                                                                  [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                   FILED
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                    09/30/99
                                    No. 98-8899
                                                                THOMAS K. KAHN
                                                                     CLERK
                          D.C. Docket No. 5:97-CV-79-4

FREDERICK LAMAR HARRIS, DANNY CHADWICK, et al.,

                                                               Plaintiffs-Appellants,

                                 versus

WAYNE GARNER, Commissioner of the Georgia Department of Corrections, A. G.
THOMAS, Director of Facilities Division of the Georgia Department of Corrections,
et al.,

                                                              Defendants-Appellees.



                   Appeal from the United States District Court
                       for the Middle District of Georgia


                               (September 30, 1999)


Before TJOFLAT and BIRCH, Circuit Judges, and BRIGHT*, Senior Circuit Judge.

__________________________________
*Honorable Myron H. Bright, Senior U. S. Circuit Judge for the Eighth Circuit, sitting
by designation.

TJOFLAT, Circuit Judge:
      In this case the parties ask us to answer several important questions relating to

two provisions of the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110

Stat. 1321 (1996) (codified in scattered sections of 42 U.S.C.) (“PLRA”). 42 U.S.C.

§ 1997e(a) (Supp. II 1996) provides that “[n]o action shall be brought with respect to

prison conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(e) (Supp.

II 1996) provides 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.”

      Today, we address (1) whether section 1997e(e) applies to former prisoners

who file a claim for injuries suffered while in custody, after they have been released

from incarceration; (2) whether section 1997e(a) requires prisoners to exhaust all

administrative remedies before they bring a federal law action with respect to prison

conditions, even if it would be futile for the prisoner to seek such administrative

remedies, and even though the administrative remedies are inadequate; (3) what level

of injury must be sustained for a prisoner to meet the section 1997e(e) requirement

that the prisoner must make a “prior showing of physical injury” before filing suit for

“mental or emotion injury suffered while in custody;” and (4) the constitutionality of


                                            2
section 1997e(e).



                                                  I.

       Eleven prisoners brought this civil rights suit for damages and injunctive relief1

in the United States District Court for the Middle District of Georgia against

employees of the Georgia Department of Corrections (“GDC”).2 The plaintiffs

alleged violations of the their Fourth, Eighth, and Fourteenth Amendment rights as a

result of actions allegedly taken by the defendants during a “shakedown” at Georgia’s

Dooly State Prison facility.3 According to the plaintiffs, members of a special prison

“Tactical Squad,” led by Commissioner Wayne Garner of the GDC, stormed the

prison facility on October 23, 1996. The squad officers ordered prisoners to strip


       1
          Plaintiffs’ complaint alleges violations of plaintiffs’ Fourth, Eighth, and Fourteenth
Amendment rights under the United States Constitution, but cites no statutory authority for the relief
they seek; presumably they sought relief under 42 U.S.C. § 1983 (1994 & Supp. II 1996): “[e]very
person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . .
subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law . . . . ”
       2
        The complaint was filed against “Wayne Garner, Commissioner of the Georgia Department
of Corrections; A. G. Thomas, Director of Facilities Division of the Georgia Department of
Corrections; Duke Blackburn, Executive Assistant, Special Operations of the Georgia Department
of Corrections; and Twenty-Two Unnamed Tactical Squad Officers of the Georgia Department of
Corrections, in their individual and official capacities.”
       3
         In this context, a prison “shakedown” is a systematic search of a correctional institution
wherein prison officials search for illegal drugs and other contraband by means of body cavity
searches, searches of inmates’ living quarters, and searches of other areas of the institution.

                                                  3
naked, and performed body cavity searches while members of the opposite sex were

present;4 physically harassed some prisoners; ordered one inmate to “dry shave;”5

made harassing comments to an inmate because of his perceived sexual orientation;

and ordered one prisoner to “tap dance” while naked.

