Opposition Brief — Conraad Hoever, Petitioner v. P. Belleis, et al.
Supreme Court briefApr 18, 2018
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No. 17-1035
In the
Supreme Court of the United States
_______________
CONRAAD HOEVER,
v.
Petitioner,
P. BELLEIS, CHIEF OF SECURITY COLONEL, J. HALL,
DEPUTY CHIEF OF SECURITY MAJOR, K. HAMPTON, GROUP
SUPERVISOR SERGEANT, J. KELLEY, GROUP SUPERVISOR,
T. KRISS, CORRECTION OFFICER, W. MESSER, OFFICER IN
CHARGE CAPTAIN, AND J. SERRATO, CORRECTION OFFICER,
_______________
Respondents.
On Petition For A Writ Of Certiorari To The United
States Court Of Appeals For The Eleventh Circuit
_______________
BRIEF IN OPPOSITION
_______________
PAMELA JO BONDI
Attorney General of Florida
OFFICE OF THE
ATTORNEY GENERAL
State of Florida
The Capitol – PL-01
Tallahassee, FL
32399-1050
Phone: (850) 414-3688
amit.agarwal@
myfloridalegal.com
AMIT AGARWAL
Solicitor General
Counsel of Record
EDWARD M. WENGER
Chief Deputy Solicitor
General
CHRISTOPHER J. BAUM
Deputy Solicitor General
Counsel for Respondents
LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com
i
QUESTIONS PRESENTED
1. Whether the Eleventh Circuit reversibly erred
insofar as it treated the non-mandatory character of a
burdened religious practice as a relevant but not
dispositive consideration in assessing whether
challenged conduct on the part of prison officials
imposed a substantial burden on the exercise of the
prisoner’s religious freedom.
2. Whether the Eleventh Circuit reversibly erred
in rejecting Petitioner’s argument that he did make a
“prior showing of physical injury” within the meaning
of the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(e), without considering the alternative
argument—not raised by Petitioner in the district
court or the court of appeals—that Petitioner did not
have to make such a showing to recover compensatory
damages.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................i
TABLE OF CONTENTS ............................................ ii
TABLE OF AUTHORITIES .......................................iv
BRIEF IN OPPOSITION ............................................ 1
INTRODUCTION ........................................................ 1
STATEMENT .............................................................. 3
REASONS FOR DENYING THE PETITION ............ 7
I. The Courts Of Appeals Are Not Split On The
First Question Presented And This Case Is A Poor
Vehicle To Address The Issue................................ 7
A. The Courts Of Appeals Agree That To
Establish A Substantial Burden On Free
Exercise, A Plaintiff Need Not Show That The
Affected Religious Practice Is Mandatory. ...... 8
B. This Case Is A Poor Vehicle To Address
Whether A Burdened Religious Practice Must
Be Mandatory. ................................................ 17
C. Summary Reversal Is Not Warranted. .......... 19
II. The Court Should Not Grant Certiorari To
Consider The Second Question Presented. ......... 21
A. The Second Question Presented Is Not
Independently Certworthy.. ........................... 21
B. The Second Question Presented Was Neither
Raised Nor Passed On Below.. ....................... 22
C. Even If Petitioner Had Preserved This Issue,
The Same Outcome Would Have Obtained In
Nearly Every Circuit. ..................................... 25
iii
D. This Court Has Consistently Denied Petitions
That Served As Much Better Vehicles For
Resolving Essentially the Same Issue. .......... 33
CONCLUSION .......................................................... 34
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Acosta v. Arpaio,
466 F. App’x 556 (9th Cir. 2011)............................ 27
Allah v. Al-Hafeez,
226 F.3d 247 (3d Cir. 2000) ............................. 25, 30
Aref v. Lynch,
833 F.3d 242 (D.C. Cir. 2016) .................... 28, 31, 32
Ben-Levi v. Brown,
136 S. Ct. 930 (2016) .............................................. 21
Boyd v. Driver,
495 F. App’x 518 (5th Cir. 2012)............................ 30
Brosseau v. Haugen,
543 U.S. 194 (2004) ................................................ 19
Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014) ............................................ 10
Canell v. Lightner,
143 F.3d 1210 (9th Cir. 1998) ................................ 27
Cassidy v. Indiana Dep’t of Corr.,
199 F.3d 374 (7th Cir. 2000) .................................. 26
Davila v. Gladden,
777 F.3d 1198 (11th Cir. 2015) .................. 10, 12, 20
v
Davis v. D.C.,
158 F.3d 1342 (D.C. Cir. 1998) ........................ 25, 31
Delta Air Lines, Inc. v. August,
450 U.S. 346 (1981) .......................................... 22, 25
Eaton v. Tulsa,
415 U.S. 697 (1974) ................................................ 20
Esslinger v. Worrall,
89 F. App’x 622 (9th Cir. 2004).............................. 27
Ford v. McGinnis,
352 F.3d 582 (2d Cir. 2003) ............................. 10, 19
Geiger v. Jowers,
404 F.3d 371 (5th Cir. 2005) ............................ 25, 30
Harris v. Garner,
190 F.3d 1279 (11th Cir. 1999) .............................. 30
Harris v. Garner,
216 F.3d 970 (11th Cir. 2000) .......................... 31, 33
Henderson v. Kennedy,
253 F.3d 12 (D.C. Cir. 2001) .................................. 15
Hobson v. Wilson,
737 F.2d 1 (D.C. Cir. 1984) .................................... 32
Hutchins v. McDaniels,
512 F.3d 193 (5th Cir. 2007) .................................. 30
vi
King v. Zamiara,
788 F.3d 207 (6th Cir. 2015) ...................... 26, 32, 33
Levitan v. Ashcroft,
281 F.3d 1313 (D.C. Cir. 2002) .................. 10, 15, 19
Memphis Cmty. Sch. Dist. v. Stachura,
477 U.S. 299 (1986) ................................................ 32
Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214 (11th Cir. 2004) .............................. 12
Muhammad v. Sapp,
388 F. App’x 892 (11th Cir. 2010).......................... 14
Oliver v. Keller,
289 F.3d 623 (9th Cir. 2002) .................................. 27
Piver v. Pender Cty. Bd. of Educ.,
835 F.2d 1076 (4th Cir. 1987) ................................ 32
Rowe v. Shake,
196 F.3d 778 (7th Cir. 1999) .................................. 26
Royal v. Kautzky,
375 F.3d 720 (8th Cir. 2004) ...................... 26, 29, 33
Schweiker v. Hansen,
450 U.S. 785 (1981) ................................................ 19
Searles v. Van Bebber,
251 F.3d 869 (10th Cir. 2001) .................... 26, 29, 33
vii
Smith v. Governor for Alabama,
562 F. App’x 806 (11th Cir. 2014).......................... 14
Thomas v. Rev. Bd. of Indiana Employment Sec. Div.,
450 U.S. 707 (1981) ................................ 7, 11, 12, 20
Thompson v. Carter,
284 F.3d 411 (2d Cir. 2002) ............................. 25, 32
Turner v. Safley,
482 U.S. 78 (1987) ............................................ 17, 21
Watts v. Fla. Int’l Univ.,
495 F.3d 1289 (11th Cir. 2007) ................................ 9
Wilcox v. Brown,
877 F.3d 161 (4th Cir. 2017) ............................ 26, 32
Wilkinson v. GEO Grp., Inc.,
617 F. App’x 915 (11th Cir. 2015).......................... 12
Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) .................................. 10
Youakim v. Miller,
425 U.S. 231 (1976) ................................................ 22
Statutes
42 U.S.C. § 1983 .......................................................... 4
42 U.S.C. § 1997e(e) .......................................... passim
viii
Rules
11th Cir. R. 36-2 ........................................................ 16
1
BRIEF IN OPPOSITION
Respondents P. Belleis, J. Hall, K. Hampton, J.
