provision at issue acts as a “[l]imitation on recovery.” 42

U.S.C. § 1997e(e); see also Harris I, 190 F.3d at 1288 & n.8. And all appear to

agree that this limitation “is best read as only a limitation on a damages remedy.”

Harris I, 190 F.3d at 1287. But the limitation is itself limited, as the phrase “for

mental or emotional injury” in the statute makes clear. 42 U.S.C. § 1997e(e). The

word “for” is a function word, indicating the purpose or aim of an act. Webster’s

New College Dictionary 445 (3d ed. 2008). The full prepositional phrase (“for

mental or emotional injury suffered while in custody”) modifies the verb

“brought.” And this Court has held that “brought” refers to “the initiation of legal

proceedings in a suit.” Harris II, 216 F.3d at 973 (quoting Bring, Black’s Law

Dictionary 192 (6th ed. 1990)). Thus, accounting for the prepositional phrase, the




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PLRA applies only to federal civil actions brought with the purpose of remedying

mental or emotional injury.

      Punitive damages are not for the purpose of remedying mental or emotional

injury. Rather, the purpose of punitive damages “is to punish the defendant for his

willful or malicious conduct and to deter others from similar behavior.” Memphis

Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 n.9, 106 S. Ct. 2537, 2542 n.9

(1986) (citing Restatement (Second) of Torts § 908(1) (1979)). The Supreme

Court has made clear that § 1983 permits punitive damages in cases involving

“reckless or callous disregard for the plaintiff’s rights, as well as intentional

violations of federal law.” Smith v. Wade, 461 U.S. 30, 51, 103 S. Ct. 1625, 1637

(1983). Bottom line: punitive damages are not “for” redress of mental or

emotional injury; they are “for” deterrence and punishment, regardless of the type

of injury. The plain text of the PLRA does not preclude damages claims for

deterrence and punishment. Our precedent holding the PLRA bars punitive

damages strays from the text of the statute, and is thus mistaken.

      This Court has otherwise implemented the idea that the PLRA bars only

claims “for” mental or emotional injury. A panel of this Court adopted a reading

similar to the one I advocate for here, holding that the PLRA does not bar nominal

damages. See Brooks v. Warden, 800 F.3d 1295, 1307–08 (11th Cir. 2015). Like

punitive damages, nominal damages do not compensate for concrete harms caused


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by wrongful conduct. Rather, they “vindicate[] deprivations of certain ‘absolute’

rights that are not shown to have caused actual injury.” Carey v. Piphus, 435 U.S.

247, 266, 98 S. Ct. 1042, 1053 (1978). Due to “the importance to organized

society that those rights be scrupulously observed,” the Supreme Court has held

that the violation of certain constitutional rights is “actionable for nominal

damages without proof of actual injury.” Id. at 266, 98 S. Ct. at 1054. Following

Carey and a long line of this Court’s precedent holding that nominal damages are

available in § 1983 actions, Brooks held inmates may seek nominal damages to

vindicate their constitutional rights. 800 F.3d at 1307–08. Its rationale? That a

“nominal damages claim is not brought for mental or emotional injury.” 800 F.3d

at 1308 (quotation marks omitted and emphasis added). The Brooks panel’s logic

applies with equal force to punitive damages claims.

       Our Court’s earlier PLRA precedent strayed from the statute’s text by

giving too little interpretive weight to the phrase “for mental or emotional injury.”

See Al-Amin, 637 F.3d at 1197 (noting the Harris I Court “focused only on the

statute’s physical injury requirement, and did not distinguish between cases in

which a prisoner pleads a ‘mental or emotional injury’ and those where a prisoner

does not so plead”). This phrase qualifies the reach of § 1997e(e)’s limitation on

recovery. An inmate need not allege physical injury in order to bring a viable

punitive damages claim. The physical injury requirement applies only in actions


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seeking damages for mental or emotional injury. Our Court has been wrong when

it suggested otherwise.

      Al-Amin tried to justify Harris I’s misreading of the statute by saying that

limiting § 1997e(e) to suits for mental or emotional injury would lead to “illogical

results” based on “artful pleading.” Al-Amin, 637 F.3d at 1197 n.5. The panel in

Al-Amin felt that reading the limitation on recovery to apply only to mental and

emotional injury would allow plaintiffs who did not plead mental or emotional

injury to seek punitive damages while cutting off punitive damages for those who

did. Id. This is not so. Again, punitive damages are not a remedy “for” mental or

emotional injury. To assert a viable punitive damages claim, inmates must plead

callous disregard for or an intentional violation of a constitutional right, not a

mental or emotional injury. Thus, both the inmate who pleads mental or emotional

injury and the inmate who doesn’t can seek punitive damages, provided both

properly plead the claim. And neither can recover for mental or emotional injury

absent physical injury. Thus, under the correct interpretation of the PLRA, both

inmates would be treated the same. Nothing illogical about that.