       The district court referred the case to a magistrate judge in accordance with 28

U.S.C. § 636 (1994). On February 4, 1998, before the magistrate judge had issued his

recommendation in the case, six plaintiffs, who had been released from custody,

moved the court for leave to withdraw their claims for injunctive relief, because their

release had mooted such claims. See Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th

Cir. 1987). In his recommendation to the district court, the magistrate judge treated

the complaint as amended in accordance with the plaintiffs’ motion.

       After receiving the magistrate judge’s recommendation, the district court

divided the plaintiffs into four classes according to their different factual

circumstances, and issued a ruling particular to each class as follows:

       First, the court found that plaintiffs Danny Chadwick, Frederick Harris, Lenois

Cook, Willie Hooks, Farrell Nation, and William Dailey had been released from the

GDC. As such, their claims for injunctive relief were moot. The court also granted

       4
       Georgia’s Dooly State Prison is an all male correctional facility that employs female staff
members.
       5
           “Dry shaving” refers to the practice of shaving with an unlubricated razor.

                                                  4
defendants’ 12(b)(6) motion and dismissed with prejudice these plaintiffs' claims for

compensatory and punitive damages because they did not allege any physical injury.

The court thus reasoned that the claims were barred by section 1997e(e)'s physical

injury requirement. The magistrate judge’s recommendation, adopted with only slight

modification by the district court, expressly relied on the holding that “§ 1997e(e) is

applicable to the claims of prisoners who have been released.”

      Second, the district court dismissed without prejudice the claims of plaintiffs

Samuel Locklear, Alan Kilgore, and Leroy Langes because these plaintiffs had not yet

exhausted all of their administrative remedies and thus had not satisfied the exhaustion

requirement of section 1997e(a). The court also found that these plaintiffs’ claims for

compensatory and punitive damages were barred by section 1997e(e) because they did

not allege the requisite physical injury.

      Third, the court dismissed without prejudice the claims of plaintiff Dayton

Brinkley because he had not yet exhausted all of his administrative remedies and had

thus not satisfied section 1997e(a). The court also found that Brinkley’s claims for

compensatory and punitive damages were not barred by section 1997e(e) because he

alleged the requisite physical injury. Before he could submit any claims to a court,

however, Brinkley would have to exhaust his administrative remedies.

      Finally, the court granted defendants’ 12(b)(6) motion and dismissed with


                                            5
prejudice plaintiff James Wade’s claims for compensatory and punitive damages

because even though Wade was still in prison and had exhausted all of his

administrative remedies, his allegations of physical injury were not serious enough to

satisfy the physical injury requirement of section 1997e(e). Accordingly, the claims

were barred. The court did not address Wade’s claims for injunctive and declaratory

relief.

          Plaintiffs timely appealed.



                                            II.

          We review de novo the district court’s dismissal of a complaint for failure to

state a claim upon which relief could be granted. See Republic of Panama v. BCCI

Holdings (Luxembourg) S.A., 119 F.3d 935, 948 (11th Cir. 1997). When considering

a Rule 12(b)(6) motion to dismiss, a court must accept the allegations in the complaint

as true, construing them in the light most favorable to the plaintiffs. See Roberts v.

Florida Power & Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998), cert. denied, 119

S. Ct. 1027, 143 L. Ed. 2d 38 (1999). We have done so in setting out the facts, above.

A Rule 12(b)(6) motion to dismiss should be granted only if it appears beyond doubt

that the plaintiffs can prove no set of facts in support of their allegations which would

entitle them to relief. See id..


                                             6
      We also review de novo dismissals for failure to exhaust administrative

remedies under section 1997e(a). See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th

Cir. 1998).



                                          III.

                                          A.

