                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2003

Mitchell v. Horn
Precedential or Non-Precedential: Precedential

Docket 98-1932




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PRECEDENTIAL

       Filed January 29, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1932

MARK MITCHELL,

       Appellant

v.

MARTIN F. HORN, et al.

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 98-cv-04742)
District Judge: Honorable Edmund V. Ludwig

Argued August 1, 2002

Before: ROTH, RENDELL and AMBRO, Circuit Judges

(Opinion filed: January 29, 2003)

       Gregg H. Levy, Esquire
       Kevin C. Newsom, Esquire (Argued)
       Covington & Burling
       1201 Pennsylvania Avenue, N.W.
       Washington, D.C. 20004

        Attorneys for Appellant




       D. Michael Fisher, Esquire
       J. Bart DeLone, Esquire (Argued)
       Calvin R. Koons, Esquire
       John G. Knorr, III, Esquire
       Office of Attorney General
       Appellate Litigation Section
       15th Floor, Strawberry Square
       Harrisburg, PA 17120

        Attorneys for Amicus
       The Commonwealth of
       Pennsylvania

OPINION OF THE COURT

AMBRO, Circuit Judge:

Mark Mitchell, a Pennsylvania inmate acting pro se, filed
this suit under 42 U.S.C. 1983, claiming violations of his
First, Fifth, Eighth, and Fourteenth Amendment rights. He
alleges that a correctional officer planted contraband near
his locker because he filed complaints against that officer,
that he was denied a fair hearing on the contraband
charges, and that, as a result, he was placed in disciplinary
confinement for several months, including four days in a
cell that was smeared with feces and infested with flies and
in which he could not eat, drink, or sleep. The District
Court dismissed Mitchell’s complaint sua sponte the day it
was filed without requiring service on the defendants. For
the reasons below, we reverse the District Court’s judgment
and remand for further proceedings.

I. Factual Background and Procedural History

On appeal from the dismissal of a complaint, we assume
the allegations in the complaint to be true. See Ray v.
Kertes, 285 F.3d 287, 291 (3d Cir. 2002); Micklus v.
Carlson, 632 F.2d 227, 230 (3d Cir. 1980).

On October 5, 1996, while Mitchell was an inmate in the
Drug and Alcohol Unit at the Graterford Correctional
Institution in Pennsylvania ("Graterford"), prison officials

                                2


entered his living area to conduct a search. During the
search, they found a folded brown paper napkin containing
drugs and U.S. currency taped under Mitchell’s locker.
Mitchell denied owning or knowing about the contraband,
and his urinalysis tested negative for drugs. At the security
office, Mitchell asked a correctional officer to preserve the
tape that had affixed the contraband under his locker so
that it could be fingerprinted. Although Mitchell offered to
pay for the fingerprint analysis, the prison denied his
request. Pending a hearing on the contraband charges,
prison officials placed him in the Restricted Housing Unit
("RHU").

The next day, prison officials brought Mitchell to the
institution’s security unit for questioning. Lieutenant
Kowalski told Mitchell that he had information suggesting
that Officer Ronald Wilson, the officer regularly assigned to
the Drug and Alcohol Unit, framed Mitchell. Mitchell
concurred that he had been set up and again requested
fingerprint testing to prove his innocence. Kowalski offered
to look into the matter, and Mitchell was returned to the
RHU.

Two days after the officers discovered the contraband,
Mitchell was called to a disciplinary hearing, in preparation
for which he was permitted five minutes to confer with an
inmate assistant. During the hearing, Mitchell argued that
someone had set him up. He noted that the area in which
the officers found the contraband was easily accessible to
others, requested that the hearing examiner inquire when
that area had last been searched, and asked again for a
fingerprint test. His requests were denied. Finding Mitchell
guilty of contraband charges and of lying to a prison
employee, the hearing examiner sentenced him to ninety
days in disciplinary custody.
Following proper procedure, Mitchell appealed the
hearing examiner’s verdict first to the Program Review
Committee, then to the prison superintendent, and finally
to the chief counsel. Each appeal was denied. During the
pendency of these appeals, Mitchell was relocated to a cell
normally used to house mentally ill inmates. The cell had
"human waste smeared on the walls" and was"infested

                                3


with flies." At night, "kicking and banging on the doors by
the other inmates" kept Mitchell awake.

