II.

Even Absent Physical Injury, the Jury may Award Punitive Damages for
The Eighth Amendment Violation as Well as Intentional Infliction of
Emotional Distress.

A. The PLRA § 1997e(e) does not bar compensatory or punitive damages.
The majority of Courts of Appeal have held that where there is insufficient
physical injury to satisfy § 1997e(e), compensatory damages are barred but a prisoner
may still recover nominal or punitive damages. See Thompson v. Carter, 284 F.3d 411,
416 (2d Cir. 2002) (“[§1997e(e)] does not restrict a plaintiff’s ability to recover…
nominal or punitive damages”); Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir. 2003)
(“[R]egardless how we construe §1997e(e)’s physical injury requirement, it will not
affect [plaintiff]’s ability to seek nominal or punitive damages”); Calhoun v. DeTella,
319 F.3d 936, 941 (7th Cir. 2003) (“[§1997e(e)] is inapplicable to awards of nominal or
punitive damages”); Royal v. Kautzky, 375 F.3d 720 (8th Cir.2004); Oliver v. Keller, 289
F.3d 623 (9th Cir. 2002); Searles v. Van Bebber, 251 F.3d 869 (10th Cir.2001); contra
Harris v. Gardner, 216 F.3d 970, 984 (11th Cir. 2000) (en banc); Davis v. District of
Columbia, 158 F.3d 1342, 1348 (D.C.Cir. 1998) (barring punitive damages but
expressing no view as to nominal damages).
The logic of this position was explained in Calhoun, 319 F.3d. 936.
Compensatory damages are awarded “for” an injury, which, under § 1997e(e) may not be
purely mental or emotional. Id. at 941. However, “[b]ecause punitive damages are
designed to punish and deter wrongdoers for deprivations of constitutional rights they are
not compensation ‘for’ emotional and mental injury.” 319 F.3d at 942. (Similarly,
nominal damages “are not compensation for loss or injury, but rather recognition of a
violation of rights. Id. at 941.)

The U.S. Court of Appeals for the First Circuit has not reached this issue. See
Shaheed-Muhammad v.DiPaolo, 393 F.Supp.2d 80, 107-8, (2005) (holding §1997e(e)
inapplicable to claim of intangible constitutional harm and therefore not deciding the
issue). However, district courts within the first circuit have held that § 1997e(e) does not
bar compensatory or punitive damages. See Mitchell v. Newryder, 245 F.Supp.2d 200,
205 n. 4 (D.Me. 2003) (§ 1997e(e) does not bar nominal or punitive damages where
plaintiff was made to sit in his feces for five hours, even if only de minimis injury; rejects
Harris, 216 F.3d at 984 and Davis, 158 F.3d at 1348)); see also Libby v. Merrill, 2003
WL 21756830 at *3 - *4 (D.Me. 2003), report and recommendation adopted by Libby v.
Merrill, 2003 WL 22669017.
This majority view better accords with the PLRA’s purpose, as stated in an earlier
Shaheed opinion: “[W]hile the PLRA dramatically curtailed the litigation options available
to prisoners, it was not its purpose to insulate from review all claims in which legitimate
constitutional issues predominate without accompanying physical harm.”

Shaheed-

Muhammad v.DiPaolo, 138 F.Supp. 2d 99, 109 (D.Mass. 2001).
B. Punitive damages may be awarded on an Eighth Amendment claim without
physical injury.
An Eighth Amendment claim with only de minimis physical injury may
nevertheless give rise to punitive damages, since physical injury is not a required element
of an eighth amendment claim. In order for conditions of confinement to violate the
Eighth Amendment, “a prison official’s act or omission must result in the denial of ‘the
minimal civilized measure of life’s necessities’” Farmer v. Brennan 511 U.S. 825, 834
(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The Eighth
Amendment “imposes duties” on prison officials, “who must provide human conditions

