Walker v. Schult

20-2415
Walker v. Schult

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 ------

4 August Term, 2020

5 (Argued: May 25, 2021 Decided: August 16, 2022)

6 Docket No. 20-2415

7 _________________________________________________________

8 ELLIS WALKER,

9 Plaintiff-Appellee,

10 - v. -

11 DEBORAH G. SCHULT, Warden, FCI Ray Brook, JACKII
12 SEPANEK, Counselor, FCI Ray Brook,

13 Defendants-Appellants,

14 RUSSELL PERDUE, Warden, FCI Ray Brook, DAVID SALAMY,
15 Unit Manager, FCI Ray Brook, DAVID PORTER, Associate
16 Warden, FCI Ray Brook, ANNE MARY CARTER, Associate
17 Warden, FCI Ray Brook, STEVEN WAGNER, Associate Warden,
 1 FCI Ray Brook, J.L. NORWOOD, Regional Director, HARLEY
2 LAPPIN, Director, Bureau of Prisons,

3 Defendants. *
4 _________________________________________________________

5 Before: KEARSE, LYNCH, and CHIN, Circuit Judges.

6 Appeal by defendants Deborah G. Schult and Jackii Sepanek,

7 federal prison officials, from a judgment entered in the United States

8 District Court for the Northern District of New York following a jury trial

9 before Daniel J. Stewart, Magistrate Judge, awarding former prisoner Ellis

10 Walker $20,000 for mental and emotional injury in this action requesting,

11 inter alia, damages pursuant to Bivens v. Six Unknown Named Agents of

12 Federal Bureau of Narcotics, 403 U.S. 388 (1971), for his imprisonment in

13 overcrowded conditions that posed a substantial risk of serious damage

14 to his health or safety, to which appellants were deliberately indifferent,

15 in violation of his rights under the Eighth Amendment to the Constitution.

16 On appeal, appellants contend that the district court erred in denying their

17 motions for judgment as a matter of law on the ground (a) that a Bivens

*
The Clerk of Court is instructed to amend the official caption to
conform with the above.

2
 1 damages remedy is not available for such claims, or (b) that even if such

2 a remedy is available, appellants are entitled to qualified immunity.

3 Without addressing the Bivens question, we conclude that appellants are

4 entitled to judgment as a matter of law on the grounds (a) that in light

5 of the jury's findings that Walker had not proven any physical injury, the

6 Prison Litigation Reform Act precluded the award of damages for mental

7 or emotional injury, see 42 U.S.C. § 1997e(e); (b) that whether or not the

8 facts found by the jury sufficed to establish a violation of Walker's Eighth

9 Amendment rights, any award of nominal damages was precluded by

10 appellants' entitlement to qualified immunity; and (c) that as Walker had

11 been released from prison prior to judgment, his claims for injunctive

12 relief were moot.

13 Judgment against appellants reversed; remanded for dismissal

14 of the complaint.

15 MEGAN BEHRMAN, New York, New York (Blake
16 Denton, William O. Reckler, Latham &
17 Watkins, New York, New York, on the brief),
18 for Plaintiff-Appellee.

19 LOWELL V. STURGILL JR., Civil Division, United
20 States Department of Justice, Washington, DC

3
 1 (Jeffrey Bossert Clark, Acting Assistant
2 Attorney General, Brian M. Boynton, Acting
3 Assistant Attorney General, United States
4 Department of Justice, Washington, DC;
5 Antoinette T. Bacon, Acting United States
6 Attorney for the Northern District of New
7 York, Albany, New York; Barbara L. Herwig,
8 Civil Division, United States Department of
9 Justice, Washington, DC, on the brief), for
10 Defendants-Appellants.

11 Samuel Weiss, Washington, DC (for Amicus Curiae
12 Rights Behind Bars), David M. Shapiro,
13 Chicago, Illinois (for Amicus Curiae Roderick
14 & Solange MacArthur Justice Center), filed a
15 brief in support of Plaintiff-Appellee.

16 KEARSE, Circuit Judge:

17 Defendants Deborah G. Schult and Jackii Sepanek

18 ("Defendants"), federal prison officials, appeal from a judgment entered in

19 the United States District Court for the Northern District of New York

20 following a jury trial before Daniel J. Stewart, Magistrate Judge, awarding

21 former prisoner Ellis Walker $20,000 for mental and emotional injury in

22 this action requesting, inter alia, damages pursuant to Bivens v. Six

23 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

4
 1 for his imprisonment in overcrowded conditions that posed a substantial

2 risk of serious damage to his health or safety, to which Defendants were

3 deliberately indifferent, in violation of his rights under the Eighth

4 Amendment to the Constitution. On appeal, Defendants contend that the

5 district court erred in denying their motions for judgment as a matter of

6 law on the ground (a) that a Bivens damages remedy is not available for

7 such claims, or (b) that even if such a remedy is available, Defendants are

8 entitled to qualified immunity. Without regard to the Bivens question, we

9 conclude for the reasons discussed below that Defendants are entitled to

10 judgment as a matter of law on the grounds (a) that the Prison Litigation

11 Reform Act ("PLRA") precluded the award of damages to Walker for

12 mental or emotional injury because the jury found he had not proven that

13 he suffered any physical injury, see 42 U.S.C. § 1997e(e); (b) that if a

14 constitutional violation by these Defendants was proven, their entitlement

15 to qualified immunity foreclosed an award of nominal damages; and

16 (c) that as Walker had been released from prison prior to judgment, his

17 claims for injunctive relief were moot.

5
 1 I. BACKGROUND

2 In November 2008, Walker, a federal prisoner, was sent to the

3 Federal Correctional Institution Ray Brook in New York ("FCI Ray Brook"

4 or "Ray Brook"), where he was placed in a cell (or "Cell 127") with five

5 other inmates. In March 2011, he commenced the present action pro se

6 seeking "relief and/or damages" for the conditions of his confinement at

7 Ray Brook from the start of that confinement--having made numerous

8 complaints to the warden and other prison staff, both in person and

9 through the official prison grievance system, with no success. (Complaint

10 at 1.) The conditions of which Walker complained included lack of

11 sufficient space in the 190.62-square-foot Cell 127 to accommodate six

12 prisoners, lack of ventilation, and lack of heat in winter; inadequate bed

13 size for Walker (who was 6'4" tall and weighed 255 pounds) and lack of

14 a ladder for him to access the upper bunk to which he was assigned; and

15 unsanitary cell conditions generated by his cellmates, and exacerbated by

16 the denial of sufficient cleaning supplies.

6
 1 Walker requested damages, an uncrowded cell, and a reduction

2 of his prison term by five times the number of days of his housing in Cell

3 127. In April 2011, Walker was moved to a two-man cell, having been in

4 Cell 127 for 880 days.

5 Walker's case was eventually tried in 2020. The jury did not

6 find that Walker had suffered any physical injury. However, it found that

7 his "imprisonment in Cell 127 . . . posed a substantial risk of serious

8 damage to his health or safety," to which Schult and Sepanek had been

9 "deliberately indifferent," and it awarded him compensatory damages of

10 $20,000. (Jury Verdict Form at 2, 4.) On this appeal, Defendants do not

11 challenge the jury's factual findings or the sufficiency of the trial evidence

12 to support them. Walker's detailed allegations--which were the subject of

13 evidence at trial (see Part I.C. below)--have been described in prior

14 opinions of the district court and this Court, see Walker v. Schult, No.

15 9:11-CV-0287, 2012 WL 1037441 (N.D.N.Y. Jan. 20, 2012) (Report and

16 Recommendation of Magistrate Judge Randolph F. Treece) ("Walker I"),

17 adopted, 2012 WL 1037442 (N.D.N.Y. Mar. 27, 2012), affirmed in part, vacated

7
 1 and remanded in part, 717 F.3d 119 (2d Cir. 2013) ("Walker II"), familiarity

2 with which is assumed.

3 A. The Motion To Dismiss for Failure To State a Claim

4 Walker's pro se complaint named nine individuals as

5 defendants, including Schult who was the warden at FCI Ray Brook

6 during most of Walker's confinement there; Russell Perdue, who became

7 Ray Brook's warden just weeks before Walker commenced this action; and

8 Sepanek, who was "counselor" in Walker's area at Ray Brook and who was

9 in charge of distributing cleaning supplies. The other defendants were

10 Ray Brook's former unit manager David Salamy, three Ray Brook associate

11 wardens, and two United States Bureau of Prisons ("BOP") officials who

12 were not stationed at Ray Brook. The defendants moved to dismiss the

13 complaint, contending principally that Walker had not exhausted his

14 administrative remedies and that his complaint failed to state an Eighth

15 Amendment claim.

16 The motion to dismiss was referred, for report and

17 recommendation, to Magistrate Judge Randolph F. Treece who stated that

8
 1 the defendants' exhaustion challenge could not be resolved on the face of

2 the complaint, but recommended that the complaint be dismissed for

3 failure to state a claim. Judge Treece noted that in order to state a valid

4 claim under the Eighth Amendment based on the conditions of his

5 confinement, a plaintiff must set out facts plausibly indicating, inter alia,

6 that "the conditions were so serious that they constituted a denial of the

7 'minimal civilized measure of life's necessities,'" Walker I, 2012 WL

8 1037441, at *5 (quoting Wilson v. Seiter, 501 U.S. 294, 297-99 (1991)). The

9 magistrate judge considered each aspect of the conditions of which Walker

10 complained and found that none, singly or in combination, reached the

11 level of an Eighth Amendment violation. See Walker I, 2012 WL 1037441,

12 at *5-*8. The recommendation to grant defendants' motion to dismiss the

13 complaint for failure to state a claim was summarily accepted by the

14 district court, and the complaint was dismissed.