      The district court treated the complaint as amended for the six plaintiffs who

were released from the GDC before the magistrate judge issued his report and

recommendation, and thus correctly dismissed those plaintiffs’ claims for injunctive

relief as moot. See Tucker, 819 F.2d at 1033 (“If the plaintiff’s claim is not live, the

court lacks a justiciable controversy and must dismiss the claim as moot.”). Relying

in part on Zehner v. Trigg, 952 F.Supp. 1318, 1323-27 (S.D. Ind. 1997), the district

court also held that “§ 1997e(e) is applicable to the claims of prisoners who have been

released” and thus dismissed with prejudice the released prisoners’ claims to

compensatory and punitive damages because of a failure to allege physical injury. We

find that the district court erred with regard to its section 1997e(e) holding.

      First, let us be clear that at the point at which the district court treated the

released prisoners’ complaint as amended, those six plaintiffs became former

prisoners who had filed a complaint for monetary damages against employees of the


                                           7
GDC for injuries suffered while in custody.

      As noted above, 42 U.S.C. § 1997e(e) provides: “[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.” Section 1997e(h) defines a “prisoner” as “any person incarcerated

or detained in any facility who is accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law or the terms and conditions of

parole, probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h)

(Supp. II 1996). According to the plain language of the statute, section 1997e(e) does

not apply to former prisoners, or those who have been released from a correctional

facility, because such persons are clearly not “confined in a jail, prison, or other

correctional facility,” or “incarcerated or detained in any facility.” The statute could

not be more plain: it applies to those who (a) seek a civil remedy for mental or

emotional injury suffered while in custody, and (b) seek such a remedy while they are

incarcerated. As the Seventh Circuit has noted in analyzing section 1997e(e), “[t]he

statutory language does not leave wriggle room.” Kerr v. Puckett, 138 F.3d 321, 323

(7th Cir. 1998). It does not apply to persons who have never been prisoners; nor does

it apply to former prisoners who seek civil relief for injuries suffered while they were

prisoners.


                                           8
      Defendants argue that Congress’ purpose in enacting the PLRA was to curtail

frivolous prisoner litigation, and that reading the statute to bar certain claims by

current but not former prisoners is not faithful to congressional intent because, under

our interpretation today, some claims “for mental or emotional injury suffered while

in custody” can be brought “without a prior showing of physical injury.” Further,

defendants see little sense in discriminating between prisoners who bring suit while

they are incarcerated, and former prisoners who seek relief on the same day they are

released.

      Absent mistake or absurdity, we implement the statutory language as enacted.

Salinas v. United States, 522 U.S. 52, 57-58, 118 S. Ct. 469, 473-74, 139 L. Ed. 2d

352 (1997). Here, the language of section 1997e(e) could not be clearer. And

contrary to defendants’ congressional intent argument, Congress manifestly wanted

to draw a bright line distinction between those who are prisoners, and those who are

not prisoners. See 141 Cong. Rec. S7524-26 (daily ed. May 25, 1995) (statements by

Senators Dole and Kyl) (prisoners have a unique incentive to file frivolous lawsuits

because litigation “has become a recreational activity for long-term residents of our

prisons,” because prisoners “have little to lose and everything to gain,” and because

filing frivolous complaints is “a means of gaining a short sabbatical in the nearest

Federal courthouse”) (citations and internal quotation marks omitted). The distinction


                                          9
makes a good deal of sense because the “[o]pportunity costs of litigation rise

following release, diminishing the need for special precautions against weak suits.”

Kerr, 138 F.3d at 323. In light of the overwhelming clarity of the statutory text, we

join the Seventh Circuit in holding that section 1997e(e) applies only to prisoners who

are incarcerated at the time they seek relief, and not to former prisoners who seek

damages for injuries suffered while they were incarcerated. See id.; see also, Greig

v. Goord, 169 F.3d 165, 167 (2nd Cir. 1999) (interpreting “prisoner” as used in

section 1997e(a), dealing with administrative exhaustion, as not applying to former

prisoners no longer incarcerated); Doe v. Washington County, 150 F.3d 920, 924 (8th

Cir. 1998) (interpreting “prisoner” as used in section 1997e(d), dealing with attorneys’

fees, as not applying to former prisoners).



                                                B.

