Davis v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 1, 1998 Decided October 27, 1998

No. 97-7043

Michael Lee Davis,

Appellant

v.

District of Columbia and

Dwight Bynum, Corporal, Central Facility,

Appellees

United States of America,

Intervenor for Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 97cv00092)

Catherine E. Lhamon, argued the cause as amicus curiae

for appellant. With her on the briefs were Steven H. Gold-

blatt, appointed by the court, and Mary L. Clark.

Michael L. Davis, appearing pro se, was on the brief for

appellant.

Thomas M. Fisher argued the cause for appellees. With

him on the brief were John M. Ferren, Corporation Counsel,

Charles L. Reischel, Deputy Corporation Counsel, Lutz Alex-

ander Prager, Assistant Deputy Corporation Counsel, and

Mary L. Wilson, Assistant Corporation Counsel. Jo Anne

Robinson, Principal Deputy Corporation Counsel, entered an

appearance.

Frank W. Hunger, Assistant Attorney General, U.S. De-

partment of Justice, Wilma A. Lewis, U.S. Attorney, Barbara

L. Herwig and Deborah Ruth Kant, Attorneys, U.S. Depart-

ment of Justice, were on the brief for intervenor United

States of America.

Before: Wald, Williams and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: Michael Lee Davis, an inmate of

D.C. Central Prison at Lorton, brought this action under 42

U.S.C. s 1983. He alleged that one Corporal Bynum, an

official of the District of Columbia Department of Correc-

tions, and the District of Columbia itself, violated his constitu-

tional right to privacy. According to his complaint, Bynum

broke the seal on the plaintiff's medical files and disclosed

their contents to others without the plaintiff's consent, alleg-

edly saying that Davis was dying of HIV. In his complaint,

Davis alleged resulting emotional and mental distress, but no

other injury. He sought compensatory and punitive damages

as well as declaratory relief. Pursuant to 28 U.S.C. s 1915A,

the district court dismissed the complaint sua sponte, for

failure to state a claim on which relief could be granted. In

doing so it relied on 42 U.S.C. s 1997e(e), s 803(d) of the

Prison Litigation Reform Act ("PLRA"), enacted as Title

VIII of the Omnibus Consolidated Rescissions and Appropria-

tions Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996).

That provision, "Limitation on Recovery," states:

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. s 1997e(e).

Davis appeals from the district court's dismissal, arguing

primarily that s 1997e(e) violates his right to equal protection

and unduly burdens his Fifth Amendment right of access to

the courts. He also says that the district court erred in

dismissing his complaint sua sponte, without granting him

leave to amend his complaint to allege physical injuries. We

appointed amicus curiae to argue these issues on behalf of

plaintiff. We affirm.

I. Constitutionality of s 1997e(e)

Davis contends that s 1997e(e) violates his right to equal

protection because its prohibition on recovery for emotional

or mental injury absent a prior showing of physical injury

substantially burdens his ability to vindicate his right to

privacy. Thus he invokes the familiar taxonomy in which

classifications that disadvantage a suspect class or impinge on

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

(1982). Here the central claim is that Davis's right to privacy

is a "fundamental right" within the meaning of the above

concept, and that it was unconstitutionally invaded when

Corporal Bynum broke the seal on his file and disclosed his

medical condition to outsiders. We will assume as much for

purposes of argument. Because s 1997e(e) does not suffi-

ciently impinge on the hypothetical right, it does not deprive

Davis of equal protection even under that assumption.

In addressing the constitutional issue, the parties offer

sharply contrasting readings of the statute. Davis claims

that it cuts a wide swath, eliminating even actions for injunc-

tive or declaratory relief where plaintiff alleges emotional

injury without prior physical injury (thereby enhancing the

likelihood of its being unconstitutional). The District, plus

the United States as intervenor (pursuant to 28 U.S.C.

s 2403), argue for a narrow reading, saying that s 1997e(e) is

merely a limitation on damages, thus preserving actions for

injunctive and declaratory relief based on emotional injury.

We agree with the District and the United States that the

provision has little or no bearing on declaratory or injunctive

actions.

First, the text of the statute refers to injuries "suffered,"

the past tense suggesting the statute's inapplicability to

claims based on the threat of prospective injury, as would be

the case for claims for declaratory or injunctive relief. But

more critical is the fact that suits for declaratory and injunc-

tive relief against the threatened invasion of a constitutional

right do not ordinarily require proof of any injury other than

the threatened constitutional deprivation itself. As we have

held previously, there is a " 'presumed availability of federal

equitable relief against threatened invasions of constitutional

interests.' " Hubbard v. EPA, 809 F.2d 1, 11 (D.C. Cir. 1986)

(quoting Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388, 404 (1971) (Harlan, J., concurring)). Although a

plaintiff seeking equitable relief must show a threat of sub-

stantial and immediate irreparable injury, see O'Shea v.