Mitchell complained to prison officials about his
conditions to no avail. He sought to file an administrative
grievance protesting the conditions of his confinement, but
prison officials denied him an inmate grievance form.
Prison regulations provide that a grievance form is"the
proper form to be used for submission of a grievance and
it should be completed according to the directions
provided." Commonwealth of Pa., Dep’t of Corr.,
Consolidated Inmate Grievance Review System, Policy
Statement DC-ADM 804 V(B) (Oct. 20, 1994). Additionally,
inmate grievances must be "in writing and in the format
provided on the forms supplied by the institution." Id.
804(VI)(A)(1) (internal citation omitted). After four days,
during which Mitchell alleges he did not eat, drink, or
sleep, the Program Review Committee, in the course of
fulfilling its mandate to "interview all disciplinary custody
cases every thirty (30) days," Commonwealth of Pa., Dep’t of
Corr., Inmate Disciplinary and Restricted Housing
Procedures, Policy Statement DC-ADM 801 VI(D)(9) (Sept.
20, 1994), confirmed that his cell was unfit for human
habitation. He was transferred to Huntingdon Correctional
Institution on December 4, 1996.1

In January 1998, Mitchell returned to Graterford to face
criminal drug-possession charges stemming from the
October 5, 1996 contraband incident and was again placed
in the RHU. At a preliminary hearing held after Mitchell’s
return to Graterford, all criminal charges against Mitchell
were dismissed. Nonetheless, Graterford officials kept him
segregated in the RHU for another two months, explaining
that his return to the general Graterford population was
"not an option." After numerous complaints, Mitchell was
transferred back to Huntingdon on April 1, 1998.

On September 29, 1998, Mitchell filed the current
complaint in the United States District Court for the
_________________________________________________________________

1. In early 1997, Mitchell filed a "private complaint" against Officer
Wilson, whom he accused of planting contraband under his locker. The
record does not reflect how or even whether this private complaint was
resolved.

                                4
Eastern District of Pennsylvania, alleging that: (1) Officer
Wilson planted contraband in retaliation for Mitchell’s
complaints against him, in violation of his First, Fifth, and
Eighth Amendment rights; (2) prison officials denied
Mitchell adequate time to confer with his inmate assistant,
denied him the opportunity to present a meaningful
defense, and failed adequately to investigate his allegations
that the charges against him were fabricated, all in
violation of his Fifth, Eighth, and Fourteenth Amendment
rights; (3) prison officials placed Mitchell in a cell unfit for
human habitation, in violation of his Eighth Amendment
rights; and (4) as a result of these violations, Mitchell
suffered, inter alia, emotional trauma, fear, and shock, and
lost his status and any chance of commutation. As noted,
the District Court dismissed his complaint the day it was
filed. The Court dismissed as frivolous Mitchell’s retaliation
charge, which it held did not state a violation of his
constitutional rights, and his due process claim, on the
ground that Mitchell’s confinement did not implicate a
liberty interest. The District Court also held that Mitchell
failed to exhaust his administrative remedies with respect
to his Eighth Amendment conditions-of-confinement claim
and dismissed that claim without prejudice. Finally, the
District Court held that Mitchell could not bring a claim for
emotional trauma without a prior showing of physical
injury.

This timely appeal followed. Because the District Court
dismissed this case before the defendant was served, the
defendant -- Commissioner of the Pennsylvania
Department of Corrections -- was not technically a party to
this suit. Therefore, we requested that the Commonwealth
of Pennsylvania file a brief as amicus curiae. 2

II. Jurisdiction

The District Court’s dismissal of Mitchell’s retaliation and
due process claims as frivolous is appealable under 28
U.S.C. 1291. See Wilson v. Rackmill, 878 F.2d 772, 773 (3d
_________________________________________________________________

2. We appreciate the candor and professionalism of the Commonwealth’s
counsel. We extend as well our appreciation to Mitchell’s appointed
counsel for the time and talent they have dedicated to this case.