       The district court dismissed without prejudice two categories of plaintiffs

because they failed to exhaust their administrative remedies before bringing suit and

thus failed to satisfy the exhaustion requirement of section 1997e(a).6 That section

       6
         The district court dismissed without prejudice the claims of Locklear, Kilgore, and Langes
for failure to exhaust administrative remedies, and also held that these plaintiffs’ claims for
compensatory and punitive damages were barred by section 1997e(e). Separately, the district court
dismissed without prejudice plaintiff Brinkley's claims for failure to exhaust administrative
remedies, but held that Brinkley had alleged sufficient physical injury to survive section 1997e(e).
Because we find the administrative exhaustion issue dispositive, we treat these two classes of

                                                10
provides: “[n]o action shall be brought with respect to prison conditions under section

1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,

or other correctional facility until such administrative remedies as are available are

exhausted.”

        Plaintiffs make a valiant argument that they should not be required to exhaust

their administrative remedies before being allowed to proceed in court because (1) the

GDC’s treatment of similar claims demonstrates that it would be futile for plaintiffs

to pursue administrative relief, and (2) no administrative relief is “available” to

plaintiffs because the GDC Inmate Grievance Procedures do not provide for the

monetary damages award plaintiffs seek. At least with regard to the issue of what

remedies are “available” under section 1997e(a), some courts have agreed with the

plaintiffs. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998); Lunsford v.

Jumao-As, 155 F.3d 1178, 1179 (9th Cir. 1998); Garrett v. Hawk, 127 F.3d 1263,

1267 (10th Cir. 1997). But we think the disposition of this issue is controlled by our

recent decision in Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998).

        In Alexander, we held that “the judicially recognized futility and inadequacy

exceptions do not survive the new mandatory exhaustion requirement of the PLRA .



plaintiffs together. If section 1997e(a) precludes the filing of these plaintiffs’ claims until after they
have exhausted their administrative remedies, then the district court’s “holding” concerning the
applicability of section 1997e(e) is merely unnecessary dicta.

                                                   11
. . . Since exhaustion is now a pre-condition to suit, the courts cannot simply waive

those requirements where they determine they are futile or inadequate.” Id. at 1325-

26. Plaintiffs’ argument in effect asks us either to reconsider Alexander or to limit the

case to its facts. We are unable to reconsider Alexander because only the court sitting

en banc has the authority to overrule circuit precedent. We decline to limit the case

to its facts because we find the general principles of Alexander persuasive. For the

reasons stated therein, we reaffirm that section 1997e(a) imposes a mandatory

requirement on prisoners seeking judicial relief to exhaust their administrative

remedies first. Further, we reaffirm that the term “available” as used in section

1997e(a) does not mean that prison inmates must only exhaust their administrative

remedies if the relief they seek is “available” within the administrative apparatus;

instead, the term means that a prisoner must exhaust all administrative remedies that

are available before filing suit, regardless of their adequacy. See id.; see also, Perez

v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 536-37 (7th Cir. 1999) (concurring

with Alexander on the issue of “available” remedies).



                                           C.

      Even though plaintiff James Wade was still in prison and had exhausted all of

his administrative remedies, the district court also dismissed with prejudice Wade’s


                                           12
claims to compensatory and punitive damages because his allegations of physical

injury were not serious enough to satisfy the physical injury requirement of section

1997e(e). Wade alleged that members of the GDC “Tactical Squad” subjected him

to a body cavity search while female staff were present, and also forced him to “dry

shave.” The issue on this appeal is whether the “dry shave” allegation, standing alone,

depicts an injury serious enough to meet the section 1997e(e) requirement of physical

injury.