15 Walker filed an appeal pro se; counsel subsequently appeared

16 for him (and thereafter continued to represent him in the district court).

17 In Walker II, this Court vacated the dismissal of the complaint, except as

18 to the two BOP officials who were not alleged to have had personal

9
 1 involvement in the claimed constitutional violation, and whose dismissal

2 was not challenged on appeal. See 717 F.3d at 123 n.4, 130. We partly

3 summarized Walker's plausible factual allegations as to the conditions

4 knowingly allowed by the other seven defendants as follows:

5 [F]or approximately twenty-eight months, he was
6 confined in a cell with five other men, with inadequate
7 space and ventilation, stifling heat in the summer and
8 freezing cold in the winter, unsanitary conditions,
9 including urine and feces splattered on the floor,
10 insufficient cleaning supplies, a mattress too narrow for
11 him to lie on flat, and noisy, crowded conditions that
12 made sleep difficult and placed him at constant risk of
13 violence and serious harm from cellmates.

14 Id. at 126. We noted that it was well settled that a prisoner's Eighth

15 Amendment right not to be subjected to cruel and unusual punishment

16 could be violated by, inter alia, prolonged exposure to extreme

17 temperatures without adequate ventilation; conditions that prevent sleep,

18 which is critical to human existence; unsanitary conditions in a prison cell;

19 and conditions that place a prisoner at a substantial risk of serious harm

20 from other inmates--as well as by overcrowding if combined with other

21 adverse conditions. See id. at 126-29. As Walker plausibly alleged those

22 conditions, as well as deliberate indifference by the seven defendants on

10
 1 site at FCI Ray Brook, we held that he "ha[d] plausibly alleged cruel and

2 unusual punishment in violation of the Eighth Amendment." Id. at 126.

3 We noted that "further facts [we]re required" for a determination of the

4 defendants' claim of entitlement to qualified immunity. Id. at 130.

5 B. Pretrial Proceedings on Remand

6 On remand, the defendants made several motions for summary

7 judgment dismissing the complaint. First, they contended that Walker had

8 not exhausted his administrative remedies as to some of his complaints.

9 The district court denied this motion, ruling that Walker asserted a single

10 multi-faceted claim about prison conditions and that he had not asserted

11 new, unexhausted claims. See Decision and Order dated December 11,

12 2014. A year later, the defendants sought summary judgment on the

13 grounds that they were entitled to qualified immunity from Walker's

14 claims and that the relief requested by Walker was precluded by the

15 PLRA, citing 42 U.S.C. § 1997e(e). As discussed in Part II.B.2.a. below, the

16 court denied the motion in a Memorandum-Decision and Order dated

17 August 9, 2016, finding that there were genuine issues of material fact to

11
 1 be tried. See Walker v. Schult, No. 9:11-CV-0287, 2016 WL 4203536

2 (N.D.N.Y. Aug. 9, 2016) ("Walker III"). Walker thereafter agreed to the

3 dismissal of his claims against the remaining defendants other than

4 Sepanek, Schult, and Schult's successor Perdue.

5 The defendants' third summary judgment motion argued that

6 under the Supreme Court's 2017 decision in Ziglar v. Abbasi, 137 S. Ct.

7 1843 (2017), a Bivens remedy was unavailable to Walker because his claims

8 present a new context and because special factors counsel against

9 expanding the Bivens remedy to this context. This motion was made in

10 March 2019, two months before the then-scheduled start of trial; the

11 district court summarily denied it as untimely. Thereafter, the parties

12 consented to have the trial conducted before a magistrate judge, and the

13 case was reassigned to Judge Stewart.

14 C. The Trial Evidence

15 Walker's claims against Schult, Sepanek, and Perdue were tried

16 in January 2020. The evidence included testimony from Walker and a

12
 1 former cellmate, from Schult, Sepanek, Perdue, and other former FCI Ray

2 Brook employees, and from two experts called by Walker.

3 Walker and his former Cell 127 cellmate Furman Odom

4 described crowded, noisy, unsanitary, and unsafe conditions in the cell,

5 and threats of violence from their fellow cellmates. Walker testified that

6 because of the overcrowding, there were "numerous fights" in the cell

7 (Tr. 126, 156), as the lack of space made it easy to "bump up against"

8 cellmates or their property, and his cellmates were "just looking for a

9 reason [to fight], just being crowded in the cell like that" (id. at 120-21,

10 158; see also id. at 161-62 ("Being in the crowded space, . . . they would

11 just fight, and any little thing would trigger anybody off.")). He described

12 instances in which trivial inadvertent actions--or sensible comments such

13 as objections to urine on the cell floor--triggered violent attacks with fists

14 or makeshift knives. (See, e.g., id. at 121-26.)

15 Odom likewise testified that the "crowded," "stuffy," and

16 "noisy" conditions in Cell 127 led to arguments that turned into physical

17 fights, which were "mostly about space." (Id. at 375-76.) Because of the

13
 1 potential for violence, Odom "slept with a weapon[,] . . . a sharpened

2 toothbrush." (Id. at 405.)

3 Walker stated that with "six of us crowded in th[e] cell," the

4 cell "was never clean"; there was always food on the floor, urine on and

5 around the one usable toilet, and pervasive offensive smells. (Tr. 138-39.)

6 Walker and Odom testified that they were not given adequate cleaning

7 supplies (Walker was once without cleaning supplies for a month (see id.

8 at 143)), and that when supplies were made available, the supplies were

9 "watered down" (id. at 390), not strong enough to actually get the cell

10 clean (see id. at 141-42).

11 Walker also testified about his persistent requests to Sepanek

12 and Schult for more cleaning supplies or for a transfer to a different cell.

13 "[T]ime after time," Walker asked Sepanek to move him out of Cell 127

14 and into a two-man cell, but Sepanek refused. (Id. at 259.) Walker said

15 he seemed to be "at the bottom" of Sepanek's list, and never moving up.

16 (Id.; see also id. at 236.) Sepanek's own testimony supported Walker's

17 observation. She testified that she had assigned Walker to a top bunk in

18 Cell 127 and had the power to move him to a lower bunk or to a two-man

14
 1 cell (see id. at 653-55)--a two-man cell generally being "more favorable than

2 six-man cells" because in a six-man cell "one inmate could be ganged up

3 on by five different inmates" (id. at 665-67). But when "beds would open

4 up in the two-man cells," Walker was not moved because Sepanek allowed

5 the remaining occupant to choose his new cellmate (id. at 667-68).

6 Walker testified that in addition to making in-person requests

7 of and complaints to Schult and Sepanek, he filed several rounds of

8 complaints through the FCI Ray Brook grievance system, with no greater

9 success. For example, in his initial, first-level grievance, directed to

10 Sepanek during his first year in Cell 127, he complained that the cell was

11 "so crowded" that he could not "move around without saying excuse me

12 a thousand times a day"; that "because there [we]re so many gangs" and

13 no "duress buttons" to call for help when there was a fight, "someone

14 [wa]s going to be hurt very bad"; and that "[w]ith this overpopulation and

15 crowded living conditions, someone is going to get killed." (Tr. 156-57;

16 see also id. at 219 (the entire prison was crowded).) Walker testified that

17 all of his complaints "derive[d] from overcrowding the cell." (Id. at 226.)

15
 1 Sepanek testified that she could have moved Walker to a

2 different cell in response to his grievance, but she moved other inmates

3 instead. (See, e.g., Tr. 678, 687, 700-02.) After two weeks during which

4 she "didn't take any steps to resolve Mr. Walker's concerns" (id. at 683),

5 she sent Walker a response of "'[u]nable to resolve'" (id. at 681; see also id.

6 at 158-59 (Walker testifying that "'[u]nable to resolve'" was Sepanek's only

7 response to his grievance)).

8 Thereafter, Walker pursued his grievance by appealing

9 Sepanek's non-decision first to Schult, next to the regional BOP office, and

10 then to the BOP central office--all on forms he obtained from Sepanek.