                                5


Cir. 1989). Under the circumstances, his Eighth
Amendment conditions-of-confinement claim is appealable
as well. When a claim is dismissed without prejudice, we
treat it as a final decision, appealable under 1291,"when a
plaintiff ‘declares his intention to stand on his complaint or
when he cannot cure the defect in his complaint.’ " Ray,
285 F.3d at 291 (quoting Booth v. Churner, 206 F.3d 289,
293 n.3 (3d Cir. 2000), aff ’d, 532 U.S. 731 (2001)). While
Mitchell has not clearly declared his intention to stand on
his complaint, the defect for which the District Court
dismissed Eighth Amendment conditions-of-confinement
claim -- failure to exhaust available administrative
remedies -- is no longer curable. See Booth , 206 F.3d at
293 n.3. It has been six years since the events resulting in
this appeal, and prison regulations allowed Mitchell only
fifteen days "after the events upon which the claims are
based" to file a grievance. DC-ADM 804 VI(B)(2).

III. Discussion

This case raises four questions, which we address in the
following order: (1) whether Mitchell exhausted the available
administrative remedies on his Eighth Amendment
conditions-of-confinement claim; (2) is his retaliation claim
frivolous; (3) whether his due process claim is frivolous;
and (4) has Mitchell alleged a physical injury sufficient to
support his emotional injury claims. Throughout we bear in
mind that, "however inartfully pleaded," the"allegations of
[a] pro se complaint [are held] to less stringent standards
than formal pleadings drafted by lawyers." Haines v.
Kerner, 404 U.S. 519, 520 (1972).

A. Exhaustion

Before filing suit, prisoners must exhaust their available
administrative remedies. 42 U.S.C. S 1997e(a). 3 The
"availability of administrative remedies to a prisoner is a
_________________________________________________________________

3. 42 U.S.C. S 1997e(a) 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."

                                6


question of law," which we review de novo. Ray, 285 F.3d
at 291.

The District Court dismissed Mitchell’s conditions-of-
confinement claim, which asserts that he spent four days in
a filthy cell in which he could not eat, drink, or sleep,
because he "does not allege that he filed any grievances
regarding the conditions of his cell." Mitchell argues that he
did not file a grievance because prison officials denied him
the necessary grievance forms and, as a result, he lacked
"available" administrative remedies. The Commonwealth
concedes this point. Accord Miller v. Norris, 247 F.3d 736,
740 (8th Cir. 2001) ("[A] remedy that prison officials prevent
a prisoner from ‘utiliz[ing]’ is not an‘available’ remedy
under S 1997e(a) . . . .") (alterations in original).

Even absent the prison’s precluding Mitchell’s grievance,
the District Court erred procedurally. Failure to exhaust
administrative remedies is an affirmative defense for the
defendant to plead. Ray, 285 F.3d at 295. Under 1997e(c)
failure to exhaust is not a permissible basis for sua sponte
dismissal. Id. at 295-96. The defendants in this case were
not served and therefore have not pled failure to exhaust or
any other defense. Thus, even if Mitchell failed to exhaust
his available remedies (excused, as the Commonwealth
concedes, by the failure to provide grievance forms), the
District Court was premature in dismissing his complaint.

B. Retaliation claim

The District Court dismissed as frivolous Mitchell’s
retaliation claim -- that Officer Wilson planted illegal drugs
under Mitchell’s locker in retaliation for Mitchell’s
complaints against him -- reasoning that "[t]he filing of a
false or unfounded misconduct charge against an inmate
does not constitute a deprivation of a constitutional right."

To be frivolous, a claim must rely on an "indisputably
meritless legal theory" or a "clearly baseless" or "fantastic or
delusional" factual scenario. Neitzke v. Williams, 490 U.S.
319, 327-28 (1989); Wilson, 878 F.2d at 774; see, e.g.,
Deutch v. United States, 67 F.3d 1080, 1091-92 (3d Cir.
1995) (holding frivolous a suit alleging that prison officials
took an inmate’s pen and refused to give it back). We
exercise plenary review over a dismissal for frivolousness.

                                7


Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999);
accord McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th
Cir. 1997). We are especially careful when assessing
frivolousness in the case of in forma pauperis complaints,
for "prisoners often must rely on the courts as the only
available forum to redress their grievances, even when
those grievances seem insignificant to one who is not so
confined." See Deutch, 67 F.3d at 1090.

