Harris v. Garner

Frederick Lamar HARRIS, Danny Chadwick, et. al., Plaintiffs-Appellants,

v.

Wayne GARNER, Commissioner of the Georgia Department of Corrections, A.G. Thomas, Director of
Facilities Division of the Georgia Department of Corrections, et. al., Defendants-Appellees,

United States of America, Intervenor-Appellee.

No. 98-8899.

United States Court of Appeals,

Eleventh Circuit.

June 27, 2000.

Appeal from the United States District Court for the Middle District of Georgia.(No.97-00079-5-CV-4-HL),
Hugh Lawson, Judge.

Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK,
CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.

CARNES, Circuit Judge:

In an effort to stem the flood of prisoner lawsuits in federal court, Congress enacted the Prison

Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"). One of the provisions

of the PLRA states that:

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. § 1997e(e). We granted rehearing en banc in this case to decide whether the provision applies to

lawsuits that are filed while the plaintiff is a confined prisoner but which are not decided until after he is

released from confinement. We hold it does.

I. BACKGROUND

The factual and legal background of this case is set forth in some detail in the panel opinion, Harris

v. Garner, 190 F.3d 1279, vacated, reh'g granted en banc, 197 F.3d 1059 (11th Cir.1999), and we will not

repeat it at length here. Suffice it to say that eleven inmates of a Georgia prison filed a lawsuit claiming that

their federal constitutional rights had been violated during a prison "shakedown." All eleven of them were
confined in the prison when the lawsuit was filed, but by the time the district court entered judgment

fifteen-and-a-half months later six of the inmate plaintiffs had been released from confinement.1 The district

court nonetheless applied section 1997e(e) to bar those six prisoners' claims for monetary relief, because they

had not alleged the requisite physical injury.

A panel of this Court reversed the district court's judgment insofar as it applied section 1997e(e) to

the monetary claims of those six plaintiffs, see Harris, 190 F.3d at 1284-85, but we granted rehearing en banc,

see Harris, 197 F.3d 1059 (11th Cir.1999), which vacated the panel opinion. We now reinstate all of the

panel opinion except for Part III A, which is the part that concerns this issue, and except for Part IV, the

Conclusion, insofar as it relates to this issue. For the reasons that follow, we affirm the district court's

judgment in part and vacate and remand it in part.

II. DISCUSSION

A. The Plain Language of the Statute

We begin our construction of section 1997e(e) where courts should always begin the process of

legislative interpretation, and where they often should end it as well, which is with the words of the statutory

provision. See United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir.1999) (citing United States v. Steele,

147 F.3d 1316, 1318 (11th Cir.1998) (en banc) ("In construing a statute we must begin, and often should end

as well, with the language of the statute itself.") (citations omitted)); see also Connecticut Nat'l Bank v.

Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) ("[I]n interpreting a statute

a court should always turn first to one, cardinal canon before all others," which is "that courts must presume

1
The lawsuit was filed on March 10, 1997, and judgment was entered on June 24, 1998. The six plaintiffs
who were released from confinement during that interval are Danny Chadwick, Lenois Cook, William Dailey,
Frederick Harris, Willie Hooks, and Farrell Nation. See Harris, 190 F.3d at 1283. The other five plaintiffs
were still confined when judgment was entered in the district court but, according to the plaintiffs' brief, some
of them have been released since then. All eleven of the plaintiffs are jointly represented in this appeal, but
their counsel does not argue that any of those who were released after the date of the district court's judgment
are, because of their release, free from the restrictions of section 1997e(e). Our references hereafter to
"plaintiffs" are to those six who were released before the date of the district court's judgment, but the
reasoning and holding of this opinion obviously apply as well to those who were released thereafter.

2
that a legislature says in a statute what it means and means in a statute what it says there;" and "[w]hen the

words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.")

(citations and marks omitted).

Insofar as the issue before us is concerned, the operative language of section 1997e(e) is "No federal

civil action may be brought by a prisoner confined ...," and the loadbearing word is "brought," a derivative

of the verb "bring" in the third person singular, passive voice. The dispositive question is whether "bring"

means to commence or start a lawsuit, or instead means to maintain or continue it to conclusion.2

The standard legal dictionary answers that question as follows: "To 'bring' an action or suit has a

settled customary meaning at law, and refers to the initiation of legal proceedings in a suit." Black's Law

Dictionary 192 (6th ed.1990); accord 5 Words and Phrases, "Begun" (1968) (defining "begun" or "brought"

to mean "commenced"). That is the generally accepted meaning of the term, and this is not the first time we

have had occasion to say so. In EEOC v. Eastern Airlines, Inc., 736 F.2d 635, 639 (11th Cir.1984), we were

called upon to interpret section 7(c)(1) of the Age Discrimination in Employment Act, which provides that

the right of any person "to bring" a private action under that statute terminates upon the commencement of

an enforcement action by the EEOC. The defendant in the case argued that "to bring" means filing or

continuing a lawsuit, so that once the EEOC starts an enforcement action, section 7(c)(1) bars a private

plaintiff from continuing a previously filed lawsuit. See id. at 639. We rejected that position, agreeing

instead with the Second Circuit's decision in Burns v. Equitable Life Assurance Soc. of the U.S., 696 F.2d 21,

23 (2d Cir.1982), that "the words 'to bring' mean only 'to commence,' rather than to 'commence or maintain.'

" See EEOC, 736 F.3d at 639-40. The same is true here.

2
The panel opinion focuses on the definition of "prisoner" in section 1997e(h): "the term 'prisoner' means
any person incarcerated or detained in any facility ..." See 190 F.3d at 1294. But it matters not if we
characterize the status question in terms of whether the plaintiff is a prisoner, or in terms of whether the
plaintiff is confined. Under the PLRA a confined plaintiff is a prisoner, and a plaintiff who is not confined
is not a prisoner. The question is whether section 1997e(e) covers a plaintiff who is a confined prisoner at
the time the lawsuit is filed but who becomes a non-confined, former prisoner by the time judgment is
entered. As we explain in the text, the answer lies in the plain meaning of the word "bring."

3
 The Supreme Court has reached an identical conclusion about the meaning of "bring" and "brought."

Hoffman v. Blaski, 363 U.S. 335, 341, 80 S.Ct. 1084, 1089, 4 L.Ed.2d 1254 (1960), involved 28 U.S.C. §

1404(a), the venue provision which permits the transfer of "any civil action to any other district or division

where it might have been brought." The argument was made that because the statute is remedial, the words

" 'where it might have been brought' should be held to relate not only to the time of the bringing of the action,

but also to the time of the transfer." See id. at 342, 80 S.Ct. at 1089. The Supreme Court rejected that

position, in large part because the statutory language was "unambiguous, direct [and] clear," id. at 343, 80

S.Ct. at 1089, and interpreting "might have been brought" to refer to anything other than the time the lawsuit

was filed would "do violence to the plain words" of the statute. Id. at 344, 80 S.Ct. at 1090. The same is true

here.

This is not new ground. The Supreme Court first broke it one hundred and seventeen years ago, when

it had occasion to apply a legislative requirement that a lawsuit be "brought within 90 days after the decision"

of a government official. The Court said this:

A suit is brought when in law it is commenced, and we see no significance in the fact that in the
legislation of congress on the subject of limitations the word "commenced" is sometimes used, and
at other times the word "brought." In this connection the two words evidently mean the same thing,
and are used interchangeably.

Goldenberg v. Murphy, 108 U.S. 162, 163, 2 S.Ct. 388, 389, 27 L.Ed. 686 (1883). The same is true here:

"brought" means "commenced."

The decisions we have laid out show that for more than a century before the enactment of the PLRA,

it was well established that "brought" and "bring" refer to the filing or commencement of a lawsuit, not to its

continuation. This long history of established meaning is important, because we readily presume that

Congress knows the settled legal definition of the words it uses, and uses them in the settled sense. See

Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 159, 113 S.Ct. 2006, 2011-12, 124 L.Ed.2d

71 (1993) (explaining that Congress is presumed to be aware of settled judicial and administrative

interpretations of words when it writes them into a statute); Alabama v. Tennessee Valley Authority, 636 F.2d

4
1061, 1065 (5th Cir.1981) ("When a word has a judicially settled meaning, it is presumed that Congress, by

using that word in a statute, used it in that accepted sense.") (citation omitted).

The meaning that we give section 1997e(e)'s "may be brought"—the plain and ordinary meaning of

the words—is also mandated by our recent decision about the meaning of "shall be brought" as that phrase

is used in another section of the same legislation. Congress included in the PLRA an administrative

exhaustion requirement which provides that "No action shall be brought with respect to prison conditions ...

until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added).

In Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir.1999), we interpreted the word "brought" in section

1997e(a) to mean the filing of the lawsuit, holding: "An inmate incarcerated in a state prison, thus, must first

comply with the grievance procedures established by the state department of corrections before filing a federal

lawsuit under section 1983." (emphasis added). Indeed, the panel opinion in this case agrees with that

interpretation. See Harris, 190 F.3d at 1286 (holding that the "brought" language in section 1997e(a) "means

that a prisoner must exhaust all administrative remedies that are available before filing suit ....") (emphasis

added).

The language we have quoted from the Miller decision establishes that "brought," as used in section

1997e(a)'s "No action shall be brought ..." language means filed. And the same word means the same thing

in section 1997e(a)'s "No federal civil action shall be brought ..." language. See Atlantic Cleaners & Dyers

v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932) ("[T]here is a natural

presumption that identical words used in different parts of the same act are intended to have the same

meaning."); Doctors Hosp., Inc. of Plantation v. Bowen, 811 F.2d 1448, 1452 (11th Cir.1987) ("A

presumption is made that the same words used in different parts of an act have the same meaning.").

Our interpretation of section 1997e(e) is also consistent with the decisions of other courts of appeal

which have interpreted that and similarly worded other provisions of the PLRA. In Kerr v. Puckett, 138 F.3d

321, 322-23 (7th Cir.1998), the Seventh Circuit held that application of the section 1997e(e) bar depends on

5
the confinement status of the plaintiff at the time the lawsuit was commenced. The Kerr case involved a

prisoner who was no longer confined at the time he filed the lawsuit, having already been released on parole.

Based on the plain language of the statute, the Seventh Circuit concluded that Congress intended to exclude

the possibility "that 'prisoner' refers to the plaintiff's status at the time of the injury rather than at the time the

litigation begins." Id. at 323. The Court held section 1997e(e) did not apply, because "Kerr brought the suit

after he had been released on parole and was therefore no longer 'confined in a jail, prison, or other

correctional facility.' " Id. at 322. Only because Kerr was not confined at the time he filed his lawsuit did

the Seventh Circuit hold that section 1997e(e) did not apply.

Under the reasoning in Kerr, the Seventh Circuit would reach the opposite result, and the same one

we do here, where the plaintiff was confined when he filed the lawsuit. It is confinement status at the time

the lawsuit is "brought," i.e., filed, that matters. The same rule of decision has been applied by the other

circuits that have had occasion to speak to the issue. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999)

("Appellees acknowledge that Greig was a parolee at the time he filed his complaint ....") (emphasis added);

Doe v. Washington County, 150 F.3d 920, 924 (8th Cir.1998) ("When he filed this complaint, Doe was neither

incarcerated nor detained in any jail, prison, or correctional facility.") (emphasis added). Plaintiffs have been

unable to cite a single decision of any district court or court of appeals holding that section 1997e(e) turns

upon the confinement status of the plaintiff at any time other than the time the lawsuit is filed.

Not only is our conclusion about the meaning of "brought" reinforced by the decisions of the other

circuits that have interpreted section 1997e(e), it is also consistent with decisions of the circuits that have

interpreted "brought" and "bring" as those words are used in other provisions of the PLRA. Several of those

decisions concern the PLRA's "three strikes" section. That section, codified as 28 U.S.C. § 1915(g), provides

that a prisoner may not "bring a civil action or appeal" in forma pauperis if he has on three or more occasions

brought an action or appeal that was dismissed on grounds it was frivolous, malicious, or failed to state a

claim, unless the prisoner is under imminent danger of serious physical injury.

6
 The words "bring a civil action or appeal" in section 1915(g) have been held to mean the filing of a

suit or appeal, not its continuation. See Chandler v. D.C. Dept. of Corrections, 145 F.3d 1355, 1359

(D.C.Cir.1998). ("[W]e hold that the phrase 'appeal a judgment' in subsection (g) refers to the initiation of

an appeal," and "the phrase 'bring a civil action' means to initiate a suit."); Banos v. O'Guin, 144 F.3d 883,

885 (5th Cir.1998) ("In order to implement this statutory scheme, we must determine if danger exists at the

time the plaintiff seeks to file his complaint or notice of appeal IFP.") (emphasis in original); Ashley v.

Dilworth, 147 F.3d 715, 717 (8th Cir.1998) ("As the statute's use of the present tense verbs 'bring' and 'is'

demonstrates, an otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at

the time of filing.") (emphasis in original); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996)

(holding that section 1915(g) "governs bringing new actions or filing new appeals—the events that trigger

an obligation to pay a docket fee—rather than the disposition of existing cases").

Decisions interpreting 28 U.S.C. § 1915(b)(1), the PLRA's full payment provision, are also relevant.

That section states: "if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall

be required to pay the full amount of a filing fee." 42 U.S.C. § 1915(b)(1). Two of the three circuits which

have interpreted that "bring" language have held it means the provision applies to prisoners who were

confined when they filed a notice of appeal even though they were released before their appeal was decided.

In Gay v. Texas Dept. of Corrections State Jail Div., 117 F.3d 240, 242 (5th Cir.1997), the Fifth Circuit,

"[b]ased on the plain language of § 1915(b)(1)" and that Court's "desire to put some teeth into the PLRA's

front-end deterrent," held that the filing fee requirement applied to a former prisoner, because when he filed

an appeal he was confined, even though he was released before his appeal was decided. That he "was

released from prison after he filed his notice of appeal is irrelevant," the Fifth Circuit concluded. Id. The

Seventh Circuit reached the same conclusion in Robbins v. Switzer, 104 F.3d 895, 897-98 (7th Cir.1997)

("Robbins was a prisoner when he filed ..., and therefore is obligated to pay. His current status does not alter

the fact that he was a prisoner when he filed the appeals."). But see McGann v. Comm'r, Social Security

7
Administration, 96 F.3d 28 (2d Cir.1996) (reaching the opposite conclusion); see also id. at 30-31 (Miner,

J., dissenting) ("My dissent is compelled by the simple and familiar principle that when the language of a

statute is plain and enacted within the constitutional authority of Congress, as it is here, the sole function of

the courts is to enforce it according to its terms.") (internal marks and citation omitted).

In expressing its intent about which civil actions section 1997e(e) bars, Congress said it bars those

federal civil actions "brought by a prisoner confined," not those continued by, or litigated to judgment by a

prisoner confined. Cf., W.J. Lake & Company v. King County, 4 Wash.2d 651, 104 P.2d 599 (Wash.1940)

(interpreting the statutory phrase "the court before whom such action is brought" and holding: "The statute

cannot be extended beyond its plain terms. Had the word 'pending' been used, instead of brought, a different

question would be presented. This action was not 'brought' before this court.") The plaintiffs and the

dissenting opinion, in effect, ask us to rewrite the clear and unequivocal language Congress used, so that it

will read: "No federal civil action may be brought by a prisoner confined ... except if he is no longer confined

at the time judgment is entered in the case." (emphasized language added). That is exactly how the provision

would read if it meant what they say it does. If Congress had wanted to weaken the section 1997e(e) bar by

adding that exception, it easily could have done so. We will not do to the statutory language what Congress

did not do with it, because the role of the judicial branch is to apply statutory language, not to rewrite it. See

Badaracco v. Commissioner, 464 U.S. 386, 398, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984) ("Courts are not

authorized to rewrite a statute because they might deem its effects susceptible of improvement."); Blount v.

Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971) ("it is for Congress, not this Court, to

rewrite the statute"); Korman v. HBC Florida, Inc., 182 F.3d 1291, 1296 (11th Cir.1999) ("It is not the

business of courts to rewrite statutes.").3

B. The Congressional History

3
The dissenting opinion labels our interpretation of the plain language of section 1997e(e) "judicial
activism," a label which would more aptly apply to an interpretative approach that writes language into a
statute. Our interpretation neither adds anything to nor subtracts anything from the statutory language.

