No. ___ - ______.

In the Supreme Court of theUnited States

MITCHELL E. JACKSON, Petitioner,

v.

RON HERRINGTON, FREDDIE ROWLAND, ANTHONY WILLETT,

PATTY MCCUISTON, NATHAN FRANCIS, Respondents.
_____________ _____________
On Petition for Writ of Certiorari to
the United States Court of Appeals for the Sixth Circuit.
_____________ _____________

____________________________________________________

PETITION FOR WRIT OF CERTIORARI

____________________________________________________

Charles Lee Thomason

SPALDING & THOMASON
106 North 4th St.
P.O. Box 745
Bardstown, KY 40004
(502) 349-7227
Counsel for Petitioner
 QUESTIONS PRESENTED

The District Court followed a nonprecedential ruling that interpreted

42 U.S.C. §1997e(e), then the Sixth Circuit Court of Appeals affirmed a final

decision granting defendants summary “judgment as a matter of law because

the Plaintiff has not suggested that he was subjected to any physical injury

as a result of” an allegedly abusive, intake strip search.

The Sixth Circuit preclusively applies “No Federal civil action,” to

dismiss claims in ways that conflict with most other Circuits. Those courts

interpret the full text in §1997e(e) to allow inmates to recover nominal and

punitive damages. Those conflicts provoke serious questions of law:

Whether federal courts should apply §1997e(e) to dismiss inmate

claims outright, as does the Sixth Circuit, or follow those Circuits that allow

claims for non–compensatory redress for a constitutional “injury”; or, just to

dismiss without prejudice until the plaintiff no longer is “confined in a jail.”

How a consistently applied, singular interpretation of §1997e(e), and

its “Limitation” on the relief allowable for constitutional torts, would ensure

equal justice in each Circuit for inmate plaintiffs and defendant officials.

Whether two inmate suits, which allege the same constitutional torts,

should reach different outcomes in the courts of different Circuits; and, what

is the gross impact, in the 300+ constitutional tort actions that inmates file

each month, of the Circuits’ conflicting interpretations of the same statute.

1
 TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ……………………………………………… 1

Table of Contents ……………………………………………………… i
Table of Contents of Appendix ……………………………………… ii
Table of Cited Authorities ……………………………………………… iii
Petition for a Writ of Certiorari ……………………………………………… 2
INTRODUCTION ……………………………………………………… 2
OPINIONS BELOW ……………………………………………………… 3
JURISDICTIONAL STATEMENT ……………………………………… 3
UNITED STATES CODE AND CONSTITUTIONAL PROVISIONS …… 4
STATEMENT OF THE CASE ……………………………………………… 5
A. Background ……………………………………………………… 5
B. Procedural Background ………………………………………… 5
C. Standard of Review ……………………………………………… 6
REASONS FOR GRANTING THE WRIT ………………………………… 7
ARGUMENT ……………………………………………………… 8
I. The Circuits’ Interpretations of §1997e(e) Are Divided
Between Denying All Relief, and
Allowing Non-Compensatory Relief,
For Constitutional Torts Which Do
Not Meet Its “Physical Injury” Test. ………………………………… 8

A. Deconstructed Text + Interpretive Differences

= Conflicted Readings and Incomparable Outcomes. ………………… 11

B. Circuit Conflicts in Interpreting the “Limitation”

In §1997e(e), and How it Applies
to Actions, Claims, and Damages,
Are Resolvable, Here, as a Matter of Law. ………………………… 12

II. A Full Text Interpretation Leads to

The Correct Application of §1997e(e). ………………………………… 14

CONCLUSION ……………………………………………………… 15

i
 TABLE OF CONTENTS OF APPENDIX.

