Smith v. Peters

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-1013

A NTHONY L. S MITH,
Plaintiff-Appellant,
v.

G ILBERT P ETERS, et al.,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:09-cv-101-RLY-WGH—Richard L. Young, Chief Judge.

S UBMITTED N OVEMBER 4, 2010—D ECIDED JANUARY 19, 2011

Before P OSNER, W OOD , and W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. Anthony Smith, an Indiana
state prisoner, filed this civil rights suit which charges
that prison employees had violated the Eighth Amend-
ment by forcing him to work at hard labor in dangerous
conditions, and had violated the First Amendment by
penalizing him for questioning the propriety of the work
assignment and preparing to sue. He seeks damages.
He also seeks injunctive relief, but that claim is moot
because he’s been moved to a different prison. The dis-
2 No. 10-1013

trict court dismissed the complaint for failure to state
a claim.
Smith was assigned to uproot tree stumps. Workers
on the stump crew were forced, the complaint alleges
(and since the complaint was dismissed on its face, we
take its allegations to be true, though of course without
vouching for their truth), to work in “freezing cold” with
axes, pickaxes, and shovels and without having re-
ceived any safety instruction or protective gear—not
even gloves. Stump-crew workers are alleged to be at
risk of getting hit by the blades of their tools because
the heads of the tools slip from their handles as the pris-
oners hack away without proper training. Smith de-
veloped blisters from handling these heavy tools in the
cold without gloves.
He filed grievances with prison officials complaining
about the hazards that members of the stump crew face.
The prison eventually responded by transferring him to
a recreational job, but also, he claims, retaliated against
him by limiting his access to the law library and firing
him from his new job on the pretext that he was using
the law library during the hours in which he was sup-
posed to be working in the new job.
The district court dismissed the Eighth Amendment
claim, insofar as it complained about failure to provide
gloves for outdoor work in cold weather, on the ground
that Smith’s blisters were nothing more than “the usual
discomforts of winter” rather than deprivations of the
“minimal civilized measure of life’s necessities,” and
brushed off his fear of dangerous working conditions
No. 10-1013 3

because it was, the court ruled, a claim of emotional or
psychological injury, which is not actionable unless the
result of a physical injury. 42 U.S.C. § 1997e(e). The
court did not discuss the First Amendment claim.
Although no one much likes to work out of doors
during the winter, the normal discomfort that such work
involves does not make the work cruel and unusual
punishment. But that is provided that the worker is
properly clothed. Smith does not specify the tempera-
ture in which he was working without gloves and
got blisters on his hands but it was during the winter
of 2008-2009, and the average temperature at the loca-
tion of the Branchville Correctional Facility in Indiana
where he was imprisoned was only 29.6 degrees
Fahrenheit in January (it was 35.2 in December, 38.8
in February, and 50.2 in March); on January 16 it
plunged to -7.
“The Eighth Amendment ‘forbids knowingly compel-
ling an inmate to perform labor that is beyond the
inmate’s strength, dangerous to his or her life or health, or
unduly painful.’ ” Ambrose v. Young, 474 F.3d 1070, 1075
(8th Cir. 2007). It forbids forcing prisoners to “perform
physical labor which is beyond their strength, endangers
their lives or health, or causes undue pain.” Berry v.
Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (per curiam).
Failure to provide a prisoner required to work out of
doors with minimal protective clothing, obviously in-
cluding gloves, can therefore violate the Eighth Amend-
ment, as countless cases have found. See, e.g., Knight v.
Wiseman, 590 F.3d 458, 463 (7th Cir. 2009); Gillis v. Litscher,
4 No. 10-1013

468 F.3d 488, 493 (7th Cir. 2006); Dixon v. Godinez, 114 F.3d
640, 642 (7th Cir. 1997); Murphy v. Walker, 51 F.3d 714, 720-
21 (7th Cir. 1995); Bibbs v. Early, 541 F.3d 267, 272 (5th Cir.
2008); Spencer v. Bouchard, 449 F.3d 721, 728 (6th Cir.
2006); Palmer v. Johnson, 193 F.3d 346, 352-53 (5th Cir. 1999).
The “usual discomforts of winter” to which the
district judge referred do not include handling heavy
tools with gloveless hands in subzero weather. Our
prison system is not the gulag. Smith’s blisters could
have been caused by his handling the stump removal
tools without gloves, or could even have been precursors
to or consequences of frostbite—the record does not
say. But the allegations of the complaint are sufficient
to preclude dismissal for failure to state a claim.
Smith’s allegations regarding the hazardous work
environment to which he was subject present an
Eighth Amendment claim that is distinct from the claim
we’ve just been discussing. There is a difference be-
tween experiencing actual pain or injury, on the one
hand (conceivably including a “condition not injurious
in itself but likely to ripen eventually into a palpable
physical injury,” a matter left unresolved in Robinson v.
Page, 170 F.3d 747, 749 (7th Cir. 1999)), and being
subjected to hazards merely threatened, on the other.
Because Smith was transferred to another prison before
such dangers as being struck by an axe blade occurred,
he could not seek either injunctive relief or (because
“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
No. 10-1013 5

without a prior showing of physical injury,” 42 U.S.C.
§ 1997e(e)) compensatory damages.
This limitation on the relief available in prisoner suits
charging violations of the Eighth Amendment is con-
stitutionally permissible. Zehner v. Trigg, 133 F.3d 459, 461-
62 (7th Cir. 1997); Harris v. Garner, 216 F.3d 970 (11th
Cir. 2000) (en banc), reinstating 190 F.3d 1279, 1288-90
(11th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342,
1346-48 (D.C. Cir. 1998). But this does not make actual
physical injury “a filing prerequisite for the federal action
itself.” Calhoun v. Detella, 319 F.3d 936, 940 (7th Cir. 2003);
see also Helling v. McKinney, 509 U.S. 25, 33 (1993); Cassidy
v. Indiana Dep’t of Corrections, 199 F.3d 374, 376-77 (7th Cir.
2000); Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000).
Prison officials who recklessly expose a prisoner to a
substantial risk of a serious physical injury violate his
Eighth Amendment rights, and therefore are subject to
those remedies that are not barred by section 1997e(e)—
injunctive relief of course (unless as in this case an in-
junctive claim is moot) but also nominal and even (most
courts have ruled) punitive damages. E.g., Calhoun v.
Detella, supra, 319 F.3d at 940-41; Hutchins v. McDaniels, 512
F.3d 193, 198 (5th Cir. 2007) (per curiam); Mitchell v. Horn,
318 F.3d 523, 533 (3d Cir. 2003); Royal v. Kautzky, 375
F.3d 720, 723 (8th Cir. 2004); Thompson v. Carter, 284
F.3d 411, 418 (2d Cir. 2002); but see Harris v. Garner, supra;
Davis v. District of Columbia, supra, 158 F.3d at 1348.
The district court’s failure to address Smith’s First
Amendment claim was another error. If the facts alleged
in the complaint are true, which has yet to be deter-
6 No. 10-1013

mined, he was punished for complaining about mistreat-
ment, and such punishment is an infringement of the free-
speech rights, limited as they are, of prison inmates.
The judgment is reversed and the case remanded
for further proceedings consistent with this opinion.

1-19-11