8
 When the import of the words Congress has used is clear, as it is here, we need not resort to

legislative history, and we certainly should not do so to undermine the plain meaning of the statutory

language. See United States v. Gonzales, 520 U.S. 1, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997) ("Given

the straightforward statutory command, there is no reason to resort to legislative history."); Ratzlaf v. United

States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 662, 126 L.Ed.2d 615 (1994) ("There are, we recognize, contrary

indications in the statute's legislative history. But we do not resort to legislative history to cloud a statutory

text that is clear."); Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 1391, 118 L.Ed.2d 39(1992)

("To begin, we note that appeals to statutory history are well taken only to resolve statutory ambiguity.");

United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc) ("Where the language Congress chose

to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent because we must

presume that Congress said what it meant and meant what it said.").

Notwithstanding that well-recognized and bedrock principle, sometimes judges who find that

legislative history supports and complements the plain meaning of statutory language cannot resist the

temptation to set out that history. We have given in to that temptation more than once. See, e.g., United

States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir.1999) ("Given the plain meaning of the statutory language,

we could bypass any consideration of legislative history. Nevertheless, for the sake of completeness, and

because this is our first occasion to decide a Hyde Amendment case, we will look at that history.") (internal

marks and citations omitted). We find the temptation to set out the legislative history of the PLRA

irresistible—even though the plain meaning of the statutory language in section 1997e(e) makes it

irrelevant—because we want to correct what we believe is a misreading or misapplication of that legislative

history in the panel opinion, see Harris, 190 F.3d at 1284-85, and in the dissenting opinion.4

4
The dissenting opinion takes us to task for discussing the legislative history as it reflects the clear
Congressional purpose behind section 1997e(e), and charges that it is inconsistent for us to point out that the
legislative history reinforces our conclusion about the plain meaning of the statutory language. See
Dissenting Op. at 2762-63. So long as legislative history is not used to contradict the plain meaning of the
statutory language, we see no inconsistency in pointing out that both the statutory language and legislative

9
 The panel opinion says that "Congress manifestly wanted to draw a bright line distinction between

those who are prisoners, and those who are not prisoners." Id. at 1284-85. That statement is true as far as

it goes, of course, but the question is when did Congress want a plaintiff's status as a prisoner or non-prisoner

to be determined for purposes of the PLRA's restrictive provisions. The legislative history of the PLRA

shows that Congress was concerned with the number of prisoner cases being filed, and its intent behind the

legislation was to reduce the number cases filed, which is why Congress made confinement status at the time

of filing the decisive factor.

Congress' concern and intent is reflected in the floor statements of Senators Dole and Kyl, two of the

principal architects of the PLRA.5 Their statements reveal that it was the filing of the prisoner lawsuits that

Congress viewed as a problem and set about to solve. See 141 Cong. Rec. S14408-01, S14413 (daily ed.

Sept. 27, 1995) (statement of Sen. Dole) (explaining that the number of prisoner suits filed "has grown

astronomically—from 6,600 in 1975 to more than 39,000 in 1994."); 141 Cong. Rec. S7498-01, S7524 (daily

ed. May 25, 1995) (statement of Sen. Dole) ("Frivolous lawsuits filed by prisoners tie up the courts, waste

valuable judicial and legal resources, and affect the quality of justice enjoyed by the law-abiding population.")

(emphasis added); 141 Cong. Rec. S14408-01, S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Kyl)

("Today's system seems to encourage prisoners to file with impunity.") (emphasis added).

history lead to the same interpretative result. Besides, if there were any inconsistency in relying upon both
the statutory language and legislative history, the panel opinion would not have done it, see 190 F.3d at 1284-
85, nor would the dissenting opinion do it, see Dissenting Op. at 2761-62, 2765-66.
5
The evolution of the legislative language itself provides little guidance. In its original form, the
provision that would become section 1997e(e) limited recovery in civil actions brought "by an adult convicted
of a crime confined in a jail, prison, or other correctional facility." S. 866, 104th Cong. 1st Sess. § 7A (1995).
The remarks during floor debate are more important than usual, as this Court has explained: "[B]ecause
Congress enacted [the] PLRA as a rider to an appropriations bill, floor debate is more indicative of legislative
intent than it otherwise would be, especially where the floor statements in favor of the bill remain
uncontested." Alexander v. Hawk, 159 F.3d 1321, 1325 n. 8 (11th Cir.1998) (internal marks and citations
omitted). The statements of Senators Dole and Kyl are due special consideration, because they, along with
Senators Hatch, Hutchison, and Abraham, were the architects of the PLRA. See 142 Cong. Rec. S3703-01,
S3704 (daily ed. April 19, 1996).

10
 Confined prisoners have little to lose by filing frivolous lawsuits, and that is why Congress made the

confinement status of the plaintiff at the time a lawsuit is filed the controlling factor. See 141 Cong. Rec.

S7498-01, S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl) ("Filing frivolous civil rights lawsuits has

become a recreational activity for long-term residents of our prisons.") (emphasis added); 141 Cong. Rec.

S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen. Dole) ("[P]risoners will now 'litigate at the drop

of a hat,' simply because they have little to lose and everything to gain." (quoting Chief Justice Rehnquist)).

As the Seventh Circuit has explained, "Congress deemed prisoners to be pestiferous litigants because they

have so much free time on their hands and there are few costs to filing suit." Kerr v. Puckett, 138 F.3d at 323.

The distinction between current and former prisoners makes sense for that reason, and because "[o]pportunity

costs of litigation rise following release, diminishing the need for special precautions against weak suits."

Id.; see also Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir.1999) ("[I]t is certainly conceivable that, because

of significant potential gains and low opportunity costs, prisoners generally file a disproportionate number

of frivolous suits as compared to the population as a whole."); Tucker v. Branker, 142 F.3d 1294, 1301

(D.C.Cir.1998) (noting that "prisoners have a lower opportunity cost for their time than other indigent (and

in all likelihood, non-indigent) litigants").

Congress made confinement status at the time of filing the criterion, because that is the point at which

the difference in opportunity costs was causing the problem Congress was trying to solve: the large number

of filings. See generally Christiansen v. Clarke, 147 F.3d 655, 658 (8th Cir.1998) ("Because prisoners, even

under the PLRA, initially pay a reduced filing fee (they receive, in effect, an interest free loan to pay the full

filing fee), see 28 U.S.C. § 1915(b), and because prisoners have excessive amounts of free time on their

hands, they are more likely than paying plaintiffs to file meritless suits.") (emphasis added). Given the

legislation's overriding goal of reducing the number of prisoner cases filed, it would have made little or no

sense for Congress to have made confinement status at any time after filing determinative.

11
 In considering why Congress chose to peg the application of section 1997e(e) on confinement status

at the time of filing, it is worth mentioning that confinement status can change several times during the course

of the months or years it takes the overburdened district courts to enter judgment in a case. Consider this

hypothetical and how episodic the application of section 1997e(e) would be if post-filing confinement status

were the criterion: A plaintiff is confined when he files the lawsuit (the section applies); shortly thereafter

he is released on parole (the section no longer applies); later he is picked up and jailed on a parole violation

charge (the section applies again); he bails out after a few days (the section no longer applies); but after a

hearing his parole is revoked, and he is returned to prison (the section applies again).6 No one has yet

explained to us why Congress would have wanted the application of an important provision, such as section

1997e(e), to be such an on-again, off-again thing.

6
The dissenting opinion at 2772 n. 18 dismisses our hypothetical as "somewhat exotic." To the contrary,
the latest information shows that more than 694,000 prisoners are on parole in this country. See Thomas P.
Bonczar & Lauren E. Glaze, U.S. Dept. of Justice, Probation and Parole in the United States, 1998 5 (1999).
Many are arrested and incarcerated for parole violations, then make bail, and so forth. Indeed, in the latest
year for which statistics are available, over 155,000 of the nation's state prisoners were parole violators. See
Robyn L. Cohen, U.S. Dept. of Justice, Probation and Parole Violators in State Prisons, 1991 2 (1995).
Although no bail statistics are available, for those 155,000 potential plaintiffs there was at least initial
incarceration, release from incarceration, and return to incarceration.

Thus, our parole violation hypothetical describes a situation occurring with far greater
frequency than the "even worse scenario" upon which the dissent relies: a scenario where a prisoner
has filed a claim for monetary damages, has gotten past a motion to dismiss on the physical injury
requirement, has gotten past summary judgment on that issue, and goes to trial on that issue but is
released before judgment is entered against him on it. See Dissenting Op. at 2772. If the inmate is
not released until after judgment is entered against him on the physical injury issue then the dissent's
scenario is not a criticism of our interpretation of § 1997e(e), because everyone (including the
dissent) agrees that § 1997e(e) applies with full force where judgment is entered before the release,
even if by only a day. Moreover, the criticism the dissenting opinion attempts to mount through use
of its scenarios would not apply even where the inmate was released before judgment, unless the
inmate had not suffered any physical injury. All agree that the § 1997e(e) bar has no application at
all where there is physical injury. The only cases that fit the dissent's "even worse scenario" are those
in which the plaintiff has not suffered any physical injury but nonetheless makes it past a motion to
dismiss on that issue, then makes it past a summary judgment motion on that issue, then loses at trial
on that issue, but is released before judgment is entered. That is truly a "somewhat exotic"
hypothetical.

12
 Last year alone, there were 3,465 prisoner lawsuits filed in the district courts of this circuit. See

Admin. Office of the U.S. Courts, Statistical Tables for the Federal Judiciary, Table C-3, 34-35 (for the

twelve-month period ending June 30, 1999).7 As this case illustrates, it often takes more than a year after

filing for judgment to be entered by the district court in such a case. The best figures available indicate that

more than 47,000 state and federal prisoners were released from confinement in this circuit in the most recent

twelve-month period.8 Many of the tens of thousands of prisoners who are released from confinement each

year in this circuit alone undoubtedly have federal lawsuits pending at the time of their release. The

magnitude of the problem illustrates the wisdom of Congress' deliberate decision to draw the confinement

line—with plain and unequivocal language—where it did in section 1997e(e), which is at the point of filing.

We have no authority to move that line.9

7
The statistic we cite does not include 28 U.S.C. §§ 2241, 2254, and 2255 filings, because they are not
covered by the PLRA. See Anderson v. Singletary, 111 F.3d 801, 805 (11th Cir.1997) ("Congress
promulgated the PLRA to curtail prisoner tort, civil rights and conditions litigation, not the filing of habeas
corpus petitions.")
8
The state corrections departments and the Federal Bureau of Prisons have different reporting years, but
using the most recently completed reporting year for each, the figures are as follows: 8,421 state prisoners
were released from confinement in Alabama, see Alabama Dep't of Corrections, Monthly Reports
(Oct.1998—Sept.1999 data); 15,213 state prisoners were released from confinement in Georgia, see Georgia
Dep't of Corrections, Inmate Statistical Profile—Prison Departures (1998); 23,025 state prisoners were
released from confinement in Florida, see Florida Dep't of Corrections, Inmate Releases, Annual Report
(1999); and 1,508 inmates were released from confinement in federal prisons in this circuit in calendar year
1999 (federal release figures obtained from the Southeast Regional Office of the Federal Bureau of Prisons).

9
The dissenting opinion constructs elaborate, multi-premised scenarios in an effort to show how its
approach would yield better policy results than the one we think Congress embodied in section 1997e(e). See
Dissenting Op. Part III at 2770-72. There are many flaws to the reasoning underlying the dissent's scenarios.
To begin with, one of its essential factual premises is that a substantial number of prisoners who file
complaints that fall within the scope of the provision will make it past a motion to dismiss, and past summary
judgment to trial on the physical injury issue. Not only that, but the dissent posits that they will be released
before judgment is entered. See Dissenting Op. at 2771. That sounds to us like an unlikely scenario. See
supra, at 2741 n. 6. The dissent cannot point to anything in this record or elsewhere that indicates those facts
are likely to occur with any regularity. Those facts do not represent the typical case, or this case, either.
These six plaintiffs were all released before the magistrate judge had even made any recommendation on the
Rule 12(b)(6) motion to dismiss the complaint under section 1997e(e). Nor is there any apparent basis for
the dissent's assumption that in the typical case a substantial amount of effort will be invested in determining

13
 Because section 1997e(e) applies only to claims filed while an inmate is confined, it does not prevent

a former prisoner from filing after release a monetary damages claim for mental and emotional injury suffered

while confined, without a prior showing of physical injury. Accordingly, dismissal under this statutory

provision of a claim that is filed during confinement should be without prejudice to re-filing the claim if and

when the plaintiff is released. See Zehner v. Trigg, 952 F.Supp. 1318, 1335 (S.D.Ind.1997) (dismissal

without prejudice of section 1997e(e) barred claim), aff'd, 133 F.3d 459 (7th Cir.1997). Some, but not all,

claims will be re-filed after the plaintiff is released, and more total effort may well be required to adjudicate

those particular claims that are re-filed than if the section 1997e(e) bar did not exist. But the provision

whether the plaintiff has suffered physical injury. Here, that question was decided in a motion to dismiss,
and even if the case had gone to summary judgment, there is no reason to believe that much effort would have
been required to determine whether there was a triable issue of physical injury.

A second problem with the dissent's reasoning relating to the scenarios it puts forward is that
the very same reasoning argues just as strongly against application of section 1997e(e) in situations
to which the provision indisputably does apply. All the effort the dissent's scenarios posit also will
have been spent in those cases in which the claim for monetary relief is held to be barred under
section 1997e(e) in a judgment entered before the inmate plaintiff is released. Yet, no one disputes
that if the judgment is entered before the plaintiff is released, section 1997e(e) applies with full force,
and that is true even if the release happens just after judgment or while the case is on appeal. See
supra, at 2734 n. 1. Yet, according to the dissent's reasoning, all of that adjudication of the physical
injury issue will have been a total waste, see Dissenting Op. at 2750 ("the awful burden"), because
it predicts the case will be re-filed after the plaintiff's release and the monetary damages claim will
have to be re-litigated free of the physical injury requirement of section 1997e(e). See Dissenting
Op. at 2772 ("All of the court's work in determining whether the plaintiff suffered physical injury will
have been for naught, because physical injury will no longer be an element of the plaintiff's claim.").
Thus, it appears that the dissenting opinion's stated policy disagreement applies equally to any
application of section 1997e(e).

A third defect with the dissent's posited scenarios and reasoning is that its fundamental
premise is at war with the congressional premise behind section 1997e(e). The dissent's scenarios
assume, without any basis, that all or most plaintiffs who file complaints while incarcerated and have
them dismissed under section 1997e(e) will re-file those complaints after they are released. That is
the only way that there will be the duplication of effort and "the awful burden" on the system the
dissent fears. Yet, as we all agree, the congressional judgment behind section 1997e(e) is that
because of a difference in opportunity costs, a released inmate is far less likely to file a lawsuit than
an incarcerated inmate. See Harris, 190 F.3d at 1284-85; supra, at 2739-41; Dissenting Op. at
2765-66. The dissenting opinion's scenarios and the assumptions underlying them reveal that the
dissent's disagreement with our position is actually a disagreement with what we believe to be the
policy decisions and attendant judgments Congress made in enacting section 1997e(e).

14
reflects Congress' belief that because of the difference in opportunity costs, a substantial number of such

claims will not be re-filed after release and that will result in a significant net savings to the judicial system.

That is the judgment Congress made about what the difference in opportunity costs between inmates and

former inmates would mean, and it is the judgment underlying section 1997e(e).