Page

Appendix A.
Opinion of the Circuit Court of Appeals for the Sixth Circuit,
filed August 31, 2010, reported at Jackson v. Herrington, et al,
2010 WL 3398900, and 2010 U.S. App. LEXIS 18347 (6th Cir. 2010) ………….. 1a

Appendix B.
Order denying panel rehearing and en banc review filed September 29,
2010 by the U.S. Circuit Court of Appeals for the Sixth Circuit ………….17a

Appendix C.
Memorandum Opinion and Order of the U.S. District Court for the
Western District of Kentucky, filed April 24, 2008, on cross-motions
for summary judgment on the strip search claims ……………………….… 18a

Appendix D.
Opinion and Order of the U.S. District Court for the Western District
of Kentucky, filed December 20, 2006, reinstating the strip search
claims on motion for reconsideration. ………………………………..……… 28a

ii
 Table of Authorities
Page
CASES

Adams v. Rockafellow, 66 Fed. Appx. 584 (6th Cir. 2003) ……………………… 6,8,9

Agrawal v. Briley, 2006 WL 3523750 (N.D.Ill. 2006) ………………………… 13

Allah v. Al-Hafeez, 226 F.3d 247 (3rd Cir. 2000) ………………………………… 10

Bell v. Wolfish, 441 U.S. 520,

99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)) ………………………… 7,11

Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003) ………………………… 9,12

Camp v. Gress, 250 U.S. 308, 39 S.Ct. 478, 63 L.Ed. 997 (1919) ………………… 14

Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998) ………………………………… 11

Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998) ………………… 12

Douglas v. Yates, 535 F.3d 1316 (11th Cir. 2008) ………………………………… 12

Harden-Bey v. Rutter, 524 F.3d 789 (6th Cir. 2008) ………………………………… 9

Hubbard v. Taylor, 399 F.3d 150 (3rd Cir. 2005) …………………………..…… 10,12

Hutchins v. McDaniels, 512 F.3d 193 (5th Cir.2007) …………………..…… 10,12

Jones v. Bock, 549 U.S. 199,

127 S.Ct. 910, 166 L.Ed.2d 798 (2004)) ………………………………… 14

Jones v. Price, 696 F. Supp.2d 618 (N.D.W.Va. 2010) ………………………… 10

Krupski v. Costa Crociere S.p.A., __ U.S. __,

130 S.Ct. 2485 (2010), 177 L.Ed.2d 48 (2010) ………………………… 13

Lamie v. U.S. Trustee, 540 U.S. 526,

124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) ………………………………… 6

McKinney v. Johnson, 2010 WL 3463110 (D.S.C. 2010) ………………………… 12

iii
 Page

Mitchell v. Horn, 318 F.3d 523 (3rd Cir. 2003) ………………………………… 14

Munn v. Toney, 433 F.3d 1087 (8th Cir.2006) …………………………..…… 10,12

Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002) ………………………………… 12

Perkins v. Dept. of Corrections, 165 F.3d 803 (10th Cir. 1999) ………………… 12

Petersen v. Stommel, 2009 WL 2009003 (D.Colo. 2009) ………………………… 13

Pratt v. Corrections Corp. of America,

124 Fed.Appx. 465, 2005 WL 332136 (8th Cir. 2005) ………………… 12

Scarver v. Litscher, 371 F.Supp.2d 986 (W.D.Wis. 2005),

aff'd, 434 F.3d 972 (7th Cir. 2006) ………………………………………… 13

Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001),

cert. den'd, 536 U.S. 904,
122 S.Ct. 2356, 153 L.Ed.2d 179 (2002) ………………………..……… 11,13

Shaheed-Muhammad v. Dipaolo,
393 F.Supp.2d 80 (D. Mass. 2005) ………………………………… 12

Smith v. Allen, 502 F.3d 1255 (11th Cir. 2007) ………………………………… 12

Royal v. Kautzky, 375 F.3d 720 (8th Cir. 2004),

cert. den’d sub nom, Royal v. Reid, 544 U.S. 1061,
125 S.Ct. 2528, 161 L.Ed.2d 1111 (2005) ………………………………… 13