Kelley, T. Kriss, W. Messer, and J. Serrato
respectfully submit this brief in opposition to the
petition for a writ of certiorari filed by Conraad
Hoever.
INTRODUCTION
Petitioner seeks reversal of an unpublished, per
curiam opinion in which the Eleventh Circuit held
that Respondent Kriss, a corrections officer, did not
violate Petitioner’s right to free exercise under the
First Amendment by providing him with his own
Spanish-language
Bible
while
he
was
in
administrative confinement. The keystone of the
petition is that the circuits are split on the first
question presented, as framed by Petitioner: whether,
to establish a substantial burden on religious exercise,
a plaintiff must show that a practice mandated by his
religion was affected.
They are not split. The Eleventh Circuit is fully in
line with the other circuits in holding that courts must
consider whether a belief is sincere and whether a
burden on that belief is substantial or instead a mere
inconvenience. As this Court has recognized, whether
a particular practice is mandatory is relevant, but not
dispositive: A burden on what the practitioner deems
a mandatory practice increases the likelihood that a
substantial burden exists, although a substantial
burden may exist absent any such showing. The
Eleventh Circuit agrees. And Petitioner’s insistence
that the non-precedential decision below upended
well-settled law in the Eleventh Circuit on this point
2
is belied by the opinion itself. The court’s opinion
relies on a number of factors—including the
temporary nature of the deprivation—that would
have been irrelevant if the non-mandatory character
of the burdened practice had been dispositive.
Without a split on the first question presented—let
alone a well-developed split—the petition does not
warrant review. This case is a poor vehicle for
considering that question: Petitioner asks this Court
to decide whether the lower court correctly applied the
“substantial burden” test; but the lower courts are
divided on the threshold question whether that test
applies in the first place, and that threshold issue is
not properly before the Court. In addition, the decision
below turned on application of settled law to an
unusual set of facts; it is far from the clear that the
court of appeals erred in applying that law; and any
residual doubts concerning the correctness of the
panel’s decision are not sufficiently important to merit
this Court’s consideration.
Petitioner’s second question presented likewise
does not warrant this Court’s review. That question is
relevant only if this Court grants and reverses as to
Petitioner’s first question presented; it was not raised
or passed on below; its resolution cannot change the
outcome, even if the Court accepts review and
reverses on the first question presented as well; and
this Court has consistently denied other petitions
raising the same essential issue. Accordingly, the
Court should deny the petition for certiorari.
3
STATEMENT
1. At the time of the events giving rise to this case,
Petitioner Conraad Hoever was an inmate in Florida’s
Franklin Correctional Institution. Respondent Kriss,
a corrections officer, was assigned to Franklin and, on
March 16, 2013, she was tasked with inventorying
Petitioner’s property because he was being placed in
administrative confinement. Pet. App. 14a.
The prison’s policies permitted Petitioner to keep
one of his own Bibles in administrative confinement.
Pet. App. 34a. And he was allowed to do so. Pet. App.
14a-16a; Pet. 14. For example, the “Inmate
Impounded Personal Property List,” which Petitioner
signed, “shows the property that [Petitioner] was
allowed to keep,” and that list included a “Holy bible.”
Pet. App. 15a. Consistent with that evidence,
Petitioner “submitted his own affidavit in which he
state[d] that Defendant Kriss inventoried his property
and wrote on the property slip that that he was
provided a Holy Bible.” Id.
Petitioner, however, presented evidence that he
was provided only “his own Spanish Bible,” Pet. 20a.
In his sworn submissions to the district court,
Petitioner did not allege that he could not read his
own Spanish Bible at all; instead, he alleged that,
based on his comparative proficiency in English, his
Spanish Bible would not function as well as an
English-language Bible. Pet. App. 15a-16a; see Pet.
App. 45a (averring that he “did not know Spanish well
enough such that the Spanish Bible could function as
an English Bible would” (emphasis added)).
4
Petitioner also alleged that he told Officer Kriss
that he needed one of his English Bibles and his daily
devotionals but that she refused to go back and
retrieve them. Pet. App. 45a. For her part, Kriss
“declare[d] that [Petitioner] ‘signed for his property
and did not tell [her] that he needed another bible.’”
See Pet. App. 14a-15a.
Petitioner spent 26 days in administrative
confinement. Pet. App. 20a. After Petitioner was
released from administrative confinement, his
English-language Bibles were returned to him. 1
2. Proceeding pro se, Petitioner asserted various
claims against Respondents under 42 U.S.C. § 1983 in
the U.S. District Court for the Northern District of
Florida. Adopting the magistrate judge’s thorough
report and recommendation, the district court
dismissed most of Petitioner’s claims, including his
claims for compensatory damages for mental and
emotional injuries because he failed to assert a
sufficient physical injury. Pet. App. 40a-41a; see 42
U.S.C. § 1997e(e). The magistrate judge diligently
assessed Petitioner’s claims, analyzing his due
process claims, Pet. App. 30a-32a; his First
Amendment claims, Pet. App. 32a-36a; his Eighth
Amendment claim, Pet. App. 36a-37a; his supervisory
liability claims, Pet. App. 37a-39a; his official-capacity
claims, Pet. App. 39a-40a; his claims for compensatory
damages, Pet. App. 40a-41a; and his claim for
injunctive relief, Pet. App. 41a-42a. After careful
consideration, the magistrate judge found that
1
Petitioner filed a successful grievance with prison officials,
but it was approved after he had been released.
5
Petitioner had presented plausible First Amendment
claims for the denial of his religious materials and for
the denial of his correspondence materials, and
invited him to submit an amended complaint. Pet.
App. 32a-36a, 43a.
Petitioner amended his complaint, reducing it to
his free-exercise claim. After discovery, the
magistrate judge issued a report and recommendation
concluding that summary judgment should be granted
for Respondents. The court found that the denial of an
English-language Bible had “not been shown to have
significantly burdened the exercise of his religious
beliefs.” Pet. App. 20a-21a. The court did not address
whether engaging in daily Bible study was
“mandatory”; instead, it noted only that the denial
“was of importance to” Petitioner, but “the record
demonstrate[d]” that it “was of a temporary nature”
and thus it amounted only to “an inconvenience,” not
a substantial burden, particularly because he “had his
own Spanish Bible and could pray.” Pet. App. 20a.
In his objections to the magistrate judge’s report
and recommendation, Petitioner argued that a
genuine dispute of material fact existed regarding
whether his religious exercise was substantially
burdened and that the determination of whether any
burden was substantial was a question for the trier of
fact. Hoever v. Kriss, No. 4:13-cv-372, ECF No. 74, at
7 (N.D. Fla., Mar. 11, 2016). The district court adopted
the magistrate judge’s report and recommendation
and entered summary judgment for Respondents.
