United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 1, 1998 Decided October 27, 1998
No. 97-7043
Michael Lee Davis,
Appellant
v.
District of Columbia and
Dwight Bynum, Corporal, Central Facility,
Appellees
United States of America,
Intervenor for Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00092)
Catherine E. Lhamon, argued the cause as amicus curiae
for appellant. With her on the briefs were Steven H. Gold-
blatt, appointed by the court, and Mary L. Clark.
Michael L. Davis, appearing pro se, was on the brief for
appellant.
Thomas M. Fisher argued the cause for appellees. With
him on the brief were John M. Ferren, Corporation Counsel,
Charles L. Reischel, Deputy Corporation Counsel, Lutz Alex-
ander Prager, Assistant Deputy Corporation Counsel, and
Mary L. Wilson, Assistant Corporation Counsel. Jo Anne
Robinson, Principal Deputy Corporation Counsel, entered an
appearance.
Frank W. Hunger, Assistant Attorney General, U.S. De-
partment of Justice, Wilma A. Lewis, U.S. Attorney, Barbara
L. Herwig and Deborah Ruth Kant, Attorneys, U.S. Depart-
ment of Justice, were on the brief for intervenor United
States of America.
Before: Wald, Williams and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Michael Lee Davis, an inmate of
D.C. Central Prison at Lorton, brought this action under 42
U.S.C. s 1983. He alleged that one Corporal Bynum, an
official of the District of Columbia Department of Correc-
tions, and the District of Columbia itself, violated his constitu-
tional right to privacy. According to his complaint, Bynum
broke the seal on the plaintiff's medical files and disclosed
their contents to others without the plaintiff's consent, alleg-
edly saying that Davis was dying of HIV. In his complaint,
Davis alleged resulting emotional and mental distress, but no
other injury. He sought compensatory and punitive damages
as well as declaratory relief. Pursuant to 28 U.S.C. s 1915A,
the district court dismissed the complaint sua sponte, for
failure to state a claim on which relief could be granted. In
doing so it relied on 42 U.S.C. s 1997e(e), s 803(d) of the
Prison Litigation Reform Act ("PLRA"), enacted as Title
VIII of the Omnibus Consolidated Rescissions and Appropria-
tions Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996).
That provision, "Limitation on Recovery," states:
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.
42 U.S.C. s 1997e(e).
Davis appeals from the district court's dismissal, arguing
primarily that s 1997e(e) violates his right to equal protection
and unduly burdens his Fifth Amendment right of access to
the courts. He also says that the district court erred in
dismissing his complaint sua sponte, without granting him
leave to amend his complaint to allege physical injuries. We
appointed amicus curiae to argue these issues on behalf of
plaintiff. We affirm.
I. Constitutionality of s 1997e(e)
Davis contends that s 1997e(e) violates his right to equal
protection because its prohibition on recovery for emotional
or mental injury absent a prior showing of physical injury
substantially burdens his ability to vindicate his right to
privacy. Thus he invokes the familiar taxonomy in which
classifications that disadvantage a suspect class or impinge on
the exercise of a fundamental right are subject to strict
scrutiny, while classifications that do neither are subject only
to review for rationality. Plyler v. Doe, 457 U.S. 202, 216-17
(1982). Here the central claim is that Davis's right to privacy
is a "fundamental right" within the meaning of the above
concept, and that it was unconstitutionally invaded when
Corporal Bynum broke the seal on his file and disclosed his
medical condition to outsiders. We will assume as much for
purposes of argument. Because s 1997e(e) does not suffi-
ciently impinge on the hypothetical right, it does not deprive
Davis of equal protection even under that assumption.
In addressing the constitutional issue, the parties offer
sharply contrasting readings of the statute. Davis claims
that it cuts a wide swath, eliminating even actions for injunc-
tive or declaratory relief where plaintiff alleges emotional
injury without prior physical injury (thereby enhancing the
likelihood of its being unconstitutional). The District, plus
the United States as intervenor (pursuant to 28 U.S.C.
s 2403), argue for a narrow reading, saying that s 1997e(e) is
merely a limitation on damages, thus preserving actions for
injunctive and declaratory relief based on emotional injury.
We agree with the District and the United States that the
provision has little or no bearing on declaratory or injunctive
actions.
First, the text of the statute refers to injuries "suffered,"
the past tense suggesting the statute's inapplicability to
claims based on the threat of prospective injury, as would be
the case for claims for declaratory or injunctive relief. But
more critical is the fact that suits for declaratory and injunc-
tive relief against the threatened invasion of a constitutional
right do not ordinarily require proof of any injury other than
the threatened constitutional deprivation itself. As we have
held previously, there is a " 'presumed availability of federal
equitable relief against threatened invasions of constitutional
interests.' " Hubbard v. EPA, 809 F.2d 1, 11 (D.C. Cir. 1986)
(quoting Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388, 404 (1971) (Harlan, J., concurring)). Although a
plaintiff seeking equitable relief must show a threat of sub-
stantial and immediate irreparable injury, see O'Shea v.