11 (See Tr. 688-94.) The only response Walker received from Schult was a

12 statement that

13 "FCI Ray Brook is able to accommodate the inmates
14 currently housed here while continuing to operate a safe
15 and secure institution. Staff effectively manage the
16 institution through sound correctional management
17 practices, and the safety and security of staff and inmates
18 remain our highest priority."

19 (Id. at 163.) Schult never spoke with Walker about his grievance, and she

20 did not inspect his cell. (See id. at 164-65.)

16
 1 Walker remained housed in Cell 127 until shortly after Schult

2 was replaced by Perdue as warden. Sepanek acknowledged that in all,

3 while Walker was in Cell 127, he had a total of 38 different cellmates,

4 only one of whom occupied that cell longer than Walker. (See id. at 698.)

5 Schult, Sepanek, and other former FCI Ray Brook employees

6 contradicted Walker's account of the conditions in Cell 127 and his

7 attempts to complain about those conditions. They testified that Cell 127

8 was not, and could not have been, as dangerous, dirty, loud, and hot as

9 Walker claimed. Schult and Sepanek also testified that they did not recall

10 Walker complaining to them about the conditions in Cell 127 or requesting

11 to move into a two-man cell. (See, e.g., Tr. 675-76, 841.)

12 Philip Hamel, Ray Brook's former safety manager, testified

13 with respect to certain requirements of the American Correctional

14 Association ("ACA"), an industry organization that set mandatory and

15 recommended standards for safe and secure confinement in prisons. The

16 BOP required prisons in the federal system to be accredited by the ACA;

17 Hamel had been Ray Brook's ACA accreditation manager. FCI Ray Brook

18 was required to comply with ACA's mandatory standards and was

17
 1 "strongly encouraged to comply with" those that were nonmandatory.

2 (Tr. 597.)

3 One of the ACA nonmandatory standards was that a cell

4 should have a minimum of 25 square feet of unencumbered, usable space

5 per inmate (see Tr. 467). Major governmental or professional entities, such

6 as the New York Department of Corrections and the United States Public

7 Health Service, recommended that a jail or prison cell have at least 50 or

8 60 unencumbered square feet per inmate, as "the minimal amount of free

9 space that people need . . . in order to maintain normal psychological

10 functioning." (Id. at 963.) Of all the relevant groups, ACA's

11 recommended minimum was the lowest, at 25 square feet per prisoner.

12 (See id.)

13 Hamel testified that the six-man cells were created at Ray

14 Brook in 2000 when it was receiving an influx of prisoners for whom it

15 did not have enough cells. (See Tr. 639.) He and former unit manager

16 Salamy testified that the six-man cells were improvised by combining two

17 small adjacent cells, removing the wall between them, and adding another

18 bunk bed. (See id. at 641-42, 1056 (there "were two two-man cells,

18
 1 designed for four inmates, but they took down the center wall and simply

2 added a bunk").) The parties stipulated that the dimensions of Cell 127

3 totaled 190.62 square feet (see, e.g., id. at 470-71); and at trial it was

4 calculated that Cell 127's "unencumbered space"--i.e., "space not

5 encumbered by furnishings or fixtures" including beds, toilets, sinks,

6 desks, and lockers (id. at 467)--totaled 99.07 square feet (see id. at 473).

7 Thus, for six inmates (and with no space allotted for chairs) the

8 unencumbered space in Cell 127 was only some 16.51 square feet per

9 prisoner. (See id. at 473-75.)

10 One of Walker's expert witnesses was a professor who had 50

11 years' experience working in corrections, including being the warden in

12 a New York correctional facility, the chief executive officer of the

13 Pennsylvania prison system (which at the time was the fifth largest prison

14 system in the United States), and the commissioner of corrections in New

15 York City. Having reviewed, inter alia, the dimensions and photographs

16 of Cell 127, he testified that it was "one of the most severely overcrowded

17 cells or . . . multiple occupancy housing units [he had] ever observed"

18 (Tr. 482). He noted that "16.5 square feet per person is [a] four-foot

19
1 square. . . . We're talking about each man having a four[-]foot square.

2 That's pretty tight." (Id. at 528.)

3 Ray Brook records showed that of the 880 days when Walker

4 was housed in Cell 127, there were only 39 days when it housed four

5 prisoners; and the longest period of continuous four-man occupancy was

6 11 days. (See id. at 476-77.)

7 Walker's other expert witness was a physician and professor

8 who had been specializing in prison psychiatry and prison mental health

9 since 1967. He had been, inter alia, the director of mental health for the

10 Massachusetts prison system for a decade; for another decade he was the

11 principal investigator in an experimental program in the San Francisco

12 jails that "reduce[d] the in-house violence to zero" (Tr. 954). He opined

13 that the combination of conditions to which Walker testified--to wit,

14 "overcrowding in the cell," "grossly unsanitary conditions in the cell,"

15 "exposure to extremes of heat and lack of adequate ventilation," "chronic

16 and severe sleep deprivation," and "the ongoing constant fear and anxiety"

17 of being "assaulted or even killed by one of one's cellmates," especially

18 considering the 2½-year duration--"constituted cruel, inhuman, and

20
 1 degrading treatment or punishment" amounting to "a form of torture." (Id.

2 at 958, 962; see, e.g., id. at 956-62; id. at 960 ("psychological torture" can be

3 "even more painful than . . . physical torture").)

4 After Walker rested his case and again after the close of all the

5 evidence, the defendants moved pursuant to Fed. R. Civ. P. 50 for

6 judgment as a matter of law on the grounds, inter alia, that a Bivens action

7 is not available for a conditions-of-confinement claim such as that asserted

8 by Walker, and that in any event Schult, Perdue, and Sepanek were

9 entitled to qualified immunity. The court reserved decision.

10 D. The Jury's Verdict

11 The case was submitted to the jury in two stages. First the

12 jury was given a verdict form that asked initially:

13 Has the Plaintiff, Ellis Walker, proven by a
14 preponderance of the evidence, that his imprisonment in
15 Cell 127 denied him the minimal civilized measure of
16 life's necessities or basic human needs or that the
17 conditions in Cell 127 posed a substantial risk of serious
18 damage to his health or safety?

21
 1 (Jury Verdict Form, Part I.1. (emphasis added).) The jury, instructed

2 simply to check "Yes" or "No," answered this question "Yes" (id.), which

3 did not reveal which of the presented alternatives it had found (or

4 whether it had found both).

5 In response to additional questions on that form, the jury found

6 that Walker had proven that Schult and Sepanek--but not Perdue--had

7 been "deliberately indifferent to [Walker] in violation of [Walker's] Eighth

8 Amendment rights" (id. Part I.2.), and that the "actions" of Schult and

9 Sepanek--but not Perdue--"were a proximate cause of an injury to" Walker

10 (id. Part II.1.). As to the actions of the defendants whom the jury

11 identified as deliberately indifferent and as causing Walker injury, the jury

12 was asked:

13 Do you find by a preponderance of the evidence that
14 [Walker] suffered a physical injury as a result of th[at]
15 conduct . . . ?

16 (Id. Part III.1. (emphasis added).) The jury answered "No." (Id.) Finally,

17 the verdict form asked:

18 Considering the elements in the Court's instructions with
19 regard to compensatory damages, what amount of damages
20 do you award to . . . Walker for violation of his

22
 1 constitutional rights? (Note: First, that an award of
2 compensatory damages may include damages to
3 compensate for physical harm as well as pain, mental
4 anguish, emotional distress, personal humiliation, and other
5 such suffering . . . .).

6 (Id. Part III.2. (emphases added).) The language following "Note"

7 reiterated the court's oral instructions to the jury (see Tr. 1157-58). The

8 jury awarded $20,000.

9 After answering the questions on the Jury Verdict Form, the

10 jury was given special interrogatories in aid of the court's ultimate

11 decision as to whether Schult or Sepanek was entitled to qualified

12 immunity. First, the jury was asked to identify which of five claimed

13 "conditions of cell 127" it had found deprived Walker "of his basic life

14 necessities or posed a substantial risk of serious damage to his health or

15 safety"; the five conditions listed were:

16 a. overcrowding/lack of space
17 b. lack of sanitation/cleaning supplies
18 c. threats of violence/lack of safe living conditions
19 d. inability to sleep
20 e. excessive heat or lack of ventilation.

21 (Court Exhibit 6 (emphasis added).) Of these possibilities, the jury

22 responded that it had found only two: "[a.] overcrowding/lack of space"

23
 1 and "[c.] threats of violence/lack of safe living conditions." (Special

2 Interrogatory Answer ("Int.") 1.)

3 In response to additional questions, the jury found that neither

4 Schult nor Sepanek "establish[ed] she was unaware of" either of those two

5 conditions (Ints. 2-3 (emphasis in original)), and that neither Schult nor

6 Sepanek "establish[ed] that she reasonably responded to [Walker's]

7 complaints about the conditions" of Cell 127 (Ints. 4-5).