Thompson v. Carter, 284 F.3d 411 (2nd Cir. 2002) …………………………… 9,11,12

Turley v. Gaetz, --- F.3d ----,

2010 WL 4286368 (7th Cir. Nov. 2, 2010) ………………………………… 14

Washington v. Johnson, 2009 WL 73676 (E.D.Mich. 2009) ………………… 9

White v. Brand, 2009 WL 2105993 (E.D.Tenn. 2009) …………………………..… 9

FEDERAL STATUTES

42 U.S.C. §1997e(e) ……………………………………………………… passim

iv
 Page

OTHER AUTHORITIES

Justice Antonin Scalia, The Rule of Law as a Law of Rules,

56 U. Chi. L. Rev. 1175, 1179 (Fall 1989) ………………………………………… 2

James E. Robertson, A Saving Construction:

How to Read the Physical Injury Rule
of the Prison Litigation Reform Act, 26 SIU L. J. 1, 19-20 (Fall 2001) ………… 16

v
 PETITION FOR A WRIT OF CERTIORARI.

Petitioner Mitchell E. Jackson respectfully requests a writ of certiorari

to review the judgment of the U.S. Court of Appeals for the Sixth Circuit

affirming the District Court’s ruling that applied 42 U.S.C. §1997e(e) to

preclude his Eighth Amendment and other constitutional tort claims arising

from a suspicionless, intake strip-search that he alleged was abusive.

INTRODUCTION

It is unfair and undesirable for the same constitutional tort claims to

reach incomparable outcomes, based on the same federal statute, due simply

to the geographical happenstance of which Circuit the inmate is “confined” in,

and so, where his “action may” end up being “brought.”

A grant of certiorari should serve to end the interpretational conflicts

over §1997e(e), and resolve the Circuits’ disagreements over how far that

statute limits the remedies for constitutional injury actions brought by some

of the 2+ million citizens “confined” in a U.S. “jail, prison, or other

correctional facility.”

To unify how the Circuits interpret and apply §1997e(e), would accord

“those subject to the law …[with] the means of knowing what it prescribes.”

Justice Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev.

1175, 1179 (Fall 1989).

2
 OPINIONS BELOW

The issues presented are set out in opinions from the United States District

Court for the Western District of Kentucky (18a), and the United States Court of

Appeals for the Sixth Circuit. (1a).

Most germane are unpublished opinions, available at Jackson v. Herrington,

2010 WL 3398900, 2010 U.S. App. LEXIS 18347 (6th Cir. 2010), and Jackson v.

Herrington, 2008 WL 1897729, 2008 U.S. Dist. LEXIS 34677 (W.D. Ky. 2008), and

at 2006 WL 1473759, 2008 U.S. Dist. LEXIS 34677 (W.D. Ky. 2006) (granting

reconsideration and reinstating strip-search claims).

Other dispositive rulings of the district court, which are related to the issues

presented here, are found at Jackson v. Herrington, 2008 WL 1926873, 2008 U.S. Dist.

LEXIS 35600 (W.D. Ky. 2008) (partial summary judgment) and 2007 WL 2000003,

2007 U.S. Dist. LEXIS 64075 (W.D. Ky. 2007) (partial Rule 12(b)(6) dismissal).

JURISDICTION

The Sixth Circuit issued its decision on August 31, 2010, Appx. 1a. Then, on

September 29, 2010, it denied a timely-filed, combined FRAP 40 petition for a panel

rehearing and rehearing en banc. Appx. 55a-56a.

The Circuit Court issued a revised mandate on October 18, 2010.

Petitioner invokes this Court's jurisdiction under 28 U.S.C. §1254(1).

 PERTINENT UNITED STATES CODE AND CONSTITUTIONAL
PROVISIONS, AND STATE CONSTITUTION AND STATE
REGULATIONS.

At issue in this case is 42 U.S.C. §1997e(e) of the Prison Litigation

Reform Act, which provides:

(e) Limitation on recovery.

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.

That Statute was applied to petitioner’s claims arising under the following:
U.S. Constitution Amendment 8
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments be inflicted.
U.S. Constitution Amendment 14, Section 1.
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the law.

Constitution of the Commonwealth of Kentucky, Section 10.

Security from search and seizure; conditions of issuance of warrant
The people shall be secure in their persons, houses, papers and possessions,
from unreasonable search and seizure; and no warrant shall issue to search
any place, or seize any person or thing, without describing them as nearly as
may be, nor without probable cause supported by oath or affirmation.