In dismissing Mitchell’s retaliation claim, the District
Court failed to recognize that "[g]overnment actions, which
standing alone do not violate the Constitution, may
nonetheless be constitutional torts if motivated in
substantial part by a desire to punish an individual for
exercise of a constitutional right." Allah v. Seiverling, 229
F.3d 220, 224-25 (3d Cir. 2000) (quoting Thaddeus-X v.
Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc)). A
prisoner alleging retaliation must show (1) constitutionally
protected conduct, (2) an adverse action by prison officials
" ‘sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights,’ " and (3) "a causal
link between the exercise of his constitutional rights and
the adverse action taken against him." Rauser v. Horn, 241
F.3d 330, 333 (3d Cir. 2001) (quoting Allah, 229 F.3d at
225) (alteration in original).

Mitchell’s allegation that he was falsely charged with
misconduct in retaliation for filing complaints against
Officer Wilson implicates conduct protected by the First
Amendment. See Smith v. Mensinger, 293 F.3d 641, 653 (3d
Cir. 2002) ("We have . . . held that falsifying misconduct
reports in retaliation for an inmate’s resort to legal process
is a violation of the First Amendment’s guarantee of free
access to the courts."); Allah, 229 F.3d at 225 (holding that
an allegation that a prisoner was kept in administrative
segregation to punish him for filing civil rights complaints
stated a retaliation claim); Babcock v. White , 102 F.3d 267,
275-76 (7th Cir. 1996) (prisoner could survive summary
judgment on his claim that prison officials retaliated
against him for "use of the ‘inmate grievance system’ and
previous lawsuits"). Moreover, we believe that several
months in disciplinary confinement would deter a
reasonably firm prisoner from exercising his First

                                8


Amendment rights. Finally, we agree with Mitchell that the
word "retaliation" in his complaint sufficiently implies a
causal link between his complaints and the misconduct
charges filed against him.

Although Mitchell’s retaliation claim may ultimately not
succeed on the merits, it is not "indisputably meritless,"
"fantastic or delusional," "of little or no weight," or "trivial."
Neitzke, 490 U.S. at 325, 327; Deutch , 67 F.3d at 1089.
And while we would prefer that Mitchell’s complaint be
more detailed, we take seriously our charge to construe pro
se complaints nonrestrictively. Haines, 404 U.S. at 520. To
leave no doubt, the Commonwealth, in its role as amicus,
agrees that the District Court erred in overlooking Mitchell’s
retaliation claim.

While Mitchell has stated a nonfrivolous retaliation claim,
the Supreme Court recently clarified in Porter v. Nussle,
534 U.S. 516, 532 (2002), that 1997e(a) requires a prisoner
to exhaust his administrative remedies when alleging
"particular episodes" of misconduct -- which would include
an act of retaliation. On appeal the Commonwealth’s
amicus brief acknowledges that "Mitchell appealed
the hearing examiner’s decision to the various levels
available through the Inmate Disciplinary Procedure."
Commonwealth’s Br. at 5 (emphasis added).

C. Due Process

Mitchell’s due process claim alleges that he received only
five minutes to confer with an inmate assistant before his
disciplinary hearing, that he was denied a fair opportunity
to review the evidence against him, and that the hearing
itself was conducted unfairly.

Mitchell’s procedural due process rights are triggered by
deprivation of a legally cognizable liberty interest. For a
prisoner, such a deprivation occurs when the prison
"imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life." Sandin v.
Conner, 515 U.S. 472, 484 (1995).4 Lesser restraints on a
_________________________________________________________________

4. Additionally, state prisoners have a protected liberty interest in
avoiding restraints that "exceed[ ] the sentence in such an unexpected

                                9
prisoner’s freedom are deemed to fall "within the expected
perimeters of the sentence imposed by a court of law." Id.
If Mitchell had no protected liberty interest in remaining
free of disciplinary custody, then the state owed him no
process before placing him in disciplinary confinement. We
therefore must decide whether Mitchell’s contention that he
had a protected liberty interest in avoiding disciplinary
custody is frivolous. This is a question of constitutional fact
over which we exercise independent appellate review"in
order to preserve the precious liberties established and
ordained by the Constitution." Fabulous Assoc., Inc. v. Pa.
Pub. Util. Comm’n, 896 F.2d 780, 783 (3d Cir. 1990)
(quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 511
(1984)).