8 E. The Court's Posttrial Rulings

9 In a Post-Trial Decision and Order dated May 29, 2020, see

10 Walker v. Schult, 463 F.Supp.3d 323 (N.D.N.Y. 2020) ("Walker IV"), the

11 district court turned to the defendants' Rule 50 motions for judgment as

12 a matter of law, noting that the motions by Perdue were moot because the

13 jury had ruled in his favor. Schult and Sepanek pursued dismissal on the

14 grounds that a Bivens damages remedy was not available for claims such

15 as those here; that even if a Bivens damages remedy were theoretically

16 available, and if the trial evidence supported a determination that Walker

17 had been denied an Eighth Amendment right to be moved to a less

24
 1 crowded cell--which Defendants disputed--such a right had not been

2 clearly established, and thus Defendants were entitled to qualified

3 immunity from claims for damages; and that if they did not have qualified

4 immunity, the damages awarded by the jury should be set aside and

5 judgment entered only for nominal damages of $1 because, in light of the

6 jury's finding that Walker had not proven any physical injury, an award

7 of damages for his mental and emotional injury was foreclosed by the

8 PLRA in 42 U.S.C. § 1997e(e). The court rejected each argument.

9 As relevant to our decision here, the district court, after

10 concluding that a Bivens remedy was available, see Walker IV, 463

11 F.Supp.3d at 329-32, concluded in part that neither Schult nor Sepanek was

12 entitled to qualified immunity. It found (see Part II.C. below) that a

13 prisoner's right to "living conditions that were safe and humane and did

14 not deprive him of basic human needs" had been clearly established at the

15 time of Walker's confinement in Cell 127. Id. at 337 (citing Farmer v.

16 Brennan, 511 U.S. 825 (1994), and Rhodes v. Chapman, 452 U.S. 337 (1981)).

17 And in light of the jury's findings that Schult and Sepanek "had actual

18 knowledge of the conditions which posed a serious risk to [Walker's]

25
 1 health and safety, and that they were deliberately indifferent to that risk,"

2 id., they had not proven that their conduct was objectively reasonable, id.

3 at 337-38.

4 The court rejected Defendants' contention that if they were not

5 entitled to qualified immunity, the judgment against them should be

6 reduced to one for $1 as nominal damages because of the § 1997e(e) bar

7 of compensatory damages for emotional and mental injury in light of the

8 jury's finding of no physical injury. Walker, although apparently not

9 contesting the proposition that § 1997e(e) imposes such a bar, argued that

10 Defendants had waived that argument by failing to assert it in their

11 answers as an affirmative defense. As described in Part II.B.2. below, the

12 district court agreed that the PLRA barrier had been waived.

13 Judgment was entered in favor of Walker against Schult and

14 Sepanek for $20,000. See Judgment, May 29, 2020. Although the

15 complaint had also asked for various forms of injunctive relief, those

16 requests had become moot. Walker had been transferred from Cell 127 to

17 a two-man cell in 2011, a month after filing this action; and prior to trial,

18 he had been released from prison. (See Tr. 168; see also Dkt. No. 119

26
 1 (Walker's change-of-address letter to the district court, dated March 30,

2 2016).)

3 II. DISCUSSION

4 On this appeal, Schult and Sepanek do not challenge the factual

5 findings made by the jury or the sufficiency of the evidence to support

6 those findings. Rather, they contend that the district court should have

7 granted judgment as a matter of law in their favor either because a Bivens

8 damages remedy was unavailable for Walker's claim based on being

9 housed in an overcrowded cell, or because they were entitled to qualified

10 immunity, Walker having no clearly established Eighth Amendment right

11 to relief for such a claim. In light of the jury's finding that Walker did

12 not prove that he suffered any physical injury as a result of the

13 complained-of overcrowding, we conclude that Defendants are entitled to

14 dismissal of the complaint on the grounds (a) that the jury's award of

15 damages to Walker for mental or emotional injury should have been set

16 aside as foreclosed by the PLRA, see 42 U.S.C. § 1997e(e); (b) that although

27
 1 an award of nominal damages would normally be appropriate if there is

2 a proven violation of constitutional rights without compensable injury,

3 Defendants are entitled to qualified immunity from such an award; and

4 (c) that Walker's requests for nonmonetary relief had become moot prior

5 to the entry of judgment. In light of these conclusions, we need not

6 address the question of whether a Bivens remedy was available for

7 Walker's conditions-of-confinement claim.

8 A. An Eighth Amendment Overview, and the Posture of This Case

9 We begin with an overview of Eighth Amendment principles

10 and the procedural posture of this case. The Eighth Amendment prohibits

11 the infliction of "cruel and unusual punishments" on persons convicted of

12 crimes. U.S. Const. amend. VIII. This prohibition has both objective and

13 subjective components: official conduct that was "harmful enough" to be

14 characterized as "punishment," and a "sufficiently culpable state of mind,"

15 Wilson v. Seiter, 501 U.S. 294, 303, 297-98 (1991).

16 Cruel and unusual punishment in violation of the Eighth

17 Amendment can take many shapes, whether by design, such as

28
 1 "whipp[ing]," e.g., Hutto v. Finney, 437 U.S. 678, 682 n.4 (1978), or

2 placement in prolonged isolation in cramped cells without adequate food,

3 see, e.g., id. at 682-87; or by deliberate indifference, for example to a

4 prisoner's serious medical needs, see, e.g., Estelle v. Gamble, 429 U.S. 97,

5 103-05 (1976), or to his exposure to excessive amounts of a toxic substance,

6 see, e.g., Helling v. McKinney, 509 U.S. 25, 27-28, 35-36 (1993) (tobacco

7 smoke); Vega v. Semple, 963 F.3d 259, 273-77 (2d Cir. 2020) (radon gas), or

8 to his need for a "meaningful opportunity for physical exercise," see, e.g.,

9 McCray v. Lee, 963 F.3d 110, 118, 120 (2d Cir. 2020), or to his need for

10 protection from a known risk of violence, see, e.g., Farmer v. Brennan, 511

11 U.S. 825, 832-34, 847 (1994); Morgan v. Dzurenda, 956 F.3d 84, 88-89 (2d Cir.

12 2020).

13 In the present case, the source of the dangers of which Walker

14 complained was overcrowding, which created the prison-wide potential for

15 increased violence and correspondingly diminished safety. (See Tr. 226 (all

16 of Walker's complaints "derive[d] from overcrowding the cell"); id. at 219,

17 1055-56 (both sides testifying that the prison as a whole was

18 overcrowded).) However, "overcrowding" itself, i.e., "confin[ing] cellmates

29
 1 too closely," does not violate the prohibition against cruel and unusual

2 punishment unless it is accompanied by some treatment that "deprive[s]

3 inmates of the minimal civilized measure of life's necessities." Rhodes v.

4 Chapman, 452 U.S. 337, 340, 347 (1981) (addressing "double celling").

5 In Rhodes, despite the fact that the prison "housed 38% more

6 inmates at the time of trial than its 'design capacity,'" id. at 343, the

7 district court's other factual findings made after a bench trial--and after

8 a surprise on-site inspection by the trial judge--included the following:

9 The food was "adequate in every respect," and respondents
10 adduced no evidence "whatsoever that prisoners have
11 been underfed or that the food facilities have been taxed
12 by the prison population." The air ventilation system was
13 adequate, the cells were substantially free of offensive odor,
14 the temperature in the cellblocks was well controlled, and the
15 noise in the cellblocks was not excessive. . . . As to violence,
16 the court found that the number of acts of violence at [the
17 prison] had increased with the prison population, but only
18 in proportion to the increase in population. Respondents
19 failed to produce evidence establishing that double
20 celling itself caused greater violence, and the ratio of
21 guards to inmates at [the prison] satisfied the standard
22 of acceptability offered by respondents' expert witness.

23 Id. at 342-43 (internal citation omitted) (emphases added).

30
 1 The trial court's legal conclusion that the overcrowding violated

2 the Eighth Amendment, which was summarily affirmed on appeal, was

3 reversed by the Supreme Court. The Supreme Court noted that "[t]o the

4 extent that [prison] conditions are restrictive and even harsh, they are part

5 of the penalty that criminal offenders pay for their offenses against

6 society." Id. at 347. "[T]he Constitution does not mandate comfortable

7 prisons"; and "conditions that cannot be said to be cruel and unusual

8 under contemporary standards are not unconstitutional." Id. at 349, 347.

9 The Rhodes Court observed that

10 [v]irtually every one of the [trial] court's findings tends
11 to refute [the plaintiffs'] [Eighth Amendment] claim. The
12 double celling made necessary by the unanticipated
13 increase in prison population did not lead to deprivations
14 of essential food, medical care, or sanitation.

15 Id. at 347-48 (emphasis in original). Thus, the legal "conclusion that

16 double celling" as shown at the prison facility at issue "constitute[d] cruel

17 and unusual punishment [wa]s insupportable." Id. at 347; id. at 349

18 ("There [was] no constitutional violation . . . .").