State statutes and related administrative regulations, which were pertinent

to the merits of petitioner’s §1983 claim, including provisions of The

Interstate Agreement on Detainers, as enacted in Indiana and in Kentucky,

are not set out here.

4
 STATEMENT OF THE CASE

A. Background.

Petitioner, Mitchell Jackson, was sentenced to serve time in a jail in Indiana.

A court-ordered plan to reduce overcrowding caused his transport to the Henderson

County Detention Center (HCDC) in Kentucky to be housed temporarily.

Minimum, regulatory standards for jails in Kentucky require ‘particularized

suspicion’ before a strip–search at intake was permitted. The HCDC had a ‘blanket’

strip–search policy, at intake, which the defendant Jailer Herrington called the

‘WELCOME TO KENTUCKY.’

After he pursued grievances over the strip–search at intake, the Petitioner

sued pro se. On reconsideration, after initial screening, the U.S. District Judge ruled

that “Jackson’s allegation of a policy of unconstitutional strip-searching may

proceed.” App`x, 32a. The complaint then was amended. After discovery, the

defendants’ summary judgment motions ended the action.

B. Procedural History.

The summary judgment ruling (18a) disposed of (i) all claims that defendants’

‘blanket’ strip–search policy was unconstitutional, and had violated the due process

rights of petitioner, about which no facts were in dispute; and (ii) his claims of being

strip searched “in a sexual way,” in a “degrading” way, and of being “dehumanized

…by his [the strip searcher’s] tactics and behavior,” as detailed in petitioner’s sworn

statements, which no defendant denied in an affidavit.

The lower court ruled that with “regard to the Plaintiff’s Eighth Amendment
claim, the Defendants are entitled to judgment as a matter of law because the

Plaintiff has not suggested that he was subjected to any physical injury as a result of

his strip search.” (20a). It relied on the nonprecedential, but also the only, ruling of

the Sixth Circuit in Adams v. Rockafellow, 66 Fed. Appx. 584 (6th Cir. 2003), which

applied 42 U.S.C. §1997e(e) to dismiss a strip search claim by an inmate.

On appeal, the Sixth Circuit cited its nonprecedential Rockafellow ruling, and

affirmed the judgment against the petitioner, stating ”that, absent injury related to

the strip search [‘claims’], his Eighth Amendment claim is not cognizable under

§1997e(e).” Jackson v. Herrington, 2010 WL 3398900, 2010 U.S. App. LEXIS 18347

(6th Cir. 2010). Inmate Jackson’s claims arising from a dental injury separately were

remanded.1

Affirmance ended petitioner’s claims that defendants’ policy of ‘blanket’ strip-

searches at intake was violative of the Eighth Amendment, that it denied due process

to an out-of-state inmate, and that he was abusively strip-searched at intake.

C. Standard of Review.

The Circuit Courts give §1997e(e) varied interpretations, presumably based on

the same canons of construction. The “statutory text” should be applied in full,

plainly and without wording being rendered “surplusage,” even “awkward” terms.2

1
Refusal to apply relation-back to that claim was reversed, in part due to the Court’s recent
decision in Krupski v. Costa Crociere S.p.A., __ U.S. __, 130 S.Ct. 2485 (2010) (8a, fn. 5).
2
Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004).
 REASONS FOR GRANTING THE WRIT.

The “physical injury” proviso in 42 U.S.C. §1997e(e) is applied in the Sixth

Circuit to bar all relief, and to dismiss non-injury claims with prejudice.

Most other Circuits interpret §1997e(e) to bar compensatory damages, only,

and so, to allow nominal and punitive damages, or equitable relief for inmate claims

not involving a “physical injury.” Had the petitioner filed this suit in a Seventh

Circuit forum, in Indiana after his temporary housing in Kentucky ended, then that

Circuit’s interpretation of §1997e(e) could have permitted him to obtain relief not

available under the Sixth Circuit’s more stringent reading of the same statute.

For similar claims to reach incomparable outcomes in the courts of different

Circuits, due to how §1997e(e) is variously applied, is unjust. Interpreting “No

Federal civil action” to bar all relief conflicts with reading the full statutory text to

allow non–compensatory damages and just redress for constitutional tort claims.

