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Preayer v. Ryan

United States District Court, D. Arizona

May 30, 2017

Roger Wayne Preayer, Plaintiff,
v.
Charles L Ryan, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge

         Plaintiff 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' motion.

         I. Compensatory Damages.

         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.

         A. Governing Standard.

         The 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 violations).[1]

         As one 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.

         Some 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.

         At 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 and Searles”).

         The 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.

         B. Physical Injury.

         Oliver 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.

         The 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.

         Not 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, No. ...


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