3. Still proceeding pro se, Petitioner appealed to
the Eleventh Circuit. He presented seven issues on
appeal, concerning: (1) his due process claims; (2) his
6
First Amendment right-of-access claims; (3) his Eight
Amendment claim; (4) his supervisory liability claims;
(5) his official capacity claims; (6) his compensatory
damages claim; and (7) his free-exercise claim. Hoever
v. Bellelis, No. 16-12108, Appellant’s Br., at iv-vi (11th
Cir. Feb. 17, 2017).
As to his compensatory damages claim, Petitioner
argued only that he suffered a physical injury
sufficient to overcome Section 1997e(e)’s bar and that
the severity of his physical injury was a question for
the jury. Id. at 22-24. He did not contend that he
suffered, alleged, or proved any non-mental or nonemotional injury resulting from the purported freeexercise violation or that he was entitled to
compensatory damages for any such injury.
As to his free-exercise claim, Petitioner presented
the same arguments that he presented in the district
court: That a genuine dispute of material fact existed
and that only a jury, not the judge, could assess the
extent of the burden on his religious exercise. Id. at
25-26. He did not address the effect of a practice’s
mandatory nature on the substantial burden analysis.
In an unpublished, per curiam opinion, the
Eleventh Circuit affirmed. Pet. App. 1a (W. Pryor,
Jordan, and Rosenbaum, JJ.). Most of the court’s
opinion addressed the various claims Petitioner
asserted that are unrelated to this petition. Pet. App.
2a-6a. As relevant here, the court rejected Petitioner’s
argument that he suffered a sufficient physical injury
under Section 1997e(e), explaining that because he
“did not allege he suffered a physical injury because of
[Respondent] Kriss’s constitutional violations,” his
“recovery was necessarily limited to nominal
7
damages.” Pet. App. 6a (emphasis added). Relying on
the “brief denial” of Petitioner’s study materials; the
fact that he prayed and quoted Bible verses while in
administrative confinement; and the “beneficial, not
mandatory” nature of Petitioner’s “engaging in daily
studies,” and relying on this Court’s decision in
Thomas v. Review Board of Indiana Employment
Security Division, 450 U.S. 707, 717-18 (1981), the
court also held that Respondents did not “impos[e] a
‘substantial burden’ on his religious practice.” Pet.
App. 7a-8a.
Petitioner sought panel rehearing, again insisting
that a finder of fact, not the court, should have
“weighed” whether the burden on his religious
exercise was substantial, but that petition was denied.
Pet. 7.
REASONS FOR DENYING THE PETITION
I. THE COURTS OF APPEALS ARE NOT SPLIT ON THE
FIRST QUESTION PRESENTED AND THIS CASE IS A
POOR VEHICLE TO ADDRESS THE ISSUE.
The first question presented does not warrant this
Court’s review. The Eleventh Circuit’s free-exercise
jurisprudence is fully in line with that of other
circuits: Under binding circuit precedent, the
determinative question is not whether the challenged
state action restricts “non-mandatory religious
exercise,” Pet. i, but whether the government has
imposed a substantial burden on sincerely held
religious beliefs.
Like other circuits, and like this Court, the
Eleventh Circuit considers the mandatory nature (as
interpreted by the religious practitioner) of a
8
burdened practice to increase the likelihood that a
burden is substantial. To the extent the court below
relied on the purportedly non-mandatory nature of
Petitioner’s religious practice, the court did not
consider that fact alone to be dispositive, as evidenced
by its reliance on factors that otherwise would have
been irrelevant—e.g., the duration of the denial and
the ways in which Petitioner was able to engage in
“religious exercise” notwithstanding “deprivation of a
Bible written in English and devotional materials.”
Pet. App. 7a. As a result, and given the nonprecedential opinion below, reversal would affect only
the parties—it would affect only the application of a
properly stated rule of law to these particular facts.
Moreover, this case is not a suitable vehicle for
determining whether “the First Amendment extend[s]
to a prisoner’s non-mandatory religious exercise,” Pet.
i. Even if the Court were to assume that the court
below viewed the nature of Petitioner’s religious
practice as dispositive, this issue was neither briefed
nor analyzed below. And whether substantial-burden
analysis is even appropriate in Free Exercise
challenges to prison regulations is unsettled, meaning
that opining on what that analysis entails could
ultimately prove to be entirely hypothetical. Review is
unwarranted, and summary reversal particularly so.
A. The Courts Of Appeals Agree That To
Establish A Substantial Burden On Free
Exercise, A Plaintiff Need Not Show That The
Affected Religious Practice Is Mandatory.
The premise for Petitioner’s asserted split is that
the Eleventh Circuit “hold[s] that the substantial
burden element of a free exercise claim requires the
9
prisoner to show that the burdened practice is
mandated by her faith.” Pet. 8. That is not the law in
the Eleventh Circuit. In fact, the Eleventh Circuit
agrees with the “four other circuits [that] hold that
substantial burdens on a prisoner’s religious
observances are not limited to burdens on mandatory
religious practices.” Pet. 8-9. Put differently,
Petitioner’s asserted split does not exist.
1. The court below did not write on a blank slate.
In applying the substantial burden test, the Eleventh
Circuit does not require that a prisoner’s burdened
practice be religiously mandated. Quite the opposite.
In Watts v. Florida International University, 495
F.3d 1289 (11th Cir. 2007), the district court
dismissed a free exercise claim because it concluded
that the plaintiff had not alleged that the government
“had substantially burdened his observation of a
central religious belief.” Id. at 1294. The Eleventh
Circuit reversed, explaining that “[t]hat is the wrong
standard.” Id. Instead, the plaintiff need only have
alleged that the government “ha[d] impermissibly
burdened one of his ‘sincerely held religious beliefs.’”
Id. In a lengthy discussion, the court firmly rejected
the notion that “the judiciary should determine the
‘centrality’ of a specific belief,” noting that “it is
beyond the competence of the courts to determine the
centrality of a particular religious belief or practice.
The test is sincerity, not centrality.” Id. at 1295
2
(emphasis added).
2
Petitioner’s explication of the law closely tracks the
principles set out in Watts, citing many of the same cases. See
10
As subsequent cases confirm, the law in the
Eleventh Circuit is that, if a plaintiff sincerely
believes that a practice constitutes religious
observation, the dispositive question becomes
whether that practice has been substantially
burdened, not whether the practice is “mandatory.”
See Davila v. Gladden, 777 F.3d 1198, 1205 (11th Cir.
2015) (in RFRA context, court looks to “‘whether the
[challenged rule] imposes a substantial burden on the
ability of the objecting part[y] to conduct [himself] in
accordance with [his] religious beliefs’” (quoting
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,
2778 (2014) (emphasis omitted))); see also id. (“a
burden is substantial when it ‘prevents the plaintiff
from participating in an activity motivated by a
sincerely held religious belief’” (quoting Yellowbear v.
Lampert, 741 F.3d 48, 55 (10th Cir. 2014))).
