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Carter v. Allen

United States Court of Appeals, Eleventh Circuit

October 16, 2019

DEMETRUIS DELFON CARTER, Plaintiff - Appellant,
WARDEN MARTY ALLEN, Individually and in his official capacity, OFFICER ANDERSON, Individually and in his official capacity, OFFICER WESTLAKE, Individually and in his official capacity, OFFICER BARBER, Individually and in his official capacity, Defendants - Appellees, DEPUTY WARDEN CALVIN ORR, individually and in his official capacity, et al., Defendants.

          Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:15-cv-00013-HL-TQL


         BY THE COURT:

         A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

          WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc:

         I agree with our decision not to rehear this appeal en banc to overrule Al- Amin v. Smith, 637 F.3d 1192 (11th Cir. 2011), for a practical reason. As Chief Judge Carnes once explained, "when deciding whether to take the extraordinary step of going en banc," we should remember that "[o]ur role is to determine whether the plaintiff before the court is entitled to relief." Boxer X v. Harris, 459 F.3d 1114, 1116 (11th Cir. 2006) (Carnes, J., concurring in the denial of rehearing en banc). And nobody argues that Demetruis Carter is so entitled.

         To be sure, Carter and my dissenting colleague raise serious questions about our current interpretation of the "Limitation on recovery" subsection of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e). But even if our interpretation deserves to be reconsidered, the vehicle problems in this appeal make the issue academic. That is, even if we overruled Al-Amin, it would make no difference to Carter or to the judgment against his claim. Indeed, an en banc decision overruling Al-Amin in this appeal would either be an advisory opinion or, if not, would be as close to the line as we could possibly go without crossing it. And if the issues Carter has presented are exceptionally important, then surely there must be appeals in which they would matter to the outcome. If we are to reconsider our interpretation of section 1997e(e), we should do so in one of those appeals, not this one.

         Section 1997e(e) provides that "[n]o Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act." It is universally agreed that the words "action . . . for . . . injury suffered" refer to claims for damages, so this provision places a conditional limitation on the categories of damages that may be recoverable by prisoners.

         But as Carter explains in his petition for rehearing, our understanding of the scope of the limitation differs from that of our sister circuits in two ways. First, although four other circuits agree with us that section 1997e(e) bars compensatory damages for First Amendment claims unaccompanied by a showing of physical injury, see Geiger v. Jowers, 404 F.3d 371, 374-75 (5th Cir. 2005); Royal v. Kautzky, 375 F.3d 720, 722-23 (8th Cir. 2004); Searles v. Van Bebber, 251 F.3d 869, 875-76 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247, 250-51 (3d Cir. 2000), five others have held that First Amendment claims permit compensatory damages that redress the injury to the liberty interest itself-independent of any physical, mental, or emotional harm-and are, therefore, not subject to the limitation on recovery, see Wilcox v. Brown, 877 F.3d 161, 169-70 (4th Cir. 2017); Aref v. Lynch, 833 F.3d 242, 267 (D.C. Cir. 2016); King v. Zamiara, 788 F.3d 207, 212-13 (6th Cir. 2015); Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999); Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998). Second, we and one other circuit have held that the limitation on recovery governs all claims for punitive damages, see Al-Amin, 637 F.3d at 1199; Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998), but nine circuits have held that, as my dissenting colleague argues, the special deterrent role of punitive damages means that they are not "for . . . injury suffered," emotional or otherwise. See King, 788 F.3d at 216- 17; Kuperman v. Wrenn, 645 F.3d 69, 73 & n.5 (1st Cir. 2011); Hutchins v. McDaniels, 512 F.3d 193, 198 (5th Cir. 2007); Royal, 375 F.3d at 723; Calhoun v. DeTella, 319 F.3d 936, 941-42 (7th Cir. 2003); Oliver v. Keller, 289 F.3d 623, 629-30 (9th Cir. 2002); Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002); Searles, 251 F.3d at 881; Allah, 226 F.3d at 251-52.

         At present, I am not ready to stake a firm position about whether-or to what extent-our precedents are incorrect. It is not easy to say precisely what it means for a claim to be 'for' mental or emotional injury. To be confident in our answer, we would have to think carefully about the conceptual relationship between rights, injuries, and damages; conceivably, the correct application of section 1997e(e) might vary depending on the nature of the prisoner's claim. For example, I am inclined to agree with my dissenting colleague that punitive damages for violations of what the Supreme Court has called "'absolute' rights"- that is, those rights for which no proof of consequential harm is required to establish a violation, Carey v. Piphus, 435 U.S. 247, 266 (1978)-are not "for mental or emotional injury suffered" any more than are nominal damages in the same context. I am also inclined to agree that punitive damages for the violation of a nonabsolute right are not "for mental or emotional injury" when the harm necessary to establish a violation is not mental or emotional in nature. But some nonabsolute claims might require a different analysis. For instance, some claims might, by their very nature, require that the defendant have inflicted mental or emotional harm. And in those circumstances, where there can be no liability of any kind without proof of such harm, it seems plausible (but not certain) to me that even nominal and punitive damages might fairly be considered "for mental or emotional injury."

         Whatever the right answers to these questions may be, nothing that we could say about them in this appeal would make a difference to the parties. To see why, let us review the procedural history. After a jury returned a verdict that doomed his First Amendment retaliation claim, Carter raised two arguments that he was entitled to a new trial, both of which the panel correctly rejected.

         First, Carter challenged an allegedly erroneous jury instruction. Because Carter had not objected to the instruction at trial, we could not have granted a new trial on this ground without finding plain error. See Panel Op. at 10. The panel held that there was no error, plain or otherwise, see id., and my dissenting colleague does not quarrel with that holding.

         Second, Carter argued that the district court abused its discretion when it denied his motion for appointed counsel, but the panel persuasively explained that the district court made a reasonable decision. See Panel Op. at 14-18. And my dissenting colleague does not suggest that we should reconsider that holding.

         Separately, Carter argued that the district court erred when, following our precedents, it ruled before trial that he could not recover either compensatory or punitive damages because he had not alleged a physical injury. But Carter acknowledged-as he had to-that this issue mattered only if he was entitled to a new trial on at least one of the two grounds he advanced. As he puts it, "If Mr. Carter prevails on re-trial . . . [he] should be permitted to recover both compensatory and punitive damages."

         Because the panel had rejected both of Carter's arguments for a new trial, its discussion of the punitive-damages issue was arguably dictum. After all, that issue made no conceivable difference to the disposition of the appeal-the panel would have affirmed without remand even if it had agreed with Carter's remedial arguments and we had no binding precedent on point. True, to constitute a holding, a conclusion need not be absolutely necessary to the disposition, as the example of alternative holdings illustrates. See Bryan A. Garner et al., The Law of Judicial Precedent ยง 10, 122-25 (2016). But the punitive-damages issue in this appeal was more than superfluous; it was irrelevant to anything the panel had left to decide after concluding that Carter was not entitled to a new trial. In similar circumstances, we have often used the word "moot" to describe issues that, thanks to our ...

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