Littleton, 414 U.S. 488, 502 (1974), a prospective violation of a

constitutional right constitutes irreparable injury for these

purposes. Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987).

Thus, we agree with the District that the statute does not

materially thwart actions for injunctions or declaratory judg-

ments, for the simple reason that a plaintiff's ability to claim

such relief is normally independent of any injury other than

the threatened loss of the constitutional right. This reading

accords with that of the Seventh Circuit in Zehner v. Trigg,

133 F.3d 459 (7th Cir. 1997), which construed s 1997e(e) as

limiting only the damage remedy, leaving injunctive relief in

place. Id. at 461-64.

Concluding that s 1997e(e) has no restrictive effect on

claims for declaratory or injunctive relief, we next turn to

whether its limitation on damages actions sufficiently im-

pinges on the alleged privacy right, assuming it to exist and

qualify as fundamental within the meaning of equal protection

doctrine. It is clear at the outset that the Constitution does

not mandate a damages remedy for all injuries suffered as a

result of a constitutional violation. In Bush v. Lucas, 462

U.S. 367 (1983), for example, Congress had provided an

elaborate set of remedies for civil service employees, reme-

dies covering the constitutional violations alleged but not

including compensation for consequential damages, specifical-

ly attorneys' fees and "emotional and dignitary harms." Id.

at 372 n.9. Despite this deficiency the Court regarded Con-

gress's scheme as a "special factor[ ] counseling hesitation,"

and accordingly declined to infer a damages remedy under

Bivens v. Six Unknown Named Agents of the Federal Bu-

reau of Narcotics, 403 U.S. 388 (1971). The Court observed

that the question of judicial creation of a remedy could

"obviously" not "be answered by simply noting that existing

remedies do not provide complete relief for the plaintiff."

462 U.S. at 388.

Similarly, in Schweiker v. Chilicky, 487 U.S. 412 (1988), the

Court declined to imply a Bivens remedy for people who were

improperly denied Social Security disability benefits, alleged-

ly as a result of due process violations. It noted that "exactly

as in Bush, Congress has failed to provide for 'complete

relief': respondents have not been given a remedy in dam-

ages for emotional distress or for other hardships suffered

because of delays in their receipt of Social Security benefits."

Id. at 425. The Court acknowledged that "a Bivens remedy

would obviously offer the prospect of relief for injuries that

must now go unredressed." Id. But it distinguished the

cases where Bivens actions were implied as ones where

"there were no 'special factors counselling hesitation in the

absence of affirmative action by Congress,' no explicit statuto-

ry prohibition against the relief sought, and no exclusive

statutory alternative remedy." Id. at 421. As in Bush it

found the congressional provision of remedies a "special

factor" counseling the judiciary not to create remedies. Id. at

428. See also Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir.

1988) (holding that "special factors" preclude creation of

Bivens remedy for civil service employees and applicants who

advance constitutional challenges to federal personnel ac-

tions).

Of course a constitutionally permissible curtailment of rem-

edies might still constitute enough of an impingement on the

assumed fundamental right to trigger strict scrutiny. But

here the remaining remedies are ample. Persons who are

subjected to an on-going threat of unconstitutional conduct

may sue for injunctive or declaratory relief, and of course

ones with a qualifying physical injury may sue for damages.

Davis, to be sure, is evidently not such a person. But for

legislation to impinge on a right sufficiently to require strict

scrutiny, it must "directly and substantially" interfere with

the right. Lyng v. Castillo, 477 U.S. 635, 638 (1986) (house-

hold definitions for purposes of food stamp eligibility do not

sufficiently impinge on rights of association to require strict

scrutiny). Cf. Zehner, 133 F.3d at 462 ("the Constitution

does not demand an individually effective remedy for every

constitutional violation."). Here we do not see that the

preclusion of backward-looking relief in cases where the

wrong causes only mental and emotional injury, and there is

no prior physical injury, could be said to "directly and sub-

stantially" interfere with the exercise of the hypothetical

right. Any effect of s 1997e(e) on the ability and willingness

of prisoners to exercise any constitutional right to privacy in

information about themselves is very likely to be marginal

and incidental. That Davis is not among the plaintiffs whose

claims survive speaks more to the slightness of his injury

than to any great severity in the congressional curtailment of

remedies. The impingement on the hypothesized fundamen-

tal right could be found severe enough to trigger strict

scrutiny only under a view of impingement so sweeping as to

imperil much legislation.