2. In determining whether a burden is substantial,
whether a practice is mandatory is “obviously”
relevant to the substantial-burden inquiry, not to the
antecedent “sincerely held belief” inquiry. Levitan v.
Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002). That is
because the fact that a practice is mandatory
increases the likelihood that a burden is substantial.
Other cases involved in Petitioner’s purported split
are in accord. E.g., Ford v. McGinnis, 352 F.3d 582,
593 (2d Cir. 2003) (Sotomayor, J.) (“Whether a
particular practice is religiously mandated is surely
relevant to resolving whether a particular burden is
substantial.”).
Pet. 12 & n.3; see also Amicus Br. of Muslim Advocates et al., at
6-7.
11
Indeed, this Court established the relevance of a
mandatory practice in Thomas. 450 U.S. at 717-18.
There, the Court held that “[w]here the
state . . . denies [an important] benefit because of
conduct mandated by religious belief, thereby putting
substantial pressure on an adherent to modify his
behavior and to violate his beliefs, a burden upon
religion exists.” Id. So even though the government
can substantially burden free exercise by impinging
on a non-mandatory practice, whether a practice is
mandatory is at least relevant: that a practice is
mandatory increases the likelihood that a burden is
substantial.
3. The decision below did not establish a new rule
in the Eleventh Circuit that whether a practice was
mandated is dispositive in the substantial burden
analysis. (Nor, as an unpublished decision, could it
have.) Instead, the court merely applied the
uncontroversial proposition that, to constitute a
substantial burden, the government’s conduct must
place more than an inconvenience or have more than
an incidental effect on religious exercise. Pet. App. 7a
(explaining that the deprivation “did not thwart
[Petitioner’s] religious exercise”). In applying this
well-settled rule, the court referred to the nonmandatory nature of Petitioner’s daily study as
another relevant fact in determining whether the
burden was substantial or merely incidental.
The court first recited the Eleventh Circuit’s rule
in RFRA cases: “[A] substantial burden occurs if the
conduct complained of ‘completely prevents the
individual from engaging in religiously mandated
activity, or . . . requires participation in an activity
12
prohibited by religion’ and, at a minimum, must have
‘something more than an incidental effect on religious
exercise.’” Pet. App. 7a (quoting Midrash Sephardi,
Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th
Cir. 2004)) (alteration in original). That rule was
properly stated, coming directly from this Court’s
decision in Thomas, 450 U.S. at 717-18; see Pet. App.
7a (citing Thomas, 450 U.S. at 717-18). In articulating
that rule, moreover, the court below said that a
substantial burden occurs if the conduct complained
of precludes religiously mandated activity, not that a
substantial burden occurs only if there is a limitation
on religiously mandated activity. See id.
The court below also relied on Midrash, an
RLUIPA case in which the Eleventh Circuit
emphasized that “‘substantial burden’ requires
something more than an incidental effect on religious
exercise.” Midrash, 366 F.3d at 1227. That burden
must be “more than an inconvenience on religious
exercise.” Id. For example, “a substantial burden can
result from pressure that tends to force adherents to
forego religious precepts or from pressure that
mandates religious conduct.” Id. (emphasis added); see
also Thomas, 450 U.S. at 717-18 (same). 3
3
Earlier Eleventh Circuit decisions relying on Midrash
similarly emphasize that the government’s action must place
more than an “incidental burden” or “inconvenience” on religious
exercise. Davila, 777 F.3d at 1205 (“[T]o constitute a ‘substantial
burden’ on religious practice, the government’s action must be
more than . . . incidental and must place more than an
inconvenience on religious exercise.” (internal quotation marks
omitted) (alteration in original)); Wilkinson v. GEO Grp., Inc.,
617 F. App’x 915, 918 (11th Cir. 2015) (“At the very least, ‘a
13
After properly setting forth the substantial-burden
standard, the court below applied it to Petitioner’s
case. In so doing, the court did not hold that the nonmandatory nature of his practice was the sole fact on
which the case turned. Instead, the court considered
at least two other facts in concluding that “the brief
denial of [Petitioner’s] study materials” did not
“impos[e] a ‘substantial burden’ on his religious
practice.” Pet. App. 8a. First, the court pointed to
Petitioner’s prayer and quoting of Bible verses while
in disciplinary confinement. Id. In other words,
Petitioner had alternative means of religious
expression, of which he availed himself, including his
own Spanish-language Bible. Second, the court relied
on its characterization of the denial of Petitioner’s
study materials as “brief.” Id. Thus, the court
indisputably relied on the length of the deprivation in
concluding that his religious exercise was not
substantially burdened. This reliance echoed the
district court’s express reliance on the “temporary
nature” of the denial. Pet. App. 20a. In sum, the
court’s description of Petitioner’s daily studies as
“beneficial, not mandatory,” was not the dispositive
fact in its analysis.
Petitioner is thus wrong in asserting that the
Eleventh Circuit “concluded that preventing
petitioner from studying the Bible could not—as a
matter of law—constitute a substantial burden
because Bible study is not a mandatory component of
petitioner’s faith.” Pet. 7 (emphasis added); see id. at
substantial burden must place more than an inconvenience on
religious exercise.’” (quoting Midrash, 366 F.3d at 1227)).
14
2, 6, 8, 12 (similarly asserting that the Court of
Appeals held that there was no substantial burden
“because” the burdened activity was non-mandatory).
Nowhere in its brief analysis did the court say that;
and, in light of the panel’s reliance on factors that
otherwise would have been irrelevant, its opinion did
not hold that, as a matter of law, the non-mandatory
nature of the practice was dispositive.
Nor did the court “limi[t] the substantial burden
inquiry to religious practices mandated by a faith.” Id.
at 7. Although the court stated, without analysis, that
“Hoever’s averments established that engaging in
daily studies was beneficial, not mandatory,” Pet.
App. 8a, that unadorned statement indicates that the
non-mandatory nature of the practice was relevant to
the substantial-burden analysis. It did not purport to
repudiate prior circuit precedent holding that the
dispositive inquiry is whether the government has
substantially burdened a practitioner’s sincerely held
religious beliefs, regardless of whether those beliefs
have to do with mandatory or non-mandatory
religious practices. Similarly, the panel’s passing
statement is far too thin a reed on which to posit a new
circuit split. 4
4
Nor did the unpublished cases identified by amici hold that
the non-mandatory nature of a practice was dispositive. In
Muhammad v. Sapp, 388 F. App’x 892, 896 (11th Cir. 2010), an
RLUIPA case, the court merely found that—like the court below
here—plaintiff had not established that the government’s
conduct amounted to more than an “inconvenience.” See also
Smith v. Governor for Alabama, 562 F. App’x 806, 813 (11th Cir.
2014) (similar). In neither case did the court hold that the nonmandatory nature of a practice was dispositive.
15
Levitan v. Ashcroft helps to illustrate the problem
with Petitioner’s reading of the decision below. 281
F.3d 1313 (D.C. Cir. 2002). There, appellees argued
that Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir.