      Section 1997e(e) does not define “physical injury.” Wade asks us to interpret

this part of the statute to mean that any allegation of physical injury is sufficient,

including physical manifestations of purely mental or emotional injury. But we think

such an interpretation would undermine the statute’s essential purpose – “to curtail

frivolous and abusive prisoner litigation.” Alexander, 159 F.3d at 1324. Congress

was clearly trying to preclude some part of the litigation routinely pursued by prison

inmates from being brought, and Wade's reading of the statute would almost render

the congressional exclusion an empty set. Further, allowing prisoners to surmount this

new statutory hurdle with purely trivial allegations of physical injury would make no

sense in light of our basic understanding that “routine discomfort is part of the penalty

that criminal offenders pay for their offenses against society.” Hudson v. McMillian,

503 U.S. 1, 9, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992) (citation and internal


                                           13
quotation marks omitted).

       We therefore join the Fifth Circuit in fusing the physical injury analysis under

section 1997e(e) with the framework set out by the Supreme Court in Hudson for

analyzing claims brought under the Eighth Amendment for cruel and unusual

punishment, and hold that in order to satisfy section 1997e(e) the physical injury must

be more than de minimis, but need not be significant.7 Gomez v. Chandler, 163 F.3d

921, 924 (5th Cir. 1999). We do so, however, with the understanding that our holding

today does not affect our Eighth Amendment jurisprudence, but only uses the well

established Eighth Amendment standards to guide us in our section 1997e(e) analysis.

The Fifth Circuit has concluded, even after Hudson, that in order “to support an

Eighth Amendment excessive force claim a prisoner must have suffered from the

excessive force a more than de minimis physical injury.” Gomez, 163 F.3d at 924

(emphasis added). In light of the Hudson Court’s rather fluid approach to what can

constitute a cognizable injury under the Eighth Amendment, see Hudson, 503 U.S. at

9, 112 S. Ct. at 1000 (malicious and sadistic use of force is violative “whether or not

significant injury is evident”), we have never held that a prisoner must allege a


       7
          We do not resolve the question whether de minimis uses of physical force might satisfy
section 1997e(e) if they are of the sort “repugnant to the conscience of mankind,” Hudson, 503 U.S.
at 10, 112 S. Ct. at 1000, (citation and internal quotation marks omitted), because we find that on
this record the question is not presented. Wade’s forced “dry shave” is not the sort of physical force
“repugnant to the conscience of mankind.”

                                                 14
physical injury in order to make out a cognizable claim under the Eighth Amendment.

Indeed, some of our cases suggest the contrary. See, e.g., Campbell v. Sikes, 169 F.3d

1353, 1375 (11th Cir. 1999) (extent of the injury is one of the “factors” used in

determining whether use of force was malicious and sadistic). We express no view

on the issue today, and hold only that a prisoner must allege more than a de minimis

physical injury in order to satisfy the requirement of section 1997e(e).

      Viewing the allegations in the light most favorable to plaintiff, we conclude that

Wade has not alleged a physical injury that is more than de minimis. A “dry shave,”

without more, is simply not the kind of “injury” that is cognizable under section

1997e(e). Cf. Shabazz v. Barnauskas, 790 F.2d 1536, 1538 (11th Cir. 1986)

(dismissing plaintiff’s Eighth Amendment cruel and unusual punishment claim

because allegation of forced shave was de minimis, even though the shaving caused

“bleeding, inflammation, irritation, ingrowing of hairs, infection, purulence and

pain”), cert. denied, 479 U.S. 1011, 107 S. Ct. 655, 93 L. Ed. 2d 709 (1986). Were

we to hold that this single allegation is sufficient to satisfy the statutory requirement

of physical injury, we would surely sap the congressional scheme of its essential

purpose and vitality.



                                           D.


                                           15
       Because we find that Wade’s injuries are not sufficient to meet the physical

injury requirement of section 1997e(e), we must decide whether the statute is

constitutional as applied to bar his claims for compensatory and punitive damages in

this case.



                                          1.