      In fact, there are logical reasons to distinguish claims for punitive damages

from claims for mental or emotional injury. Requiring physical injury in cases

seeking damages for mental or emotional injury reflects Congress’s belief “that the

existence of a physical injury would distinguish meritorious prisoner claims of


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emotional injury from frivolous ones; the physical injury would, in essence, vouch

for the asserted emotional injury.” Dawes v. Walker, 239 F.3d 489, 495 (2d Cir.

2001) (Walker, C.J., writing separately), overruled on other grounds by

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992 (2002). But

Congress’s sense that physical injury would, in essence, “prove” the existence of a

more easily faked mental or emotional injury does not mean it also saw the need

for a physical injury to “prove” a bad actor intentionally violated an inmate’s

constitutional rights. An inmate cannot fake someone else’s intent.

      Not surprisingly, this error in the way our precedent has developed has made

us an outlier. Our Court is one of just two circuits to have held the PLRA bars

punitive damages absent physical injury. The other, the D.C. Circuit, gave the sum

total of its analysis in one sentence: “[M]uch if not all of Congress’s evident intent

would be thwarted if prisoners could surmount [the PLRA] simply by adding a

claim for punitive damages and an assertion that the defendant acted maliciously.”

Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998). The D.C.

Circuit’s view on the matter is belied by the statute’s text, which places no bar in

the way of inmates seeking punitive damages. The Davis court’s purposive

interpretation of the statute—Congress meant to foreclose most inmate suits, so

they must also have meant to foreclose suits for punitive damages—cannot

displace the plain text of the statute.


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       For every other circuit to have addressed the issue, the PLRA does not bar

inmates without physical injury from seeking punitive damages based on the

violation of a constitutional right. See King v. Zamiara, 788 F.3d 207, 216–17 (6th

Cir. 2015); Kuperman v. Wrenn, 645 F.3d 69, 73 & n.5 (1st Cir. 2011); Hutchins v.

McDaniels, 512 F.3d 193, 196–98 (5th Cir. 2007) (per curiam); Royal v. Kautzky,

375 F.3d 720, 723 (8th Cir. 2004); Calhoun v. DeTella, 319 F.3d 936, 942 (7th Cir.

2003); Oliver v. Keller, 289 F.3d 623, 629–30 (9th Cir. 2002); Thompson v.

Carter, 284 F.3d 411, 418 (2d Cir. 2002); Searles v. Van Bebber, 251 F.3d 869,

880–81 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247, 251–52 (3d Cir. 2000).

I regret the en banc Court did not take this opportunity to join the majority of our

sister circuits.

                                         III.

       Although Mr. Carter did not seek compensatory damages, and so this issue

was not squarely before the en banc Court, everything I have said up to now

applies with equal force to claims for compensatory damages. The PLRA does not

bar all claims for compensatory damages. Contra Smith, 502 F.3d at 1271

(holding that “[i]t is clear from our case law . . . that” the PLRA precludes an

award of compensatory damages absent physical injury). This, too, is so as a

matter of the PLRA’s plain text. And again, our Court’s failure to engage with




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what it means for a damages claim to be “for mental or emotional injury” has led

us astray.

      The key statutory language here again is the qualifier to the limitation on

recovery. The PLRA only bars claims “for mental or emotional injury” in the

absence of physical injury. 42 U.S.C. § 1997e(e). To be sure, courts remedy

mental or emotional injuries with compensatory damages. See Akouri v. State of

Fla. Dep’t of Transp., 408 F.3d 1338, 1345 (11th Cir. 2005). But those are not the

only injuries that can be remedied by compensatory damages. Compensatory

damages are also traditionally available to remedy lost wages, medical expenses,

and any other “concrete loss that the plaintiff has suffered by reason of the

defendant’s wrongful conduct.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538

U.S. 408, 416, 123 S. Ct. 1513, 1519 (2003) (quotation marks omitted). Further,

“courts frequently allow plaintiffs in Section 1983 actions to recover damages for

constitutional violations that fall outside the domain of common-law injuries.”