2001) had articulated “[a] requirement that a religious
practice be mandatory to warrant First Amendment
protection.” Id. at 1319. The Levitan court rejected
that contention, even though the panel in Henderson
stressed that the challenged regulation did not
prevent plaintiffs “from engaging in conduct their
religion requires.” 253 F.3d at 16. Although whether
the government’s conduct “affects a mandatory
religious practice is, obviously, relevant evidence of an
infringement on the free exercise of religion” (Levitan,
281 F.3d at 1320), nothing in Henderson indicated
that only impingement of mandatory practices would
violate the First Amendment. Instead, the Henderson
court had “mentioned ‘required’ religious conduct in
the context of a list of many scenarios that might have
suggested
that
the
[government’s
conduct]
substantially burdened the plaintiff’s religious
freedom.” Id. at 1320. Like the court below here, the
Henderson court also relied on other facts to
determine that the practice was not substantially
burdened, and merely mentioned mandatory practice
as a relevant factor.
4. Because the decision below applied settled law
on which the courts of appeals are not split, the only
reason to take the case is to decide whether the lower
courts correctly applied that law to the particular
facts present here. “A petition for a writ of certiorari
is rarely granted when the asserted error consists of
erroneous factual findings or the misapplication of a
properly stated rule of law.” S. Ct. R. 10. This is not
16
one of the rare cases in which error correction from
this Court is warranted. Several considerations
support that conclusion.
First, it is far from clear that the lower courts
reversibly erred. Notably, five judges—the magistrate
judge, the district court judge, and all three judges on
the Eleventh Circuit panel—concluded that the
partial denial of some but not all of a prisoner’s
religious texts during a temporary period of
administrative confinement did not rise to the level of
a free-exercise violation in the unusual circumstances
presented here; and the district court came to that
conclusion without relying on the “non-mandatory”
character of his religious exercise. In addition, the
court of appeals did not make the legal error
Petitioner asserts, and Petitioner does not cite any
authority otherwise indicating that the lower courts
incorrectly applied settled law to the particular facts
present here.
Second, even assuming that the lower courts erred,
the decision below is unpublished and therefore is “not
considered binding precedent” within the Eleventh
Circuit. See 11th Cir. R. 36-2.
Third, this case involves unusual facts that are
unlikely to recur. It does not involve a prison policy
prohibiting Bibles in administrative confinement; the
policy here provides the opposite. It involves only a
temporary deprivation, not a permanent deprivation.
It involves only a partial deprivation, as Petitioner
was provided his own Spanish-language Bible; and
Petitioner’s own submission indicated that he was
able to make at least some use of his own Bible,
although not as much use as he could have made of
17
his other Bibles. There is no reason to believe that
deprivations of this kind occur frequently. 5
Fourth, this case is not a good candidate for error
correction because, even if this Court grants and
reverses as to the first question presented, it is far
from clear that Petitioner would be afforded any relief.
On remand, Petitioner would also have to satisfy the
test set out in Turner v. Safley, 482 U.S. 78 (1987) and
overcome qualified immunity. And, even if this Court
were to hold that the court of appeals erred inasmuch
as it relied on the “non-mandatory” character of
Petitioner’s religious exercise, the district court did
not rely on that rationale, demonstrating that this
case does not turn on the alleged error of which
Petitioner complains.
In sum, residual doubts concerning the correctness
of the Eleventh Circuit’s fact-intensive holding are not
sufficiently important to merit this Court’s review.
B. This Case Is A Poor Vehicle To Address
Whether A Burdened Religious Practice Must
Be Mandatory.
For several reasons, this case is a poor vehicle for
resolving the principal question Petitioner presents.
First, Petitioner maintains that the Eleventh
Circuit wrongly concluded that he had not established
5
In addition, although not relevant at the summaryjudgment stage, it is far from clear that this case involves an
intentional, rather than accidental, deprivation. See Pet. App.
14a-15a (noting that Officer Kriss “declare[d] that [Petitioner]
‘signed for his property and did not tell [her] that he needed
another bible’”).
18
a substantial burden on his free exercise, but whether
he must establish a substantial burden in this context
to begin with is itself an issue that has divided the
circuits. See Pet. 8-9 (noting that four circuits “hold
that substantial burdens on a prisoner’s religious
observance are not limited to burdens on mandatory
religious practices,” while “[t]he Fifth Circuit follows
a completely different rule” and “holds that a prisoner
prosecuting a free exercise claim need not establish a
substantial burden at all”); Br. of Muslim Advocates
et al., at 5 n.3 (discussing the split). That question,
however, was neither raised nor passed on below; is
not fairly within the questions presented; and is thus
not properly before this Court. Indeed, Petitioner
himself invited the district court to apply the
substantial-burden test, see Kriss, ECF No. 74, at 7,
and has thus waived any argument that the court
below erred insofar as it did not follow the Third and
Fifth Circuit’s contrary approach.
Put another way, Petitioner raises an issue
regarding the proper application of the substantial
burden analysis, but this Court has never decided
whether the substantial burden analysis applies at all
in this context. Petitioner may no longer raise that
threshold issue, and he identifies no reason to review
what could ultimately amount to a hypothetical
question.
Second, the issue Petitioner asks this Court to
consider was not fully developed below. The parties
never briefed whether a religious practice must be
mandatory to establish a substantial burden and,
aside from the Eleventh Circuit’s bare statement
indicating that the non-mandatory nature of the
19
practice was relevant, the courts below never passed
on it. By way of contrast, in the cases discussed by
Petitioner the courts analyzed the issue at length. See,
e.g., Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir.
2003) (Sotomayor, J.); Levitan v. Ashcroft, 281 F.3d
1313, 1319-20 (D.C. Cir. 2002). If and when this Court
elects to resolve the First Amendment issue Petitioner
presents, it should have the benefit of a reasoned
lower court decision issued after full adversarial
briefing.
Third, as explained above, it is far from clear that
the Eleventh Circuit’s decision turned on the question
whether the First Amendment extends to a prisoner’s
non-mandatory religious exercise. Even if its decision
could be construed to answer that question in the
negative, this Court should not decide an important
question of law in the context of a case that arguably
does not implicate that issue.
Finally, Respondents and Petitioner agree that the
First Amendment extends to a prisoner’s nonmandatory religious exercise. If the Court takes up
that issue, Pet. i, appointed counsel would be required
to present full adversarial briefing.
C. Summary Reversal Is Not Warranted.
This case does not call for the “extraordinary
remedy” of summary reversal. Brosseau v. Haugen,
543 U.S. 194, 207 (2004) (Stevens, J., dissenting); see
Schweiker v. Hansen, 450 U.S. 785, 791 (1981)
(Marshall, J., dissenting) (explaining that summary
reversal is “usually reserved by this Court for
situations in which the law is well settled and stable,
the facts are not in dispute, and the decision below is
20
clearly in error”). Even when a purported error is of
constitutional dimension, summary reversal “should
be reserved for palpably clear cases of constitutional
error.” Eaton v. City of Tulsa, 415 U.S. 697, 707 (1974)
(Rehnquist, J., dissenting). Yet it is unsettled whether
substantial burden analysis is even applicable in this
factual scenario. In addition, the decision below does
not conflict with any of this Court’s precedents, and
Petitioner does not argue to the contrary. And, like
countless other decisions of which this Court’s review
is sought, the decision below turned on the lower
courts’ application of the appropriate rule of law to the
facts.