Having rejected strict scrutiny, we review s 1997e(e) under

the rational basis standard, inquiring whether it is rationally

related to a legitimate government interest. New Orleans v.

Dukes, 427 U.S. 297, 303 (1976). The legitimacy of the

interest in cutting back meritless prisoner litigation appears

obvious, as we have already recognized. Tucker v. Branker,

142 F.3d 1294, 1300 (D.C. Cir. 1998). In the course of the

PLRA's enactment legislators made frequent references to

the scope of such litigation. Senator Dole, who sponsored the

bill in the Senate, noted that the number of due process and

cruel and unusual punishment claims filed by prisoners each

year grew from 6,600 in 1975 to over 39,000 in 1994. 141

Cong. Rec. s 14413 (daily ed. Sept. 27, 1995). Prisoners'

litigiousness has greatly exceeded that of the general popula-

tion. In the state of Arizona, for example, the 20,000 inmates

filed almost as many lawsuits in 1994 as the state's 3.5 million

other residents. Id.

Plaintiff argues, however, that s 1997e(e) fails rational

basis review because it singles out prisoners without regard

to the likely merit of their claims. But in Tucker we noted

that prisoners face unusual incentives: there are far fewer

competing demands on their time than on the time of the

general population (in the language of economics, the oppor-

tunity costs of litigation are lower). The risk of their using

the time to file frivolous lawsuits is correspondingly higher.

142 F.2d at 1300-01. Just as there we found that these

special incentives and the poor success rate of their lawsuits

justified a special filing fee rule for prisoners, the same

factors establish the rational basis for curtailment of prisoner

suits that depend entirely on claims of emotional or mental

injury.

In addition to his equal protection claim, Davis argues that

s 1997e(e) denies prisoners their right to meaningful access

to courts, in violation of the Fifth Amendment. That prison

inmates have a constitutional right of access to courts is well-

established. Lewis v. Casey, 518 U.S. 343, 350-51 (1996);

Bounds v. Smith, 430 U.S. 817, 828 (1977); Tucker v. Brank-

er, 142 F.3d at 1297. But the right is only to "a reasonably

adequate opportunity to present claimed violations of funda-

mental constitutional rights to the courts." Lewis, 518 U.S.

at 351 (quoting Bounds, 430 U.S. at 825). A congressional

adjustment of remedies which satisfies generally applicable

constitutional limitations, should not, simply because it applies

to prisoners, turn into an invalid restriction of the "right of

access" to courts. The "right of access" cases protect prison-

ers from being unduly hampered in litigation by their incar-

ceration; they provide no doctrinal support for affording

them heightened judicial scrutiny over congressional power to

define remedies.

II. The Propriety of the District Court's

Sua Sponte Dismissal

Plaintiff also asserts that the district court failed to con-

strue his pro se complaint liberally, and as a result improper-

ly dismissed his complaint sua sponte with prejudice under 28

U.S.C. s 1915A. Section 1915A requires the district court to

dismiss a case sua sponte if, in reviewing the complaint before

the defendant answers, the court finds that the complaint fails

to state a claim upon which relief could be granted. 28

U.S.C. s 1915A(b)(1). We review such dismissals de novo.

Taylor v. FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997). Here as

a matter of law plaintiff cannot prevail on any of his claims--

his conventional damage claim, his claim for punitive dam-

ages, or his claim to declaratory relief.

The claim to compensatory damages is directly barred by

s 1997e(e), as Davis has alleged no compensable injury. Car-

ey v. Piphus, 435 U.S. 247, 255 (1978) (damages other than

nominal damages require compensable injury). Nor do we

think the punitive claim can survive. Amicus argues that

because punitive damages are awarded to punish the tortfea-

sor rather than to compensate the victim, they are not

embraced by s 1997e(e). But s 1997e(e) draws no such

distinction. It simply prevents suits "for" mental injury

without prior physical injury. As the purposes of compensa-

tory awards themselves are multifaceted (including, for exam-

ple, deterrence), it can hardly be the case that, when a suit

alleges only mental or emotional injury, the presence of

additional purposes makes a suit not "for" the injuries al-

leged. Further, much if not all of Congress's evident intent

would be thwarted if prisoners could surmount s 1997e(e)

simply by adding a claim for punitive damages and an asser-

tion that the defendant acted maliciously.

As for plaintiff's claim for declaratory relief, it lacks what is

necessary for standing to assert any claim to forward-looking

relief--some allegation from which one might infer a "real

and immediate" threat that the alleged wrong will recur.

Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987) (finding

the requirement as applicable to declaratory judgment as to

injunctive actions). Not only does Davis fail to allege any

District policy leading to Bynum's alleged conduct, but his

own brief explicitly claims that the conduct violated District

rules. And while Davis has claimed that the District failed to

properly train and supervise Bynum, it is quite a leap from

any such deficiency to a finding that Davis is likely again to

be subject to the same conduct. Nor does Davis suggest any

further reason to expect a repetition by the alleged perpetra-

tor here, Bynum. Indeed, his brief argues that Bynum's

motive was to disrupt the relationship between Davis and his

fiancee (the person to whom Bynum allegedly made the

disclosure), a purpose which, the District points out, is now

completely exhausted.

Amicus contends that the plaintiff's allegations also set

forth sufficient facts to show a violation of his rights under

the public entity provision of the Americans with Disabilities

Act, 42 U.S.C. s 12132, and the Rehabilitation Act, 29 U.S.C.

s 794, even though the plaintiff never specifically mentioned

those provisions. Amicus's theory here disregards the impact

of s 1997e(e). Assuming the alleged facts would be sufficient

to state a claim under those provisions, s 1997e(e) precludes

claims for emotional injury without any prior physical injury,

regardless of the statutory or constitutional basis of the legal

wrong. And to the extent that any declaratory relief might

be available under these provisions, again his claim runs

aground on the lack of any serious threat of repetition.

At oral argument the issue of a possible claim for nominal

damages arose--plaintiff's prayer for relief at the district

court was exclusively for compensatory and punitive damages,

and for declaratory relief. The violation of certain constitu-

tional rights, characterized by the Supreme Court as "abso-

lute," Carey, 435 U.S. at 266, will support a claim for nominal

damages without any showing of actual injury. Id. at 266-67.

The interpretive issue posed by s 1997e(e) is clearly harder

here than for punitive damages. The theory of such a lawsuit

itself dispenses with any need for injury other than the

deprivation of the right itself (as we noted in the case of suits

for injunctive or declaratory relief), and prisoners are pre-

sumably a good deal less likely to embark on a lawsuit if

there is no prospect of a pecuniary reward. But Davis never

sought nominal damages. Nor do his or amicus's submissions

to this court ever mention a claim to nominal relief. We

would thus confront the issue only if we strained to find

inferences that are not available on the face of the complaint

or in the briefs submitted to this Court, and we think such

straining inappropriate. Coates v. Illinois State Bd. of Educ.,

559 F.2d 445, 447 (7th Cir. 1977). Accordingly, giving the

plaintiff the benefit of all the inferences to which he is

entitled, we still find nothing in his complaint that can survive

the pleading stage.

Davis also contends that the district court erred when it

sua sponte dismissed his complaint with prejudice, giving him

no chance to amend his complaint. He argues that if given

such a chance he could allege facts that could remove his

claims from the bar of s 1997e(e). Specifically, he relies on

an affidavit by a psychiatrist asserting that Davis experienced

weight loss, appetite loss, and insomnia after the disclosure of

his medical status, which he says would qualify as "physical

injury" under s 1997e(e). But adding these assertions would

not help his case. Both the explicit requirement of

s 1997e(e) that the physical injury be "prior," and the statu-

tory purpose of discouraging frivolous suits, preclude reliance

on the somatic manifestations of emotional distress Davis

alleges. Cf. Terrafranca v. Virgin Atlantic Airways, Ltd.,

151 F.3d 108 (3rd Cir. 1998) (holding that physical manifesta-

tion of emotional injury was not "bodily injury" under Article

17 of the Warsaw Convention); Plaisance v. Texaco, Inc., 937

F.2d 1004, 1009 (5th Cir. 1991) (noting that for negligent

infliction of emotional distress, physical injury or impact rule

permits recovery for emotional injury only if there is some

physical contact). Under our cases, where a trial court has

dismissed a claim sua sponte under Rule 12(b)(6) without

affording plaintiff an opportunity to replead, a remand is

appropriate unless " 'the claimant cannot possibly win re-

lief.' " Baker v. Director, United States Parole Comm'n, 916

F.2d 725, 726 (D.C. Cir. 1990) (per curiam) (quoting Omar v.

Sea-Land Serv., 813 F.2d 986, 991 (9th Cir. 1987). This can

be true either because, as in Baker, the facts alleged affirma-

tively preclude relief, or because, even though plaintiff makes

clear that he has facts to add to his complaint, he would not

have a claim upon which relief could be granted even with

those facts. Because s 1997e(e) precludes plaintiff's recovery

here even with the facts he proposes to add, remand would be

futile.

III. Conclusion

In short, we hold that s 1997e(e) did not violate the plain-

tiff's right to equal protection or his right of access to courts.

We affirm the District Court's sua sponte dismissal of the

complaint with prejudice.

So ordered.