Aref v. Lynch, 833 F.3d 242, 265 (D.C. Cir. 2016) (collecting cases); see Kerman

v. City of New York, 374 F.3d 93, 130 (2d Cir. 2004) (affirming compensatory

damages award for the injury of physical detention caused by a Fourth Amendment

violation); City of Watseka v. Ill. Pub. Action Council, 796 F.2d 1547, 1559 (7th

Cir. 1986), aff’d, 479 U.S. 1048, 107 S. Ct. 919 (1987) (affirming compensatory

damages award for First Amendment injury based on the inability to express views


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due to anti-soliciting ordinance); cf. H.C. ex rel. Hewett v. Jarrard, 786 F.2d 1080,

1087–89 (11th Cir. 1986) (“Compensatory damages are appropriate where

juveniles have wrongfully received solitary confinement.”).

      The Supreme Court has recognized that constitutional violations can be

compensable without mental or emotional injury. See, e.g., Memphis Cmty. Sch.

Dist., 477 U.S. at 311 n.14, 106 S. Ct. at 2545 n.14 (noting that denial of the right

to vote in a particular election “might be compensated through substantial money

damages”). And while the denial of a constitutional right might also cause

compensable distress or humiliation, see Carey, 435 U.S. at 263–64, 98 S. Ct. at

1052, it does not follow that distress or humiliation is the only injury that can result

from a constitutional violation. Privacy, the exchange of ideas, and due process all

hold value in their own right. I understand a person cannot obtain money damages

by merely invoking the abstract value of these rights to our society. See Memphis

Cmty. Sch. Dist., 477 U.S. at 308, 106 S. Ct. at 2543. But we should not belittle

such constitutional rights by saying they are worth nothing more than the mental

distress they may cause. If, as the Supreme Court has said, loss of the right to vote

in a particular election is compensable, then surely the lost opportunity to speak, a

governmental invasion of individual privacy, or an arbitrary deprivation of a

person’s property may be as well.




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      Our precedent equates mental or emotional injury with all compensatory

damage claims. But this equation broadens the meaning of the phrase “mental or

emotional injury” far beyond what those words can bear. See Aref, 833 F.3d at

263. “[N]ot every non-physical injury is by default a mental or emotional injury.”

Id. at 264. Constitutional violations may cause inmates actual injuries besides

mental or emotional injury. See, e.g., H.C., 786 F.2d at 1087–89. This being the

case, Congress would not have specified “mental or emotional injury” if it intended

to preclude damages for any injury in the absence of physical injury. See Marx v.

Gen. Revenue Corp., 568 U.S. 371, 376, 133 S. Ct. 1166, 1172 (2013) (“As in all

statutory construction cases, we assume that the ordinary meaning of the statutory

language accurately expresses the legislative purpose.” (alterations adopted)

(quotation marks omitted)). We should abandon our earlier precedent and instead

do what the statute commands: determine whether the injury asserted is mental or

emotional and enforce the PLRA’s limitation on recovery only if it is.

      Five of our sister circuits have held the PLRA does not bar all compensatory

damages claims. See Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017); Aref,

833 F.3d at 265; King, 788 F.3d at 213; Toliver v. City of New York, 530 F. App’x

90, 93 n.2 (2d Cir. 2013) (unpublished) (summary order); Oliver, 289 F.3d at 629–

30. Notably, our lone companion in saying the PLRA bars punitive damages is

one of them. See Aref, 833 F.3d at 265. Given the split of authority and the strong


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textual arguments against our compensatory damages rule, our Court would do

well to reconsider our approach on that issue. In the same way our precedent has

failed to engage with whether the text of the PLRA bars punitive damages, none of

our precedent has engaged with whether compensatory damages might be available

“for” injuries besides mental and emotional ones.

                                         IV.

      “A prisoner does not shed . . . basic First Amendment rights at the prison

gate.” Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 139, 97 S. Ct.

2532, 2545 (1977) (Marshall, J., dissenting) (alteration in original) (quotation

marks omitted). Yet those rights require remedies in order to enforce them.

Congress of course has the power to define the remedies available in federal court,

and it did so with the PLRA. See Harris I, 190 F.3d at 1287–90. But this Court

has interpreted the PLRA to withdraw far more remedies from prisoners than

Congress required. I look forward to the time when this Court will reconsider our

PLRA precedent.




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