Petitioner Jackson respectfully seeks leave by petition for a writ of certiorari to

have this Court correct the conflicting interpretations of §1997e(e), which cause

inconsistent outcomes in inmates’ constitutional tort actions.

It may be gainsaid that Circuit courts are unguided by governing precedent,

for not since Bell v. Wolfish, 441 U.S. 520 (1979), which predates the PLRA, has a

strip search policy been reviewed here. Certiorari serves to eliminate conflicts, and

here, would serve to confirm that courts in each Circuit remain “committed to

guaranteeing that prisoner claims of illegal conduct by their custodians are fairly

handled according to law.” Jones v. Bock, 549 U.S. 199, 203 (2004).
 I.

The Circuits’ Interpretations of §1997e(e) Are Divided Between

Denying All Relief, and Allowing Non-Compensatory Relief, for
Constitutional Torts Which Do Not Meet Its “Physical Injury” Test.

The District Court and the Sixth Circuit disposed of Petitioner’s claims

arising from a ‘blanket’ intake strip–search policy, and an allegedly abusive strip–

search, by adhering to the same nonprecedential ruling. The “district court relied on

our unpublished decision in Adams v. Rockafellow, 66 F. App'x 584, 586 (6th Cir.

2003), and determined that because plaintiff alleged no physical injury resulting from

the strip search, the claim was not cognizable under 42 U.S.C. § 1997e(e).” (Appd’x,

10a). In Adams, the Circuit had “affirmed the district court's entry of summary

judgment for defendant Rockafellow on the basis that the plaintiff had not claimed

anything but mental or emotional injury as a result of the [strip] searches.” (10a-

11a). Summary judgment and affirmance here on the strip–search claims, based on

Adams, conflicts with how other Circuits interpret § 1997e(e).

Adams rejected all relief for claims related to successive strip searches of an

inmate, who would not “renounce” membership in a suspect religious group. Here,

petitioner’s strip–search claims were foreclosed outright, based on Adams, with all

relief disallowed. District courts in the Sixth Circuit, which follow Adams, hold that

§ 1997e(e) precludes all relief when an inmate’s claim does not allege a “physical

injury.”3 The Seventh Circuit allows nominal and punitive damages awards when

inmates claiming injuries to intangible constitutional rights.

3
“The Eighth Amendment does not give rise to a cause of action where the
prisoner alleges only mental or emotional injury; physical injury must be alleged to
 Had the petitioner waited to sue in federal court in Indiana, after his

temporary jailing in Kentucky ended, then an Indiana jury might have awarded

nominal or punitive damages on his strip–search claims. The Seventh Circuit reads

§1997e(e) to “limit the relief available” for constitutional tort claims, such as strip–

search claims, however, that statute does not bar an inmate’s “suit altogether.”

There is no question that strip searches may be unpleasant,

humiliating, and embarrassing to prisoners ...[but] Because [this inmate]
does not claim to have suffered a physical injury, we must next consider
whether § 1997e(e) precludes his suit altogether ...[however] we have
explained that § 1997e(e) may limit the relief available to prisoners who
cannot allege a physical injury, but it does not bar their lawsuits altogether
...[and though] § 1997e(e) would bar recovery of compensatory damages
“for” mental and emotional injuries suffered, the statute is inapplicable to
awards of nominal or punitive damages for the Eighth Amendment
violation itself. Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003).

Sixth Circuit courts apply the “No Federal civil action” text in §1997e(e) to

preclude inmate’s strip–search claims ‘altogether,’ as was done here, and in Adams.4

Other circuits reach different outcomes, based on how all of the terms in that same

statute, viz., damages for “mental or emotional injury,” “prisoner confined,” and

“physical injury,” are interpreted.