Petitioner’s request for summary reversal is
predicated on the assumption that “the court of
appeals decided that he was wrong about what his
own faith required of him.” Pet. 25. The court of
appeals did not make any such decision. The Eleventh
Circuit stated in passing that “Hoever’s averments
established that engaging in daily studies was
beneficial, not mandatory,” Pet. App. 8a (emphasis
added), not that “petitioner misunderstood what his
own faith requires of him,” Pet. 27. Circuit precedent
is consistent with this Court’s admonition that
“[c]ourts are not arbiters of scriptural interpretation,”
Id. at 26 (quoting Thomas, 450 U.S. at 716); see, e.g.,
Davila, 777 F.3d at 1204 (same).
At bottom, Petitioner argues that the panel’s
passing reference to “Hoever’s averments,” Pet. App.
8a, did not accurately summarize pertinent record
evidence on that point. See Pet. 24-27. As explained
above, the courts below relied on multiple
considerations taken together. A request for error
21
correction based on a disputed assessment of record
evidence concerning one particular fact that the court
of appeals (but not the district court) deemed relevant
to its analysis does not suffice to establish reversible
error, is inappropriate for summary disposition, and
is not sufficiently important to warrant this Court’s
review. 6
II. THE COURT SHOULD NOT GRANT CERTIORARI TO
CONSIDER THE SECOND QUESTION PRESENTED.
A. The Second Question Presented Is Not
Independently Certworthy.
Petitioner asserts a split on whether “42 U.S.C.
§ 1997e(e) permit[s] a prisoner to recover
compensatory damages against prison officials who
violate the First Amendment.” Pet. i. As that
formulation makes clear, the second question
presented would be relevant only if this Court grants
certiorari as to the first question presented and
resolves that question in Petitioner’s favor. For the
reasons set forth in the preceding section, the question
whether the Eleventh Circuit erred in resolving the
merits of Petitioner’s First Amendment claim does not
warrant this Court’s review. Moreover, Petitioner
himself appears to recognize that his second question
presented is not independently certworthy. See Pet.
6
Unlike in Ben-Levi v. Brown, 136 S. Ct. 930 (2016) (mem.)
(Alito, J., dissenting), the courts below did not address the
standard set forth in Turner v. Safley, 482 U.S. 78, 89 (1987). The
record there was thus far more developed, and the one-time
deprivation that was contrary to prison policy and potentially a
misunderstanding here is a far cry from the discriminatory policy
at issue in Ben-Levi. Respondents, moreover, do not suggest that
Petitioner “misunderstands his own religion.” Id. at 933.
22
15-16. Accordingly, this Court should not grant review
to determine whether Petitioner could have recovered
certain damages if he had suffered a First
Amendment violation.
B. The Second Question Presented Was Neither
Raised Nor Passed On Below.
“[O]rdinarily, this Court does not decide questions
not raised or resolved in the lower court.” Youakim v.
Miller, 425 U.S. 231, 234 (1976); see Delta Air Lines,
Inc. v. August, 450 U.S. 346, 362 (1981) (explaining
that question presented in petition but “not raised in
Court of Appeals . . . [was] not properly before” the
Court). The second question presented is not properly
before the Court because it was neither raised by
Petitioner nor passed on by the courts below. He did
not press the alternative argument that he was
entitled to recover damages for constitutional injuries
without making a “prior showing of physical injury”
within the meaning of 42 U.S.C. § 1997e(e). Instead,
as discussed below, Petitioner repeatedly contended
only that he did in fact suffer a sufficient physical
injury to support recovery for mental and emotional
injuries.
In his amended complaint, Petitioner did not
specify any particular injury that he suffered but
alleged only that he “spent twenty-six (26) days in
confinement unable to practice his religion” and that
“Defendant’s (Kriss’) actions violated Plaintiff’s rights
of freedom to exercise his religion under the First
Amendment of the United States Constitution.” Am.
Compl., ECF No. 53, at 11, 12.
23
In response to Respondents’ motion to dismiss,
Petitioner argued only that he had indeed alleged a
physical injury that would support recovery for
mental and emotional damages under § 1997e(e) and
that failing to allege a physical injury was not a “filing
prerequisite for the Federal Civil Action itself” but a
“limitation on recovery.” Opp. to Mot. to Dismiss, ECF
No. 43, at 23-24. Petitioner did not contend that he
could recover compensatory damages without showing
any physical injury.
In his report and recommendation, the magistrate
judge held that even if Petitioner’s alleged physical
injury were related to his First Amendment claims,
that injury was “de minimis” and thus Petitioner was
“necessarily . . . limited to nominal damages.” Pet.
App. 40a-41a. Petitioner did not argue that his alleged
constitutional injuries were compensable absent any
showing of related physical injury, and the magistrate
judge did not consider that issue. Similarly, in
Petitioner’s objections to the magistrate judge’s report
and recommendation regarding Respondents’ motion
to dismiss, he argued only that the magistrate judge
had abused his discretion in holding that he had not
suffered a sufficient physical injury. Objections to
First Rept. & Recommendation, ECF No. 48, at 19-21.7
On appeal to the Eleventh Circuit, Petitioner again
argued only that the district court abused its
discretion in categorizing his alleged physical injury
as “de minimis” and that the physical injury question
should go to a jury. Appellant’s Br. at 23-24. Yet again,
7
The district court adopted the magistrate judge’s report and
recommendation. Pet. App. 22a-23a.
24
he did not argue that the purported First Amendment
violations gave rise to independently compensable
injuries to which Section 1997e(e) did not apply.
In affirming the district court, the Eleventh Circuit
addressed Petitioner’s argument that he had alleged
a physical injury sufficient to justify recovery of
compensatory damages. For example, the court
explained, “Hoever argues that he incurred a sinus
injury when exposed to chemical agents while in
disciplinary confinement, but he challenged the
conditions of his confinement on the ground it violated
his right to due process.” Pet. App. 7a. “Because no
due process violation occurred,” the court reasoned,
“Hoever was not entitled to any damages on the basis
of his sinus injury.” Id. Similarly, the court explained
that, whether or not Petitioner’s alleged physical
injuries were de minimis, the physical injuries he
alleged were not attributable to the asserted
constitutional violations. Id. at 6a (“Hoever did not
allege he suffered a physical injury because of Kriss’s
constitutional
violations.”
(emphasis
added)).
Consistent with the limited argument Petitioner
presented, the Eleventh Circuit did not consider the
argument that the asserted First Amendment
violation gave rise to a compensable injury without
any showing of physical injury, nor did it address
whether such an argument would be consistent with
circuit precedent. See id. at 6a-7a.
In sum, Petitioner argued that he did make a
“prior showing of physical injury” within the meaning
of § 1997e(e); but he did not advance the alternative
argument that he could recover compensatory
damages for his asserted First Amendment violation
25
without making such a showing. Thus, the second
Question Presented—“whether prisoners who suffer a
First Amendment violation, but not a physical injury,
can recover compensatory damages,” Pet. 15
(alterations omitted)—was never raised or passed on
below and is not properly before this Court. See
August, 450 U.S. at 362.
C. Even If Petitioner Had Preserved This Issue,
The Same Outcome Would Have Obtained In
Nearly Every Circuit.