C. The Purported Amendment or Supplement

The panel opinion says that after these six plaintiffs were released, and before the district court

entered judgment against them, the court permitted them to amend the complaint to indicate their new status

as former prisoners. That, according to the panel opinion, makes all the difference and allows these plaintiffs

to escape the section 1997e(e) bar. See Harris, 190 F.3d at 1284. We are not entirely convinced that the

complaint was actually amended in that or any other way.10 The panel opinion had no doubt there was an

amendment. Now, the dissenting opinion says that there is no doubt that there was not an amendment, but

a supplement. It appears that the requirements of Rule 15(d) were not met.11 But we are convinced that any

10
No motion to amend the complaint was filed, and neither the magistrate judge nor the district court said
the complaint had been amended. The plaintiffs did file a motion to withdraw their request for injunctive
relief, which simply acknowledged that there was no longer any need for an injunction in view of their
release. But the court did not formally rule on that motion. Instead, the magistrate judge (whose
recommendations were adopted by the district court without relevant change) concluded: "These plaintiffs
cannot obtain monetary relief because they alleged only mental or emotional injuries and their injunctive
claims are moot since they have been released from prison." [R & R at 5]. The claims were dismissed with
prejudice.
11
The rule provides that a supplement to the pleadings may be permitted "[u]pon motion of a party."
Fed.R.Civ.P. 15(d). There was no motion to supplement the pleadings. The rule also says that the court may
permit a supplement "upon reasonable notice." Id. We can hardly say that the defendants had reasonable
notice that a supplement to the pleadings was being considered when the first time it occurred to anyone that
it was a Rule 15(d) supplement to the pleadings is when the case reached the en banc stage of appeal. The
thought that a Rule 15(d) supplement was involved apparently never occurred to the parties in the district
court, to the district judge, or to the panel judges. The rule also charges the district court with conditioning
permission to supplement the pleadings upon "such terms as are just." Id.; see also Fed. R.. Civ. P. 15(d)
advisory committee note ("As in other situations where a supplemental pleading is offered, the court is to
determine in the light of the particular circumstances whether filing should be permitted, and if so, upon what
terms.") The district court did not do what the rule requires a court to do before permitting a supplemental
pleading, apparently because the court was not aware that it was being requested to permit a supplement to
the pleadings.

15
such amendment or supplement is irrelevant to the application of section 1997e(e), and so we will assume

for purposes of discussion that before judgment was entered against the plaintiffs the complaint was amended

or supplemented to reflect that they had been released from confinement after they filed the lawsuit.

The reason such an amendment or supplement makes no difference is that, for all of the reasons we

have already discussed, the confinement status of the plaintiffs at any time after the lawsuit is filed is beside

the point. The status that counts, and the only status that counts, for purposes of section 1997e(e) is whether

the plaintiff was a "prisoner confined in a jail, prison, or other correctional facility" at the time the federal

civil action was "brought," i.e., when it was filed. It is an undisputed historical fact that all of these plaintiffs

were confined in a Georgia prison or correctional facility at the time their complaint was filed. No

amendment or supplement to a pleading can change a historical fact, and the one in question did not purport

to do so. The amendment or supplement did not deny that these six plaintiffs had been confined prisoners

at the time the lawsuit was filed. All it noted was that they had been released since the lawsuit was filed

which, of course, means that they were no longer "prisoner[s] confined." But that change in their status after

the lawsuit was filed is irrelevant under section 1997e(e).

As we have discussed, the intent of Congress behind section 1997e(e) was to reduce the number of

prisoner lawsuits filed, and specifically to reduce the number that are filed because the opportunity costs of

filing a lawsuit are lower for an incarcerated plaintiff than for one in the free world. The opportunity costs

of filing a lawsuit do not change after it has been filed. That is why the release of an inmate after he has filed

a lawsuit is irrelevant for purposes of section 1997e(e).12

12
The opening and penultimate paragraphs of the dissenting opinion characterize our holding as being
that the district court properly dismissed the complaint under section 1997e(e) "even though that section no
longer applies to plaintiffs because they are no longer prisoners within the meaning of the Act," Dissenting
Op. at 2749 & 2774. Of course anyone would dissent from a holding that a statute was properly applied to
cases to which it no longer applies. That is not what we hold. Instead, as explained in the text above, we hold
that because these plaintiffs were incarcerated at the time they filed their complaint, section 1997e(e) applies
to them even though they were later released before any judgment was entered in the case. Or to put it in the
same terms the dissenting opinion uses, we hold that the district court properly dismissed the complaint
because section 1997e(e) does apply to it.

16
 The opposing position essentially treats section 1997e(e) as if Congress had been concerned not with

the opportunity costs of filing a lawsuit, but instead with the opportunity costs of continuing an already filed

lawsuit. Only if that were true would an amendment or supplement noting that the plaintiff had been released

after filing the lawsuit make any difference. But most of the damage to the overburdened system is already

done, or put in motion, after the lawsuit is filed. That is why Congress made the operative fact the plaintiff's

status at the time of filing, not status at the time the lawsuit is decided. We know Congress did that, because

it said: "No federal civil action may be brought by a prisoner confined ..." (emphasis added), and as we have

explained "brought" means filed; it does not mean continued or maintained after filing. Congress chose its

words and we will heed them.

The difference between our position and that of the dissenting opinion is crystalized in its proposition

that a prisoner who files his claim in direct contravention of section 1997e(e) while he is incarcerated ought

to be allowed to continue with that claim after release, because "[p]risoners who are released while their suit

is still pending immediately begin to face the same opportunity costs of prosecuting their action as everyone

else." Dissenting Op. at 2766. Congress could have written the statute to focus on the opportunity costs of

prosecuting actions, but it did not. Instead, Congress aimed at the opportunity cost of filing actions. That

is clear in the language Congress used to express its will ("brought," not "prosecuted" or "continued"), and

in the legislative history, see 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen.

Dole) ("Frivolous lawsuits filed by prisoners tie up the courts, waste valuable judicial and legal resources,

and affect the quality of justice enjoyed by the law-abiding population.") (emphasis added); 141Cong. Rec.

S14408-01, S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Kyl) ("Today's system seems to encourage

prisoners to file with impunity.") (emphasis added).

If there were a conflict between Federal Rule of Civil Procedure 15 and the PLRA, the rule would

have to yield to the later-enacted statute to the extent of the conflict. See Mitchell v. Farcass, 112 F.3d 1483,

1489 (11th Cir.1997) (a PLRA case) ("a statute passed after the effective date of a federal rule repeals the rule

17
to the extent that it actually conflicts." (quoting and adopting the holding of Jackson v. Stinnett, 102 F.3d 132,

135 (5th Cir.1996))); Floyd v. United States Postal Serv., 105 F.3d 274, 278 (6th Cir.1997). But there is no

conflict. In proper circumstances and when the requirements contained in Rule 15 are met, the rule does

permit amendments or supplements to pleadings in order to bring to the attention of the court changes in the

facts, but other law—in this instance section 1997e(e)—determines whether those changes in the facts make

any difference. As we have said, the change in the facts (the post-filing release of the plaintiffs) that this

purported amendment or supplement brought to the attention of the court makes no difference whatsoever

under section 1997e(e).

Rule 15(d) does authorize a court to permit a party to supplement a pleading "even though the

original pleading is defective in its statement of a claim for relief or defense." But that rule does not and

cannot overrule a substantive requirement or restriction contained in a statute (especially a subsequently

enacted one). The decisions the dissenting opinion relies upon are distinguishable. None of them involved

a statutory purpose and requirement that the plaintiff be made to bear the differential opportunity cost of a

re-filing in order to discourage filings, which is what section 1997e(e) is all about. In none of those decisions

would the purpose behind the statutory requirement be defeated by treating subsequently occurring facts as

though they had occurred before the complaint was filed. That is the situation we would have here, and it

was not present in any of the decisions upon which the dissenting opinion is based.

Take, for example, Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). The

statutory requirement that an applicant for Social Security benefits commence a civil action within sixty days

after the mailing of the decision which is being appealed, see 42 U.S.C. § 405(g), is obviously intended to

do what all filing deadlines do—ensure that the action is promptly filed while the facts and issues are fresh,

and bring to the process to a close sooner instead of later. One of several plaintiffs in that case had joined

in a civil action challenging an eligibility provision before he had actually filed an application with the

Secretary of the Department of Health, Education, and Welfare. The Supreme Court held that plaintiff's

18
subsequent filing of the application sufficed, and that the Secretary "could waive the exhaustion requirements

which this provision contemplates" and had done so in that case. Id. at 75-76, 96 S.Ct. at 1889. As the

Supreme Court explained, "For jurisdictional purposes, we treat the [Secretary's] stipulation in the District

Court as tantamount to a decision denying the application and as a waiver of the exhaustion requirement."

Id. at 76-77, 96 S.Ct. at 1890.

The defendants in our case have stipulated away or waived nothing about section 1997e(e). More

fundamentally, permitting the plaintiff in Mathews to join a civil action early, which is what happened in that

case, does not undermine the statutory purpose that an action be filed promptly, and the sooner the better.

Allowing that plaintiff to proceed was in keeping with a statutory purpose. See id. at 75 n. 9, 96 S.Ct. at 1889

n. 9. By contrast, in this case permitting the plaintiffs to proceed would undermine the statutory purpose of

prohibiting these types of claims from being filed by prisoners with nothing but time on their hands.

The other supplemental pleading cases the dissenting opinion relies upon are distinguishable in the

same way as Mathews. In all of them Rule 15(d) was used to further the statutory purpose involved, not to

defeat it. At the risk of being repetitive, the statutory purpose behind section 1997e(e) is to prevent prisoners

from filing a certain type of claim, and to require that they shoulder the differential opportunity costs of filing

that type of claim in the free world if they are released.

An analogy may be useful to illustrate our point here. It is well established that the only citizenship

of the original parties that matters for purposes of determining whether diversity jurisdiction exists is their

citizenship at the time the lawsuit is filed; any changes in a party's citizenship that occur after filing are

irrelevant. See Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858, 860, 112

L.Ed.2d 951 (1991); Wichita R.R. & Light Co. v. Public Utilities Comm'n of Kansas, 260 U.S. 48, 54, 43

S.Ct. 51, 53, 67 L.Ed. 124 (1922) ("Jurisdiction once acquired on that ground is not divested by a subsequent

change in the citizenship of the parties."). That is the substantive law. If an amendment or supplement to the

pleadings is offered to show that the citizenship of one of the original parties has changed since the lawsuit

19
was filed, that amendment or supplement should be denied as futile. The reason it should be denied as

futile—and the reason it will make no difference if permitted—is that the parties' citizenship at the time of

filing determines that legal issue, which is whether diversity of jurisdiction exists. There is no conflict

between the law that citizenship at the time of filing governs for diversity purposes and the liberal allowance

of amendments or supplements to the pleading under Rule 15; it is simply that the change in the facts which

the amendment or supplement in our diversity jurisdiction hypothetical seeks to bring to the court's attention

is irrelevant under the governing law. The same is true here.

The dissenting opinion points out that the present case is not a diversity case. See Dissenting Op. at

2759-60, n. 11. That is true, but neither is it a social security case or a copyright case, or any of the other

kinds of cases involved in the decisions the dissent relies upon. See id. at 2757-59. The dissenting opinion

places particular reliance upon a copyright case, M.G.B. Homes, Inc. v. Ameron Homes, 903 F.2d 1486 (11th

Cir.1990), and it quotes with approval how that opinion swept aside the district court's lack of jurisdiction

with the statement that it "was, at most, technically without jurisdiction." Dissenting Op. at 2758 (quoting

903 F.2d at 1489). That is a problematic approach given the fact that virtually all jurisdictional rules and

issues are "technical." But we do not have the copyright pre-filing registration requirement at issue before

us, so we do not pass upon the continuing validity of the panel decision in M.G.B. Homes. Suffice it to say

that to the extent, if any, M.G.B. Homes supports the dissent's position, it is to that extent inconsistent with

the Supreme Court's subsequent decision in Freeport-McMoRan, which we have already discussed, and we

are guided by that Supreme Court decision.

In closing out our discussion of this issue, we express our appreciation to the dissenting opinion for

its candor in acknowledging that by bringing this type of claim while incarcerated these six plaintiffs have

clearly violated section 1997e(e). As the dissenting opinion acknowledges: "The question is not, what is the

meaning of the word 'brought.' It is, instead, what happens when a plaintiff violates section 1997e(e) by

bringing a federal civil action while in custody, but is later released, and seeks to supplement his pending

20
complaint to reflect the fact of his release? In other words, what is the remedy for plaintiff's violation of the

statute?" Dissenting Op. at 2753-54 (emphasis in original). The answer, according to the dissenting opinion,

is that there is no remedy for such a violation of the statute. Instead, the violation is to be treated as though

it never occurred and the plaintiff is not to be sanctioned in any way for the violation—not even by being

forced to re-file the claim after release. We disagree, because we do not think the way to enforce

congressional enactments is by removing any burden, inconvenience, or expense from those who violate

them.

D. Application to Constitutional Claims

We turn now to one final matter. Under the guise of seeking to avoid what they describe as "serious

constitutional questions," the plaintiffs ask us, in effect, to rewrite section 1997e(e) by construing it not to

apply to constitutional claims. The panel at least implicitly held that section 1997e(e) does apply to

constitutional claims, see Harris, 190 F.3d at 1286, and for three reasons we agree. First, the "avoidance"

canon of construction plaintiffs rely upon applies where there is ambiguous statutory language, see Southlake

Property Associates, Ltd. v. City of Morrow, Georgia, 112 F.3d 1114, 1119 (11th Cir.1997), and here there

is none. Section 1997e(e) unequivocally states that "No Federal Civil Action may be brought ...," 42 U.S.C.

§ 1997e(e) (emphasis added), and "no" means no. The clear and broad statutory language does not permit

us to except any type of claims, including constitutional claims. See Cassidy v. Indiana Dep't of Corrections,

199 F.3d 374, 376 (7th Cir.2000) (rejecting the contention that section 1997e(e) does not apply to

constitutional claims, and after quoting the first four words of the provision, explaining that "[i]n light of this

plain language, we will not carve out exceptions for which Congress did not provide."). Courts should not

employ the canon of construction that ambiguous statutory language is to be construed to avoid constitutional

questions as a pretext for rewriting clear statutory language. See Commodity Futures Trading Comm'n v.

Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 3251, 92 L.Ed.2d 675 (1986) ("It is equally true, however, that

this canon of construction does not give a court the prerogative to ignore the legislative will in order to avoid

21
constitutional adjudication," and a court "must not and will not carry this [canon] to the point of perverting

the purpose of a statute or judicially rewriting it.") (internal marks and citation omitted).

Second, as we have already discussed, the legislative history of the PLRA clearly shows that its

purpose is to substantially reduce the number of prisoner lawsuits. See supra, at 2740-41. That purpose could

never be attained if constitutional claims were not covered by the restrictive provisions, because the

overwhelming majority of prison lawsuits raise one or more constitutional claims. Construing section

1997e(e) to be inapplicable to constitutional claims would render it virtually meaningless.

Third, the constitutional issues plaintiffs ask us to rewrite the statute to avoid were decided against

them by the panel opinion in this case, see Harris, 190 F.3d at 1287-90, and we have reinstated that part of

the opinion as the law of this circuit. See also Davis v. District of Columbia, 158 F.3d 1342, 1345-48

(D.C.Cir.1998) (rejecting constitutional challenges to section 1997e(e)).

III. CONCLUSION

When plaintiffs Chadwick, Cook, Dailey, Harris, Hooks, and Nation brought this "federal civil

action," they were each a "prisoner confined in a jail, prison, or other correctional facility." For that reason,

and notwithstanding the fact that each of them was released from confinement before the district court entered

judgment against them, 42 U.S.C. § 1997e(e) applies with full force and effect to them. Accordingly, the

judgment of the district court is affirmed, except to the extent that it dismissed with prejudice under section

1997e(e) the claims of those six plaintiffs for monetary relief. To that extent only, the judgment is vacated

and remanded with directions that the monetary relief claims of those six plaintiffs that are barred solely

because of section 1997e(e) are to be dismissed without prejudice to their being re-filed at a time when the

plaintiffs are not confined.

AFFIRMED in part and VACATED and REMANDED in part.13

13
We decide only the issues that we have expressly addressed and imply no view about any other issue.

22
 ANDERSON, Chief Judge, concurring specially:

I concur in the result, and in much of the reasoning of the majority. I agree with the majority that the

statutory language evinces a congressional purpose to discourage, indeed to bar, a prisoner from bringing a

suit for mental or emotional injury suffered while in custody without a prior showing of physical injury. I

do not believe that it is contrary to the statutory language to routinely dismiss such suits, even if the prisoner

has been released after the filing of the suit. Indeed, I believe dismissal would be the appropriate action in

most such circumstances; and that dismissal would best serve the congressional language and purpose.

