Petition for Certiorari, U.S. Supreme Court in Jackson v. Herrington, Jailer et al

8/8/2019 Petition for Certiorari, U.S. Supreme Court in Jackson v. Herrington, Jailer et al

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No. ___ - ______.

In the Supreme Court of theUnited StatesMITCHELL 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


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1

QUESTIONS PRESENTEDThe District Court followed a nonprecedential ruling that interpreted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 becausethe 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 noncompensatory redress for a constitutional injury; or, just to

dismiss withoutprejudice 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 fileeach month, of the Circuits conflicting interpretations of the same statute.


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i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 1

Table of Contents i

Table of Contents of Appendix ii

Table of Cited Authorities iiiPetition 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 DividedBetween 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 LimitationIn 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 toThe Correct Application of 1997e(e). 14

CONCLUSION 15


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ii

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 (6 th 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-motionsfor summary judgment on the strip search claims . 18a

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


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iv

Page

Mitchell v. Horn, 318 F.3d 523(3rd Cir. 2003) 14Munn v. Toney, 433 F.3d 1087 (8th Cir.2006) .. 10,12Oliver 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) 13Pratt 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. dend sub nom, Royal v. Reid, 544 U.S. 1061,

125 S.Ct. 2528, 161 L.Ed.2d 1111 (2005) 13Thompson 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) 9White v. Brand, 2009 WL 2105993 (E.D.Tenn. 2009) .. 9

FEDERAL STATUTES

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


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v

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 Ruleof the Prison Litigation Reform Act, 26 SIU L. J. 1, 19-20 (Fall 2001) 16


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2

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 Courts 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.

INTRODUCTIONIt 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).


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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 (6 th 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).


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4

PERTINENT UNITED STATES CODE AND CONSTITUTIONALPROVISIONS, AND STATE CON STITUTION AND STATEREGULATIONS.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 sufferedwhile in custody without a prior showing of physical injury.

That Statute was applied to petitioners claims arising under the following:

U.S. Constitution Amendm ent 8Excessive bail shall not be required, nor excessive fines imposed, nor crueland unusual punishments be inflicted.

U.S. Constitution Am endment 14, Section 1.All persons born or naturalized in the United States, and subject to thejurisdiction thereof, are citizens of the United States and of the State whereinthey reside. No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; nor shall any Statedeprive 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 C omm onwealth of Ken tucky, Section 10.Security from search and seizu re; conditions of issuance of warran tThe people shall be secure in their persons, houses, papers and possessions,from unreasonable search and seizure; and no warrant shall issue to searchany place, or seize any person or thing, without describing them as nearly asmay be, nor without probable cause supported by oath or affirmation.

State statutes and related administrative regulations, which were pertinent

to the merits of petitioners 1983 claim, including provisions of The

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

are not set out here.


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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 stripsearch at intake was permitted. The HCDC had a blanket

stripsearch policy, at intake, which the defendant Jailer Herrington called the

WELCOME TO KENTUCKY.

After he pursued grievances over the stripsearch at intake, the Petitioner

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

that Jacksons 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 stripsearch 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 searchers] tactics and behavior, as detailed in petitioners sworn

statements, which no defendant denied in an affidavit.

The lower court ruled that with regard to the Plaintiffs Eighth Amendment


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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 inAdams 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 Rockafellowruling, 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 Jacksons claims arising from a dental injury separately were

remanded.1

Affirmance ended petitioners 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 Courts 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).


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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

Circuits interpretation of 1997e(e) could have permitted him to obtain relief not

available under the Sixth Circuits 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 noncompensatory 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).


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I.

The Circuits Interpretations of 1997e(e) Are Divided BetweenDenying 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 Petitioners claims

arising from a blanket intake stripsearch policy, and an allegedly abusive strip

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

our unpublished decision inAdams 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). (Appdx,

10a). InAdams, 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 stripsearch claims, based on

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

Adamsrejected all relief for claims related to successive strip searches of an

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

petitioners stripsearch claims were foreclosed outright, based on Adams, with all

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

1997e(e) precludes all relief when an inmates 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


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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 stripsearch 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 inmates 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 considerwhether 1997e(e) precludes his suit altogether ...[however] we haveexplained that 1997e(e) may limit the relief available to prisoners whocannot allege a physical injury, but it does not bar their lawsuits altogether

...[and though] 1997e(e) would bar recovery of compensatory damagesfor mental and emotional injuries suffered, the statute is inapplicable toawards of nominal or punitive damages for the Eighth Amendmentviolation 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 inmates stripsearch claims altogether, as was done here, and inAdams.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 inmates 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 citedHarden-Bey v. Rutter, 524 F.3d 789, 795 (6th

Cir. 2008),which says that 1997e(e) precludes any claim not involving a physical injury.


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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 prisoners 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

Circuits bar against an inmates 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 foraviolation 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 CitingAllah v. Al-Hafeez, 226 F.3d 247, 252 (3

rd 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 forviolation of that right.


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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 inmates intangible constitutional rights being violated.8

Elimination of all relief and redress for violations of inmates 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.3d1210, 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 1997e(e)'s limitation on damages does notdeny all redress for claims alleging a constitutional violation. 2001 WL 34095056.


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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 and 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 jail13;

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 (9

th 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 reliefand 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 allegingconstitutional 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, 127172 (11th Cir. 2007)(punitive damages ...areprecluded 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 thisstatute 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(8th Cir. 2005) (reversing where inmate alleged deprivation of food, and weight loss,


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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

Congresss 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 petitioners appeal brief was noted conflicts between the Sixth Circuits

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

because "physical injuries could result from such deprivation"); A plaintiff who hassuffered 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 asubstantial risk of causing Scarver serious physical and mental suffering, at 975).15 Cert. dend 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).


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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 petitioners 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 action18; 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 citedExpressio 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 unmistakablelanguage. 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 joinderof non-injury and physical injury claims meets the injury requirement of 1997e(e);

and, even afterJones 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).


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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 forde 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 Circuits 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 stripsearches, 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).


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Respectfully submitted,

19 NOV 2010 ________________________

Date: Charles Lee ThomasonAttorney for PetitionerSPALDING &THOMASON106 N. 4th St.Bardstown, KY 40004Tel. (502) 349-7227Thomason@spatlaw[dot]com

Petition for Certiorari, U.S. Supreme Court in Jackson v. Herrington, Jailer et al

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Transcript of Petition for Certiorari, U.S. Supreme Court in Jackson v. Herrington, Jailer et al