of confinement; prison officials must ensure that inmates receive adequate food, clothing,
shelter and medical care, and must ‘take reasonable measures to guarantee the safety of
the inmates.’” Id. at 832 (citation omitted). The Supreme Court has held that “de
minimis uses of physical force” are not Eighth Amendment violations. Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992). However “de minimis” in that case referred to the
defendant’s conduct, the amount of force used, and not the nature or severity of the
injury. See Oliver, 289 F.3d at 628 (discussing Hudson, and noting, “In ruling that the
requisite physical injury must be more than de minimis for purposes of § 1997e(e), we are
not importing the standard used for Eighth Amendment excessive force claims, which
examines whether the use of physical force is more than de minimis”; emphasis in
original).
Clearly an Eighth Amendment claim can charge conduct justifying punitive
damages without any physical injury. “Punitive damages may be awarded for conduct
that is ‘outrageous because of the defendant’s evil motive or his reckless indifference to
the rights of others.’” Goodrow v. Lane Bryant, Inc. 432 Mass. 165, 178 (2000). As
Calhoun notes, punitive damages are not awarded “for” an injury, but rather to punish
and deter wrongdoers. 319 F.3d at 942. Thus in Calhoun, where the plaintiff claimed
an Eight Amendment violation from a strip search, the Seventh Circuit held that while
lack of physical injury barred compensatory damages under § 1997e(e), nominal and
punitive damages were still available. 319 F.3d 942. Similarly, Oliver permits punitive
damages where the plaintiff had only de minimis physical injuries from his confinement
in a jail holding cell. 289 F.3d at 630. In Mitchell v. Newryder, 245 F.Supp.2d 200
(D.Me. 2003), the court held that even if plaintiff’s claim that he was made to sit in feces

for five hours did not meet the § 1997e(e) threshold for physical damages, he still had a
valid Eighth Amendment claim which could be compensated with nominal and punitive
damages. Id. at 205 and n. 4. See also Hill v. Arpaio, 2007 WL 1120305 (D.Ariz. 2007)
(only de minimis injuries from excessive force and overcrowding but punitive damages
still available).1

1

See also Stewart v. Lyles, 66 Fed Appx. 18, *21 (7th Cir. 2003) (in § 1983 case
regarding strip searches in front of opposite-sex correctional officers and anal cavity
searches in which plaintiff did not allege physical injury, plaintiff survived a motion to
dismiss and was permitted to seek punitive and nominal damages); Johnson-Bey v.
M.E.Ray, 38 Fed.Appx. 507, *510 (10th Cir. 2002) (although plaintiff suffered no
physical injury, court permitted recovery of punitive damages in § 1983 case in which
plaintiff adequately alleged an Eighth Amendment violation in asserting that correctional
officers had "set him up" by placing a knife in other prisoner's cell and telling that
prisoner that plaintiff was to blame); Bailey v. Albright, 2006 WL 1793204, *2-3
(W.D.Pa. 2006) (upholding verdict in § 1983 case in which jury denied compensatory
damages but granted $10,000 in punitive damages, understanding that the jury concluded
that plaintiff suffered no actual loss, but an Eighth Amendment violation made punitive
damages appropriate); Smith v. Carroll, 2006 WL 1338825, *2 (D.Del. 2006) (denying
defendants' motion to dismiss in § 1983 case in which plaintiff alleged poor prison
conditions in violation of the Eighth Amendment, but no physical injury, and permitting
the possibility of punitive, but not compensatory, recovery); Boroto v. McDonald, 2006
WL 2789152 (N.D.Fla. 2006) (affirming magistrate's recommendation that plaintiff can
proceed on § 1983 claim alleging Eighth Amendment violation an pursue punitive
damages for the violation despite plaintiff's inability to show physical injury); Green v.
Padula, 2007 WL 895487, *1-2 (D.S.C. 2007) (plaintiff who alleged Eighth Amendment
violation for being handcuffed to holding cell window for 2.5 hours and denied food for
several days but did not allege physical injury was permitted to recover punitive
damages); Houston v. Buck, 2005 WL 1378964, *3 (E.D.Cal. 2005) (in § 1983 claim
alleging sexual harassment in violation of the Eighth Amendment, in which plaintiff did
not allege suffering more than de minimus physical injury, plaintiff could recover
punitive damages); Davis v. Locke, 936 F.2d 1208, 1214 (11th Cir. 1991) (affirming
jury's award of punitive damages for violation of plaintiff's Eighth Amendment right in §
1983 case in which plaintiff alleged psychological, but not physical, injury, and in which
the jury did not award any compensatory damages).