No cure for a broken heart.

• Author: Sharfstein, Daniel J.
• Position: Prisoner has no cause of action for emotional injuries with no showing of physical injury - Case Note

Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998).

In November 1996, Michael Lee Davis, an inmate at D.C. Central Prison at Lorton, Virginia, was taken to the hospital by ambulance. At a prison checkpoint, a guard named Dwight Bynum entered the vehicle, recognized Davis, and read his sealed medical file, which noted that Davis was infected with HIV. The two men, it seems, had mutual acquaintances outside of Lorton. During the three days Davis spent in the hospital, Bynum told several of Davis's friends that Davis had AIDS. Word reached Davis's fiancee, and by the time he returned to prison, their relationship was over.(1) Davis filed a 42 U.S.C. [sections] 1983 suit pro se for the violation of his constitutional right to privacy, seeking $1.5 million in compensatory and punitive damages. The district court dismissed the claim sua sponte, relying on a section of the newly enacted Prison Litigation Reform Act (PLRA), entitled "Limitation on Recovery": "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."(2)

Davis challenged this physical injury requirement on equal protection grounds, but in Davis v. District of Columbia(3) the D.C. Circuit held that there is no cure for a broken heart. The court reasoned that, even assuming that Davis had suffered a violation of fundamental privacy rights,(4) the physical injury requirement is not subject to strict scrutiny.(5) The court construed the requirement to deny prisoners damages remedies only. Under this construction, because declaratory and injunctive relief remained open to prisoners, the provision had only a "marginal and incidental" effect on their constitutional fights and therefore did not warrant a heightened standard of review.(6) The court upheld the physical injury requirement as being rationally related to the government's interest in "cutting back meritless prisoner litigation,"(7) and Davis's claim was dismissed with prejudice.

This Case Note argues that the Davis court erred by its own terms in failing to apply strict scrutiny to the physical injury requirement. Rather than being a marginal burden on Davis's privacy rights, the physical injury requirement dispositively burdened them, as it would for any right that can only be remedied retrospectively. Declaratory or injunctive relief would never vindicate Davis's rights--not because the violation of them was trivial, but rather because it was unlikely to be repeated and because the lasting harm from the violation could not be discontinued. The court's reasoning makes an implicit judgment about the relative values of different rights, a judgment not far removed from overtly redrawing constitutional boundaries.

Much of the Davis court's reasoning takes its cue from a statute that wrongly assumes that meritorious and nonmeritorious claims can be distinguished on the basis of physical injury. As cases such as Davis construe the PLRA narrowly in order to find it constitutional, a misguided statute is generating a body of case law that goes beyond legitimating the psychological abuse of inmates. Courts may read the physical injury requirement to limit only monetary remedies, but there are rights that, when violated, almost never yield physical injuries and can only be vindicated with a damages remedy. Davis raises the question of whether such rights have any value at all.

I

The PLRA's sponsors envisioned that the statute would "take the frivolity out of frivolous inmate litigation."(8) Introducing the legislation on the Senate floor, Bob Dole declared that prisoners brought tens of thousands of claims each year over such trivial issues as "insufficient storage locker space, a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party for a departing prison employee, and yes, being served chunky peanut butter instead of the creamy variety."(9) As one of numerous provisions in the PLRA designed to take away prisoners' incentives to litigate,(11) the physical injury requirement has provided the basis for many dismissals of prisoner claims.(11)

Even though supporters of the PLRA maintained that the act would not affect meritorious litigation,(12) the broad language of the physical injury requirement has raised concern among commentators that legitimate constitutional claims would be shut out of court.(13) No court has invalidated the physical injury requirement, but many courts have construed it narrowly.(14) The most significant narrowing interpretation appeared in the Seventh Circuit's widely cited opinion, Zehner v. Trigg.(15) In Zehner, the court affirmed the dismissal of a suit brought by inmates who had been exposed to asbestos while working in the prison kitchen. The court held that the physical injury requirement only limits a prisoner's ability to win damages and does not affect the ability to get injunctive and declaratory relief. This reading of the requirement "beg[an] from the premise that `Congress may not effectively nullify the rights guaranteed by the Constitution by prohibiting all remedies for the violation of those fights.'"(16) In fact, Zehner's holding did not prohibit any remedies available to the plaintiffs--with few exceptions, courts have held that no claim exists for emotional distress in cases of mere exposure to asbestos.(17) Because the Zehner plaintiffs could have brought claims for equitable relief, the court held that the physical injury requirement did not sufficiently burden a fundamental fight to merit strict scrutiny.(18)

In Zehner, the plaintiffs lost none of the remedies available to them when the court read the physical injury requirement to eliminate damages but not prospective remedies. The same reading in Davis foreclosed the only remedies available to the plaintiff; equitable relief would do no good for the victim of a one-time violation of privacy. By reviewing the physical injury requirement under rational basis scrutiny, even for...