Littleton, 414 U.S. 488, 502 (1974), a prospective violation of a
constitutional right constitutes irreparable injury for these
purposes. Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987).
Thus, we agree with the District that the statute does not
materially thwart actions for injunctions or declaratory judg-
ments, for the simple reason that a plaintiff's ability to claim
such relief is normally independent of any injury other than
the threatened loss of the constitutional right. This reading
accords with that of the Seventh Circuit in Zehner v. Trigg,
133 F.3d 459 (7th Cir. 1997), which construed s 1997e(e) as
limiting only the damage remedy, leaving injunctive relief in
place. Id. at 461-64.
Concluding that s 1997e(e) has no restrictive effect on
claims for declaratory or injunctive relief, we next turn to
whether its limitation on damages actions sufficiently im-
pinges on the alleged privacy right, assuming it to exist and
qualify as fundamental within the meaning of equal protection
doctrine. It is clear at the outset that the Constitution does
not mandate a damages remedy for all injuries suffered as a
result of a constitutional violation. In Bush v. Lucas, 462
U.S. 367 (1983), for example, Congress had provided an
elaborate set of remedies for civil service employees, reme-
dies covering the constitutional violations alleged but not
including compensation for consequential damages, specifical-
ly attorneys' fees and "emotional and dignitary harms." Id.
at 372 n.9. Despite this deficiency the Court regarded Con-
gress's scheme as a "special factor[ ] counseling hesitation,"
and accordingly declined to infer a damages remedy under
Bivens v. Six Unknown Named Agents of the Federal Bu-
reau of Narcotics, 403 U.S. 388 (1971). The Court observed
that the question of judicial creation of a remedy could
"obviously" not "be answered by simply noting that existing
remedies do not provide complete relief for the plaintiff."
462 U.S. at 388.
Similarly, in Schweiker v. Chilicky, 487 U.S. 412 (1988), the
Court declined to imply a Bivens remedy for people who were
improperly denied Social Security disability benefits, alleged-
ly as a result of due process violations. It noted that "exactly
as in Bush, Congress has failed to provide for 'complete
relief': respondents have not been given a remedy in dam-
ages for emotional distress or for other hardships suffered
because of delays in their receipt of Social Security benefits."
Id. at 425. The Court acknowledged that "a Bivens remedy
would obviously offer the prospect of relief for injuries that
must now go unredressed." Id. But it distinguished the
cases where Bivens actions were implied as ones where
"there were no 'special factors counselling hesitation in the
absence of affirmative action by Congress,' no explicit statuto-
ry prohibition against the relief sought, and no exclusive
statutory alternative remedy." Id. at 421. As in Bush it
found the congressional provision of remedies a "special
factor" counseling the judiciary not to create remedies. Id. at
428. See also Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir.
1988) (holding that "special factors" preclude creation of
Bivens remedy for civil service employees and applicants who
advance constitutional challenges to federal personnel ac-
tions).
Of course a constitutionally permissible curtailment of rem-
edies might still constitute enough of an impingement on the
assumed fundamental right to trigger strict scrutiny. But
here the remaining remedies are ample. Persons who are
subjected to an on-going threat of unconstitutional conduct
may sue for injunctive or declaratory relief, and of course
ones with a qualifying physical injury may sue for damages.
Davis, to be sure, is evidently not such a person. But for
legislation to impinge on a right sufficiently to require strict
scrutiny, it must "directly and substantially" interfere with
the right. Lyng v. Castillo, 477 U.S. 635, 638 (1986) (house-
hold definitions for purposes of food stamp eligibility do not
sufficiently impinge on rights of association to require strict
scrutiny). Cf. Zehner, 133 F.3d at 462 ("the Constitution
does not demand an individually effective remedy for every
constitutional violation."). Here we do not see that the
preclusion of backward-looking relief in cases where the
wrong causes only mental and emotional injury, and there is
no prior physical injury, could be said to "directly and sub-
stantially" interfere with the exercise of the hypothetical
right. Any effect of s 1997e(e) on the ability and willingness
of prisoners to exercise any constitutional right to privacy in
information about themselves is very likely to be marginal
and incidental. That Davis is not among the plaintiffs whose
claims survive speaks more to the slightness of his injury
than to any great severity in the congressional curtailment of
remedies. The impingement on the hypothesized fundamen-
tal right could be found severe enough to trigger strict
scrutiny only under a view of impingement so sweeping as to
imperil much legislation.