The District Court, citing Sandin, dismissed Mitchell’s
claim as frivolous because "prison regulations on
confinement of inmates do not create a liberty interest
enforceable in a S 1983 action." However, Sandin did not
pronounce a per se rule, as the District Court’s opinion
implies. In Sandin, to determine whether the prisoner’s
treatment -- thirty days disciplinary segregation for
resisting a strip search -- implicated a liberty interest, the
Supreme Court carefully compared the circumstances of
the prisoner’s confinement with those of other inmates. It
found no liberty interest implicated because the prisoner’s
"disciplinary segregation, with insignificant exceptions,
mirrored those conditions imposed upon inmates in
administrative segregation and protective custody" in that
"conditions at [the prison] involve[d] significant amounts of
‘lockdown time’ even for inmates in the general population."
Sandin, 515 U.S. at 486. But the Court left open the
possibility that a liberty interest will be implicated by
conditions that impose an "atypical and significant
hardship." Id. at 484.
_________________________________________________________________

manner as to give rise to protection by the Due Process Clause of its own
force." Sandin, 515 U.S. at 484. Examples would be involuntary
administration of psychotropic medication, see Washington v. Harper,
494 U.S. 210, 221-22 (1990), or involuntary transfer to a state mental
hospital for treatment, see Vitek v. Jones, 445 U.S. 480, 494 (1980).
Mitchell does not contend that his transfer falls into such a category.

                                10


In deciding whether a protected liberty interest exists
under Sandin, we consider the duration of the disciplinary
confinement and the conditions of that confinement in
relation to other prison conditions. See Shoats v. Horn, 213
F.3d 140, 144 (3d Cir. 2000). Not surprisingly, our cases
engaging in this inquiry have reached differing outcomes,
reflecting the fact-specific nature of the Sandin test.
Compare Leamer v. Fauver, 288 F.3d 532, 545 (3d Cir.
2002) (denial of the right to participate in a sex offender
treatment program that was "mandated and promised" by
New Jersey law implicated a protected liberty interest, and
Shoats, 213 F.3d at 144 (eight years in administrative
confinement, during which inmate was locked in his cell for
all but two hours per week, denied contact with his family,
and prohibited from visiting the library or "participating in
any education, vocational, or other organization activities,"
clearly implicated a protected liberty interest), with Smith,
293 F.3d at 645, 654 (seven months in disciplinary
confinement did not implicate a liberty interest), Torres v.
Fauver, 292 F.3d 141, 151-52 (3d Cir. 2002) (disciplinary
detention for fifteen days and administrative segregation for
120 days was not atypical treatment in New Jersey prisons
and therefore did not implicate a protected liberty interest),
and Griffin v. Vaughn, 112 F.3d 703, 706-09 (3d Cir. 1997)
(administrative detention, which imposed strict restrictions
on outside contact and personal conveniences, did not
implicate a protected liberty interest).

This case appears to bear some similarity to Griffin,
which also involved a Graterford inmate. We held that
Griffin, who was detained for fifteen months in
administrative custody under restrictions comparable to
those here, did not have a liberty interest in avoiding that
confinement. See id. The differences Mitchell has thus far
raised between his case and Griffin appear, without more,
constitutionally insignificant. For example, inmates in
disciplinary custody5 like Mitchell are permitted only one
_________________________________________________________________

5. Disciplinary custody is the "maximum restrictive status of
confinement" for inmates in the Pennsylvania prison system. DC-ADM
801 IV(B). Administrative custody is a "status of confinement for non-
disciplinary reasons which provides closer supervision, control, and
protection than is provided in general population." Commonwealth of
Pa., Dep’t of Corr., Administrative Custody Procedures, Policy Statement
DC-ADM 802 IV(A) (Oct. 29, 1992).

                                11


visitor every month and one pack of cigarettes every two
weeks, DC-ADM 801 VI(D)(2), (4), whereas inmates in
administrative custody like Griffin are allowed one visitor
and two packs of cigarettes per week, Commonwealth of
Pa., Dep’t of Corr., Administrative Custody Procedures,
Policy Statement DC-ADM 802 V(A)(1), (3) (Oct. 29, 1992).
This marginal difference does not appear to cross the
constitutional line. Moreover, the prisoner in Sandin, whom
the Supreme Court held did not bear "atypical and
significant hardship," Sandin, 515 U.S. at 484, was, like
Mitchell, in disciplinary custody.