19 In Wilson, the Supreme Court reiterated its "observation in

20 Rhodes that conditions of confinement, 'alone or in combination,' may"

31
 1 violate the Eighth Amendment if they "deprive prisoners of the minimal

2 civilized measure of life's necessities," Wilson, 501 U.S. at 304 (quoting

3 Rhodes, 452 U.S. at 347), as well as Rhodes's holding that overcrowding

4 itself did not amount to cruel and unusual punishment. The Court thus

5 emphasized that "only those deprivations denying 'the minimal civilized

6 measure of life's necessities[]' . . . are sufficiently grave to form the basis

7 of an Eighth Amendment violation." Wilson, 501 U.S. at 298 (quoting

8 Rhodes, 452 U.S. at 347); see, e.g., Helling, 509 U.S. at 32 (government

9 violates the Eighth Amendment when it "renders [a prisoner] unable to

10 care for himself, and at the same time fails to provide for his basic human

11 needs--e.g., food, clothing, shelter, medical care, and reasonable safety"

12 (internal quotation marks omitted)).

13 As to the merits of the claims asserted by Walker, we bear in

14 mind that this action has proceeded through to judgment. What Walker

15 alleged in his complaint is no longer a proper point of reference; nor is

16 the issue here whether he adduced sufficient evidence to support those

17 allegations. The case was tried to a jury, which found certain facts, but

18 not others, established. And "when the jury has decided a factual issue,

32
 1 its determination . . . preclud[es] the court from deciding the same fact

2 issue in a different way." Wade v. Orange County Sheriff's Office, 844 F.2d

3 951, 954 (2d Cir. 1988). Thus, with respect to legal conclusions as to

4 whether the PLRA permitted an award of damages to Walker for his

5 mental or emotional injury, whether an Eighth Amendment violation was

6 proven, and whether Defendants are entitled to qualified immunity, the

7 dispositive perspective is the facts as found by the jury.

8 B. The PLRA

9 Congress enacted the PLRA in 1996, revising certain sections

10 of Title 28 of the United States Code, inter alia, and introducing new

11 provisions in Title 42, "[i]n an effort to address the large number of

12 prisoner complaints filed in federal court." Jones v. Bock, 549 U.S. 199, 202

13 (2007). "Among other reforms, the PLRA mandates early judicial screening

14 of prisoner complaints and requires prisoners to exhaust prison grievance

15 procedures before filing suit. 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(a)."

16 Jones, 549 U.S. at 202. Thus, § 1997e(a) provides:

33
 1 (a) Applicability of administrative remedies

2 No action shall be brought with respect to prison
3 conditions under section 1983 of this title, or any other
4 Federal law, by a prisoner confined in any jail, prison, or
5 other correctional facility until such administrative remedies
6 as are available are exhausted.

7 42 U.S.C. § 1997e(a) (emphases added). Congress "enacted § 1997e(a) to

8 reduce the quantity and improve the quality of prisoner suits" with

9 respect to prison conditions. Porter v. Nussle, 534 U.S. 516, 524 (2002).

10 The "failure to exhaust" in accordance with § 1997e(a) "is an affirmative

11 defense under the PLRA." Jones, 549 U.S. at 216.

12 One of the other reforms introduced by the PLRA provides, in

13 pertinent part, as follows:

14 (e) Limitation on recovery

15 No Federal civil action may be brought by a prisoner
16 confined in a jail, prison, or other correctional facility, for
17 mental or emotional injury suffered while in custody without
18 a prior showing of physical injury . . . .

19 42 U.S.C. § 1997e(e) (emphases added); see also id. (recovery for mental or

20 emotional injury also permitted for a showing of "the commission of a

21 sexual act (as defined in section 2246 of Title 18)").

34
 1 1. General Judicial Interpretation of the Scope of § 1997e(e)

2 As pertinent here, § 1997e(e) is generally interpreted to

3 preclude a prisoner complaining of mental and emotional injury during

4 imprisonment, without a showing of physical injury, from receiving an

5 award of compensatory damages. See, e.g., Davis v. District of Columbia,

6 158 F.3d 1342, 1345, 1348-49 (D.C. Cir. 1998) (affirming a sua sponte

7 dismissal for failure to state a claim where no prior physical injury from

8 privacy-violating disclosure of prisoner's medical records was either

9 alleged or possible); Cassidy v. Indiana Department of Corrections, 199 F.3d

10 374, 376 (7th Cir. 2000) ("Cassidy") ("§ 1997e(e) precludes [a] prisoner's

11 claim for [an] emotional injury" as to which "there is no prior showing of

12 physical injury" (internal quotation marks omitted)).

13 Despite the breadth of § 1997e(e)'s language, a majority of the

14 Circuits that have considered this subsection have interpreted it--insofar

15 as claims of mental or emotional injury are concerned--as barring only

16 awards of compensatory damages, not as barring nominal damages,

17 punitive damages, or injunctive relief. See, e.g., Thompson v. Carter, 284

18 F.3d 411, 416 (2d Cir. 2002) ("Thompson") (§ 1997e(e) "does not restrict a

35
 1 plaintiff's ability to recover compensatory damages for actual injury,

2 nominal or punitive damages, or injunctive and declaratory relief"); Searles

3 v. Van Bebber, 251 F.3d 869, 878-81 (10th Cir. 2001) (§ 1997e(e) does not

4 foreclose nominal or punitive damages); Allah v. Al-Hafeez, 226 F.3d 247,

5 252 (3d Cir. 2000) (same); Cassidy, 199 F.3d at 375-77 (affirming grant of

6 motion for partial judgment on the pleadings dismissing, as barred by

7 § 1997e(e), only "Cassidy's claims for recovery for mental and emotional

8 injuries" without allegation of physical injury, while allowing pursuit of

9 compensation for other injuries such as loss of freedom of movement and

10 loss of access to prison programs). (See also Brief for United States of

11 America as Intervenor in Thompson, 284 F.3d 411 (No. 00-0253), 2001 WL

12 34095056, at *8-*9 ("[A]mong the appellate courts [considering] the scope

13 of § 1997e(e)'s coverage," "there is generally a consensus" that while

14 "failure to allege prior physical injury bars compensatory damages for

15 mental or emotional injuries," "Section 1997e(e) is not a bar to injunctive

16 or declaratory relief."); id. at *9 ("Nor is [§ 1997e(e)] a complete bar to

17 monetary damages. The statute does not prohibit claims for nominal

18 damages brought solely to vindicate a constitutional right, or claims for

36
 1 punitive damages to punish for violation of a constitutional right, as long

2 as those damages are not based, in any way, on mental or emotional

3 injury.").)

4 Whether or not nominal or punitive damages were intended to

5 be permissible, it is clear that § 1997e(e)--perhaps reflecting concern for

6 difficulties in assessing mental or emotional injury, and perhaps mindful

7 that imprisonment entails "routine discomfort," Hudson v. McMillian, 503

8 U.S. 1, 9 (1992)--bars an award of compensatory damages to a prisoner

9 suing for mental or emotional injury resulting from conditions of

10 confinement without a showing of physical injury.

11 In the present case, notwithstanding the anxiety and physical

12 discomfort Walker experienced in his 880-day period of assignment to Cell

13 127, the jury found he did not prove that he had any physical injury.

14 Because § 1997e(e) bars a conditions-of-confinement award of

15 compensatory damages for mental or emotional injury unless the prisoner

16 has also shown physical injury, the jury should have been instructed,

17 before it began deliberations, that if it did not find that Walker proved

18 physical injury, it could not award him compensatory damages for mental

37
 1 or emotional injury. And not having given that instruction, the court,

2 once the jury had made its finding that no physical injury was proven,

3 should at least have concluded that the PLRA's clear prohibition against

4 recovery for mental or emotional injury in such circumstances, as reflected

5 in § 1997e(e), meant that Walker was not entitled to compensatory

6 damages and that the jury's award could not stand.

7 The court apparently declined to apply the PLRA because of its

8 belief, discussed in the next section, that § 1997e(e) was an affirmative

9 defense that Defendants had waived.

10 2. The District Court's View of § 1997e(e)

11 In rejecting Defendants' contention that the PLRA barred the

12 jury's award of mental or emotional injury in this case, the district court

13 noted that "[t]he PLRA's exhaustion requirement," set out in subsection (a)

14 of § 1997e, "is an affirmative defense that must be pled or is waived,"

15 Walker IV, 463 F.Supp.3d at 341 (citing Jones, 549 U.S. at 212 (emphasis

16 added)). The court viewed the text of § 1997e(e) as "closely mirror[ing]"

17 that of subsection (a), concluded that § 1997e(e) too should be treated as

38
 1 an affirmative defense, and found that the physical injury requirement of

2 § 1997e(e) had been waived in this case. Walker IV, 463 F.Supp.3d

3 at 341-42. We disagree with both the finding of waiver and the

4 characterization of § 1997e(e) as an affirmative defense.