However, I agree with the dissent that Fed.R.Civ.P. 15(d) would provide some discretion in a district

judge to entertain a supplemental pleading setting forth the fact of a prisoner's release, and to avoid dismissing

a case under some of the more unusual circumstances described by the dissent. In my judgment, a district

court should exercise such discretion only rarely (for example, when a prisoner had a colorable claim of

physical injury which has been tried to a jury and when a dismissal would involve a manifest waste of judicial

resources).

Because it is clear to me that the instant case is not one in which the district judge would exercise

discretion to avoid dismissal, a remand would be futile. Accordingly, I concur in the judgment affirming the

district court.

TJOFLAT, Circuit Judge, concurring in part and dissenting in part in which BIRCH, BARKETT and
WILSON, Circuit Judges, join:

The majority states that Congress enacted 42 U.S.C. § 1997e(e) (passed as part of the Prison

Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) (codified in scattered sections of

42 U.S.C. & 28 U.S.C.) (the "PLRA")) "[i]n an effort to stem the flood of prisoner lawsuits in federal court."

Ante at 2734. The majority opinion, however, will do just the opposite. For this reason, and because the

majority's interpretation of section 1997e(e) cannot be reconciled with either the text of the statutory

provision, or the congressional purpose, I dissent from the court's holding that the district court properly

23
dismissed plaintiffs' complaint under section 1997e(e) of the PLRA,1 even though that section no longer

applies to plaintiffs because they are no longer prisoners within the meaning of the Act.2

Today the court holds that a district court lacks discretion to allow a former prisoner to supplement

his complaint to notice the fact of his release from incarceration. This means that whenever a prisoner files

an action for mental or emotional injury, the district court has an obligation to dismiss the case no matter what

stage the litigation has reached, and regardless of whether section 1997e(e) has ceased to apply in his case.

Because the district court must dismiss a former prisoner's case without prejudice, the court will have to

entertain the case a second time after essentially the same action is re-filed. Today's decision requires this

result even if the first suit reached the summary judgment stage or went to trial. Two full-blown court

proceedings may now be required to dispose of one case; this hardly "stem[s] the flood of prisoner lawsuits

in federal court."

In Part I, below, I set out the facts of the instant case. In Part II, I explain that because plaintiffs are

allowed to supplement their complaint under Rule 15(d) of the Federal Rules of Civil Procedure to notice the

fact of their release from incarceration, they should be able to continue their lawsuit against employees of the

Georgia Department of Corrections (the "GDC"). Finally, in Part III, I discuss the awful burden that the

majority has placed on the judiciary by requiring district courts to dismiss a former prisoner's claims for

mental or emotional injury under section 1997e(e), and then entertain his claims anew when the plaintiff

re-files what is essentially the same lawsuit.

I.

1
The only issues remaining in this case involve plaintiffs Danny Chadwick, Frederick Harris, Lenois
Cook, Willie Hooks, Farrell Nation, and William Dailey. All references to "plaintiffs" herein refer to these
six plaintiffs only.

2
I concur in the majority opinion insofar as it reinstates those parts of the panel opinion that dispose of
the claims of plaintiffs Samuel Locklear, Alan Kilgore, Leroy Langes, Dayton Brinkley, and James Wade.
See Harris v. Garner, 190 F.3d 1279, 1281-84, 1285-90, vacated and reh'g en banc granted, 197 F.3d 1059
(11th Cir.1999).

24
 Eleven plaintiffs brought this civil rights suit for damages and injunctive relief in the United States

District Court for the Middle District of Georgia against employees of the GDC;3 six of these plaintiffs are

presently before the court. Plaintiffs alleged violations of their Fourth, Eighth, and Fourteenth Amendment

rights as a result of actions allegedly taken by the defendants during a "shakedown" at Georgia's Dooly State

Prison facility.4 The district court referred the case to a magistrate judge in accordance with 28 U.S.C. § 636

(1994).

On February 4, 1998, before the magistrate judge had issued his report and recommendation to the

district court, plaintiffs moved the court for leave to withdraw their claims for injunctive relief because they

had been released from the custody of the GDC, and their release had mooted such claims. See Tucker v.

Phyfer, 819 F.2d 1030, 1033 (11th Cir.1987). In his report, the magistrate judge recognized that "[p]resently

pending before" him was "the plaintiffs' motion to withdraw the injunctive claims of six of their number who

have been released." He implicitly granted plaintiffs' motion to withdraw their claims for injunctive relief,

and despite the fact that plaintiffs were no longer incarcerated, he also recommended that their claims for

compensatory and punitive damages be dismissed under 42 U.S.C. § 1997e(e).5 Section 1997e(e) provides

that "[n]o 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."

3
The complaint was filed against "Wayne Garner, Commissioner of the Georgia Department of
Corrections; A.G. Thomas, Director of Facilities Division of the Georgia Department of Corrections; Duke
Blackburn, Executive Assistant, Special Operations of the Georgia Department of Corrections; and Twenty-
Two Unnamed Tactical Squad Officers of the Georgia Department of Corrections, in their individual and
official capacities."
4
In this context, a prison "shakedown" is a systematic search of a correctional institution during which
prison officials search for illegal drugs and other contraband by means of body cavity searches, searches of
inmates' living quarters, and searches of other areas of the institution. For details regarding the alleged
"shakedown," see Harris, 190 F.3d at 1282-83.
5
42 U.S.C. § 1997e(e) only precludes prisoners from bringing actions for compensatory and punitive
damages. It does not apply to actions for declaratory or injunctive relief. See Harris, 190 F.3d at 1287-89.

25
The magistrate judge reasoned that " § 1997e(e) is applicable to the claims of prisoners who have been

released," citing Zehner v. Trigg, 952 F.Supp. 1318, 1324 (S.D.Ind.1997), and Kerr v. Puckett, 967 F.Supp.

354, 361-62 (E.D.Wis.1997), both of which were overturned by the Seventh Circuit in Kerr v. Puckett, 138

F.3d 321, 323 (7th Cir.1998) (holding that section 1997e(e) does not apply to former prisoners who are no

longer incarcerated). It is thus abundantly clear that the magistrate judge treated plaintiffs' complaint as

supplemented under Rule 15(d) to reflect the fact that plaintiffs had been released from the custody of the

GDC.6 It is also clear that he recommended dismissal of plaintiffs' claims for compensatory and punitive

damages despite the fact that plaintiffs were no longer incarcerated. His recommendation, in this regard, was

based on an error in interpreting section 1997e(e) to apply to the claims of former prisoners who are no longer

incarcerated. The district court adopted the magistrate judge's recommendation without relevant modification,

and dismissed plaintiffs claims with prejudice.7

6
The panel stated that the magistrate judge and district court treated the complaint as "amended" for
purposes of noticing plaintiffs' release from custody. Harris, 190 F.3d at 1284. Technically, this was an error
since the magistrate judge and district court actually treated the complaint as "supplemented" under Rule
15(d); plaintiffs release from custody was a "transaction[ ] or occurrence[ ] or event[ ] which ... happened
since the date of the [original] pleading," Fed.R.Civ.P. 15(d), and not an event which happened prior to the
date of the original complaint. Only prior events are properly treated as amendments under Rule 15(a). The
error is substantively unimportant, however. See Glatt v. Chicago Park Dist., 87 F.3d 190, 194 (7th Cir.1996)
(holding that the standard applied to cases in which parties seek to supplement their pleadings under Rule
15(d) is the same as the standard applied to cases in which plaintiffs seek to amend their pleadings under Rule
15(a)).
7
I am thus uncertain why the majority is not "entirely convinced that the complaint was actually
amended." Ante at 2743. The majority appears suspicious of the panel's conclusion that "the magistrate judge
treated the complaint as amended" to reflect the fact of plaintiffs' release from the GDC, Harris, 190 F.3d at
1283, because

[n]o motion to amend the complaint was filed, and neither the magistrate judge nor the
district court said the complaint had been amended. The plaintiffs did file a motion to
withdraw their request for injunctive relief, which simply acknowledged that there was no
longer any need for an injunction in view of their release. But the court did not formally rule
on that motion. Instead, the magistrate judge (whose recommendations were adopted by the
district court without relevant change) concluded: "These plaintiffs cannot obtain monetary
relief because they alleged only mental or emotional injuries and their injunctive claims are
moot since they have been released from prison."

26
Ante at 2743 n. 10. The majority recognizes that plaintiffs did file a motion alerting the court that
they had been released from custody, and seeking to withdraw their claims for injunctive relief
because their release had mooted such claims. Therefore, it is simply not true that "[n]o motion to
[supplement] the complaint was filed." Id. The motion was not titled "MOTION TO SUPPLEMENT
PLAINTIFFS' COMPLAINT TO REFLECT THE FACT OF PLAINTIFFS' RELEASE FROM
CUSTODY, AND TO ALERT THE DISTRICT COURT THAT PLAINTIFFS ARE NO LONGER
SUBJECT TO 42 U.S.C. § 1997e(e);" plaintiffs' motion concerned, instead, their claims for
injunctive relief (not covered by section 1997e(e)). But it is clear that the magistrate judge treated
the complaint as supplemented for the purpose of determining whether section 1997e(e) applied to
plaintiffs' claims for compensatory and punitive damages, even though plaintiffs were no longer
incarcerated; the record reflects that the magistrate judge (1) recognized in his report and
recommendation to the district court that plaintiffs had been released from the custody of the GDC,
and (2) recommended dismissal of plaintiffs' claims for compensatory and punitive damages based
on the erroneous conclusion that " § 1997e(e) is applicable to the claims of prisoners who have been
released." The district court, in its order adopting the magistrate judge's recommendations, likewise
treated plaintiffs' complaint as supplemented to reflect the fact of plaintiffs' release, but nevertheless
dismissed plaintiffs' complaint under an erroneous reading of section 1997e(e).

There is no doubt that the magistrate judge and the district court had the power, even the
obligation, to treat plaintiffs' complaint as supplemented to reflect the fact of their release. See
Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962) (courts have an
obligation to read the parties' pleadings with the intent of the parties in mind); cf. Fed.R.Civ.P. 15(b)
(allowing parties to amend their pleadings to conform to the evidence, either at trial or even after
judgment, and stating that "[i]f evidence is objected to at the trial on the ground that it is not within
the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action will be subserved thereby and the objecting
party fails to satisfy the court that the admission of such evidence would prejudice the party in
maintaining the party's action or defense upon the merits"). The majority's assertion that "the
requirements of Rule 15(d) were not met," ante at 2743-44, is curious. In Mathews v. Diaz, 426 U.S.
67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), the Supreme Court made clear that Rule 15(d)'s
"requirements" should not be read to impede a decision on the merits because of a technical error or
omission. In Mathews, as in the instant case, "[t]here was no [formal] motion to supplement the
pleadings." Ante at 2744 n. 11. Despite this omission, the Supreme Court held that

"[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate
courts." 28 U.S.C. § 1653. Although the defect in [plaintiff's] allegations must be cured by
supplemental pleading, instead of amended pleading, the statutory purpose of avoiding
needless sacrifice to defective pleading applies equally to this case.... Despite [plaintiff's]
failure to supplement the complaint, the District Court was aware that he had filed his
application; since the Secretary stipulated that the application had been filed, the defect in
the pleadings surely did not prejudice him.

Mathews, 426 U.S. at 75 n. 9, 96 S.Ct. at 1889 n. 9 (citations omitted) (emphasis added). As in
Mathews, the district court in the instant case was obviously aware of the critical fact (that plaintiffs
had been released from incarceration), since plaintiffs filed a motion alerting the court that they had
been released from custody, and seeking to withdraw their claims for injunctive relief. Also, there

27
 II.

Following, I discuss three elements necessary to resolve the question of whether to allow plaintiffs

to supplement their complaint to reflect the fact of their release, and thus to allow them to continue their civil

suit against employees of the GDC. These are: (1) under 42 U.S.C. § 1997e(e), prisoners cannot bring federal

civil actions for "mental or emotional injury suffered while in custody without a prior showing of physical

injury" while they are confined; (2) after they are released from confinement, former prisoners can bring

federal civil actions for "mental or emotional injury suffered while in custody without a prior showing of

physical injury;" and (3) Rule 15(d) of the Federal Rules of Civil Procedure allows litigants to supplement

their pleadings to "set[ ] forth transactions or occurrences or events which have happened since the date of

the [original] pleading ... even though the original pleading is defective in its statement of a claim for relief

or defense." After discussing these elements, I then ask whether Congress has indicated, either in the

statutory text or in the legislative history of the PLRA, its intent to abrogate Rule 15(d) in applying section

1997e(e), so that prisoners should be precluded from supplementing their complaints to reflect the fact of their

release.

A.

42 U.S.C. § 1997e(e) precludes prisoners from bringing federal civil actions "for mental or emotional

injury suffered while in custody without a prior showing of physical injury" while they are "confined in a jail,

prison, or other correctional facility." For reasons not entirely clear to me, the majority spends most of its

is no reasonable argument that the court's allowance of a motion to supplement the complaint in any
way prejudiced the defendants, since defendants cited Zehner v. Trigg, 952 F.Supp. 1318
(S.D.Ind.1997) (holding that section 1997e(e) applies to the claims of prisoners who have been
released from custody), in their motion to dismiss plaintiffs' complaint. Defendants, therefore,
anticipated that plaintiffs' release would require them to convince the court that section 1997e(e)
should bar plaintiffs' claims for mental or emotional injury, even though plaintiffs were no longer
incarcerated. Treating Rule 15(d) as if it has certain "requirements" that can never be waived by the
district court, even if waiver would facilitate a proper decision on the merits, does not comport with
the concept of notice pleading, and the purpose behind the Federal Rules. See infra at 2755-61
(discussing the 1963 amendment to Rule 15(d) and the philosophy of the Federal Rules of Civil
Procedure).

28
opinion focusing on this element, canvassing every part of the PLRA to come up with the totally

unremarkable conclusion that when section 1997e(e) says "[n]o Federal civil action may be brought," it means

that no prisoner can "commence or start a lawsuit," ante at 2735, for "mental or emotional injury suffered

while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e).

I have no idea why the majority goes to such lengths to demonstrate this point, or what other

definition of the word "brought" might be considered plausible. The majority appears to believe that the

panel mistakenly interpreted "brought" to mean "maintain[ed]" or "continue[d]," ante at 2735, and that this

was the source of its supposed error in holding that plaintiffs should be allowed supplement their complaint

to reflect the fact of their release. But following the majority's reasoning, it would make no difference if the

statute prohibited the "commencing" of a federal civil action, or the "maintenance" of a federal civil action

while in custody. According to the majority, a violation of the statute requires the district court to dismiss

the plaintiff's suit no matter what events transpire subsequent to the violation. If this is the case, then the

district court would have to dismiss a suit, even after the prisoner's release, that was "maintained" by a

prisoner while in custody, just as the court would have to dismiss a suit that was "commenced" while in

custody. I thus fail to understand the majority's distinction, but in any case, it is of no moment. It is obvious

that the word "brought" means "commence[d] or start[ed]," ante at 2735, and so I have no quibble with this

aspect of the majority opinion.8 The question is not what is the meaning of the word "brought." It is, instead,

8
In its discussion of the statutory language, the majority suggests that one line of cases, interpreting the
full payment provision of the PLRA, does more than establish that "brought" means "commenced." 28 U.S.C.
§ 1915(b)(1) (1994 & Supp. II 1996) provides that

if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be
required to pay the full amount of a filing fee. The court shall assess and, when funds exist,
collect, as a partial payment of any court fees required by law, an initial partial filing fee of
20 percent of the greater of—

(A) the average monthly deposits to the prisoner's account; or

(B) the average monthly balance in the prisoner's account for the 6-month period
immediately preceding the filing of the complaint or notice of appeal.