Not only would reaching this issue not change the
outcome of Petitioner’s case, nearly every court of
appeals would have affirmed the result reached by the
district court.
1. In addition to the Eleventh Circuit, seven other
Circuits have held that Section 1997e(e) bars claims
premised on constitutional violations to the extent
that a prisoner seeks to recover only mental or
emotional injuries resulting from such violations. See
Davis v. D.C., 158 F.3d 1342, 1349 (D.C. Cir. 1998)
(Ҥ 1997e(e) precludes claims for emotional injury
without any prior physical injury, regardless of the
statutory or constitutional basis of the legal wrong”);
Thompson v. Carter, 284 F.3d 411, 417 (2d Cir. 2002)
(“Section 1997e(e) applies to claims in which a
plaintiff alleges constitutional violations so that the
plaintiff cannot recover damages for mental or
emotional injury for a constitutional violation in the
absence of a showing of actual physical injury.”); Allah
v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) (holding
that Section 1997e(e) bars recovery for mental or
emotional injuries resulting from First Amendment
violation); Geiger v. Jowers, 404 F.3d 371, 375 (5th
26
Cir. 2005) (“Section 1997e(e) applies to all federal civil
actions in which a prisoner alleges a constitutional
violation, making compensatory damages for mental
or emotional injuries non-recoverable, absent physical
injury.”); Cassidy v. Indiana Dep’t of Corr., 199 F.3d
374, 376 (7th Cir. 2000) (recognizing the Seventh
Circuit’s “case law applying § 1997e(e) to
constitutional torts” (citing Rowe v. Shake, 196 F.3d
778, 781 (7th Cir. 1999))); Royal v. Kautzky, 375 F.3d
720, 723 (8th Cir. 2004) (“we read section 1997e(e) as
limiting recovery for mental or emotional injury in all
federal actions brought by prisoners”); Searles v. Van
Bebber, 251 F.3d 869, 876 (10th Cir. 2001) (“The
statute limits the remedies available, regardless of the
rights asserted, if the only injuries are mental or
emotional.”).
Similarly, the Fourth and Sixth Circuits have
suggested that Section 1997e(e) would prevent
recovery for mental or emotional injuries resulting
from constitutional violations. See Wilcox v. Brown,
877 F.3d 161, 169 (4th Cir. 2017) (suggesting that
Section
1997e(e)
could
prevent
“recovering
compensatory damages ‘for mental or emotional
injury’” associated with First Amendment violations);
King v. Zamiara, 788 F.3d 207, 212 (6th Cir. 2015)
(“First Amendment rights are themselves injuries,
apart from any mental, emotional, or physical injury
that might also arise from the deprivation,
and . . . § 1997e(e) does not bar all relief for injuries to
First Amendment rights”). But neither Circuit has
held that Section 1997e(e) does not apply to
constitutional claims; instead, both hold only that
constitutional violations can give rise to compensable
injuries other than mental or emotional injuries.
27
Only the Ninth Circuit has concluded—without
analysis—that “§ 1997e(e) does not apply to First
Amendment Claims regardless of the form of relief
sought.” Canell v. Lightner, 143 F.3d 1210, 1213 (9th
Cir. 1998). Yet in Canell, the plaintiff was “not
asserting a claim for ‘mental or emotional injury,’” id.,
and thus the court had no occasion to consider
whether Section 1997e(e) would bar recovery for
mental or emotional injuries resulting from a
constitutional violation. Accordingly, following
Canell, the Ninth Circuit has on several occasions
barred recovery for mental or emotional injuries
resulting from constitutional violations. See Oliver v.
Keller, 289 F.3d 623, 630 (9th Cir. 2002) (“To the
extent that appellant has actionable claims for
compensatory, nominal or punitive damages—
premised on violations of his Fourteenth Amendment
rights, and not on any alleged mental or emotional
injuries—we conclude the claims are not barred by
§ 1997e(e).”); Acosta v. Arpaio, 466 F. App’x 556, 557
(9th Cir. 2011) (applying Section 1997e(e) to bar
Fourth Amendment and Eighth Amendment claims);
Esslinger v. Worrall, 89 F. App’x 622, 623 (9th Cir.
2004) (barring Fourteenth and Eighth Amendment
claims).
In sum, no circuit has held that, notwithstanding
Section 1997e(e), a prisoner can recover damages for
mental or emotional injuries resulting from a
constitutional violation without an accompanying
physical injury.
Here, because Petitioner’s alleged physical injury
did not result from the purported First Amendment
violation, the Eleventh Circuit affirmed the district
court’s rejection of his claim for mental or emotional
28
damages resulting from the purported First
Amendment violation—a straightforward application
of Section 1997e(e). With the possible exception of the
Ninth Circuit (as discussed above), every circuit to
have considered the issue would have done the same. 8
2. Properly understood, the question in this case
is whether plaintiffs can recover for actual injuries,
resulting from constitutional violations, that are not
conceptualized as mental or emotional injuries
without establishing physical injury. Six circuits (the
D.C., Second, Fourth, Sixth, Seventh, and Ninth
Circuits) hold that constitutional violations can result
in actual injuries that do not qualify as “mental or
emotional injuries” barred by Section 1997e(e). See
Pet. 16-18. Only a single circuit (the Third Circuit) has
squarely rejected that proposition. The other circuits
on which Petitioner relies, including the Eleventh
Circuit, do not appear to have addressed that
proposition.
8
The Eleventh Circuit also noted that, had Petitioner
established a First Amendment violation, Section 1997e(e) would
not bar him from recovering nominal damages. Pet. App. 6a.
Every circuit to have addressed the issue agrees. See Aref v.
Lynch, 833 F.3d 242, 266 (D.C. Cir. 2016) (“[E]very
circuit . . . agrees that nominal damages are available in this
context.”); Carter, 284 F.3d at 418 (citing cases).
The Eleventh Circuit also concluded (Pet. App. 6a) that
Section 1997e(e) would bar Petitioner from recovering punitive
damages. Petitioner did not raise any issue concerning punitive
damages in his petition and, in any event, has never argued that
Section 1997e(e) does not bar punitive damages. Further, he is
not entitled to punitive damages because, among other reasons,
he did not establish a First Amendment violation. Thus, that
distinct issue is not presented here.
29
Three of the circuits on which Petitioner relies
have held only that Section 1997e(e) applies to
constitutional claims and bars recovery for mental or
emotional injuries absent physical injury; none of the
three has considered whether Section 1997e(e) would
bar recovery for injuries that are not mental or
emotional in nature:
• Tenth Circuit: Citing Searles v. Van Bebber,
251 F.3d 869, 875-76 (10th Cir. 2001), Petitioner
contends that the Tenth Circuit “equates injuries to
First Amendment interests with mental or emotional
injuries.” Pet. 19. In Searles, however, the only
damages at issue were for mental or emotional
injuries: The jury awarded “‘mental and emotional
injuries’ in the words of the verdict form.” 251 F.3d at
874. The court held only that Section 1997e(e) barred
those damages, explaining that it “limits the remedies
available, regardless of the rights asserted, if the only
injuries are mental or emotional.” Id. at 876. Thus, the
court did not consider whether constitutional
violations can give rise to injuries other than mental
or emotional injuries. In other words, the Tenth
Circuit merely rejected the plaintiff’s argument that
Section 1997e(e) “should be construed to have no effect
on First Amendment claims.” Id. at 875.