5 a. The Flawed Finding of Waiver

6 In holding that Defendants had waived the right to invoke

7 § 1997e(e), the court noted the requirement of Rule 8(c) of the Federal

8 Rules of Civil Procedure that "a party must affirmatively state any

9 avoidance or affirmative defense," and stated that

10 [o]ne of the core purposes of Rule 8(c) is to place the
11 opposing parties on notice that a particular defense will
12 be pursued so as to prevent surprise or unfair prejudice. . . .
13 Providing notice of an affirmative defense provides a
14 plaintiff with "the opportunity to rebut it." . . . This action
15 was initially filed in 2011 and has been litigated throughout
16 without assertion of that defense. There clearly was ample
17 time for Defendants to have asserted the defense and the
18 failure to do so until the end stage of this litigation clearly
19 prejudices Plaintiff.

39
 1 Walker IV, 463 F.Supp.3d at 341 (other internal quotation marks omitted

2 (emphases ours)). We cannot see that the record supports the district

3 court's views either of Defendants' timing or of prejudice to Walker.

4 First, contrary to the court's finding that Defendants failed to

5 raise the § 1997e(e) bar "throughout" the case "until the end stage of th[e]

6 litigation," Walker's own counsel stated in discussing the § 1997e(e) issue

7 with the court before submission of the case to the jury in 2020 that "this

8 has been briefed several times in this case already" (Tr. 1119). For

9 example, in 2015, the defendants moved for summary judgment in part on

10 the basis of § 1997e(e), contending that "I. The Defendants are Entitled to

11 Qualified Immunity," and "II. The Relief Plaintiff Seeks Is Not Available."

12 As to the latter, the defendants argued that

13 even if Plaintiff could somehow overcome the factual and
14 legal infirmities of his claim, he has conceded that he
15 suffered no actual damages from the deprivations he alleges.
16 When asked directly whether he was injured as a result
17 of the conduct he alleged in his complaint, Walker twice
18 admitted that he had no physical injuries. Walker Dep.
19 at 167, 14-16 (Ex. 1) ("Q. Let's start with physical. What
20 physical injuries?" "A. I don't have any."); 168, 2-6 ("A.
21 Physical injuries stemming from being at Ray Brook? Is
22 that what you're asking?" "Q. Right. As a result of
23 anything that you have alleged in your complaint." "A. No,

40
 1 I ain't got no physical injury.") Absent such injury the
2 Prison Litigation Reform Act bars recovery for any emotional
3 damages he may assert. 42 U.S.C. § 1997e(e).

4 (Memorandum of Law in Support of Defendants' Motion for Summary

5 Judgment Dismissing the Complaint, dated November 30, 2015, at 24

6 (emphases ours).) And after that summary judgment motion was denied

7 and the case was scheduled for a 2017 trial, the defendants continued--in

8 their pretrial briefs submitted for that trial date and for later dates to

9 which the trial was adjourned--to contend that § 1997e(e) precludes any

10 award of compensatory damages for mental or emotional injury absent a

11 showing of prior physical injury, and argued that the jury should be so

12 instructed. (See, e.g., Defendants' Trial Memorandum of Law dated

13 September 11, 2017, at 4, 10-13.)

14 Further, it is difficult to see how the timing of Defendants'

15 assertion of the § 1997e(e) impediment to Walker's claims for emotional

16 and mental damages could ever have "surprise[d]" Walker. The preclusion

17 of a remedy for mental or emotional injury in the absence of a showing

18 of prior physical injury is precisely what is stated in the statute.

41
 1 It is even more difficult to see how Defendants' invocation of

2 § 1997e(e), regardless of when made, denied Walker "the opportunity to

3 rebut it," Walker IV, 463 F.Supp.3d at 341 (internal quotation marks

4 omitted), or caused him unfair prejudice in any way. When Defendants

5 in 2015 sought summary judgment on the ground that Walker had not

6 shown physical injury, citing § 1997e(e), the district judge denied that

7 motion, crediting Walker's objection to Defendants' interpretation of his

8 deposition testimony. See Walker III, 2016 WL 4203536, at *6. The court

9 noted Walker's assertion that because of the lack of a ladder in his cell,

10 he had fallen and hurt himself; and it concluded that there was a genuine

11 issue of fact to be tried as to whether Walker had a prior physical injury.

12 See id. at *12; id. at *2 (Walker "states that he once fell and injured himself

13 climbing into the top bunk"); id. at *6 (Walker "alleged[ that he] injur[ed]

14 his leg" in that fall).

15 And in fact Walker testified at his 2020 trial that he had been

16 injured by falling in attempting to climb down from his bunk, because

17 there were no ladders in the cell. He testified to having pain in his knees

18 and elbow, and to having undergone knee surgery; and he has not pointed

42
 1 to the imposition of any limitation whatever on his ability to testify that

2 he was physically injured while assigned to Cell 127. The fact that the

3 jury, having heard his testimony, found that he did not prove that he

4 suffered any physical injury cannot be attributed to any flawed conduct

5 by Defendants.

6 b. The Miscasting of § 1997e(e) as an Affirmative Defense

7 Finally, and more fundamentally, we disagree with the district

8 court's view that § 1997e(e) was intended to provide an "affirmative"

9 defense. The fact that subsection (e) begins with language similar to that

10 in subsection (a)--i.e., "No" "action" is to "be brought"--and that Jones held

11 that § 1997e(a)'s exhaustion provision is an affirmative defense, is not

12 reason to infer that § 1997e(e) also provides only an affirmative defense.

13 While the initial words of both subsections (a) and (e) refer to federal civil

14 actions or federal claims, the subsections go on to impose different kinds

15 of prerequisites for different rights. Subsection (a), stating that no action

16 shall be brought "until" the prisoner has exhausted his administrative

17 remedies, 42 U.S.C. § 1997e(a), imposes a precondition simply on the

43
 1 prisoner's right to pursue a complaint in court. This exhaustion

2 precondition is procedural; it does not purport to define claims that may

3 be presented or to dictate their contents.

4 In contrast, subsection (e), titled "Limitation on recovery," is

5 substantive. It specifies a fact--physical injury--that must be shown in

6 order for a prisoner's claim for damages for mental or emotional injury to

7 succeed. A prisoner's claim seeking damages for mental or emotional

8 injury resulting from prison conditions, without a showing of physical

9 injury, "does not comply" with § 1997e(e), Jones, 549 U.S. at 222, and is

10 thus subject to dismissal for failure to state a claim, see, e.g., Davis v.

11 District of Columbia, 158 F.3d at 1348-49 (affirming a sua sponte dismissal

12 for failure to state a claim where complaint for mental or emotional injury

13 did not allege physical injury as required by § 1997e(e)); Calhoun v.

14 DeTella, 319 F.3d 936, 940 (7th Cir. 2003) ("physical injury is . . . a

15 predicate for an award of damages for mental or emotional injury").

16 To be sure, the failure of a complaint to state a claim for which

17 relief can be granted is a "defense[]," Fed. R. Civ. P. 12(b)(6); but it is not

18 an affirmative defense. An affirmative defense would indeed be waived by

44
 1 the defendant's failing to assert the defense in her answer. See Fed. R.

2 Civ. P. 8(c); Travellers Int'l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570,

3 1580 (2d Cir. 1994). But the Rule 12 defenses that are waived by a failure

4 to assert them early are only those "listed in Rule 12(b)(2)-(5)." Fed. R.

5 Civ. P. 12(h)(1). "Failure to state a claim upon which relief can be

6 granted," i.e., a Rule 12(b)(6) defense, "may be raised . . . at trial." Id.

7 Rule 12(h)(2)(C); see, e.g., Patel v. Contemporary Classics of Beverly Hills, 259

8 F.3d 123, 126 (2d Cir. 2001) ("the defense of failure to state a claim is not

9 waivable").

10 The district court stated that Congress's "merely labelling

11 something a limitation on recovery does not, as Defendants appear to

12 suggest, remove it from the realm of affirmative defenses," and it

13 analogized § 1997e(e) to "well-established affirmative defenses" such as

14 "laches" and "contributory negligence" that also could serve to "limit, not

15 bar, recovery." Walker IV, 463 F.Supp.3d at 341. We cannot agree with

16 this interpretation of § 1997e(e).

17 To begin with, any inference that Congress meant § 1997e(e)'s

18 express ban to resemble traditional affirmative defenses that would be

45
 1 waived if not timely raised is belied by § 1997e itself. For example,

2 subsection (g) of § 1997e provides that, unless the court requires an

3 answer, see 42 U.S.C. § 1997e(g)(2), the defendant, in order to prevail, need

4 not file an answer at all:

5 Any defendant may waive the right to reply to any
6 action brought by a prisoner confined in any jail, prison,
7 or other correctional facility under section 1983 of this
8 title or any other Federal law. Notwithstanding any other
9 law or rule of procedure, such waiver shall not constitute an
10 admission of the allegations contained in the complaint. No
11 relief shall be granted to the plaintiff unless a reply has been
12 filed.