29
what happens when a plaintiff violates section 1997e(e) by bringing a federal civil action while in custody,

but is later released, and seeks to supplement his pending complaint to reflect the fact of his release? In other

words, what is the remedy for plaintiff's violation of the statute?

In Gay v. Texas Dept. of Corrections State Jail Div., 117 F.3d 240 (5th Cir.1997), and in Robbins
v. Switzer, 104 F.3d 895 (7th Cir.1997), the Fifth and Seventh Circuits held that this part of the PLRA
requires former prisoners to pay amounts due under the statute through the time of their release in
order to continue prosecuting claims filed while in custody. This interpretation of section 1915(b)(1)
makes sense because, as the D.C. Circuit has observed, if a prisoner has not complied with the filing
fee provisions of the statute, he still has "past due, unmet obligations" even if he is later released.
In re Smith, 114 F.3d 1247, 1251-52 (D.C.Cir.1997). All of the circuits interpreting section
1915(b)(1) recognize that the statute ceases to apply when a prisoner is released; it has not been
applied to require prisoners to pay fees that would accrue after the prisoner is released. As the D.C.
Circuit held in Smith,

[plaintiff's] liability for the PLRA fees that should have been paid prior to his release from
prison under § 1915(b) [should] be calculated, and [plaintiff] must pay that amount....
However, [plaintiff] may rely on in forma pauperis status for the balance of the filing fee ...,
as his current poverty does not pose a bar to relief, except with respect to past due amounts
under the PLRA that were assessed based upon a calculation that Smith had means to pay
them when due.

Id. at 1252 (citations omitted); see also Robbins, 104 F.3d at 898 ("[I]f according to the trust account
statements [plaintiff] could (and therefore should) have paid $50 at the time he filed his appeals, and
the trust accounts received no income before his release, then he must pay $50 now and may apply
for in forma pauperis status on the balance. How much [plaintiff] actually must prepay depends on
the application of the formula in § 1915(b) to the balances and income of his trust account through
the day of his release."). It is reasonable to require former prisoners to meet past due obligations that
constitute a condition precedent to their ability to bring suit, even after they have been released from
custody. The full payment provision of section 1915(b)(1) is not being applied to them as former
prisoners, but as persons who have incurred a debt that has not yet been satisfied. In the instant case,
the majority uses section 1997e(e) to bar plaintiffs claims, even though the statute no longer applies
in their cases. The majority's analogy would work if Congress had provided for a civil fine for
violations of section 1997e(e) (e.g., a fine of $10 for each pre-release filing); in that circumstance,
even after his release a former prisoner would still owe the fine for filing while incarcerated, because
the fine owed would constitute a past due amount. But it seems odd to suggest, as the majority does,
that plaintiffs in the instant case are owed a "past due dismissal" because they filed while
incarcerated. Cf. Murphy v. Magnusson, No. Civ. 98-439-P-C., (D.Me. July 27, 1999) (refusing to
dismiss plaintiff's claim filed while incarcerated even though plaintiff had not complied with the
administrative exhaustion requirement of 42 U.S.C. § 1997e(a), because plaintiff had since been
released from custody; "where Plaintiff could immediately refile his claims without exhausting
administrative remedies ... it would not serve judicial efficiency to dismiss Plaintiff's Complaint.
Because circumstances have changed such that Plaintiff is no longer required ... to exhaust
administrative procedures, the Court will not now require Plaintiff to exhaust available administrative
remedies.").

30
 The second element is that 42 U.S.C. § 1997e(e) does not apply to former prisoners who are no longer

incarcerated. As the panel explained,

42 U.S.C. § 1997e(e) provides: "[n]o 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." Section 1997e(h) defines a "prisoner" as "any person
incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial
release, or diversionary program." 42 U.S.C. § 1997e(h) (Supp. II 1996). According to the plain
language of the statute, section 1997e(e) does not apply to former prisoners, or those who have been
released from a correctional facility, because such persons are clearly not "confined in a jail, prison,
or other correctional facility," or "incarcerated or detained in any facility." The statute could not be
more plain: it applies to those who (a) seek a civil remedy for mental or emotional injury suffered
while in custody, and (b) seek such a remedy while they are incarcerated. As the Seventh Circuit has
noted in analyzing section 1997e(e), "[t]he statutory language does not leave wriggle room." Kerr
v. Puckett, 138 F.3d 321, 323 (7th Cir.1998). It does not apply to persons who have never been
prisoners; nor does it apply to former prisoners who seek civil relief for injuries suffered while they
were prisoners.

Defendants argue that Congress' purpose in enacting the PLRA was to curtail frivolous
prisoner litigation, and that reading the statute to bar certain claims by current but not former
prisoners is not faithful to congressional intent because, under our interpretation today, some claims
"for mental or emotional injury suffered while in custody" can be brought "without a prior showing
of physical injury." Further, defendants see little sense in discriminating between prisoners who
bring suit while they are incarcerated, and former prisoners who seek relief on the same day they are
released.

Absent mistake or absurdity, we implement the statutory language as enacted. Salinas v.
United States, 522 U.S. 52, 57-58, 118 S.Ct. 469, 473-74, 139 L.Ed.2d 352 (1997). Here, the
language of section 1997e(e) could not be clearer. And contrary to defendants' congressional intent
argument, Congress manifestly wanted to draw a bright line distinction between those who are
prisoners, and those who are not prisoners. See 141 Cong. Rec. S7524-26 (daily ed. May 25, 1995)
(statements by Senators Dole and Kyl) (prisoners have a unique incentive to file frivolous lawsuits
because litigation "has become a recreational activity for long-term residents of our prisons," because
prisoners "have little to lose and everything to gain," and because filing frivolous complaints is "a
means of gaining a short sabbatical in the nearest Federal courthouse") (citations and internal
quotation marks omitted). The distinction makes a good deal of sense because the "[o]pportunity
costs of litigation rise following release, diminishing the need for special precautions against weak
suits." Kerr, 138 F.3d at 323. In light of the overwhelming clarity of the statutory text, we join the
Seventh Circuit in holding that section 1997e(e) applies only to prisoners who are incarcerated at the
time they seek relief, and not to former prisoners who seek damages for injuries suffered while they
were incarcerated. See id.; see also, Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999) (interpreting
"prisoner" as used in section 1997e(a), dealing with administrative exhaustion, as not applying to
former prisoners no longer incarcerated); Doe v. Washington County, 150 F.3d 920, 924 (8th
Cir.1998) (interpreting "prisoner" as used in section 1997e(d), dealing with attorneys' fees, as not
applying to former prisoners).

31
Harris, 190 F.3d at 1284-85. The majority concurs in this holding today. See ante at 2743 ("Because section

1997e(e) applies only to claims filed while an inmate is confined, it does not prevent a former prisoner from

filing after release a monetary damages claim for mental or emotional injury suffered while confined, without

a prior showing of physical injury.").

The third and final element is that under Rule 15(d) of the Federal Rules of Civil Procedure, litigants

are allowed to supplement their pleadings to "set[ ] forth transactions or occurrences or events which have

happened since the date of the [original] pleading ... even though the original pleading is defective in its

statement of a claim for relief or defense." Prior to 1963, the text of Rule 15(d) read, in part, as follows:

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit
him to serve a supplemental pleading setting forth transactions or occurrences or events which have
happened since the date of the pleading sought to be supplemented.

Minnesota Mining and Mfg. Co. v. Superior Insulating Tape Co., 284 F.2d 478, 481 (8th Cir.1960) (quoting

Fed.R.Civ.P. 15(d)) (emphasis omitted). Because of this wording, "several federal courts held that a

supplemental complaint could not be used to cure a complaint that failed to state a claim for relief, even

though subsequent events had made plaintiff's right to relief apparent and the later pleading effectively cured

the deficiencies in the initial effort." 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice and Procedure § 1505 (2d ed.1990). The theory these courts used was that "plaintiff's right to relief

had to be predicated on facts in existence at the time the complaint was filed." Id.; see, e.g., La Salle Nat'l.

Bank v. 222 East Chestnut St. Corp., 267 F.2d 247, 252 (7th Cir.1959); Bonner v. Elizabeth Arden, Inc., 177

F.2d 703, 705 (2d Cir.1949). But see Camilla Cotton Oil Co. v. Spencer Kellogg and Sons, Inc., 257 F.2d

162, 165, 167-68 (5th Cir.1958) (allowing plaintiff, under pre-1963 Rule 15(d), to supplement claim for

attorney's fees with a pleading indicating that the statutory notice required for plaintiff to get attorney's fees

had been satisfied subsequent to the filing of the claim, even though the claim was "imperfect until proper

32
notice was given");9 United States v. Reiten, 313 F.2d 673, 674-75 (9th Cir.1963) (allowing plaintiff, under

pre-1963 Rule 15(d), to supplement complaint with notice to the court that the ninety days required by federal

statute before plaintiff had a "right to sue" had expired since the filing of the complaint because "[t]o require

appellant to commence a new and separate action in these circumstances would have been to insist upon an

empty formalism"). In response to what was perceived as the useless formality of forcing a district court to

dismiss a suit without prejudice, so that the plaintiff could then re-file the suit based on subsequent events

that had made clear his right to relief, Rule 15(d) was amended in 1963 to include the following language:

"Permission may be granted even though the original pleading is defective in its statement of a claim for relief

or defense." The advisory committee's note to the 1963 amendment emphasizes that the amended Rule is

intended to allow both courts and litigants flexibility in addressing the substance of a plaintiff's complaint,

rather than require parties to engage in an empty ritual of mindless form:

Rule 15(d) is intended to give the court broad discretion in allowing a supplemental pleading.
However, some cases, opposed by other cases and criticized by the commentators, have taken the
rigid and formalistic view that where the original complaint fails to state a claim upon which relief
can be granted, leave to serve a supplemental complaint must be denied.... Thus plaintiffs have
sometimes been needlessly remitted to the difficulties of commencing a new action even though
events occurring after the commencement of the original action have made clear the right to relief.

Under the amendment the court has discretion to permit a supplemental pleading despite the
fact that the original pleading is defective.

Fed.R.Civ.P. 15(d) advisory committee's note (1963). Thus, it is now clear that plaintiffs are allowed to

supplement their pleadings, even if their claim for relief is entirely dependent on events occurring subsequent

to the filing of their original complaints.

It is also clear that plaintiffs can cure jurisdictional defects in their original complaints by means of

a supplemental pleading. In Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), plaintiff

filed a complaint under the Social Security Act, challenging the constitutionality of a provision of the Act

9
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as
binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business
on September 30, 1981.

33
which conditioned an alien's eligibility for benefits on continuous residence in the United States for a

five-year period and admission for permanent residence. Plaintiff filed his complaint on October 24, 1972;

but it was not until two days later, on October 26, that plaintiff actually filed an application for enrollment

in the Social Security benefits program, and then brought the fact of his application to the attention of the

district court (without formally supplementing his complaint). The statutory provision giving plaintiff a right

of action, provided that

[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a
party, irrespective of the amount in controversy, may obtain a review of such decision by a civil
action commenced within sixty days after the mailing to him of notice of such decision or within such
further time as the Secretary may allow.

42 U.S.C. § 405(g) (1994) (emphasis added). Because plaintiff had filed his action before he had applied for

benefits, the Supreme Court had to decide "whether the District Court had jurisdiction over [plaintiff's]

claim." Mathews, 426 U.S. at 75, 96 S.Ct. at 1889. The Court responded as follows:

We have little difficulty with [plaintiff's] failure to file an application with the Secretary until after
he was joined in the action. Although 42 U.S.C. § 405(g) establishes filing of an application as a
nonwaivable condition of jurisdiction ..., [plaintiff] satisfied this condition while the case was
pending in the District Court. A supplemental complaint in the District Court would have eliminated
this jurisdictional issue; since the record discloses, both by affidavit and stipulation, that the
jurisdictional condition was satisfied, it is not too late, even now, to supplement the complaint to
allege this fact. Under these circumstances, we treat the pleadings as properly supplemented by the
Secretary's stipulation that [plaintiff] had filed an application.

Id. (citations omitted). The Court further elaborated,

"[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."
28 U.S.C. § 1653. Although the defect in [plaintiff's] allegations must be cured by supplemental
pleading, instead of amended pleading, the statutory purpose of avoiding needless sacrifice to
defective pleading applies equally to this case.... Despite [plaintiff's] failure to supplement the
complaint, the District Court was aware that he had filed his application; since the Secretary
stipulated that the application had been filed, the defect in the pleadings surely did not prejudice him.

Id. at 75 n. 9, 96 S.Ct. at 1889 n. 9 (citations omitted).

Until today, this court has consistently followed the Supreme Court's direction that a supplemental

pleading should be liberally allowed if it will cure a defect in the complaint. In M.G.B. Homes, Inc. v.

34
Ameron Homes, Inc., 903 F.2d 1486 (11th Cir.1990), plaintiff sued for infringement under the Copyright Act,

which provides, in pertinent part,

no action for infringement of the copyright in any work shall be instituted until registration of the
copyright claim has been made in accordance with this title.

17 U.S.C. § 411(a) (1994) (emphasis added). Plaintiff filed a complaint for infringement before applying for

copyright registration, but later moved the court to supplement its pleading with notice that it had since filed

the required application with the Copyright Office. The district court allowed the supplement and we

affirmed, even though "[t]he registration requirement is a jurisdictional prerequisite to an infringement suit."

Id. at 1488. We stated,

[the district court] was, at most, technically without jurisdiction to entertain [plaintiff's] motion to
amend its complaint. However, it is entirely contrary to the spirit of the Federal Rules of Civil
Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.

....

The amended complaint submitted by [plaintiff] contained all the required allegations. On
its face it asserted that the trial court had jurisdiction over the new infringement action. Except for
the technical distinction between filing a new complaint and filing an amended complaint, the case
would have been properly filed.

Id. at 1489 (internal citation and quotation marks omitted);10 see also Lussier v. Dugger, 904 F.2d 661, 669-

70 (11th Cir.1990) (holding that plaintiff should be allowed to supplement his complaint with the fact that

since filing against a state agency under the federal Rehabilitation Act, the Act had been amended to abrogate

10
The majority makes the remarkable assertion that the approach taken in M.G.B. Homes is "problematic,"
and suggests that the "continuing validity" of the case may be in doubt in light of the Supreme Court's
decision in Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 111 S.Ct. 858, 112 L.Ed.2d 951
(1991). Ante at 2747. Freeport-McMoRan had nothing to do with a federal court's ability to allow a plaintiff
to supplement his complaint to cure a jurisdictional defect in the original pleading when, as in M.G.B. Homes
and in the instant case, the court's jurisdiction is premised on the existence of a federal question. In that case,
the Supreme Court merely reaffirmed the longstanding rule that "diversity of citizenship is assessed at the
time the action is filed.... [I]f jurisdiction exists at the time an action is commenced, such jurisdiction may
not be divested by subsequent events." Id. at 428, 111 S.Ct. at 860. As I explain infra at 2759-60 n. 11, the
issue of diversity jurisdiction implicates unique considerations that do not apply in cases in which the federal
court's jurisdiction is premised on the existence of a federal question. It seems odd for the majority to assert
casually that the "continuing validity" of M.G.B. Homes is in doubt, when the only evidence the majority cites
for that proposition is a Supreme Court case that is clearly inapposite.

35
the state's Eleventh Amendment immunity, and thus the district court had jurisdiction over the case for any

violations that took place subsequent to the date of the amendment's enactment); Rowe v. United States

Fidelity and Guar. Co., 421 F.2d 937, 940, 944 (4th Cir.1970) (holding that district court abused its discretion

in denying plaintiffs, as creditors of an insured, leave to supplement their complaint, originally filed before

the insured had assigned his rights in the insurance to the creditors, with notice that the insured had since

assigned his rights; this was so even though the "action [was] judicially cognizable at all ... only through [the]

assignment"); Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1108-09 (9th Cir.1970) (holding that

it was error for the district court to dismiss plaintiff's complaint for lack of jurisdiction under the Copyright

Act, which provided that no infringement action "shall be maintained" until the work is registered, when the

plaintiff registered the work subsequent to the filing of its complaint, and a pretrial conference order

evidenced that the court treated the complaint as supplemented); Security Ins. Co. v. United States, 338 F.2d

444, 449 (9th Cir.1964) (holding that plaintiff should be allowed to supplement his complaint under the Miller

Act, originally filed before the statutory period of ninety days provided for in 40 U.S.C. § 270b(a) had

elapsed, with notice that ninety days had since elapsed, because the federal rules encourage "decision[s] on

the merits"); Katzman v. Sessions, 156 F.R.D. 35, 39 (E.D.N.Y.1994) (holding that plaintiff should be

allowed to supplement his complaint with notice that he had exhausted the administrative remedies required

for him to file suit under the Freedom of Information Act, 5 U.S.C. § 552 (1994); the fact that he did not

exhaust until after filing did not require dismissal); Montgomery Environmental Coalition v. Fri, 366 F.Supp.

