United States District Court, D. Arizona
G. Campbell United States District Judge
Roger Wayne Preayer, originally proceeding pro se, brought
this civil rights action under 42 U.S.C. § 1983 against
multiple Arizona Department of Corrections employees for the
alleged violations of his Eighth Amendment rights. Doc. 61.
Following motion practice, the remaining Defendants are
Deputy Warden D. Schuster; Lieutenant Cheryl Malysa; and
Corrections Officers Maria Piller, Jaudiel Barajas, and
Eduardo Arreola. See Docs. 109, 111. Defendants have
filed a motion in limine asking the Court to preclude
Plaintiff from offering any testimony, questions, or evidence
at trial concerning compensatory or punitive damages. Doc.
132. The motion is fully briefed (Docs. 132, 144, 149), and
the Court heard oral argument on May 19, 2017. For the
reasons that follow, the Court will deny Defendants'
argue that Plaintiff has not alleged that he suffered a
physical injury that is more than de minimis and thus cannot
recover for his alleged mental and emotional injuries. Doc.
132 at 1-2. Additionally, Defendants argue that Plaintiff has
not alleged any actual or out-of-pocket losses and thus has
no claim for compensatory damages. Id.
Prison Litigation Reform Act (PLRA), 42 U.S.C. §
1997e(e), 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 or the commission of a sexual act.” In
Oliver v. Keller, the Ninth Circuit held that this
statutory provision requires a prisoner to allege a physical
injury that is “more than de minimis” in order to
pursue claims for mental and emotional injury. 289 F.3d 623,
627-29 (9th Cir. 2002). The Ninth Circuit further held that
the physical injury requirement applies only to claims for
mental and emotional injury, and, “[t]o the extent that
appellant's claims for compensatory, nominal or punitive
damages are premised on alleged [constitutional] violations,
and not on emotional or mental distress suffered as a result
of those violations, § 1997e(e) is inapplicable and
those claims are not barred.” Id. at 629-30
(even absent physical injury, the prisoner was entitled to
seek damages premised on alleged Fourteenth Amendment
district court in this circuit has noted, and as discussed in
the May 19, 2017 hearing, Oliver is not “a
model of clarity.” Cockcroft v. Kirkland, 548
F.Supp.2d 767, 776 (N.D. Cal. 2008). Generally, a plaintiff
who establishes liability for the violation of a
constitutional right actionable under § 1983 is entitled
to recover compensatory damages for “economic harm,
pain and suffering, and mental and emotional distress that
results from the violations.” Borunda v.
Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988) (citing
Carey v. Piphus, 435 U.S. 247, 257-64 (1978));
see Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S.
299, 307 (1986) (in § 1983 suits, “compensatory
damages may include not only out-of-pocket loss and other
monetary harms, but also such injuries as ‘impairment
of reputation . . ., personal humiliation, and mental anguish
and suffering'”) (internal quotation omitted). But
under § 1997e(e), if there is no physical injury,
damages are not available for “emotional or mental
distress suffered as a result of” a constitutional
violation. See Oliver, 289 F.3d at 629-30. This
would seem to limit compensatory damages to economic harm
(out-of-pocket losses) and pain and suffering. Without a
physical injury, however, there likely is no pain and
suffering apart from the unavailable mental or emotional
distress. This would leave only economic damages, but they
too are unlikely. Prisoners typically have no out-of-pocket
losses except for medical co-pays (which will not exist if
there is no physical injury), or loss of property (which can
rarely arise in prisoner § 1983 actions). See
Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994)
(“a negligent or intentional deprivation of a
prisoner's property fails to state a claim under §
1983 if the state has an adequate post deprivation
remedy”) (citation omitted). Nor can compensatory
damages be awarded for the abstract value of a constitutional
right. Stachura, 477 U.S. at 308. What, then, did
the Ninth Circuit have in mind when it stated that
compensatory damages “premised on alleged
[constitutional] violations” are not affected by §
1997e(e)? Id. at 629-30.
courts in this circuit have held that Oliver applies
only to separate and distinct claims for mental or emotional
injuries, such as where a prisoner sets forth a claim seeking
damages for mental and emotional suffering and asserts a
separate claim seeking damages for a constitutional
violation. See e.g., Low v. Stanton, No.
CIV S-05-2211 MCE DAD P, 2010 WL 234859, at *4 (E.D. Cal.
