                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-2095

C ALVIN T HOMAS,
                                           Plaintiff-Appellant,
                              v.

S TATE OF ILLINOIS and ILLINOIS
    D EPARTMENT OF C ORRECTIONS,

                                         Defendants-Appellees.


           Appeal from the United States District Court
                 for the Southern District of Illinois.
        No. 3:12-cv-00137-GPM—G. Patrick Murphy, Judge.

  S UBMITTED A UGUST 28, 2012—D ECIDED S EPTEMBER 27, 2012




 Before P OSNER, R OVNER, and W OOD , Circuit Judges.
   P OSNER, Circuit Judge. The plaintiff brought suit under
42 U.S.C. § 1983 complaining of having been subjected
to cruel and unusual punishments while an inmate of an
Illinois state prison. The defendants are the state and
the state agency that operates the prisons. The suit
alleged that the plaintiff’s cell had been infested with
mice and cockroaches and that a window pane was
2                                               No. 12-2095

missing and as a result rain came into his cell through
the window, and that a warden or assistant warden
had done a “walk through” and seen that the pane was
missing yet nothing had been done to replace it.
   The district judge dismissed the suit on alternative
grounds: that the defendants were immune from suit
by virtue of the Eleventh Amendment and that the plain-
tiff’s complaint failed to allege any harm. The second
ground is incorrect: the complaint alleges that allowing
rain to enter the cell through the empty window frame
created a health hazard.
   The judge was correct, however, that the Eleventh
Amendment bars the suit. The suit is against a state and
a state agency and Congress did not abrogate the
states’ sovereign immunity from suit under section 1983,
as it could have done. Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 66-70 (1989); Quern v. Jordan, 440
U.S. 332, 345 (1979) (“[section] 1983 does not explicitly and
by clear language indicate on its face an intent to
sweep away the immunity of the States; nor does it have
a history which focuses directly on that question of
state liability and which shows that Congress con-
sidered and firmly decided to abrogate the Eleventh
Amendment immunity of the States”); Kroll v. Board of
Trustees, 934 F.2d 904, 909 and n. 5 (7th Cir. 1991); Power
v. Summers, 226 F.3d 815, 818 (7th Cir. 2000); Richard H.
Fallon, Jr. et al., Hart & Wechsler’s The Federal Courts and
the Federal System 1091 (5th ed. 2003). But the Will
decision, supra, 491 U.S. at 70-71, held that a state and
its agencies are not suable “persons” within the meaning
No. 12-2095                                                 3

of section 1983 (see also Lapides v. Board of Regents, 535
U.S. 613, 617 (2002); Carroll v. DeTella, 255 F.3d 470, 471
(7th Cir. 2001)), thus providing a statutory as distinct
from a constitutional defense to section 1983 suits
against states and their agencies. And consistent with
the principle of avoiding unnecessary constitutional
decisionmaking, judges are to address the statutory
defense before the constitutional, Williams v. Wisconsin,
336 F.3d 576, 580 (7th Cir. 2003); Power v. Summers,
supra, 226 F.3d at 818; see Vermont Agency of Natural
Resources v. United States ex rel. Stevens, 529 U.S. 765, 778-
81 (2000), which the district judge failed to do.
  The plaintiff could have avoided both the statutory
and the constitutional bar by naming individuals as
defendants rather than just a state and an agency of
the state, but he failed to do that.
  So the suit is barred, but we write to correct the
judge’s apparent assumption that creation of a mere
hazard to health, as opposed to an actual impairment
of health, can never be a harm sufficient to support
an Eighth Amendment violation. This assumption is
related to the fallacy that we exposed in our recent
decision concerning alleged psychological harm from a
pat down and strip search in which the defendant
guard was charged with having fondled the plaintiff’s
testicles and penis gratuitously and offensively. Washing-
ton v. Hively, No. 12-1657, 2012 WL 3553419 (7th Cir.
Aug. 20, 2012). The district court had granted summary
judgment in favor of the guard on the basis of cases
such as Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir.
4                                                No. 12-2095

2009), which state that “de minimis uses of force are non-
actionable” in prisoner civil rights suits. The force used
in the Washington case was indeed minimal and the
only harm caused by it psychological, but the absence
of significant force and of physical injury did not
warrant judgment for the defendant. That is not a new
principle. See also Guitron v. Paul, 675 F.3d 1044, 1046
(7th Cir. 2012); Mays v. Springborn, 575 F.3d 643, 650
(7th Cir. 2009) (per curiam); Calhoun v. DeTella, 319 F.3d
936, 940 (7th Cir. 2003); Farmer v. Perrill, 288 F.3d 1254,
1260 (10th Cir. 2002); Freitas v. Ault, 109 F.3d 1335, 1338
(8th Cir. 1997); Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d
Cir. 1997); cf. Stanojkova v. Holder, 645 F.3d 943, 948
(7th Cir. 2011). But it seems not to be fully understood,
so it is worth reiterating.
  The judge said that “a successful complaint of pest
infestation can be distinguished [from an unsuccessful
one only] by an allegation of ‘significant physical harm’
arising from the pests.” But as we emphasized in the
Washington case, physical injury is not the only type of
injury actionable in a prisoner’s civil rights suit. It is
true that because “no Federal civil action may be
brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of
physical injury,” 42 U.S.C. § 1997e(e), a prisoner cannot
obtain compensatory damages without proving a
physical injury. But “physical injury . . . is not a filing
prerequisite for the federal civil action itself,” Calhoun v.
DeTella, supra, 319 F.3d at 940, because the prisoner can
still obtain injunctive relief, nominal damages, and puni-
No. 12-2095                                                5