261, 265-66 (D.D.C.1973) (holding that plaintiffs should be allowed to supplement their complaint with

notice that the statutory period of sixty days required under the Water Pollution Control Act had elapsed since

they filed their complaint; this was so even though 33 U.S.C. § 1365(b) provided that "[n]o action may be

commenced ... prior to sixty days after the plaintiff has given notice of the alleged violation") (emphasis

added); Amar v. Garnier Enters., Inc., 41 F.R.D. 211, 214-15 (C.D.Cal.1966) (holding that plaintiff should

be allowed to supplement his complaint with notice that since filing shareholder's derivative action under

36
California law, he had become a registered shareholder; this was so even though California Corporations

Code provided that "[n]o action may be instituted or maintained in right of any ... corporation ... by the holder

... of shares ... unless ... the plaintiff alleges in the complaint that he was a ... registered shareholder ... at the

time of the transaction or any part thereof of which he complains") (emphasis added); Lynam v. Livingston,

257 F.Supp. 520, 524-25 (D.Del.1966) (holding that plaintiff should be allowed to supplement her complaint

filed as a shareholder's derivative action with notice that since filing, she had made a demand upon the board

of directors to prosecute the claim; "the fact that plaintiff was without standing to sue when suit was begun

cannot deprive her of the right to allege in a supplemental complaint that after suit was instituted she complied

with all conditions required to give her a right to sue").11

11
The majority analogizes the instant case to a situation in which the federal court has jurisdiction over
a claim only because of the diversity of the parties' citizenship, and states, correctly, that "only citizenship
of the original parties ... matters for purposes of determining whether diversity jurisdiction exists." Ante at
2746. The unique considerations involved in addressing the existence of diversity jurisdiction, including
concerns over parties acting strategically to defeat the statutory requirement, see Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978), make necessary a "brightline
policy of determining diversity as of the date of commencement of the action." 13B Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3608 (2d ed.1984).

This is not a diversity case, but a case in which our jurisdiction is premised upon the
existence of a federal question of no less than constitutional dimension; plaintiffs sued for violations
of their Fourth, Eighth, and Fourteenth Amendment rights. Therefore, the diversity analogy is
inapposite. The distinction between diversity and federal question jurisdiction, as it relates to the
issue of whether parties can supplement their pleadings to cure a jurisdictional defect, is made clear
by the myriad cases I cite that allow plaintiffs to supplement their original complaints with notice
that, since filing, they have fulfilled the jurisdictional prerequisites to bring suit. These cases include
Supreme Court precedent which explicitly states, in a case in which the Court's jurisdiction was
premised on the existence of a federal question, that

"[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate
courts." 28 U.S.C. § 1653. Although the defect in [plaintiff's] allegations must be cured by
supplemental pleading, instead of amended pleading, the statutory purpose of avoiding
needless sacrifice to defective pleading applies equally to this case.

Mathews, 426 U.S. at 75 n. 9, 96 S.Ct. at 1889 n. 9.

The majority is correct to note that just as this is "not a diversity case ..., neither is it a social
security case or a copyright case." Ante at 2747. But that is not the point. The point is that this is
a case in which our jurisdiction is premised on the existence of a federal question, and not a case in

37
 The courts' liberal allowance of supplemental pleadings to enable parties to state a case or cure a

jurisdictional defect is consistent with the underlying philosophy of the Federal Rules of Civil Procedure, that

the Rules should "be construed and administered to secure the just, speedy, and inexpensive determination

of every action." Fed.R.Civ.P. 1. "The Federal Rules reject the approach that pleading is a game of skill in

which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of

pleading is to facilitate a proper decision on the merits." Foman, 371 U.S. at 181-82, 83 S.Ct. at 230. Thus,

courts routinely grant leave to parties to amend their pleadings under Rule 15(a) to set forth transactions,

occurrences, or events that could have been included in the original pleading, but were omitted for one reason

or another. See id. ("In the absence of any apparent or declared reason—such as undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of

amendment, etc.—the leave sought [to amend] should, as the rules require, be 'freely given.' Of course, the

grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal

to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it

is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules."); Bank v. Pitt, 928

F.2d 1108, 1112 (11th Cir.1991) ("If our precedent leaves any doubt regarding the rule to be applied in this

circuit, we now dispel that doubt by restating the rule. Where a more carefully drafted complaint might state

a claim, a plaintiff must be given at least one chance to amend the complaint before the district court

dismisses the action with prejudice."); Warner v. Alexander Grant & Co., 828 F.2d 1528, 1531 (11th

Cir.1987) (holding that it was error for the district court to dismiss with prejudice without granting leave to

amend because "[t]he district court's order contravened the well established policy in the federal courts

which we have jurisdiction only because the parties are diverse. Plaintiffs did not attempt to
supplement their complaint to notice the fact of their acquired diversity; they sought to supplement
their complaint to notice the fact that a federal law (section 1997e(e)) no longer applies in their case.

38
favoring liberal pleading requirements"); Czeremcha v. International Ass'n of Machinists & Aerospace

Workers, 724 F.2d 1552, 1556 (11th Cir.1984) (holding that leave to file an amendment should be "granted

liberally"). And under Rule 15(b), courts should allow amendments to conform the pleadings to the evidence

both during trial, and even after judgment, as long as the opposing party cannot prove that he is thereby

prejudiced:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may
be made upon motion of any party at any time, even after judgment; but failure so to amend does
not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings, the court may allow the pleadings to be
amended and shall do so freely when the presentation of the merits of the action will be subserved
thereby and the objecting party fails to satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party's action or defense upon the merits.

Fed.R.Civ.P. 15(b). All of this is in conformance with the "liberal system of notice pleading set up by the

Federal Rules," requiring only a "short and plain statement of the claim showing that the pleader is entitled

to relief." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168,

113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (internal quotation marks omitted). The American legal

system encourages the efficient resolution of claims on the merits, and not the avoidance of legal issues by

means of tightfisted pleading requirements that constitute nothing more than traps for the unwary.

With all three elements on the table, we can now answer the question of whether plaintiffs in the

instant case can supplement their complaint to reflect the fact of their release, and thus continue their civil

lawsuit against employees of the GDC; and the answer is obviously that they can. 42 U.S.C. § 1997e(e)

provides that "[n]o 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." There is nothing in the plain language of the statute that suggests that Congress wanted

federal courts to ignore Rule 15(d) in applying section 1997e(e). Given that the Federal Rules of Civil

Procedure do, themselves, have statutory effect, see United States v. St. Paul Mercury Ins. Co., 361 F.2d 838,

39
839 (5th Cir.1966), and given the enormous body of caselaw applying Rule 15(d) to cases in which plaintiffs

must supplement their complaints in order to state a case or cure a jurisdictional defect, we would expect

Congress to speak with unmistakable clarity if it wanted to override the Federal Rules of Civil Procedure in

PLRA cases. See Conroy v. Aniskoff, 507 U.S. 511, 516 & n. 10, 113 S.Ct. 1562, 1566 & n. 10, 123 L.Ed.2d

229 (1993) (holding that there is a presumption that Congress is aware of the relevant case law); Chisom v.

Roemer, 501 U.S. 380, 396, 111 S.Ct. 2354, 2364, 115 L.Ed.2d 348 (1991) (holding that if Congress had an

intent to deviate from an established legal rule, "Congress would have made it explicit in the statute"). But

there is no such unmistakable statement of abrogation; there is not even a hint in the statute that federal

courts should abandon the usual rules of pleading, and disallow supplements which have always (at least since

1963) been freely allowed in the normal course to cure a defective complaint. See Mathews, 426 U.S. at 75

n. 9, 96 S.Ct. at 1889 n. 9 ("[T]he statutory purpose of avoiding needless sacrifice to defective pleading

applies equally" in cases in which plaintiffs must supplement their complaints, as it does to cases in which

plaintiffs seek to amend.); Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir.1995) ("[L]eave to file a

supplemental pleading should be freely permitted."); Music Deli & Groceries, Inc. v. IRS, 781 F.Supp. 992,

997 (S.D.N.Y.1991) (same).

It does not appear that anyone in Congress even thought about the proposition that Rule 15(d) might

not apply in PLRA cases. Despite the majority's "irresistible" impulse to dive into the legislative history, ante

at 2739, there is not one word from anyone in Congress, or anyone commenting upon the ramifications of

the Act, that indicates that Rule 15(d) might not apply in PLRA cases. See Chisom, 501 U.S. at 396 & n. 23,

111 S.Ct. at 2364 & n. 23 (holding that if Congress had an intent to deviate from an established legal rule

when it enacted a statute, "at least some of the Members would have identified or mentioned [the issue] at

some point in the ... legislative history.... Congress' silence in this regard can be likened to the dog that did

not bark."). In light of today's decision, whenever Congress enacts a statute that qualifies the right of a person

to "bring" or "commence" or "institute" an action under federal law, district courts in the Eleventh Circuit will

40
have to conclude that Rule 15(d) is inapplicable, and that courts lack discretion to allow supplemental

pleadings to enable a party to state a case or cure a jurisdictional defect. See ante at 2746-47 ("If an

amendment or supplement to the pleadings is offered to show that the citizenship of one of the original parties

has changed since the lawsuit was filed, that amendment or supplement should be denied as futile.").

Further, it is clear from the text of the statute that if Congress had wanted to override a Federal Rule

of Civil Procedure, it certainly knew how to do so. In the same statutory section as 42 U.S.C. § 1997e(e),

Congress provided in section 1997e(c)(1) that

[t]he court shall on its own motion or on the motion of a party dismiss any action brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility if the court is satisfied that the action is
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief.

42 U.S.C. § 1997e(c)(1). This statutory provision clearly overrides a defendant's normal obligation to file

a Rule 12(b)(6) motion or other responsive pleading with the court in order to obtain a pre-answer dismissal,

by allowing the court to dismiss sua sponte a plaintiff's action if it is "frivolous, malicious, fails to state a

claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such

relief." Id. We read each statutory provision with reference to the whole Act. See Massachusetts v. Morash,

490 U.S. 107, 115, 109 S.Ct. 1668, 1673, 104 L.Ed.2d 98 (1989). Where Congress has demonstrated its

ability to provide for a particular remedy with specific statutory language, we should not read a statutory

provision that contains no such specific language to allow for the particular remedy at issue. See Dean v.

American Sec. Ins. Co., 559 F.2d 1036, 1039 (5th Cir.1977); see generally Lexecon, Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 38, 118 S.Ct. 956, 963, 140 L.Ed.2d 62 (1998); West Virginia Univ.

Hosps., Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). Congress knew how to abrogate

the Federal Rules when it wanted to do so, in section 1997e(c)(1). Because Congress enacted no abrogating

language in section 1997e(e), it could not have meant that courts should ignore Rule 15(d) of the Federal

Rules of Civil Procedure in applying that section of the PLRA.

41
 So, the ultimate question remains: if Congress did not mean to override Rule 15(d) in enacting

section 1997e(e), what is the remedy for a violation of the statute? The answer, again, is simple. If a federal

civil action is brought by a confined prisoner "for mental or emotional injury suffered while in custody

without a prior showing of physical injury," then the defendant should move the court to dismiss the case

under 42 U.S.C. § 1997e(e). If the plaintiff cannot supplement his complaint to cure the defect, then the court

should dismiss the case. If, on the other hand, the plaintiff can cure the defect with notice that section

1997e(e) no longer applies to him, because he has been released from custody, then absent "undue delay, bad

faith, dilatory tactics, [or] undue prejudice ..., the motion [to supplement under Rule 15(d) ] should be freely

granted." Quaratino, 71 F.3d at 66. Neither this court, nor the Supreme Court, has ever held that when

Congress restricts a plaintiff's right to bring a cause of action, we should do anything other than obey the

congressional command by using the usual procedures for pleading, adjudication, and dismissal. Absent

explicit direction to the contrary, there is no reason to do so today.12

B.

Lacking any textual or case support, the majority attempts to prop up the court's holding with

references to the legislative history that purportedly establish that Congress' single-minded goal in enacting

12
The majority calls this "no remedy" at all, ante at 2747, because the practical effect of such a holding
is that plaintiffs who have been released from incarceration following their violation of section 1997e(e) will
suffer no sanction (other than the burden of alerting the court to the fact of their release). The majority states,
"[w]e disagree, because we do not think the way to enforce congressional enactments is by removing any
burden, inconvenience, or expense from those who violate them." Ante at 2747. Much like the rest of the
majority opinion, this sounds good at first blush but it is ultimately without substance. First, the judicial task
is to enforce Congress' enactments as written, not to dream up "burden[s], inconvenience[s], [and]
expense[s]" to levy on those who violate the congressional command. Where Congress has given us no
indication that the remedy we would like to pursue is available under the statute, then it is a violation of the
separation of powers for us to enact a remedial scheme that was never envisioned by the legislature. Second,
for all its grandstanding about the need to sanction disobedient plaintiffs, the sum total of the "burden[s],
inconvenience[s], [and] expense[s]" that the majority has imposed is a second filing fee on plaintiffs, when
they re-file their suit after being released from incarceration. Finally, as discussed infra in Part III, the real
"burden[s], inconvenience[s], [and] expense[s]" that flow from the majority's holding are going to be visited
upon the judiciary, when courts are forced to dismiss suits (sometimes at summary judgment or at trial), and
then go through the administrative nightmare of entertaining the same suit again when the plaintiff re-files
his action.

42
section 1997e(e) was to curtail prisoner "filing[s]" of lawsuits challenging conditions of confinement. See

ante at 2740, 2744-45. Congress was so driven by its objective to stamp out prisoner "filing[s]," we are told,

that once a prisoner commits the unpardonable error of "filing" while still incarcerated, all other

considerations are out; the suit must be dismissed come hell or high water. First, it is important to note how

crucial this legislative history is to the majority's argument, in an opinion that purports to take a textualist

approach to statutory interpretation, see ante at 2734-35 ("We begin our construction of section 1997e(e)

where courts should always begin the process of legislative interpretation, and where they often should end

it as well, which is the words of the statutory provision."). The majority initially tries to justify its holding

with the clear language of the statute; this is why its spends so much time trying to answer the mind-numbing

question of "whether 'bring' means to commence or start a lawsuit, or instead means to maintain or continue

it to conclusion." Ante at 2735. As we have already seen, however, the conclusion that "bring" means

"commence" does nothing to buttress the court's holding. Under the majority's reading of the statute, it would

not matter whether "bring" meant to "commence," to "maintain," or to "immediately cease and desist." No

matter what the word means, if a prisoner does it while confined, then the case must be dismissed, no

questions asked. This is the ultimate conclusion that the majority must establish—that whatever section

1997e(e) prohibits, if a person who is confined in a jail, prison, or other correctional facility does it, then

Congress intended that courts ignore Rule 15(d) and dismiss the case regardless of whether section 1997e(e)

has ceased to apply in the individual's circumstances. The clear text cannot establish this conclusion because

section 1997e(e) says nothing about overriding the existing and facially applicable Rules of Civil Procedure.