Total preclusion denies meaning to the full wording in §1997e(e), which the

Seventh and most other Circuits read as only a “Limitation,” and one “inapplicable

to awards of nominal or punitive damages” for violating an inmate’s constitutional

rights. Thompson v. Carter, 284 F.3d 411, 418 (2nd Cir. 2002) (“three of our sister

survive dismissal.” Washington v. Johnson, 2009 WL 73676 (E.D.Mich. 2009); there

was no "claimed …physical injury as a result of these two events, and, thus, § 1997e(e)
precludes these claims." White v. Brand, 2009 WL 2105993 (E.D.Tenn. 2009).
4
The panel also cited Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008),
which says that §1997e(e) “precludes any claim” not involving a physical injury.
circuits agree that Section 1997e(e) does not limit the availability of nominal

damages for the violation of a constitutional right or of punitive damages”); Calhoun,

supra (“our sister circuits have concluded that §1997e(e) does not bar all recovery”)5;

Hubbard v. Taylor, 399 F.3d 150, 167 fn.24 (3rd Cir. 2005)6; Hutchins v. McDaniels, 512

F.3d 193, 198 (5th Cir.2007) (a “vast majority of circuits to consider the issue have

reached the same conclusion …allowing a prisoner’s claim for punitive damages to

proceed despite §1997e(e)”); Munn v. Toney, 433 F.3d 1087, 1089 (8th Cir.2006)(“§

1997e(e) does not bar recovery of nominal and punitive damages, or declaratory and

injunctive relief”).

Certiorari, and de novo review, would reconcile the conflict between the Sixth

Circuit’s bar against an inmate’s “civil action” and any relief, and the many

§1997e(e) rulings that allow an inmate claiming constitutional torts without physical

injury to recover nominal and punitive damages plus equitable relief.

5
Had Indiana sent petitioner to be housed temporarily in W. Virginia, then for “a
violation of his constitutional rights, as a result of the strip search …He may …recover
nominal, or even punitive damages …The PLRA does not totally bar [his] claim.” Jones
v. Price, 696 F. Supp.2d 618, 625 (N.D.W.Va. 2010) (collecting §1997e(e) caselaw).
6
Citing Allah v. Al-Hafeez, 226 F.3d 247, 252 (3rd Cir. 2000), which had found
“persuasive the position taken by [the USDOJ] …as intervenor that § 1997e(e) …leaves
untouched claims for damages brought to vindicate a constitutional right or to punish for
violation of that right.”
 A.

Deconstructed Text + Interpretive Differences

= Conflicted Readings and Incomparable Outcomes.

The Circuit court decisions articulate several, logical bases to read §1997e(e)

as not limiting, and not precluding, nominal and punitive damage claims:

–The statutory text plainly negates civil damages for “mental or emotional

injury,” but it does not mention non-compensatory redress or punitive damages.7

–The limitation in §1997e(e) applies to causes of action that arise only from a

“physical injury,”, or for “mental or emotional injury,” and so, it is inapplicable to

an inmate’s intangible constitutional rights being violated.8

–Elimination of all relief and redress for violations of inmate’s constitutional

rights might render the statute unconstitutional. To construe §1997e(e) to be valid,

courts have reasoned that inmates civil rights claims may vindicated by the recovery

of punitive damages and awards of non-compensatory redress.9

7
“Congress simply did not choose to provide a restriction on punitive damages.”
Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001), cert. den'd, 536 U.S. 904 (2002).
8
Bell v. Wolfish, 441 U.S. at (“our cases have held that sentenced prisoners ...may
claim the protection of the Due Process Clause to prevent additional deprivation of life,
liberty, or property without due process of law [cites om.]”); Canell v. Lightner, 143 F.3d
1210, 1213 (9th Cir. 1998) (the “deprivation of First Amendment rights entitles a plaintiff
to judicial relief wholly aside from any physical injury he can show, or any mental or
emotional injury he may have incurred”).
9
“Having found that compensatory damages for actual injury, nominal, and
punitive damages remain available, we need not address Thompson's constitutional
challenge.” Thompson v. Carter, supra, at 419. There, the United States intervened on
the constitutional challenge to argue that Ҥ1997e(e)'s limitation on damages does not
deny all redress for claims alleging a constitutional violation.” 2001 WL 34095056.
 B.
Circuit Conflicts in Interpreting the “Limitation”
In §1997e(e), and How it Applies to Actions, Claims, and Damages,
Are Resolvable, Here, as a Matter of Law.