However, apparent similarities between Griffin and this
case notwithstanding, given this case’s procedural posture
and the fact that Mitchell prepared his complaint pro se,
the record is not sufficiently developed for us to determine
whether there were other features of Mitchell’s confinement
that meaningfully distinguished his situation from that in
Griffin. See Perkins v. Kan. Dep’t of Corr. , 165 F.3d 803,
809 (10th Cir. 1999) (reversing district court’s sua sponte
dismissal because the court "did not have the evidence
before it from which it could engage in the analysis
required by Sandin"); Whitford v. Boglino, 63 F.3d 527, 533
(7th Cir. 1995) (same). Given the "fact-intensive inquiry"
implied by Sandin, see Ayers v. Ryan, 152 F.3d 77, 83 (2d
Cir. 1998), we remand for development of the record. 6

D. Emotional Injury

Section 803(d) of the Prison Litigation Reform Act,
codified at 42 U.S.C. S 1997e(e), predicates a prisoner’s
claim for mental or emotional injury suffered while in
custody on a showing of accompanying physical injury.7
The District Court, citing this provision, dismissed
Mitchell’s complaint to the extent it sought relief for
_________________________________________________________________

6. In performing the inquiry Sandin requires, the District Court on
remand will need to consider whether the deplorable conditions of
Mitchell’s cell during a portion of his disciplinary confinement implicated
a protected liberty interest.

7. 42 U.S.C. 1997e(e) states 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."

                                12


"emotional trauma." Implicit in this dismissal is the
determination that Mitchell has not alleged a physical
injury. Mitchell, however, argues that the allegations in his
conditions-of-confinement claim -- that he was deprived of
food, drink, and sleep for four days -- describe physical
injuries. Moreover, he contends that any physical injury,
however minor, satisfies S 1997e(e) because that statutory
section contains no requirement that the injury be more
than de minimis. We hold that Mitchell has not stated a
claim for physical injury, but grant him leave to amend his
complaint in order to do so. We also agree with other
circuits that have read 1997e(e) to require more than a de
minimis physical injury before an emotional injury may be
alleged.

1. The Scope of S 1997e(e)

Section 1997e(e)’s requirement that a prisoner
demonstrate physical injury before he can recover for
mental or emotional injury applies only to claims for
compensatory damages. Claims seeking nominal or punitive
damages are typically not "for" mental or emotional injury
but rather "to vindicate constitutional rights" or "to deter or
punish egregious violations of constitutional rights,"
respectively. See Allah v. Al-Hafeez, 226 F.3d 247, 252 (3d
Cir. 2000). Accordingly, regardless how we construe
S 1997e(e)’s physical injury requirement, it will not affect
Mitchell’s ability to seek nominal or punitive damages for
violations of his constitutional rights.8

We also agree with several other courts of appeals that
S 1997e(e) does not apply to claims seeking injunctive or
declaratory relief.9 See Thompson v. Carter, 284 F.3d 411,
_________________________________________________________________

8. Mitchell’s complaint specifically requests punitive damages but not
nominal damages. As for the latter, however, "it is not necessary to allege
nominal damages." Allah, 226 F.3d at 251 (quoting Basista v. Weir, 340
F.2d 74, 87 (3d Cir. 1965)) (internal quotation marks omitted). Moreover,
Mitchell’s complaint seeks "other relief as it may appear the plaintiff is
entitled." We construe this "catch-all" prayer broadly to include a request
for nominal damages. Furthermore, he has requested nominal damages
in this appeal.
9. We express no opinion, however, as to whether Mitchell has standing
to bring a claim for equitable relief in light of the requirement,
enunciated in Los Angeles v. Lyons, 461 U.S. 95, 105 (1983), that a
plaintiff seeking equitable relief demonstrate that his injury is likely to
be repeated.

                                 13


418 (2d Cir. 2002) ("Section 1997e(e) does not prevent a
prisoner from obtaining injunctive or declaratory relief.");
Harris v. Garner, 190 F.3d 1279, 1288 (11th Cir. 1999),
vacated and reh’g en banc granted, 197 F.3d 1059 (11th
Cir. 1999), reinstated in part on reh’g, 216 F.3d 970 (11th
Cir. 2000) (en banc), cert. denied, 532 U.S. 1065 (2001)
(same); Harper v. Showers, 174 F.3d. 716, 719 (5th Cir.
1999) (same); Perkins v. Kan. Dep’t of Corr., 165 F.3d 803,
808 (10th Cir. 1999) (same); Davis v. Dist. of Columbia, 158
F.3d 1342, 1346 (D.C. Cir. 1998) (same); Zehner v. Trigg,
133 F.3d 459, 462-63 (7th Cir. 1997) (same). Again, such
claims seek not to remedy mental injury suffered but rather
relief from ongoing or future constitutional violations.
Moreover, S 1997e(e)’s reference to remedies for mental
injuries "suffered" -- in the past tense-- implies that it
does not restrict prospective equitable relief. See Harris,
190 F.3d at 1288; Davis, 158 F.3d at 1346. 10

