from the United States District Court for the Middle District
of Georgia D.C. Docket No. 7:15-cv-00013-HL-TQL
ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM
PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH,
and GRANT, Circuit Judges.
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:
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.
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.
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.
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.
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."
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.
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
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.
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."
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 § 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