Certiorari is warranted to decide if §1997e(e) imposes an uncompromising bar

or preclusive limitation, as applied in caselaw from the Sixth Circuit. It is at the

omega end of the interpretive expanse, opposite the alpha Circuits that allow inmates

with non-physical injury claims to obtain nominal and punitive damages, plus the

Circuits that allow injunctive and declaratory relief.10

In between those Ά and Ω interpretations are: Circuits that have no

precedential rulings on §1997e(e)11; those that bar punitive damages12; those that

dismiss without prejudice until after the inmate no longer is “confined in a jail”13;

and too, courts that interpret the statute as inapplicable to ‘prospective’ physical

injuries, or where conduct likely will cause a “physical injury.”14

10
Thompson (2nd Cir.), Hubbard (3rd Cir.), Hutchins (5th Cir.), Calhoun (7th Cir.),
Munn (8th Cir.), Oliver v. Keller, 289 F.3d 623, 629 (9th Cir. 2002)(claims “premised on
violations of his Fourteenth Amendment rights ...are not barred by § 1997e(e)."); and
Perkins v. Dept. of Corrections, 165 F.3d 803, 808, n. 6 (10th Cir. 1999)(“injunctive relief
and punitive damages are available”).
11
Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80 (D. Mass. 2005) (the “First
Circuit has not addressed this question, and other courts are split ...[still] with the Seventh
and Ninth Circuits, I continue to believe that §1997e(e) is inapplicable to suits alleging
constitutional injuries”); McKinney v. Johnson, 2010 WL 3463110 (D.S.C. 2010) (absent
4th Cir. precedent, followed 7th Cir. cases that do “not bar nominal or punitive damages”).
12
Smith v. Allen, 502 F.3d 1255, 1271–72 (11th Cir. 2007)(“punitive damages ...are
precluded under the PLRA”); Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C.
Cir. 1998)(“Nor do we think the punitive claim can survive”).
13
Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008)(“We have interpreted this
statute to require the dismissal of several prisoners' complaints for emotional injury
‘without prejudice to their being re-filed at a time when the plaintiffs are not confined’”);
note that, the statutory text includes both “while in custody” and “confined in a jail.”
14
See, Pratt v. Corrections Corp. of America, 124 Fed.Appx. 465, 2005 WL 332136
th
(8 Cir. 2005) (reversing where inmate alleged deprivation of food, and weight loss,
 Added to that are court decisions that identify Circuit disagreements over

how far §1997e(e) sets a “Limitation” on what relief a claimant “confined in a jail”

may obtain for constitutional torts. See, Shaheed-Muhammad, supra (the “courts are

split”); Royal v. Kautzky, 375 F.3d 720 (8th Cir. 2004), (C.J. Heaney, dissenting)

(“There is nothing in the legislative history of §1997e(e), however, to suggest that

Congress’s intent was to prevent legitimate constitutional claims simply because the

prisoner suffered no physical injury”), cf., majority opinion that “we agree, Congress

did not intend section 1997e(e) to bar recovery for all forms of relief.” Id., at 72315;

“Several of these courts and others, however, have observed that recovery of

compensatory damages may be limited by § 1997e(e) ...other courts have cited the

lack of case law and the uncertainty of the issue as reasons for holding that damages

are unavailable.” Agrawal v. Briley, 2006 WL 3523750 (N.D.Ill. 2006); the “Searles

court16 disagreed with reasoning from other Circuits to the effect that “[t]he

deprivation of [constitutional] rights entitles a plaintiff to judicial relief wholly aside

from any physical injury he can show, or any mental or emotional injury he may

have incurred.” Petersen v. Stommel, 2009 WL 2009003 (D.Colo. 2009).