       Wade argues that the statutory bar to claims not involving physical injury

amounts to a denial of due process under the Fifth Amendment. Courts and

commentators have approached the issue of whether Congress can tailor jurisdiction

so as to preclude all effective remedies for a claimed constitutional violation with so

much dodging and trepidation that the D.C. Circuit has been led to write that “it has

become something of a time-honored tradition for the Supreme Court and lower

federal courts to find that Congress did not intend to preclude altogether judicial

review of constitutional claims in light of the serious due process concerns that such

preclusion would raise.” Bartlett v. Bowen, 816 F.2d 695, 699 (D.C. Cir. 1987). And

we think that if section 1997e(e) actually precluded all effective judicial review, the

statute would raise constitutional questions that would be, at the very least,

troublesome. Because we find that the statute is best read as only a limitation on a

damages remedy, however, we need not address the vexing jurisdictional questions


                                          16
today.

         At the outset, we assume that section 1997e(e)'s bar to claims “for mental or

emotional injury suffered while in custody without a prior showing of physical injury”

actually operates to preclude some claims of a constitutional dimension that a prisoner

might have been able to bring before the PLRA was enacted. Section 1997e(e) refers

to claims for injuries “suffered.” Use of the past tense indicates that the provision

constitutes a limitation on a damages remedy only, and does not impair a prisoner’s

right to seek declaratory and injunctive relief for constitutional violations.8 An action

at law for money damages is the assumed remedy for a violation of legal rights that

has occurred in the past, whereas the threat of imminent future harm can only be cured

by an equitable remedy. Thus, Congress could not have meant to preclude claims for

declaratory and injunctive relief under the PLRA because such relief addresses a

violation the prisoner has not yet “suffered.” The harm will be suffered, if at all, in

the future. No injury is required in a pleading for prospective equitable relief; only

a threat of future injury is necessary. We therefore join the other circuits who have

considered the issue in holding that section 1997e(e) only precludes some actions for

money damages, and does not materially thwart actions for declaratory and injunctive



         8
         This conclusion is further bolstered by the fact that the statutory provision is entitled,
“Limitation on recovery.”

                                                17
relief.9 See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999); Perkins v. Kansas

Dep’t of Corrections, 165 F.3d 803, 808 (10th Cir. 1999); Davis v. District of

Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998); Zehner v. Trigg, 133 F.3d 459, 462

(7th Cir. 1997).

       Read as a limitation on recovery only, the provision presents no constitutional

infirmity that would offend the Due Process Clause of the Fifth Amendment. Despite

Wade’s ringing invocation of Marbury v. Madison, that “[t]he very essence of civil

liberty certainly consists in the right of every individual to claim the protection of the

laws, whenever he receives an injury,” 5 U.S. (1 Cranch) 137, 162, 2 L. Ed. 60 (1803),

this case is not about a denial of the law’s protection. What this issue boils down to

is whether or not the Constitution of the United States mandates a tort damages

remedy for every claimed constitutional violation; and the answer is certainly that it

does not. In both Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648

(1983) and Schweiker v. Chilicky, 487 U.S. 412, 108 S. Ct. 2460, 101 L. Ed. 2d 370

(1988), as the D.C. Circuit has observed, the Supreme Court declined to infer a




       9
          We express no view on whether section 1997e(e) would bar an action for nominal damages
that are normally available for the violation of certain “absolute” constitutional rights, without any
showing of actual injury. See Carey v. Piphus, 435 U.S. 247, 266, 98 S. Ct. 1042, 1054, 55 L. Ed.
2d 252 (1978). Plaintiffs have not sought nominal damages in this case, and so we do not address
the issue.

                                                 18
Bivens10 remedy for constitutional violations where Congress had provided an

alternative remedial scheme, even though Congress had failed to provide for complete

relief. Davis, 158 F.3d at 1346-47. Schweiker is particularly instructive because the

Court held that there was no Bivens remedy for people who had allegedly been denied

due process in applying for Social Security disability benefits, even though this meant

that they would have no “remedy in damages for emotional distress.” 487 U.S. at 425,