2. Physical injury requirement

The Commonwealth argues that Mitchell’s allegations
that he was deprived of food, drink, and sleep for four days
do not describe a physical injury. Mitchell counters that
physical injury -- including starvation, dehydration,
unconsciousness, pain, and hypoglycemia -- follow
inevitably from the conditions he alleges, and that he
should not be penalized for inartful pleading. He notes also
that his complaint alleged that these deprivations placed
his "life and health in jeopardy." Finally, he argues that, if
necessary, he could easily amend his complaint to state
physical injuries.

Loss of food, water, and sleep are not themselves physical
injuries. However, physical injuries could result from such
deprivation after four days. While no physical injuries were
alleged in Mitchell’s complaint, to the extent that they can
be included in good faith in an amended complaint,
Mitchell is permitted that opportunity to amend.
_________________________________________________________________
10. We also observe that, apart from his claims for mental injury,
Mitchell seeks damages for loss of "status, custody level and any chance
at commutation." These requests -- unrelated to mental injury -- are not
affected by S 1997e(e)’s requirements.

                                14


3. The de minimis standard

If in an amended complaint Mitchell sufficiently alleges
physical injury, an additional issue occurs: under
S 1997e(e), must that physical injury be more than de
minimis before he can assert emotional injury? As this is a
question of statutory interpretation, it is subject to plenary
review. See Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir.
1998).

Other courts of appeals have read 1997e(e) to require a
less-than-significant-but-more-than-de minimis physical
injury as a predicate to allowing the successful pleading of
an emotional injury. See Oliver v. Keller, 289 F.3d 623,
626-28 (9th Cir. 2002); Harris, 190 F.3d at 1286-87 (11th
Cir.); Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir.
1997).11 In Siglar, the Fifth Circuit based its holding on the
fact that the Circuit’s Eighth Amendment jurisprudence
requires more than a de minimis, but not a significant,
physical injury. Siglar, 112 F.3d at 193. The Eleventh
Circuit in Harris followed Siglar. The Harris Court also
found significant that, in enacting 1997e(e), Congress
sought to curtail frivolous prisoner litigation. Reading
1997e(e) to find any allegation of physical injury sufficient
would "undermine the statute’s essential purpose." Harris,
190 F.3d at 1286. It would also 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.’ " Id. (quoting Hudson v. McMillian, 503 U.S.
1, 9 (1992)). The Oliver Court reached the same conclusion,
but rejected the Fifth and Eleventh Circuits’ reliance on
Eighth Amendment jurisprudence.12Oliver, 289 F.3d at
_________________________________________________________________

11. The Ninth Circuit stated in Oliver, 289 F.3d at 627, that the Second
Circuit has also adopted the de minimis standard in Liner v. Goord, 196
F.3d 132, 135 (2d Cir. 1999), when the latter court wrote: "Certainly, the
alleged sexual assaults would constitute more than de minimis injury if
they occurred. Cf. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)
(relying on Eighth Amendment jurisprudence, court holds that physical
injury required by S 1997e(e) must simply be more than de minimis)."
However, we do not read this statement as adopting any particular
standard, de minimis or otherwise.
12. The Court concluded that the Fifth Circuit did not accurately
describe the Eighth Amendment standard set out in Hudson v. McMillian,
503 U.S. 1 (1992), which requires more than de minimis physical force
-- not more than de minimis physical injury -- to state an Eighth
Amendment claim.

                                15
628. Rather, Oliver found persuasive that Congress
intended to reduce the volume of frivolous prisoner suits,
id. at 627-28, and rejected the notion that 1997e(e)’s plain
meaning is clear, see id. at 628 n.6.