Therefore, in an effort to find a leg to stand on, the "textualist" majority is forced to rely upon the legislative

history to make an argument based upon congressional intent (and not the words that Congress actually

enacted).13

13
The absence of textual support (and the resort to congressional intent) becomes especially apparent
when the majority attempts to distinguish Mathews and all the other cases I cite for the proposition that
plaintiffs in the instant case should be allowed to supplement their complaint under Rule 15(d) of the Federal

43
 While its attempt to glean from the legislative history a congressional fixation on prisoner "filing"

is laudable, the majority misses the mark here as well. In the first place, the "filing" argument is belied by

Rules of Civil Procedure. See ante at 2745-46. The difference between all of those cases and the instant case,
we are told, is that "in this case permitting the plaintiffs to proceed would undermine the statutory purpose
of prohibiting these types of claims...." Ante at 2746. "Congressional intent" is a tricky thing. Ever since
the Legal Realist movement of the early 20th Century, scholars have criticized the whole concept of a
legislative "intent" or "purpose" as undiscoverable at best, and at worst, a facade used by activist judges that
can be endlessly manipulated in the service of a judge's personal policy preferences. See, e.g., Max Radin,
"Statutory Interpretation," 43 Harv. L.Rev. 863, 870-71 (1930) ("That the intention of the legislature is
undiscoverable in any real sense is almost an immediate inference from a statement of the proposition. The
chances that several hundred men each will have exactly the same determinate situations in mind as possible
reductions of a given [statutory issue], are infinitesimally small.... Even if the contents of the minds of the
legislature were uniform, we have no means of knowing that content except by the external utterances or
behavior of these hundreds of men, and in almost every case the only external act is the extremely ambiguous
one of acquiescence, which may be motivated in literally hundreds of ways...."). Perhaps this is one reason
why, in recent years, the federal courts have turned more and more to focus on the text of a statute, as opposed
to the statutory purpose (often revealed in the legislative history). Though congressional intent (and
legislative history) still have a legitimate place in the interpretive enterprise, this court has embraced the
notion that we should always begin with the statutory text, and that where the congressional command is
clear, we should follow the statute as enacted. See United States v. Gilbert, 198 F.3d 1293, 1298 (11th
Cir.1999) ("We begin our construction of the Hyde Amendment where courts should always begin the process
of legislative interpretation, with the words of the statutory provision themselves."); Kay v. Apfel, 176 F.3d
1322, 1325 (11th Cir.1999) ("We begin, as we must, with the statutory text itself."); United States v. Pielago,
135 F.3d 703, 712 (11th Cir.1998) ("We begin, as always, with the text of the Sentencing Guidelines.");
Hunter v. United States, 101 F.3d 1565, 1574 (11th Cir.1996) ("We begin where courts interpreting statutory
and rule provisions should, with the language of the provisions.").

In the instant case, it is clear that Congress did not abrogate Rule 15(d) when it enacted
section 1997e(e). No such abrogation is mentioned in the statutory text. Therefore, under our normal
mode of statutory interpretation, we would allow plaintiffs to supplement their complaint to notice
the fact of their release, and continue their lawsuit against employees of the GDC. This result is
certainly not "absurd," such that we might be entitled to reformulate the statute. See Rector, Holy
Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). The result the
majority reaches, requiring a court to dismiss and then open the plaintiffs' case anew when plaintiffs
re-file their action, seems far more bizarre than simply allowing the suit to continue since section
1997e(e) no longer applies in the case. Because the text is clear, and the obvious result is not absurd,
it is troubling that a court that has so adamantly embraced a textualist mode of statutory interpretation
should now base its decision almost entirely on statutory "purpose." See ante at 2746. The
difference between the majority position and my own is not "crystalized in [my] proposition that a
prisoner who files his claim in direct contravention of section 1997e(e) while he is incarcerated ought
to be allowed to continue with that claim after release, because '[p]risoners who are released while
their suit is still pending immediately begin to face the same opportunity costs of prosecuting their
action as everyone else.' " Ante at 2745. The fact that the majority thinks that this is the crucial
difference only exposes the degree to which the majority has eschewed the text of section 1997e(e),
and has gotten carried away by considerations of policy.

44
the plain language of the statute, which states that "[n]o Federal civil action may be brought by a prisoner

confined...." 42 U.S.C. § 1997e(e) (emphasis added). Part III.D.1 of the panel opinion (now reinstated) held

that this language only precludes prisoners from bringing damages actions for mental or emotional injury

suffered while in custody, and does nothing to prevent prisoners from bringing actions for declaratory or

injunctive relief. See Harris, 190 F.3d at 1287-89. If Congress had wanted to stamp out all prisoner filings,

why leave the injunctive avenue of relief available? Under the statute, prisoners can still seek injunctive relief

from ongoing mental or emotional injury; they are just precluded from seeking damages.

Moreover, the legislative history, itself, demonstrates that Congress' purpose in enacting section

1997e(e) was a bit more nuanced than stamping out prisoner "filings." The majority unwittingly stumbles

upon this conclusion when it opines,

[a]s the Seventh Circuit has explained, "Congress deemed prisoners to be pestiferous litigants
because they have so much free time on their hands and there are few costs to filing suit." Kerr v.
Puckett, 138 F.3d at 323. The distinction between current and former prisoners makes sense for that
reason, and because "[o]pportunity costs of litigation rise following release, diminishing the need for
special precautions against weak suits." Id.; see also Madrid v. Gomez, 190 F.3d 990, 996 (9th
Cir.1999) ("[I]t is certainly conceivable that, because of significant potential gains and low
opportunity costs, prisoners generally file a disproportionate number of frivolous suits as compared
to the population as a whole."); Tucker v. Branker, 142 F.3d 1294, 1301 (D.C.Cir.1998) (noting that
"prisoners have a lower opportunity cost for their time than other indigent (and in all likelihood,
non-indigent) litigants.").

Ante at 2740-41. As the majority indirectly recognizes, the real purpose of section 1997e(e) was not simply

to end prisoner "filings," but to curtail what was viewed as the largely meritless litigation (money damages

suits for mental or emotional injury) being pursued by a group of people (prisoners) who face uniquely low

opportunity costs in pursuing such litigation. The legislative history is replete with references to the idea that

prisoners put an especially heavy burden on courts' civil dockets because they have little else to do other than

think up ways to sue their jailors. See, e.g., 141 Cong. Rec. S7524-26 (daily ed. May 25, 1995) (statements

by Senators Dole and Kyl) (prisoners have a unique incentive to file frivolous lawsuits because litigation "has

become a recreational activity for long-term residents of our prisons," because prisoners "have little to lose

and everything to gain," and because frivolous complaints are "a means of gaining a short sabbatical to the

45
nearest Federal courthouse") (citations and internal quotation marks omitted). If Congress just wanted to cut

down on court "filings," why focus on prisoners at all? Congress could have focused its attention on any

number of groups that were deemed to be especially litigious. Instead, however, Congress chose to preclude

the bringing of federal civil actions by prisoners because they constituted the group that was particularly

well-positioned in the litigation arena. Prisoners have more free time, and often easier access to legal

resources than most of the American population. See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491,

1498, 52 L.Ed.2d 72 (1977) (holding "that the fundamental constitutional right of access to the courts requires

prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing

prisoners with adequate law libraries or adequate assistance from persons trained in the law"); but see Lewis

v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (holding that Bounds did not eliminate the

requirement that an inmate allege actual injury that has resulted from a deprivation of adequate legal resources

before he can gain standing to sue in federal court). Because they often file as indigents, prisoners have less

to lose and more to gain by bringing lawsuits than the average citizen.

This understanding of the legislative purpose contradicts the majority's holding that a court should

dismiss a plaintiff's action under section 1997e(e) even if the plaintiff is no longer incarcerated. As the

Seventh Circuit has recognized, the "[o]pportunity costs of litigation rise following release, diminishing the

need for special precautions against weak suits." Kerr, 138 F.3d at 323.14 If the purpose of the PLRA was

14
Aside from the majority's bald assertion that "the Seventh Circuit would reach ... the same [result as the
majority reaches today,]" ante at 2737 (thus invoking the "thin air" doctrine, see Carlisle v. United States,
517 U.S. 416, 429, 116 S.Ct. 1460, 1468, 134 L.Ed.2d 613 (1996)), there is no indication that the Seventh
Circuit would agree with the majority's holding today under the reasoning of Kerr. In that case, Judge
Easterbrook went on at some length about the need for courts to "implement the [statutory] language actually
enacted." Kerr, 138 F.3d at 323. In response to the district court's argument that "common sense"
necessitated that section 1997e(e) bar the claims of former prisoners who had been released from custody,
the court responded:

"Common sense" is a treacherous guide to statutory interpretation. One person's "common
sense" is another's bete noire. Statutes are compromises among legislators who may hold
incompatible conceptions of the public weal. Some legislators opposed the PLRA outright;
others wanted more sweeping restrictions on prisoners' litigation; the actual statute satisfied

46
to curtail frivolous prisoner litigation, then there is no reason to apply it to persons who are no longer

prisoners under the meaning of the Act. Prisoners who are released while their suit is still pending

immediately begin to face the same opportunity costs of prosecuting their action as everyone else. They no

longer have the same free time or access to legal resources as they did while in custody. Treating former

prisoners as if they were still prisoners by dismissing their complaints under section 1997e(e) not only

contravenes the clear language of the statute, and Rule 15(d) of the Federal Rules of Civil Procedure, but it

also fails to make any sense in light of the statutory purpose.

C.

Because today's holding is contradicted by the clear language of the PLRA, ignores Rule 15(d) of

the Federal Rules of Civil Procedure, departs radically from all applicable case law, is unsupported by the

legislative history, and makes no sense in light of the statutory purpose (thus exhausting all legitimate avenues

of statutory construction), I can only conclude that the majority is dissatisfied with what Congress has done

in enacting section 1997e(e). The real problem the majority has in this case is that former prisoners can file

suits "for mental or emotional injury suffered while in custody without a prior showing of physical injury"

on the day they are released from incarceration. It is difficult to argue that Congress wanted courts to enforce

the PLRA with such vigor that they should ignore the normal rules of pleading, and disallow supplements

indicating that a plaintiff has been released from custody, when what Congress actually did was to enact a

statute that ceases to apply on the same day a prisoner is released. The two notions do not gel; the majority's

"dog won't hunt." Reynolds v. Roberts, 207 F.3d 1288 (11th Cir.2000).

few completely. Instead of relying on "common sense", which is an invitation to treat the
law as if one side or the other had its way, a court should implement the language actually
enacted—provided the statute is not internally inconsistent or otherwise absurd.

Id. How this language could support the majority's contention that we should extend the PLRA to
cover suits by former prisoners to whom the statute no longer applies, by reading the statute to
preclude supplemental pleadings to notice the fact of the prisoners' release, escapes me.

47
 The majority has therefore sought to enhance the PLRA with an interpretation that is not supported

by the statutory text. Seizing on a few passages from the legislative history (none of which are even remotely

related to the issue of supplemental pleadings), the majority has tried to "put some teeth" into the PLRA, ante

at 2738 (quoting Gay v. Texas Dept. of Corrections State Jail Div., 117 F.3d 240, 242 (5th Cir.1997)), by

levying one all-purpose sanction on any prisoner who seeks to prosecute a claim for mental or emotional

injury, even if the PLRA no longer applies in his case. Why this dissatisfaction with the statute that Congress

actually enacted? The answer can be found in the majority's discussion of the number of prisoner filings,

bemoaning the fact that "[l]ast year alone, there were 3,465 prisoner lawsuits filed in the district courts of this

circuit." Ante at 2742.15 The PLRA may go some distance in reducing the volume of prisoner litigation, but

the majority has decided that it does not go far enough. So, because Congress did not quite get it right, we

will "help out the legislature" today by means of a judicial amendment that takes the unprecedented step of

inferring a remedy for a violation of section 1997e(e) that can be found nowhere in the statute, and that was

never mentioned during the legislative debates.

Congress could have done a lot of things when it enacted the PLRA. It could have provided for

criminal penalties for a violation of section 1997e(e), or a civil fine to be imposed every time a prisoner files

while incarcerated. It even could have rendered Rule 15(d) inapplicable in prisoner litigation, so that a

prisoner would be precluded from supplementing his complaint to reflect the fact of his release. We know

that when Congress wanted to alter the Rules of Civil Procedure, as in section 1997e(c)(1) (court shall "on

its own motion ... dismiss any action ... [that is] frivolous, malicious, fails to state a claim upon which relief

can be granted, or seeks monetary relief from a defendant who is immune from such relief"), it certainly knew

15
I dislike frivolous prisoner litigation as much as my colleagues do. Suits that are truly meritless (such
as Eighth Amendment claims that prisoners have a constitutional entitlement to chunky peanut butter, see 141
Cong. Rec. S14408-01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole)) impair the courts' judicial
resources, and increase overall delay—at both the trial and appellate levels—in a circuit that is already
extraordinarily burdened. Frustration with frivolous lawsuits, however, does not give us the authority to enact
legislation to cure the problem. We are bound by Congress' enactments, and where Congress has spoken to
the question of remedies, we may go no further.

48
how to do so. Congress, however, provided for none of these remedies for a violation of section 1997e(e).

It simply provided that "[n]o Federal civil action may be brought." Without congressional authorization, it

is utterly inconceivable that the majority could infer from these words such a drastic remedy as dismissal,

regardless of whether the statute actually applies.

In an effort to assist Congress in stamping out prisoner lawsuits, the majority has forgotten the one

very basic, but fundamental truth that "there is no liberty if the power of judging be not separated from the

legislative and executive powers." The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed.,

1961) (quoting Montesquieu, The Spirit of the Laws, vol. I, p. 181). Quite frankly, it is not our job to "put

some teeth" into the PLRA, or any other statute that Congress enacts; our job is to follow the congressional

command by enforcing the statute as written. "Courts are not authorized to rewrite a statute because they

might deem its effects susceptible of improvements." Badaracco v. Commissioner, 464 U.S. 386, 398, 104

S.Ct. 756, 764, 78 L.Ed.2d 549 (1984); see also Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27

L.Ed.2d 498 (1971) ("[I]t is for Congress, not this Court, to rewrite the statute."); Korman v. HBC Florida,

Inc., 182 F.3d 1291, 1296 (11th Cir.1999) ("It is not the business of courts to rewrite statutes."); cf. Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865, 104 S.Ct. 2778, 2793, 81 L.Ed.2d

694 (1984) ("Courts must, in some cases, reconcile competing political interests, but not on the basis of

judges' personal policy preferences."); cf. also Chandler v. James, 180 F.3d 1254, 1275 (11th Cir.1999)

(Tjoflat, J., specially concurring) (discussing the separation of powers concerns that arise when courts use

the injunctive remedy beyond what Congress has prescribed). The fact that the majority thinks that it is

following Congress' purpose is no justification for encroaching upon the legislative domain by inferring

remedies that cannot plausibly be drawn from the statutory language. When we blur the boundaries between

the judicial and political branches, we threaten the supremacy of the legislature when it comes to the creation

of law.

III.

49
 The immediate effects of today's decision are troubling. Despite the majority's desire to cut down

on prisoner litigation, today's holding will simply spawn needless litigation as the district courts in this circuit

are forced to dismiss a prisoner's case without prejudice, and then reconsider the case without the physical

injury component after the prisoner is released from custody. I appreciate the majority's candor in

acknowledging that because "some ... claims will be re-filed after the [prisoner] is released ..., more total

effort may well be required to adjudicate those particular claims than if [the majority's interpretation of] the

section 1997e(e) bar did not exist." Ante at 2743. I doubt, however, that the majority realizes the magnitude

of the "total effort" that district courts will now have to invest in implementing today's decision. The issue

of whether a prisoner can meet section 1997e(e)'s physical injury requirement may not be decided, in many

cases, until summary judgment or at trial. Thus, a district court now faces the prospect of bringing its

resources to bear on a prisoner's claim, only to conclude on motion for summary judgment or at trial that,

since the prisoner suffered no physical injury, it must dismiss the case. The court's efforts will have gone for

naught because its determination that there was no physical injury will be of no moment in the court's

consideration of the former prisoner's claim, asserted in a new suit filed subsequent to his release, that he

suffered mental or emotional injury while in custody.

Following, I set out Congress' purpose in enacting section 1997e(e). I then compare, in light of the

congressional purpose, the practical effects of my interpretation of section 1997e(e), with the practical effects

that will surely flow from the majority's interpretation.