108 S. Ct. at 2468. And in the military context, the Court has been even more blatant

in insisting that not every constitutional deprivation can give rise to an action for

damages. See Chappell v. Wallace, 462 U.S. 296, 304-05, 103 S. Ct. 2362, 2368 76

L. Ed. 2d 586 (1983) (no Bivens remedy for Navy plaintiffs alleging racial

discrimination); United States v. Stanley, 483 U.S. 669, 683-84, 107 S. Ct. 3054,

3064, 97 L. Ed. 2d 550 (1987) (no Bivens remedy for plaintiff suing the military for

injuries resulting from the administration to him of the drug LSD, without his consent,

as part of an army experiment).11

       10
         Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91
S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (inferring a tort damages action for violations of plaintiff’s
Fourth Amendment rights).
       11
            Additionally, in the section 1983 context, the Seventh Circuit has observed that “Congress
itself created the § 1983 damages remedy . . . . 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.” Zehner, 133 F.3d at 461-62.
         It is true that in some limited areas the Supreme Court has been more insistent that a damages
remedy be provided. In the context of the Fifth Amendment’s Takings Clause, the Court has
recognized a constitutional obligation to provide a monetary remedy for a governmental

                                                  19
       Whatever our ultimate resolution of Congress’ power to restrict judicial

enforcement of federal rights, it is clear that Congress has wide latitude to decide how

violations of those rights shall be remedied.12 In this case, Congress has chosen to

enforce prisoners’ constitutional rights through suits for declaratory and injunctive

relief, and not through actions for damages. It is true that practical application of the

congressional scheme will mean that some plaintiffs will be without any relief. See

Zehner, 133 F.3d at 462-63 (plaintiffs cannot be compensated at all for their fear that

they may have been exposed to asbestos in the past). But “the Constitution does not

demand an individually effective remedy for every constitutional violation.” Id. If

it did, we would have to rule unconstitutional our doctrines of absolute and qualified

immunity. We therefore join the Seventh and D.C. Circuits in concluding that

Congress has left open avenues of declaratory and injunctive relief that are ample for


appropriation because “it is the Constitution that dictates the remedy for interference with property
rights amounting to a taking.” First English Evangelical Lutheran Church v. County of Los Angeles,
482 U.S. 304, 316 n.9, 107 S. Ct. 2378, 2386 n.9, 96 L. Ed. 2d 250 (1987). And with some
qualifications, there appears to be a due process obligation on the part of states to provide a refund
remedy for taxes unconstitutionally exacted, where there is no adequate prepayment remedy. See
Reich v. Collins, 513 U.S. 106, 115 S. Ct. 547, 130 L. Ed. 2d 454 (1994); McKesson Corp. v.
Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 110 S. Ct. 2238, 110 L. Ed. 2d 17
(1990). To argue that these cases establish some general right to a damages remedy for every
claimed constitutional violation, however, is to sweep too broadly. Damages were required in those
cases because a compensatory remedy was particularly related to the constitutional violation.
       12
          See Henry Hart, “The Power of Congress to Limit the Jurisdiction of Federal Courts: An
Exercise in Dialectic,” 66 Harv. L. Rev. 1362, 1366 (1953) (“It must be plain that Congress
necessarily has a wide choice in the selection of remedies, and that a complaint about action of this
kind can rarely be of constitutional dimension.”).

                                                 20
constitutional purposes, and hold that section 1997e(e) does not violate the Due

Process Clause of the Fifth Amendment. See Davis, 158 F.3d at 1346; Zehner, 133

F.3d at 462-63.



                                                 2.

       Wade also argues that section 1997e(e) violates the Equal Protection component

of the Due Process Clause of the Fifth Amendment.13                         Classifications that

disadvantage a suspect class or impinge upon the exercise of a fundamental right are

subject to strict scrutiny, while classifications that do neither are subject only to

review for rationality. Plyler v. Doe, 457 U.S. 202, 216-17, 102 S. Ct. 2382, 2394-95,

72 L. Ed. 2d 786 (1982). Wade argues that section 1997e(e) impinges on his

fundamental right to access the courts.