The petitioner’s appeal brief was noted conflicts between the Sixth Circuit’s

interpretation and application of §1997e(e) and those Circuits that allow nominal or

because "physical injuries could result from such deprivation"); “A plaintiff who has
suffered psychological torture but not physical injury may still obtain nominal or punitive
damages.” Scarver v. Litscher, 371 F.Supp.2d 986, 998 (W.D.Wis. 2005), aff'd, 434 F.3d
972 (7th Cir. 2006) ("heat, the constant illumination, and the lack of sound ...created a
substantial risk of causing Scarver serious physical and mental suffering,” at 975).
15
Cert. den’d sub nom, Royal v. Reid, 544 U.S. 1061, 125 S.Ct. 2528, 161 L.Ed.2d
1111 (2005).
16
Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001), cert. den'd, 536 U.S. 904
(2002).
punitive damages for constitutional torts where no physical injury is shown. The

panel declined to address the issue, and rehearing en banc was denied.

II.

A Full Text Interpretation Leads to The Correct Application of §1997e(e).

The petitioner’s case presents a primary question of whether to apply

§1997e(e) broadly as a precluding any “action” and all relief, or to interpret it

appropriately as only a “Limitation” on actions with specific claims.

There too are subsidiary questions, necessary to all of the statutory wording

and its interplay being interpreted. Specifically, is a “physical injury” the boundary

for the type of claims to which the limitation applies, and so it may be read expressio

unius est exclusio alterius to place non-physical and intangible constitutional rights

claims beyond the purview of §1997e(e)17; does the statute preclude a non-injury

`claim’ pleaded along with a physical injury claim in one “civil action”18; and, does

an action or claim of “physical” injury require at least soft-tissue damage, or is

conduct shown to cause injury enough to state a claim.

Petitioner respectfully seeks a writ of certiorari on these questions, and for

corrective action that will conforms all the Circuits to one application of §1997e(e).

17
Justice Brandeis cited Expressio unius est exclusio alterius in correcting how to
apply the statutory phrase “No civil suit shall be brought in any District Court against any
person ...in any other district than that whereof he is an inhabitant,” concluding that if
Congress had intended otherwise “it would have expressed that intention in unmistakable
language.” Camp v. Gress, 250 U.S. 308, 316, 39 S.Ct. 478, 63 L.Ed. 997 (1919).
18
Here, the Circuit panel noted that petitioner “repeatedly asserts that his larger
‘action’ contains allegations of a dental injury,” but it rejected his contention that joinder
of non-injury and physical injury claims “meets the injury requirement” of §1997e(e);
and, even after Jones v. Bock, supra, ruled on whether “action” means ‘claim’ in regard
to administrative exhaustion, the term “action” used in other parts of the PLRA still
causes interpretive disagreements, as indicated recently by the studious analysis in Turley
v. Gaetz, --- F.3d ----, 2010 WL 4286368 (7th Cir. Nov. 2, 2010).
 CONCLUSION

Grant of a writ of certiorari to review the Circuits’ varied interpretations of

the “Limitation on Recovery” legislated in 42 U.S.C. § 1997e(e) is warranted, now.

The case presents the issue, post judgment and appeal, and so ripe for de novo review

here. A final clarification of how the courts are to apply the operative terms of that

statute is overdue.

Interpretational conflicts and definitional distinctions about how to apply

§1997e(e) impact thousands of §1983 suits.19 The Sixth Circuit’s rulings, which

completely preclude relief where no “physical injury” is shown, conflicts with

Circuits that allow nominal and punitive damages, and redress in equity.

Interpreting the “Limitation” as a bar impacts every inmate action that alleges

a claim for unconstitutional strip–searches, denials of due process, delay in treating

serious medical conditions, as well as claims of religious discrimination, denials of

First Amendment rights, equal protection, retaliation and excessive force claims, and

ADA claims. Here the issue arises from an intake strip search.

Review by the Supreme Court is respectfully requested by petitioner.

19
James E. Robertson, A Saving Construction: How to Read the Physical Injury
Rule of the Prison Litigation Reform Act, 26 SIU L. J. 1, 19-20 (Fall 2001).
 Respectfully submitted,

19 NOV 2010 ________________________

Date: Charles Lee Thomason
Attorney for Petitioner
SPALDING & THOMASON
106 N. 4th St.
Bardstown, KY 40004
Tel. (502) 349-7227
Thomason@spatlaw[dot]com

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