A.

As noted supra in Part II.B, the purpose of section 1997e(e) was not just to cut down on prisoner

"filing." Such a myopic view of the statute misses the forest for only one tree. The purpose of the statute was

to curtail what was viewed as the largely meritless litigation (money damages suits for mental or emotional

injury) being pursued by a group of people (prisoners) who face uniquely low opportunity costs in pursuing

such litigation. This broad understanding of the congressional design actually imputes two, interrelated

50
motives to Congress. In enacting the PLRA, Congress sought to (1) conserve judicial resources, and (2)

continue to allow prisoners to pursue meritorious litigation.

First, Congress sought to preserve judicial resources by enacting a series of measures that function

as gate-keepers to the district courts.16 Prior to the enactment of the PLRA, 28 U.S.C. § 1915(d) was the only

gate-keeping mechanism that district courts had at their disposal to screen out frivolous prisoner lawsuits.

That section allowed a court to dismiss a case, sua sponte, if the court was "satisfied that the action [was]

frivolous or malicious." 28 U.S.C. § 1915(d) (1994). Because Congress deemed section 1915(d) inadequate

to safeguard judicial resources from the onslaught of prisoner lawsuits, it enacted several provisions of the

PLRA to serve as heightened gate-keepers.

28 U.S.C. § 1915(b), for example, qualifies a prisoner's right to bring a civil action in forma pauperis

by requiring partial payment of the filing fee up-front, and then monthly payments to cover the balance of

the fee. This provision increases the costs of bringing a civil action for the prisoner, and thus makes it more

likely that prisoners will only bring suits that have some merit. Certainly, section 1915(b) will decrease

prisoner "filings." But why is that, in the view of Congress, a good thing? The answer, of course, is because

fewer "filings" means fewer judicial resources expended on prisoner lawsuits. The ultimate goal is not just

to decrease prisoner "filings;" the goal is to save the judiciary the expenditure of time and resources.

The same is true of section 1997e(e). The requirement that prisoners demonstrate physical injury

serves as a gate-keeping mechanism by screening out a certain class of cases—cases in which a prisoner seeks

damages for mental or emotional injury only. This raises the bar on a prisoner who wants to bring a damages

action while incarcerated, by forcing the prisoner to demonstrate an element (physical injury) that is not

necessarily required to state a claim for relief under the Eighth Amendment.17 Thus, the district courts'

16
In enacting the PLRA, Congress also sought to preserve state court resources. Because this case focuses
on litigation in the federal courts, I tailor my remarks accordingly.

17
As Justice Blackmun wrote in Hudson v. McMillian, "[i]t is not hard to imagine inflictions of
psychological harm—without corresponding physical harm—that might prove to be cruel and unusual

51
resources are preserved for cases in which a prisoner can demonstrate physical injury. A court is empowered

to make an up-front determination of whether the prisoner has alleged injury sufficient to meet the section

1997e(e) requirement; if not, then the case can be disposed of without substantially taxing the court's

resources.

The second purpose animating the PLRA is Congress' desire to continue to allow prisoners to pursue

meritorious litigation. The legislative history is replete with examples of frivolous prisoner lawsuits that were

so ridiculous that they would be humorous, but for the fact that they were constituting a serious drain on

judicial resources. See, e.g., 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen.

Dole) ("[P]risoners have filed lawsuits claiming such grievances as insufficient storage locker space, being

prohibited from attending anniversary party, and yes, being served creamy peanut butter instead of the chunky

variety they had ordered."); 141 Cong. Rec. S14408-01, S14418 (daily ed. Sept. 27, 1995) (statement of Sen.

Hatch) ("In one frivolous case ..., an inmate sued demanding that he be issued Reebok or L.A. Gear brand

shoes instead of the Converse brand being issued. In another case, an inmate deliberately flooded his cell,

then sued the officers who cleaned up the mess because they got his Pinochle cards wet."); 141 Cong. Rec.

S14611-01, S14626 (daily ed. Sept. 29, 1995) (statement of Sen. Reid) (among "top 10 lawsuits in Nevada

filed by prisoners," were claims that the prisoner should not be required to open his window slot when meals

are served, that the delivery of mail interfered with prisoner's usual sleeping pattern, and that the prisoner was

given a size five tennis shoe, when the actual size of his foot was four and three-fourths). It is this class of

litigation, frivolous prisoner lawsuits, that Congress sought to screen out. Congress had no intent to prevent

meritorious suits filed by prisoners from being adjudicated in the courts.

punishment." He cited as an example, "Wisniewski v. Kennard, 901 F.2d 1276, 1277 (5th Cir.) (guard
plaining revolver in inmate's mouth and threatening to blow prisoner's head off), cert. denied, 498 U.S. 926,
111 S.Ct. 309, 112 L.Ed.2d 262 (1990)." Hudson v. McMillian, 503 U.S. 1, 16, 112 S.Ct. 995, 1004, 117
L.Ed.2d 156 (1992) (Blackmun, J., concurring).

52
 Section 1997e(e) perfectly illustrates the congressional desire to continue to allow prisoners to bring

meritorious lawsuits. Congress could have eliminated all damages actions by plaintiffs confined in a jail,

prison, or other correctional facility. This would certainly have been the most effective route if Congress' sole

purpose in enacting the PLRA was to conserve judicial resources. But section 1997e(e) only affects actions

brought solely for mental or emotional injury, and does not impair a prisoner's right to bring an action for

physical injury. Why the distinction? Obviously, Congress made a determination that suits brought solely

for mental or emotional injury were more likely to be without merit than cases in which a prisoner sustains

some physical injury.

This determination certainly comports with traditional legal principles; tort law, for example, is

notorious for redressing the claims of those who have undergone a nonconsensual "touching," while virtually

ignoring those who claim to have suffered some damage from "verbal harassment." Because Congress

wanted to conserve judicial resources while still allowing prisoners to pursue meritorious litigation, it

identified a certain class of cases as being particularly likely to be without merit—cases in which prisoners

sued for mental or emotional injury only—and then screened off those cases as not deserving of judicial

consideration.

B.

My interpretation of section 1997e(e) is faithful to the congressional purpose of conserving judicial

resources while still allowing prisoners to pursue meritorious claims. Consider a case in which a prisoner

alleges that prison guards physically abused him, and seeks damages for both the physical injury, and the

mental or emotional distress that resulted. In one scenario, the case will move along, the parties will engage

in discovery, and the defendant will move for summary judgment, contending that the prisoner has failed to

demonstrate physical injury and that the case should therefore be dismissed. Before the court rules on the

defendant's motion, assume that the plaintiff is released from incarceration, and seeks to supplement his

complaint to notice the fact of his release and to delete his allegation of physical injury.

53
 If, as under my interpretation of section 1997e(e), the court has discretion to permit the supplement,

then the court can adjudicate the plaintiff's claim for mental or emotional injury only. The section 1997e(e)

bar will no longer apply, and the court can adjudicate the case in one proceeding. The judicial machinery will

only be set in motion one time in order to dispose of the whole case.

Now consider a second scenario. It is entirely likely that many prisoners will be able to proffer

enough evidence of physical injury to preclude the court from dismissing their claims for damages on motion

for summary judgment. In that case, the issue of whether the prisoner suffered physical injury will go to trial.

If a prisoner is released from incarceration during trial, then under my interpretation of section 1997e(e), the

district judge will have discretion to allow the plaintiff to supplement his complaint, and to delete his

allegation of physical injury. Because the court is able to exercise its discretion, the parties can litigate the

claim for mental or emotional injury to final judgment. Again, the section 1997e(e) bar will no longer apply,

and the court will only have to oversee one proceeding in order to dispose of the whole case.

The key to understanding this interpretation of section 1997e(e) is to realize that the value of the

statutory provision, in terms of conserving judicial resources, depends on how quickly the district judge acts

on a prisoner's complaint, specifically, the prisoner's allegation of physical injury. If the district judge can

determine from the pleading that the prisoner has failed to allege physical injury sufficient to withstand the

section 1997e(e) bar, then the litigation has not cost very much in terms of judicial resources. It is true that

the prisoner will be able to re-file his claim for mental or emotional injury once he is released, and thus

subject the judiciary to two, almost identical lawsuits. But the costs of dismissing the suit while the prisoner

was incarcerated were not very high; therefore, the sanction of forcing the prisoner to re-file the case once

he is released has not come at a high cost to the judiciary.

The further along the case proceeds, the more it costs in terms of judicial resources, and the closer

the date of the prisoner's release from custody. If the case reaches the summary judgment stage or goes to

trial, then a substantial amount of judicial effort has been invested in determining whether the prisoner

54
suffered physical injury. If the prisoner is released from incarceration, and the court determines (either on

summary judgment or at trial) that his evidence of physical injury is insufficient, the costs of dismissing the

case, requiring the former prisoner to re-file it, and forcing the court to entertain the litigation all over again,

impose a very high price on the judiciary. This is because once the case is re-filed, the court will have to

address it anew. All of the court's work in determining whether the plaintiff suffered physical injury will have

been for naught, because physical injury will no longer be an element of the plaintiff's claim. This seems like

an exorbitantly high price to pay merely to extract a second filing fee from the plaintiff (who may not have

to pay the filing fee after all, because he will likely be able to proceed in forma pauperis ). Thus, the sensible

solution, and the solution obviously intended by Congress when it fashioned section 1997e(e) not to abrogate

Rule 15(d), is to allow released prisoners to supplement their complaints and continue their lawsuits.

C.

Today's holding, on the other hand, requires a district court to engage in the administrative absurdity

of dismissing a case no matter what stage the litigation has reached, and regardless of whether the plaintiff

has been released from incarceration, and then entertain the case anew when the former prisoner files his

action again.18 In the first scenario discussed above (where plaintiff seeks to supplement his complaint to

notice the fact of his release and withdraw his allegation of physical injury before summary judgment is

entered), the court's holding today will mean that the district court will lack discretion to permit the

supplement. Thus, if the court resolves the issue of physical injury against the plaintiff—because it either

treats the plaintiff's motion as a concession that the plaintiff cannot demonstrate physical injury, or grants

partial summary judgment on the issue of physical injury—it will have to dismiss (without prejudice) the case

under section 1997e(e). The plaintiff will immediately re-file, seeking damages for mental or emotional

18
As opposed to the majority's somewhat exotic hypothetical where a prisoner is confined, and then
released, and then picked up again and jailed, and then bailed out, and then returned to prison, ante at 2741,
the spectacle of a court dismissing an action, just so it can entertain the action again when the former prisoner
files his action anew is not hypothetical; it is the result of the majority opinion.

55
injury only. The court will then be forced to consider, in a second proceeding, the plaintiff's claim for mental

or emotional injury, all because it had to dismiss the previous case under the court's holding today. All the

court's work in the previous case will have been for naught.

The even worse scenario, of course, is where the prisoner's case actually goes to trial. If a court

cannot grant the released prisoner's motion to supplement at trial, then the court faces the prospect of

dismissing the case under section 1997e(e) (even though the plaintiff has been released from incarceration),

and then adjudicating the case once again when the plaintiff re-files for mental or emotional injury. In this

scenario, the court' s holding today will force the district court to engage in a full-blown trial that will

ultimately serve no purpose other than requiring the plaintiff to pay a second filing fee (in the event that he

is ineligible for in forma pauperis status).

The majority's interpretation not only wastes judicial resources; it is also unfaithful to the second

congressional purpose of continuing to allow prisoners to pursue meritorious lawsuits. If a prisoner is able

to surmount the summary judgment hurdle—that is, convince a district judge that his claim for physical injury

has enough evidentiary support to warrant a fact determination—then his case is meritorious by definition.

Thus, by forcing district courts to dismiss a plaintiff's case whenever it becomes apparent that the plaintiff

has suffered no physical injury (even if that determination is not made until trial), the court's holding punishes

plaintiffs who did not violate section 1997e(e). It is at least arguable that if a plaintiff can get by summary

judgment on the issue of physical injury, then he did not bring a case "for mental or emotional injury suffered

while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e).19 It therefore seems odd

19
There are two ways that one could read section 1997e(e)'s proscription on bringing suits for mental or
emotional injury suffered while in custody without a prior showing of physical injury. One could interpret
the provision as precluding a prisoner from bringing all damages actions in which the trier of fact does not
ultimately find that the prisoner suffered physical injury. Alternatively, one could read the statute as
precluding only those lawsuits in which the prisoner does not have enough evidence of physical injury to get
past summary judgment. It seems unlikely that Congress intended the first interpretation. The issue of
whether the prisoner intentionally violated section 1997e(e) would become irrelevant to the statutory
construction, because if the prisoner has enough evidence of physical injury to surpass the summary judgment
hurdle, he obviously did not intend to violate the statute when he filed his suit. If a district court does not

56
to punish a plaintiff (by dismissing his case and forcing him to pay a second filing fee) after his release from

incarceration, when the action, as originally brought, was meritorious. The majority punishes a whole class

of plaintiffs (those who bring meritorious cases) who Congress never intended to subject to punishment.

In addition to unduly taxing district court resources, the court also imposes a burden on defendants

to defend the action all over again when plaintiffs re-file. After the defendant has already invested enormous

amounts of time and money in defending the lawsuit, why would the defendant ever want the court to dismiss

the case without resolving all of the plaintiff's claims? If the court dismisses the action, then the plaintiff will

re-file, and the defendant will have to defend a second time. Because a defendant will most likely want the

court to address the plaintiff's whole case (including the plaintiff's claim for mental or emotional injury only)

in one proceeding, the defendant may request the court to grant the plaintiff's motion to supplement and carry

the case to final judgment. If the court granted the defendant's request, its ruling would be insulated from

appellate review under the invited error doctrine.

The majority's sole justification for imposing on the district courts' scarce resources is that a prisoner

who violates section 1997e(e) must be made to suffer some "burden, inconvenience, or expense," ante at

2747. The sum total of this "burden, inconvenience, or expense" comes down to this: the former prisoner

will have to pay a second filing fee when he re-files his claims for mental or emotional injury. There are two

reasons why the majority's "burden, inconvenience, or expense" may be no burden at all.

First, because the PLRA will no longer apply, it is likely that many former prisoners will not have

to pay a second filing fee, because they will be entitled to file in forma pauperis under 28 U.S.C. §

grant summary judgment to the defendant, then when the prisoner brought the action, the case was
meritorious enough to preclude a district judge from throwing it out. Whether the prisoner's violation of
section 1997e(e) was intentional, however, must at least play some role in our interpretation; this is because,
as discussed supra, in enacting section 1997e(e) Congress only intended to screen out frivolous suits from
the district courts' dockets. The focus was on punishing those prisoners who repeatedly abuse the judicial
process by filing claims that are patently without merit. This does not mean that we should impose some
mens rea requirement on the functioning of section 1997e(e). But the issue of intent, as it relates to whether
a prisoner's case is so frivolous that he obviously knew he was violating section 1997e(e) when he brought
the action, is relevant to determining whether a violation has actually occurred.

57
1915(a)(1). Second, even if they do have to pay the fee, this punishment will have been extracted at a

disproportionate cost to the judiciary, and the defendant. As discussed above, if the district judge is forced

to dismiss the case at summary judgment or trial (even though the plaintiff has been released from

incarceration, and thus relieved of the burden of demonstrating physical injury), then all the time and

resources invested by the court and the defendant will have been wasted. When one compares the cost of a

second filing fee to the plaintiff with the costs today's decision imposes upon the judicial system, one wonders

exactly who the majority seeks to punish in this case.

IV.

For the foregoing reasons, I dissent from the court's holding that section 1997e(e) of the PLRA

required the district court to dismiss plaintiffs' complaint, even though that section no longer applies to

plaintiffs because they are no longer prisoners within the meaning of the Act. I would reinstate fully the panel

opinion in this case, vacating the district court's dismissal of claims for compensatory and punitive damages

for plaintiffs Chadwick, Harris, Cook, Hooks, Nation, and Dailey, and remanding the case to the district court

for further proceedings.

I concur in the court's judgment insofar as it reinstates those parts of the panel opinion that dispose

of the claims of plaintiffs Locklear, Kilgore, Langes, Brinkley, and Wade.

58