13 Id. § 1997e(g)(1) (emphasis added). Further, subsection (c) of § 1997e

14 provides that as to any federal action complaining of prison conditions,

15 "[t]he court shall . . . dismiss" the action "on its own motion . . . if the

16 court is satisfied that the action . . . fails to state a claim upon which

17 relief can be granted." Id. § 1997e(c)(1). A defendant in such an action

18 need do nothing.

19 Most importantly, an affirmative defense is traditionally one

20 that a defendant would have the burden not only of pleading but also of

21 proving. As a general matter, principles as to allocation of the burden of

46
 1 proof rest on goals and access. See generally 9 J. Wigmore, Evidence

2 §§ 2485-2486 (Chadbourne rev. 1981). The burden of proof as to a given

3 issue is normally placed on the party who has an affirmative goal and

4 presumptive access to proof. See id.; 2 McCormick, Evidence § 337, at 412

5 (5th ed. 1999) ("The burdens of pleading and proof with regard to most

6 facts have been and should be assigned to the plaintiff who generally

7 seeks to change the present state of affairs and who therefore naturally

8 should be expected to bear the risk of failure of proof or persuasion.").

9 Thus, "the person who seeks court action should justify the request, which

10 means that the plaintiffs bear the burdens on the elements in their claims."

11 Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) (internal quotation

12 marks omitted).

13 Affirmative defenses such as contributory negligence or laches

14 involve at least some showing of affirmative facts such as the plaintiff's

15 conduct or his knowledge of pertinent facts or events at a particular point

16 in time. In contrast, if § 1997e(e) were an affirmative defense, it would

17 not just relieve the prisoner--who has the affirmative goal of obtaining

18 damages for his mental or emotional injury--of the express statutory

47
 1 obligation to show that he had also suffered physical injury, evidence of

2 which is presumptively accessible to him; it would also require the

3 defendant to prove a negative (and here, if the district court's view were

4 correct, to prove that Walker suffered no physical injury at any time in

5 any of the 24 hours of any of the 880 days he was assigned to Cell 127).

6 We see no reason to believe that Congress, in explicitly requiring that a

7 prisoner seeking emotional-injury damages make "a . . . showing of

8 physical injury" during his imprisonment, 42 U.S.C. § 1997e(e) (emphasis

9 added), intended that prison officials have the burden of proving that

10 physical injury did not occur.

11 We conclude that there was no waiver of the substantive

12 requirement imposed on Walker by § 1997e(e). In light of the jury's

13 finding that Walker did not prove he had suffered any physical injury, its

14 award of compensatory damages for Walker's mental or emotional injury

15 should have been stricken.

16 That determination, however, does not end the case, because

17 if a constitutional "deprivation has not caused actual, provable"

18 compensable injury, usually "the appropriate means of 'vindicating'" the

48
 1 denied rights is an award of "nominal damages." Memphis Community

2 School District v. Stachura, 477 U.S. 299, 308 n.11 (1986) (quoting Carey v.

3 Piphus, 435 U.S. 247, 266 (1978)). But even an award of nominal damages

4 would be foreclosed if Defendants are entitled to qualified immunity, see,

5 e.g., Jermosen v. Smith, 945 F.2d 547, 548, 552 (2d Cir. 1991); Wilkinson v.

6 Forst, 832 F.2d 1330, 1341-42 (2d Cir. 1987), an affirmative defense that

7 indisputably was raised in Defendants' answers to Walker's complaint.

8 C. Qualified Immunity

9 The principles governing entitlement to the defense of qualified

10 immunity are well chronicled.

11 Qualified immunity shields government officials
12 performing discretionary functions "from liability for civil
13 damages insofar as their conduct does not violate clearly
14 established statutory or constitutional rights of which a
15 reasonable person would have known."

16 Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007) ("Zellner") (quoting

17 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A defendant official's

18 motion for dismissal on this ground as a matter of law should be granted

19 if either the facts do not support a finding that the plaintiff's federal

49
 1 rights were violated, or the plaintiff's right not to be subjected to the

2 defendant's challenged conduct was, at that time of that conduct, not

3 clearly established. See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011);

4 Pearson v. Callahan, 555 U.S. 223, 236 (2009); Harlow, 457 U.S. at 818. Any

5 disputed questions of material fact--such as the acts of the defendant and

6 their effects on the plaintiff--are to be determined by the factfinder. See,

7 e.g., Zellner, 494 F.3d at 368; Kerman v. City of New York, 374 F.3d 93, 109

8 (2d Cir. 2004) (if there is a dispute as to the material historical facts, "the

9 factual questions must be resolved by the factfinder").

10 Whether the facts as found are sufficient to establish a violation

11 of the plaintiff's rights is an issue of law for the court. See, e.g., Muehler

12 v. Mena, 544 U.S. 93, 98 n.1 (2005) (in determining whether a "violation

13 occurred we draw all reasonable factual inferences in favor of the jury

14 verdict, but . . . we do not defer to the jury's legal conclusion that those facts

15 violate the Constitution" (emphasis added)). And if the plaintiff's right was

16 violated, the question of whether that right was clearly established at the

17 time of the defendant's violative conduct is likewise a question of law for

18 the court. See, e.g., Elder v. Holloway, 510 U.S. 510, 516 (1994) ("[w]hether

50
 1 an asserted federal right was clearly established at a particular time, so

2 that a public official who allegedly violated the right has no qualified

3 immunity from suit, presents a question of law"); Mitchell v. Forsyth, 472

4 U.S. 511, 526 (1985) ("whether the conduct of which the plaintiff complains

5 violated clearly established law" is an "essentially legal question").

6 "Once the jury has resolved any disputed facts that are material

7 to the qualified immunity issue . . . . the court then may 'make the

8 ultimate legal determination of whether qualified immunity attaches on

9 those facts.'" Zellner, 494 F.3d at 368 (quoting Stephenson v. Doe, 332 F.3d

10 68, 81 (2d Cir. 2003) (emphasis ours)). "The court is not permitted to find

11 as a fact a proposition that is contrary to a finding made by the jury," or

12 "findings that were implicit in the jury's verdict." Zellner, 494 F.3d at 371

13 (internal quotation marks omitted); see, e.g., Smith v. Lightning Bolt

14 Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988) (court "cannot . . .

15 substitute its judgment for that of the jury" (internal quotation marks

16 omitted)). "[M]aking findings of fact and drawing factual inferences 'are

17 jury functions, not those of a judge.'" Zellner, 494 F.3d at 373 (quoting

51
 1 Reeves v. Sanderson Plumbing, 530 U.S. 133, 150 (2000) (other internal

2 quotation marks omitted)).

3 In the present case, the district court appears to have assumed

4 that the jury's verdict established that Walker's Eighth Amendment rights

5 had been violated. See, e.g., Walker IV, 463 F.Supp.3d at 328 (referring to

6 "the Jury's verdict finding an Eighth Amendment violation"); id. at 336 (the

7 evidence, viewed in the light most favorable to Walker, was sufficient for

8 the "jur[y] to conclude that an Eighth Amendment violation took place");

9 id. at 338 ("there has been a finding that the conditions violated the Eighth

10 Amendment" (emphasis added)). The jury had indeed been instructed that

11 it could return a verdict in Walker's favor if it found that a defendant or

12 defendants had "deprived him of minimal civilized measures of life

13 necessities":

14 Prison officials violate the Eighth Amendment when they
15 deprive an inmate of his basic human needs, such as food,
16 clothing, medical care, sleep, and safe and sanitary living
17 conditions. For the purposes of the Eighth Amendment,
18 Mr. Walker can demonstrate the deprivation of a
19 Constitutional right by showing that he was incarcerated
20 in cell 127 in the Mohawk B unit at FCI Ray Brook under
21 conditions that posed a substantial risk of serious damage to
22 his health and safety or that the conditions which he was

52
 1 forced to endure deprived him of minimal civilized measures of
2 life necessities.

3 (Tr. 1153 (emphases added).) But, while the jury was thus instructed as

4 to the law, its job was simply to find the facts; and the district court, in

5 describing the evidence in its posttrial Rule 50 ruling, lost sight of the

6 jury's actual and implied factual findings.

7 1. The District Court's View of the Facts

8 In reviewing the district court's recitation of the facts, we note

9 preliminarily that the court appears to have accorded weight to Walker II's

10 description of the factual allegations in Walker's complaint:

11 The Second Circuit noted . . . . that "prison officials
12 violate the Constitution when they deprive an inmate of
13 his basic human needs, such as food, clothing, medical
14 care, sleep, and safe and sanitary living conditions." . . .
15 [T]he Second Circuit concluded that [Walker's] allegations that
16 he was assigned to a six-man cell for twenty-eight
17 months, during which time he had less than six square
18 feet of moving space, was subjected to poor ventilation and
19 sanitation, was unable to sleep, and was at constant risk of
20 harm from his cellmates, sufficiently alleged cruel and
21 unusual punishment to withstand a Rule 12(b)(6)
22 dismissal motion.