       Wade's argument is similar to his first attack, but it comes dressed in Equal

Protection clothing. Prison inmates do have a constitutional right of access – they

must be afforded “a reasonably adequate opportunity to present claimed violations of

fundamental constitutional rights to a court.” Lewis v. Casey, 518 U.S. 343, 351, 116

S. Ct. 2174, 2180, 135 L. Ed. 2d 606 (1996). As discussed in the context of Wade’s


       13
         Federal legislation is subject to analysis under the equal protection component of the Fifth
Amendment’s Due Process Clause. Adarand Constrs., Inc. v. Pena, 515 U.S. 200, 213, 115 S. Ct.
2097, 2105-06, 132 L. Ed. 2d 158 (1995).

                                                 21
due process argument, section 1997e(e) does not affect prisoners’ right of judicial

access. It only affects the remedies inmates may seek. Prisoners still retain a

“reasonably adequate opportunity” to seek relief from constitutional violations that

do not involve physical injury, because they may still file suits for declaratory and

injunctive relief. They simply may not recover monetary damages for such claims.

See Davis, 158 F.3d at 1347; Zehner, 133 F.3d at 463.

      Because section 1997e(e) neither disadvantages a suspect class nor impinges

on a fundamental right, we review the provision only for rationality. Plyler, 457 U.S.

at 216-217, 102 S. Ct. 2394-95. Under this lenient standard of review, section

1997e(e) easily passes muster. Congress’ stated purpose to limit frivolous lawsuits

by those who face uniquely low opportunity costs for pursuing litigation rationally

supports its action in adopting the measure. Wade’s reliance on Romer v. Evans, 517

U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) is misplaced. In that case, the

Supreme Court struck down a Colorado constitutional provision that targeted gays and

lesbians and denied them political redress “across the board,” id. at 633-34, 116 S. Ct.

at 1628-29, because there was no rationale for the provision other than animus against

a politically unpopular group. In this case, Congress’ much more narrow restriction

on the right of prisoners to obtain certain forms of relief, coupled with a rationale that

does not reduce to mere animus against prisoners, convince us that the section


                                           22
1997e(e) easily passes rationality review.14



                                                 IV.

       For the forgoing reasons, we AFFIRM the district court’s ruling with respect

to plaintiffs Locklear, Kilgore, Langes, and Brinkley. We also AFFIRM the district

court’s dismissal of plaintiff Wade’s claims for compensatory and punitive damages,

but REMAND with instructions that the district court consider Wade’s claims for

declaratory and injunctive relief. We VACATE the district court’s dismissal of claims

for compensatory and punitive damages for plaintiffs Chadwick, Harris, Cook, Hooks,

Nation, and Dailey, and REMAND for further proceedings consistent with this

opinion.



       14
           Plaintiffs make a somewhat bizarre separation of powers argument involving United States
v. Klein, 80 U.S. (13 Wall.) 128 (1871), and City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157,
138 L. Ed. 2d 624 (1997). Klein was a unique case in which the Court struck down a congressional
attempt to prescribe a “rule of decision” in particular cases. Plaintiffs argue that here, too, Congress
is trying to prescribe a “rule of decision” by precluding some actions for compensatory and punitive
damages. But plaintiffs’ argument sweeps far too broadly. Taken to its logical conclusion, the
argument would invalidate almost any congressional alteration of judge-made common law.
Congress can certainly “intrude” upon the judicial province and prescribe a “rule of decision” by
simply amending the governing law. See Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440,
112 S. Ct. 1407, 1414, 118 L. Ed. 2d 73 (1992). And that is just what Congress has done here. In
City of Boerne, the Court struck down the Religious Freedom Restoration Act because Congress had
exceeded its Fourteenth Amendment power to make laws for the enforcement of the Free Exercise
Clause of the First Amendment. In order to find the analogy between that case and this one sound,
we would have to hold that Congress is without the constitutional power to structure remedies for
claimed constitutional violations. We have already traveled that road in this and the preceding
section, and we found the argument to be without merit.

                                                  23
SO ORDERED.




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