tive damages. Id. at 940-41; Washington v. Hively, supra,
2012 WL 3553419, at *2; Smith v. Peters, 631 F.3d 418,
421 (7th Cir. 2011).
  Depending on how extensive the infestation of a pris-
oner’s cell is, what the infesting pests are, what odors
or bites or risk of disease they create, what particular
psychological sensitivities the prisoner was known to
have (recall Winston’s unreasoning fear of rats in
Nineteen Eighty-Four, a fear exploited by his torturers to
break his spirit without actually touching him, Lindale v.
Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998)), and
how long the infestation continues, a trier of fact might
reasonably conclude that the prisoner had been
subjected to harm sufficient to support a claim of cruel
and unusual punishment even if he had not contracted
a disease or suffered any physical pain. Cf. Powers v.
Snyder, 484 F.3d 929, 931 (7th Cir. 2007); Hearns v. Terhune,
413 F.3d 1036, 1042-43 (9th Cir. 2005); Gaston v. Coughlin,
249 F.3d 156, 165-66 (2d Cir. 2001); Palmer v. Johnson, 193
F.3d 346, 353 (5th Cir. 1999); Clark v. Armontrout, 28 F.3d
71, 71 (8th Cir. 1994) (per curiam); Williams v. Griffin,
952 F.2d 820, 822, 825 (4th Cir. 1991).
  But we need to distinguish among three different
types of harm that infestation of a prisoner’s cell can
create. One is disease. A second is psychological harm.
And a third, and the only one alleged by this plaintiff,
is hazard, or probabilistic harm—“loss of a chance,” as it
is called, which in Doll v. Brown, 75 F.3d 1200, 1205-06
(7th Cir. 1996), we “illustrated by cases in which, as a
result of a physician’s negligent failure to make a correct
6                                               No. 12-2095

diagnosis, his patient’s cancer is not arrested, and he
dies—but he probably would have died anyway. The
trier of fact will estimate the probability that the patient
would have survived but for the physician’s negli-
gence—say it is 25 percent—and will award that percent-
age of the damages the patient would have received had
it been certain that he would have survived but for the
negligence.” See also Bishop v. Gainer, 272 F.3d 1009, 1016-
17 (7th Cir. 2001); Smith v. Bubak, 643 F.3d 1137, 1141 (8th
Cir. 2011); Jorgenson v. Vener, 616 N.W.2d 366, 370-71 (S.D.
2000); Alexander v. Scheid, 726 N.E.2d 272, 275-82 (Ind.
2000); Wollen v. DePaul Health Center, 828 S.W.2d 681, 683-
85 (Mo. 1992); W. Page Keeton et al., Prosser & Keeton on the
Law of Torts § 41, p. 272 (5th ed. 1984).
  The potential psychological harm from living in a
small cell infested with mice and cockroaches is pretty
obvious. Regarding physical harm from involuntary
cohabitation with these vermin, we note that cockroaches
can transmit bacteria that aggravate asthma and cause
other disease, Chartered Institute of Environmental Health,
“Urban Pests and Their Public Health Significance” 28-
31, July 2008, www.cieh.org/uploadedFiles/Core/Policy/
Environmental_protection/Pest_management/Existing_
and_emerging_threat/Urban_pests_health_significance_
July_08.pdf (all websites cited in this opinion were visited
on September 15, 2012); C. Rivault et al., “Bacterial Load
of Cockroaches in Relation to Urban Environment,” 110
Epidemiology & Infection 317 (1993), www.ncbi.nlm.nih.gov/
pmc/articles/PMC2272268/pdf/epidinfect00038-0131.pdf,
and that inhaling microscopic particles of saliva, drop-
pings, or urine from mice infected with hantavirus can
No. 12-2095                                                7

infect a person with potentially fatal Hantavirus Pulmo-
nary Syndrome (sometimes called HPS); rodent contact
can cause other fatal diseases as well (famously, but not
currently, Bubonic Plague). See Haceesa v. United States,
309 F.3d 722, 723-24 (10th Cir. 2002); Centers for
Disease Control and Prevention, “Diseases from Rodents,”
July 29, 2010, www.cdc.gov/rodents/diseases/index.html,
and “Facts About Hantaviruses: What You Need To
Know To Prevent the Disease Hantavirus Pulmonary
Syndrome (HPS),” www.vdh.virginia.gov/epidemiology/
DEE/otherzoonosis/documents/Hantavirus/
HPS_Brochure.pdf; Illinois Dep’t of Public Health,
“Hantaviruses” www.idph.state.il.us/public/hb/ hbhanta.
htm; New York State Dep’t of Health, “Hantavirus Pulmo-
nary Syndrome (HPS),” Oct. 2011, www.health.ny.gov/
diseases/communicable/hantavirus/fact_sheet.htm; Char-
tered Institute of Environmental Health, supra, at 23, 26-27.
HPS and Plague show that rodents can kill you without
biting you (so much for the notion, which we tried to
scotch in Washington v. Hively, supra, that all cruel
and unusual punishments in a prison setting must
involve the exertion of force against the body). Assuming
the applicability of the “loss of a chance” theory of dam-
ages, heavy, protracted infestation of a prisoner’s cell
with such pests might be found to be a compensable
hazard even if the prisoner plaintiff had been lucky and
escaped disease and had had sufficient psychological
fortitude (or ignorance) to avoid suffering mental dis-
tress whether from knowledge that he might become
seriously ill as a consequence of the conditions in his
cell or from sheer disgust.
8                                           No. 12-2095

  But although important to emphasize because of their
pertinence to future cases, these points cannot keep the
plaintiff’s suit alive, because of the barriers that we
noted earlier.
                                             A FFIRMED.




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