• Eighth Circuit: Petitioner similarly notes that
the Eighth Circuit held in Royal v. Kautzky that
Section 1997e(e) applies to constitutional claims. 375
F.3d 720, 723 (8th Cir. 2004) (“[W]e read section
1997e(e) as limiting recovery for mental or emotional
injury in all federal actions brought by prisoners.”).
Like the Tenth Circuit, however, the Eighth Circuit
did not consider whether constitutional violations can
give rise to injuries other than mental or emotional
30
injuries or whether
compensable.
such
injuries
would
be
• Fifth Circuit: Although the Fifth Circuit has
held that Section 1997e(e) applies even to
constitutional claims—as with every other circuit to
consider the issue—it made clear “that it is the nature
of the relief sought, and not the underlying
substantive violation, that controls.” Geiger v. Jowers,
404 F.3d 371, 375 (5th Cir. 2005). As a result, the
court held in Geiger only that “compensatory damages
for mental or emotional injuries [are] non-recoverable,
absent physical injury,” id., not that compensatory
damages for other types of injuries resulting from
constitutional violations would be unrecoverable. 9
The Third Circuit has held that injuries resulting
from constitutional violations qualify as “mental or
emotional injuries” for which damages cannot be
recovered absent a physical injury. See Allah v. AlHafeez, 226 F.3d 247, 250-51 (3d Cir. 2000). By
contrast, the Eleventh Circuit bars the recovery of
compensatory damages—regardless of the type of
injury—but it has never confronted whether actual
injuries other than mental or emotional injuries
resulting from constitutional violations would fall into
that category. See Harris v. Garner, 190 F.3d 1279,
1290 (11th Cir.), reh’g en banc granted, op. vacated,
9
See also Hutchins v. McDaniels, 512 F.3d 193, 196 (5th Cir.
2007) (plaintiff’s “failure to allege any physical injury precludes
his recovery of any compensatory damages for emotional or
mental injuries suffered”); Boyd v. Driver, 495 F. App’x 518, 524
(5th Cir. 2012) (“the district court was correct to hold that the
PLRA precludes Boyd from seeking compensatory damages for
the mental suffering he alleged resulted from defendants’
conduct”).
31
197 F.3d 1059 (11th Cir. 1999), & op. reinstated in
part on reh’g, 216 F.3d 970 (11th Cir. 2000).
In Aref v. Lynch, the D.C. Circuit made plain the
critical distinction between the question whether
§ 1997e(e) applies to constitutional claims and the
question whether, absent physical injury, the statute
allows recovery of damages for injuries other than
mental or emotional injuries resulting from
constitutional violations. 833 F.3d 242 (D.C. Cir.
2016). There, the court distinguished Davis v. District
of Columbia, 158 F.3d 1342 (D.C. Cir. 1998), where
the court applied Section 1997e(e) to bar recovery of
damages for mental or emotional injuries absent
physical injury even though plaintiff asserted a
constitutional violation. The Aref court explained that
although Davis held that Section 1997e(e) does apply
to constitutional claims, that does not mean that
Section 1997e(e) bars recovery in such cases for
injuries that are not mental or emotional. See Aref,
833 F.3d at 262. In other words, the Fifth, Eighth,
Tenth, and Eleventh Circuits have issued holdings
like that in Davis, but have not considered the further
question decided in Aref.
In short, the circuits do not appear to be
“intractably divided” regarding Section 1997e(e)’s
application in this context. Pet. 15. Only the Third
Circuit has clearly departed from the majority rule,
while the others—including the court below—have not
squarely decided the issue.
3. Even if this Court were to resolve this shallow
split, the outcome in this case would be unaffected
because Petitioner did not allege any actual injury
resulting from any constitutional violation. The
32
circuits to hold that constitutional violations can give
rise to injuries that are compensable absent physical
injury require plaintiffs to establish such injuries
“with sufficient certainty to avoid damages based
either on pure speculation or the so-called inherent
value of the rights violated,” or only nominal damages
can be awarded. Aref, 833 F.3d at 266 (quoting Hobson
v. Wilson, 737 F.2d 1, 62 (D.C. Cir. 1984)). 10 In his
amended complaint, Petitioner did not allege that he
suffered any ascertainable non-mental, non-emotional
injury resulting from the purported First Amendment
violation. Nor did he proffer any evidence of such an
injury. Thus, even if the circuits were intractably
divided on this issue the Court should deny the
petition as to the second question presented because
“it is evident that the resolution of the conflict could
not change the result reached below.” SUPREME COURT
PRACTICE, § 4.4(f), p. 249.
10
See also Thompson v. Carter, 284 F.3d 411, 416, 418 (2d
Cir. 2002) (explaining that “Section 1997e(e) . . . does not restrict
a plaintiff’s ability to recover compensatory damages for actual
injury” and that it would not “ba[r] an award of compensatory
damages for the loss of [plaintiff’s] property provided he can
establish actual injury”); Piver v. Pender Cty. Bd. of Educ., 835
F.2d 1076, 1082 (4th Cir. 1987) (explaining that constitutional
injuries “can be compensated with substantial damages only to
the extent that it is ‘reasonably quantifiable’”) (relied on by
Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017)); King v.
Zamiara, 788 F.3d 207, 214 (6th Cir. 2015) (“a plaintiff must
demonstrate that he or she suffered an actual injury in order to
receive compensatory damages for violations of his or her
constitutional rights”); accord Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 308 (1986) (holding that “no
compensatory damages could be awarded for violation of
[constitutional] right absent proof of actual injury”).
33
D. This Court Has Consistently Denied
Petitions That Served As Much Better
Vehicles For Resolving Essentially the
Same Issue.
This Court has denied four previous petitions for
writs of certiorari that raised essentially the same
issue as the second question presented—including a
petition arising out of the Eleventh Circuit. See King
v. Zamiara, 788 F.3d 207 (6th Cir. 2015), cert denied,
136 S. Ct. 794 (2016); Royal v. Kautzky, 375 F.3d 720
(8th Cir. 2004), cert. denied, 544 U.S. 1061 (2005);
Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001),
cert. denied, 536 U.S. 904 (2002); Harris v. Garner,
216 F.3d 970 (11th Cir. 2000), cert. denied, 532 U.S.
1065 (2001). Petitioner identifies no changed
circumstance that would warrant a different result
here. And, in light of the vehicle problems discussed
above, those other petitions would have provided
much better opportunities for considering the
availability of damages under 42 U.S.C § 1997e(e).
34
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
PAMELA JO BONDI
Attorney General of Florida
OFFICE OF THE
ATTORNEY GENERAL
State of Florida
The Capitol – PL-01
Tallahassee, FL
32399-1050
Phone: (850) 414-3688
amit.agarwal@
myfloridalegal.com
AMIT AGARWAL
Solicitor General
Counsel of Record
EDWARD M. WENGER
Chief Deputy Solicitor
General
CHRISTOPHER J. BAUM
Deputy Solicitor General
Counsel for Respondents
April 18, 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.