Jan. 14, 2010) (finding “that if a plaintiff states a
constitutional claim, as opposed to a claim for mental or
emotional injuries, the physical injury requirement of §
1997e(e) does not apply”); Washington v.
Brown, No. CIV S-06-1994 WBS DAD P, 2010 WL 2737141, at
*18 (E.D. Cal. July 12, 2010) (“if a plaintiff states a
constitutional claim, as opposed to one for mental or
emotional injuries, the physical injury requirement of §
1997e(e) does not bar the award of compensatory
damages”); see also Bodnar v. Riverside Cnty.
Sheriff's Dep't, No. EDCV 11-291-DSF (OP), 2014
WL 2737815, at *6 (C.D. Cal. March 28, 2014) (“to the
extent that Plaintiff alleges emotional injury, his claim is
barred by § 1997e(e), ” but “to the extent
that Plaintiff presents a pure constitutional violation,
§ 1997e(e) is inapplicable”). But none of these
cases truly articulates the distinction between a claim for
compensatory damages premised on an alleged constitutional
violation and a claim for compensatory damages premised on
“emotional or mental distress suffered as a result of
those violations, ” and the Court cannot see such a
distinction. See Oliver, 289 F.3d at 630.
least one district court has held that Oliver limits
the available relief to nominal and punitive damages if there
is no physical injury. See Quinn v. Singh, No.
11-CV-1085-DMS (JMA), 2012 WL 3868014, at *4 (S.D. Cal. July
27, 2012). The court in Quinn held that the
plaintiff did not allege a physical injury and could not seek
damages for mental or emotional injury on his Eighth
Amendment claim, but that “he is not barred under
Oliver from seeking nominal or punitive damages in
relation to this claim.” Id. A majority of
circuits similarly hold that § 1997e(e) precludes
compensatory damages absent a physical injury, but not
nominal or punitive damages. See Hutchins v.
McDaniels, 512 F.3d 193, 198 (5th Cir. 2007); Royal
v. Kautzky, 375 F.3d 720, 723-24 (8th Cir. 2004);
Calhoun v. De Tella, 319 F.3d 936, 941 (7th Cir.
2003); Thompson v. Carter, 284 F.3d 411, 418 (2d
Cir. 2002); Searles v. Van Bebber, 251 F.3d 869,
878-79 (10th Cir. 2001); Allah v. Al-Hafeez, 226
F.3d 247, 250-51 (3d Cir. 2000). Notably, Oliver
cited two of these cases favorably. 289 F.3d at 630
(“we reach a conclusion similar to Al-Hafeez
full application of Oliver remains uncertain. With
respect to this case, Plaintiff has identified no economic
losses caused by Defendants' conduct. If Plaintiff has
suffered no physical injury, it would seem that the only kind
of “pain and suffering” he could claim would be
mental and emotional, which § 1997e(e) would proscribe.
Thus, if there is no physical injury associated with one or
more of Plaintiff's claims, it would appear that he could
seek only nominal and punitive damages. If he has suffered
physical injury, he could also seek compensation for pain and
suffering, including mental and emotional distress. With
these preliminary thoughts in mind, the Court will consider
the facts of this case.
held that a de minimis injury does not constitute a physical
injury for purposes of § 1997e(e). Id. at
627-28. Defendants contend that Plaintiff alleges only a de
minimis injury in this case.
Ninth Circuit did not provide an explicit standard for de
minimis injuries in Oliver, but it rejected the
appellees' argument that an injury is de minimis unless
it is “an observable or diagnosable medical condition
requiring treatment by a medical care professional, which
would cause a free person to seek such treatment.”
Id. at 628 (citation and quotation marks omitted).
The Ninth Circuit found this standard too demanding.
Id. While a sufficient physical injury is not simply
any injury, the Ninth Circuit held that it need not
rise to the standard proposed by the appellees.
surprisingly, cases applying Oliver's physical
injury holding have reached a variety of conclusions. See
Pierce v. Cnty. of Orange, 526 F.3d 1190, 1224 (9th Cir.
2008) (reviewing Oliver and finding that bladder
infections and bed sores suffered by a paraplegic inmate were
not de minimis); Monclova-Chavez v. McEachern, No.
1:08-CV-00076-AWI, 2011 WL 39118, at *6 (E.D. Cal. Jan. 5,
2011) (finding that significant bruises, weakness, and
numbness in the plaintiff's shoulder were not de minimis
under Oliver); cf. Lombardelli v. Halsey,