Two canons of statutory construction drive our analysis.
First, "the starting point for interpreting a statute is the
language of the statute itself." Smith v. Fid. Consumer Disc.
Co., 898 F.2d 907, 909 (3d Cir. 1990) (quoting Consumer
Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,
108 (1980)). We do not look past the plain meaning unless
it produces a result "demonstrably at odds with the
intentions of its drafters," BFP v. Resolution Trust Corp.,
511 U.S. 531, 563 (1994) (internal quotation marks
omitted), or an outcome "so bizarre that Congress could not
have intended it," Demarest v. Manspeaker, 498 U.S. 184,
191 (1991) (internal quotation marks omitted). Second, we
attempt to ascribe meaning to each statutory provision.
Newmark v. Principi, 283 F.3d 172, 176 (3d Cir. 2002) ("It
is incumbent upon courts to read each statutory provision
as having meaning, and to construe the statute so the
‘meaning of each word inform[s] the others and all in their
aggregate tak[e] their purport from the setting in which they
are used.’ ") (quoting U.S. Nat’l Bank of Or. v. Indep. Ins.
Agents of Am., 508 U.S. 439, 454 (1993)) (internal
quotation marks omitted) (alterations in original).

We believe that reading 1997e(e) to allow a plaintiff to
allege any physical injury, no matter how minor, would
produce an unintended (indeed absurd) result. Were we not
to read 1997(e) as requiring more than a de minimis
physical injury, we would turn its physical injury
prerequisite into a mere pleading requirement, thereby
rendering the requirement meaningless as a practical
matter. Another prisoner might be able to assert an
emotional injury by pleading that he received a paper cut,
for example. This result runs counter to Congress’s intent
"to curtail frivolous and abusive prisoner litigation." Harris,
190 F.3d at 1286 (quoting Alexander v. Hawk, 159 F.3d
1321, 1324 (11th Cir. 1998)); see 141 Cong. Rec. S7525
(daily ed. May 25, 1995) (statement of Senator Dole). In so
doing, Congress noted that, "unlike physical injuries,
emotional injuries are inherently difficult to verify and

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therefore tend to be concocted for frivolous suits." Dawes v.
Walker, 239 F.3d 489, 496 (2d Cir. 2001) (Walker, J.). On
the other hand, we do not adopt a test that would prevent
those experiencing real physical injury at the hands of
government officials from pursuing their rights. We
therefore follow the approach of the Fifth, Ninth, and
Eleventh Circuits in requiring a less-than-significant-but-
more-than-de minimis physical injury as a predicate to
allegations of emotional injury.13

Because this case has come to us at the pleading stage,
and because Mitchell’s complaint does not specifically
describe the extent of his physical injuries, we are not able
to determine whether his injuries are more than de
minimis. Thus, the District Court will need to address on
remand this question as well. Mitchell’s amending his
complaint to allege more specifically the physical injuries
he suffered might facilitate this inquiry.

IV. Conclusion

Mitchell has exhausted the available administrative
remedies on his conditions-of-confinement claim as
required by S 1997e(a) and has stated a nonfrivolous
retaliation claim. On remand, the District Court should also
determine whether Mitchell has been subjected to"atypical
and significant hardship" implicating a protected liberty
interest that triggers due process rights at his disciplinary
hearing, and, if so, whether those rights were violated.
Finally, he is given the opportunity to amend his complaint
_________________________________________________________________

13. Our requirement of more than de minimis physical injury for
S 1997e(e) claims is not based on an analogy to Eighth Amendment
jurisprudence, as is true in the Fifth and Eleventh Circuits. See Harris,
190 F.3d at 1286-87; Siglar, 112 F.3d at 193. Section 1997e(e)’s
requirement is not limited to suits alleging Eighth Amendment violations.
See, e.g., Thompson, 284 F.3d at 415-17 (due process claim); Allah, 226
F.3d at 250 (First Amendment claim). Thus, while in Smith v. Mensinger,
293 F.3d 641 (3d Cir. 2002), we refused to apply a more-than-de
minimis-injury requirement in the Eighth Amendment context -- holding
instead that the Eighth Amendment was triggered by more than de
minimis force -- that holding does not inform our analysis of the
1997e(e) issue here.

                                17


to allege physical injury within the meaning ofS 1997e(e). If
his amended complaint alleges physical injury, the District
Court must determine whether it is more than de minimis
as a predicate to asserting emotional injury. In this context,
we reverse the District Court’s dismissal of the complaint
and remand for further proceedings not inconsistent with
this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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