Having rejected strict scrutiny, we review s 1997e(e) under
the rational basis standard, inquiring whether it is rationally
related to a legitimate government interest. New Orleans v.
Dukes, 427 U.S. 297, 303 (1976). The legitimacy of the
interest in cutting back meritless prisoner litigation appears
obvious, as we have already recognized. Tucker v. Branker,
142 F.3d 1294, 1300 (D.C. Cir. 1998). In the course of the
PLRA's enactment legislators made frequent references to
the scope of such litigation. Senator Dole, who sponsored the
bill in the Senate, noted that the number of due process and
cruel and unusual punishment claims filed by prisoners each
year grew from 6,600 in 1975 to over 39,000 in 1994. 141
Cong. Rec. s 14413 (daily ed. Sept. 27, 1995). Prisoners'
litigiousness has greatly exceeded that of the general popula-
tion. In the state of Arizona, for example, the 20,000 inmates
filed almost as many lawsuits in 1994 as the state's 3.5 million
other residents. Id.
Plaintiff argues, however, that s 1997e(e) fails rational
basis review because it singles out prisoners without regard
to the likely merit of their claims. But in Tucker we noted
that prisoners face unusual incentives: there are far fewer
competing demands on their time than on the time of the
general population (in the language of economics, the oppor-
tunity costs of litigation are lower). The risk of their using
the time to file frivolous lawsuits is correspondingly higher.
142 F.2d at 1300-01. Just as there we found that these
special incentives and the poor success rate of their lawsuits
justified a special filing fee rule for prisoners, the same
factors establish the rational basis for curtailment of prisoner
suits that depend entirely on claims of emotional or mental
injury.
In addition to his equal protection claim, Davis argues that
s 1997e(e) denies prisoners their right to meaningful access
to courts, in violation of the Fifth Amendment. That prison
inmates have a constitutional right of access to courts is well-
established. Lewis v. Casey, 518 U.S. 343, 350-51 (1996);
Bounds v. Smith, 430 U.S. 817, 828 (1977); Tucker v. Brank-
er, 142 F.3d at 1297. But the right is only to "a reasonably
adequate opportunity to present claimed violations of funda-
mental constitutional rights to the courts." Lewis, 518 U.S.
at 351 (quoting Bounds, 430 U.S. at 825). A congressional
adjustment of remedies which satisfies generally applicable
constitutional limitations, should not, simply because it applies
to prisoners, turn into an invalid restriction of the "right of
access" to courts. The "right of access" cases protect prison-
ers from being unduly hampered in litigation by their incar-
ceration; they provide no doctrinal support for affording
them heightened judicial scrutiny over congressional power to
define remedies.
II. The Propriety of the District Court's
Sua Sponte Dismissal
Plaintiff also asserts that the district court failed to con-
strue his pro se complaint liberally, and as a result improper-
ly dismissed his complaint sua sponte with prejudice under 28
U.S.C. s 1915A. Section 1915A requires the district court to
dismiss a case sua sponte if, in reviewing the complaint before
the defendant answers, the court finds that the complaint fails
to state a claim upon which relief could be granted. 28
U.S.C. s 1915A(b)(1). We review such dismissals de novo.
Taylor v. FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997). Here as
a matter of law plaintiff cannot prevail on any of his claims--
his conventional damage claim, his claim for punitive dam-
ages, or his claim to declaratory relief.
The claim to compensatory damages is directly barred by
s 1997e(e), as Davis has alleged no compensable injury. Car-
ey v. Piphus, 435 U.S. 247, 255 (1978) (damages other than
nominal damages require compensable injury). Nor do we
think the punitive claim can survive. Amicus argues that
because punitive damages are awarded to punish the tortfea-
sor rather than to compensate the victim, they are not
embraced by s 1997e(e). But s 1997e(e) draws no such
distinction. It simply prevents suits "for" mental injury
without prior physical injury. As the purposes of compensa-
tory awards themselves are multifaceted (including, for exam-
ple, deterrence), it can hardly be the case that, when a suit
alleges only mental or emotional injury, the presence of
additional purposes makes a suit not "for" the injuries al-
leged. Further, much if not all of Congress's evident intent
would be thwarted if prisoners could surmount s 1997e(e)
simply by adding a claim for punitive damages and an asser-
tion that the defendant acted maliciously.
As for plaintiff's claim for declaratory relief, it lacks what is
necessary for standing to assert any claim to forward-looking
relief--some allegation from which one might infer a "real
and immediate" threat that the alleged wrong will recur.
Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987) (finding
the requirement as applicable to declaratory judgment as to
injunctive actions). Not only does Davis fail to allege any
District policy leading to Bynum's alleged conduct, but his
own brief explicitly claims that the conduct violated District
rules. And while Davis has claimed that the District failed to
properly train and supervise Bynum, it is quite a leap from
any such deficiency to a finding that Davis is likely again to
be subject to the same conduct. Nor does Davis suggest any
further reason to expect a repetition by the alleged perpetra-
tor here, Bynum. Indeed, his brief argues that Bynum's
motive was to disrupt the relationship between Davis and his
fiancee (the person to whom Bynum allegedly made the
disclosure), a purpose which, the District points out, is now
completely exhausted.
Amicus contends that the plaintiff's allegations also set
forth sufficient facts to show a violation of his rights under
the public entity provision of the Americans with Disabilities
Act, 42 U.S.C. s 12132, and the Rehabilitation Act, 29 U.S.C.
s 794, even though the plaintiff never specifically mentioned
those provisions. Amicus's theory here disregards the impact
of s 1997e(e). Assuming the alleged facts would be sufficient
to state a claim under those provisions, s 1997e(e) precludes
claims for emotional injury without any prior physical injury,
regardless of the statutory or constitutional basis of the legal
wrong. And to the extent that any declaratory relief might
be available under these provisions, again his claim runs
aground on the lack of any serious threat of repetition.
At oral argument the issue of a possible claim for nominal
damages arose--plaintiff's prayer for relief at the district
court was exclusively for compensatory and punitive damages,
and for declaratory relief. The violation of certain constitu-
tional rights, characterized by the Supreme Court as "abso-
lute," Carey, 435 U.S. at 266, will support a claim for nominal
damages without any showing of actual injury. Id. at 266-67.
The interpretive issue posed by s 1997e(e) is clearly harder
here than for punitive damages. The theory of such a lawsuit
itself dispenses with any need for injury other than the
deprivation of the right itself (as we noted in the case of suits
for injunctive or declaratory relief), and prisoners are pre-
sumably a good deal less likely to embark on a lawsuit if
there is no prospect of a pecuniary reward. But Davis never
sought nominal damages. Nor do his or amicus's submissions
to this court ever mention a claim to nominal relief. We
would thus confront the issue only if we strained to find
inferences that are not available on the face of the complaint
or in the briefs submitted to this Court, and we think such
straining inappropriate. Coates v. Illinois State Bd. of Educ.,
559 F.2d 445, 447 (7th Cir. 1977). Accordingly, giving the
plaintiff the benefit of all the inferences to which he is
entitled, we still find nothing in his complaint that can survive
the pleading stage.
Davis also contends that the district court erred when it
sua sponte dismissed his complaint with prejudice, giving him
no chance to amend his complaint. He argues that if given
such a chance he could allege facts that could remove his
claims from the bar of s 1997e(e). Specifically, he relies on
an affidavit by a psychiatrist asserting that Davis experienced
weight loss, appetite loss, and insomnia after the disclosure of
his medical status, which he says would qualify as "physical
injury" under s 1997e(e). But adding these assertions would
not help his case. Both the explicit requirement of
s 1997e(e) that the physical injury be "prior," and the statu-
tory purpose of discouraging frivolous suits, preclude reliance
on the somatic manifestations of emotional distress Davis
alleges. Cf. Terrafranca v. Virgin Atlantic Airways, Ltd.,
151 F.3d 108 (3rd Cir. 1998) (holding that physical manifesta-
tion of emotional injury was not "bodily injury" under Article
17 of the Warsaw Convention); Plaisance v. Texaco, Inc., 937
F.2d 1004, 1009 (5th Cir. 1991) (noting that for negligent
infliction of emotional distress, physical injury or impact rule
permits recovery for emotional injury only if there is some
physical contact). Under our cases, where a trial court has
dismissed a claim sua sponte under Rule 12(b)(6) without
affording plaintiff an opportunity to replead, a remand is
appropriate unless " 'the claimant cannot possibly win re-
lief.' " Baker v. Director, United States Parole Comm'n, 916
F.2d 725, 726 (D.C. Cir. 1990) (per curiam) (quoting Omar v.
Sea-Land Serv., 813 F.2d 986, 991 (9th Cir. 1987). This can
be true either because, as in Baker, the facts alleged affirma-
tively preclude relief, or because, even though plaintiff makes
clear that he has facts to add to his complaint, he would not
have a claim upon which relief could be granted even with
those facts. Because s 1997e(e) precludes plaintiff's recovery
here even with the facts he proposes to add, remand would be
futile.
III. Conclusion
In short, we hold that s 1997e(e) did not violate the plain-
tiff's right to equal protection or his right of access to courts.
We affirm the District Court's sua sponte dismissal of the
complaint with prejudice.
So ordered.