53
 1 Walker IV, 463 F.Supp.3d at 332 (quoting and citing Walker II, 717 F.3d

2 at 125 (emphases ours)). But in making assessments as to whether a

3 complaint is sufficient to withstand a Rule 12(b)(6) dismissal, a court is

4 required to accept all plausible factual allegations of the complaint as true.

5 The truth of allegations, to the extent that they are supported by evidence,

6 is tested at trial; and it is the factfinder--in this case, a jury--that

7 determines the facts.

8 In Walker IV the district court proceeded to summarize trial

9 evidence presented in support of Walker's allegations; but most of its

10 description did not reflect the factual findings of the jury. The court

11 stated:

12 At trial, Plaintiff presented testimony about each of
13 [his] allegations, . . . in particular, that Cell 127 was
14 severely overcrowded, violent, unsanitary, loud, and poorly
15 ventilated. See generally Tr. at pp. 109-370. The parties
16 stipulated to the actual dimensions of this six-man cell
17 which, when fully occupied, left an unencumbered space
18 per inmate of slightly over 16 feet or, stated in other
19 terms, slightly more than a four-by-four-foot square. Pl.
20 Tr. Ex. 110. Plaintiff testified in detail regarding the
21 unique overcrowding and sanitary issues that were
22 presented by the cell, and the danger of physical violence
23 that resulted. See, e.g., Tr. at pp. 110 & 121-126.
24 Plaintiff's testimony was that, because of these

54
1 overcrowded conditions and the resulting complications,
2 he did not feel safe during his entire time within the cell.
3 Tr. at pp. 120 & 123. He had trouble sleeping, averaging
4 only three and a half hours per night.

5 Walker IV, 463 F.Supp.3d at 332-33 (footnote omitted) (emphases added);

6 see also id. at 333, 335 (referring to Walker's conditions as "inhumane").

7 The court's descriptions, however--except for the overcrowding and the

8 attendant diminution of safety--did not reflect the particularized findings

9 made by the jury. As indicated in Part I.D. above, the jury's "Yes"

10 response to the first question in the Jury Verdict Form had been

11 ambiguous, because the question itself posed alternative facts that the jury

12 could find and then had the jury simply check either "Yes" or "No." The

13 question was whether the jury found that Walker had shown

14 that his imprisonment in Cell 127 denied him the
15 minimal civilized measure of life's necessities or basic
16 human needs or that the conditions in Cell 127 posed a
17 substantial risk of serious damage to his health or
18 safety[.]

19 (Jury Verdict Form, Part I.1. (emphasis added).) The ambiguity of the

20 jury's "Yes," however, was dissipated when the jury responded to the

55
 1 follow-up interrogatories that asked it to specify which of the claimed

2 conditions it had found established, which were listed as follows,

3 a. overcrowding/lack of space
4 b. lack of sanitation/cleaning supplies
5 c. threats of violence/lack of safe living conditions
6 d. inability to sleep
7 e. excessive heat or lack of ventilation

8 (Court Exhibit 6), and the jury checked only items "a." and "c.," that is, it

9 found only "overcrowding/lack of space" and "threats of violence/lack of

10 safe living conditions" (Int. 1). Despite those limited findings, the district

11 court stated that "the Jury unanimously concluded . . . that the conditions of

12 confinement faced by [Walker], as measured by their intensity and duration,

13 deprived him of life's basic necessities," Walker IV, 463 F.Supp.3d at 337

14 (emphases added). But in answering that first interrogatory as it did, the

15 jury clearly showed that it had not found deprivations of any of the basic

16 life necessities at issue here, because it explicitly indicated that it had

17 rejected the claims that Walker had been injured by "excessive heat," or

18 "lack of ventilation," or "inability to sleep," or "lack [of] cleaning supplies,"

19 or "lack of sanitation" (Int. 1).

56
 1 Instead, the jury found as facts only that Walker suffered

2 mental or emotional injury because of "overcrowding/lack of space" and

3 "threats of violence/lack of safe living conditions." (Id.) And despite

4 those "threats," any actual violence and deprivation of safety were

5 unrealized, as the jury had found that Walker did not prove physical

6 injury.

7 2. The State of the Law as to Prison Overcrowding

8 As discussed in Part II.A. above, "overcrowding" itself, i.e.,

9 "confin[ing] cellmates too closely," does not violate the Eighth Amendment

10 unless it is accompanied by some treatment that "deprive[s] inmates of the

11 minimal civilized measure of life's necessities." Rhodes, 452 U.S. at 340,

12 347. "[O]nly those deprivations denying 'the minimal civilized measure

13 of life's necessities[]' . . . are sufficiently grave to form the basis of an

14 Eighth Amendment violation." Wilson, 501 U.S. at 298 (quoting Rhodes, 452

15 U.S. at 347).

16 Walker has not called to our attention any Supreme Court

17 case--and we know of none--in which the Eighth Amendment's prohibition

57
 1 against cruel and unusual punishment was held to have been violated by

2 prison overcrowding alone. Indeed, the principle that overcrowding in

3 and of itself is not considered an Eighth Amendment violation is

4 illustrated by, for example, remedial orders that were approved in Brown

5 v. Plata, 563 U.S. 493 (2011), which principally involved unconstitutional

6 denials of medical care that resulted primarily from extreme prison

7 overcrowding. One approved remedy was an order that the state "reduce

8 its prison population to 137.5% of the prisons' design capacity," id. at 509-10

9 (emphasis added). Further, that goal was for 137.5% of design capacity

10 as a statewide average, with the understanding that some facilities could

11 transfer prisoners to other prisons "that are better able to accommodate

12 overcrowding," id. at 533 (emphasis added).

13 In sum, to the extent that the district court concluded that

14 Walker established an Eighth Amendment violation based not solely on

15 overcrowding and its attendant decrease in safety from violence but also

16 on deprivations of such basic necessities as sleep, ventilation, or sanitary

17 living space, the court impermissibly relied on its own view of the facts,

18 and thereby invaded the province of the jury.

58
 1 To the extent that the court instead did not rely on facts

2 beyond the jury's findings of overcrowding and the attendant decrease in

3 safety, those factual findings by the jury should also have informed the

4 legal determination by the district court as to whether Defendants were

5 entitled to qualified immunity. In light of the authorities discussed above,

6 the jury's findings were insufficient to support a conclusion that Walker

7 was deprived of the minimal civilized measure of life's basic necessities.

8 It may be that the findings that the (unrealized) threat of violence and the

9 constant anxiety as to lack of safety resulting from the undisputed

10 overcrowding--here lasting for some 2½ years--which led the jury to find

11 that Walker had suffered mental or emotional injury, were sufficient to

12 warrant a decision that Walker was subjected to cruel and unusual

13 psychological punishment, thereby warranting an award of nominal

14 damages. But we need not resolve that question, because we see no

15 authorities that clearly established such a legal principle. In the absence

16 of clearly established law to inform Defendants that their conduct in not

17 moving Walker to another cell in an overcrowded prison violated Walker's

59
 1 rights under the Eighth Amendment, Defendants were entitled to qualified

2 immunity from his claims for damages, including for nominal damages.

3 CONCLUSION

4 We have considered all of Walker's arguments on this appeal

5 in support of the judgment in his favor and, for the reasons stated above,

6 have found them to be without merit. In sum:

7 (1) The PLRA provision in 42 U.S.C. § 1997e(e) precludes

8 a prisoner's recovery of compensatory damages for mental or

9 emotional injury resulting from his conditions of confinement

10 absent a showing of physical injury.

11 (2) Section 1997e(e) makes physical injury an element of

12 such a claim for mental or emotional injury, and is not an

13 affirmative defense that would be subject to waiver if not

14 presented in the defendant's answer.

15 (3) In light of § 1997e(e), the jury's finding that Walker

16 failed to prove that the prison conditions of which he

60
 1 complained caused him physical injury precluded an award to

2 him of compensatory damages for such mental or emotional

3 injury as the jury found he suffered based on the conditions it

4 found existed.

5 (4) Even if the jury's findings of fact warranted a

6 conclusion that Walker's Eighth Amendment rights were

7 violated by deliberate indifference to cruel and unusual

8 psychological punishment caused by overcrowding, thereby in

9 principle entitling Walker to an award of nominal damages,

10 Defendants are entitled to qualified immunity from such an

11 award because a prisoner had no clearly established

12 constitutional right to be transferred to a new cell on account

13 of overcrowding.

14 (5) Walker's claims for equitable relief, including requests

15 for a transfer to a new cell or for a reduction in his prison

16 term to offset the time spent in overcrowded conditions,

17 became moot in 2016 when he was released from prison.

61
1 So much of the district court's judgment as granted relief to

2 Walker against defendants Schult and Sepanek is reversed, and the matter

3 is remanded for entry of a judgment of dismissal.

4 No costs.

62