THE PSYCHOTHERAPIST-PATIENT PRIVILEGE IN PRISON LITIGATION: HOW CAN YOU CLAIM "GARDEN VARIETY" EMOTIONAL DISTRESS WHEN THE FLOWERS ARE MADE OUT OF STEEL?

• Author: D'ambrosio, Michael

Introduction 916 I. Civil Rights, Evidentiary Privileges, and the Psychotherapist- Patient Privilege 919 A. Mass Incarceration and Mental Illness 919 1. Stigma and Mental Illness 920 2. Access to Mental Health Care in Prison 921 B. Vindicating the Rights of the Incarcerated 924 1. The PLRA's Filing Fees 925 2. The PLRA's Mandate to Exhaust Administrative Remedies 926 3. The PLRA's Limitation on Damages 926 C. The Development of Evidentiary Privileges 927 D. Federal Rules of Evidence and Privilege 929 E. The Psychotherapist-Patient Privilege 930 II. Determining When the Psychotherapist-Patient Privilege Is Waived 933 A. The General Framework: Express and Implied Waivers and Privilege Exceptions 934 B. Waiver of the Psychotherapist-Patient Privilege 935 C. The Majority Rule: "Broad View" on Waiver of the Psychotherapist-Patient Privilege 936 D. The Minority Rule: "Narrow View" Preserving the Psychotherapist-Patient Privilege 939 E. The Compromise: A "Middle View" that Preserves the Psychotherapist-Patient Privilege for "Garden Variety" Claims of Emotional Distress 942 III. The Scope of Waiver in Prison Litigation: Damages, Fairness, and Moving Beyond "Garden Variety" Emotional Distress 947 A. Damages: The "Eggshell-Plaintiff" Rule and Apportionment 947 B. Fairness: Truth-Seeking, Vindicating Prisoner Rights, and Confidentiality as a Means to Guard Against the Stigma of Mental Illness 950 1. Truth-Seeking During Discovery 951 2. Vindicating the Rights of the Incarcerated 952 3. Confidentiality to Guard Against Stigma 954 C. Critique of "Garden Variety" Emotional Distress 1. Inconsistency Among Courts in Interpreting the 956 Scope of Waiver 957 2. Discriminatory Impact 3. When "Garden Variety" Emotional Distress 958 Rewrites Civil Claims 959 Conclusion 960 INTRODUCTION

On December 20, 1999, correctional officers Mike Blot and Francisco Caraballo stopped and frisked Nathaniel Sims while he was incarcerated at New York's Sing Sing Correctional Facility. (1) The officers told Sims to face the wall, place his hands behind his back, and remove his shoes and pants. (2) As Sims began taking his pants off, Blot punched him in the back of his head and took him to the ground. (3) Carabello proceeded to kick, stomp, and punch Sims. (4) As Sims suffered through the attack, Carabello shouted, "You hit a f--ing officer, you piece of s---, we'll kill you." (5) Carabello then pulled out a pocket knife and swung it at Sims. (6)

Sims sued the officers and Sing Sing prison. (7) Although the district court dismissed Sims's complaint for failure to exhaust administrative remedies under section 7 of the Prison Litigation Reform Act (PLRA), (8) the parties had already engaged in substantial discovery. (9) During Sims's deposition, he discussed his subsequent placement in Sing Sing's psychiatric satellite unit (PSU) and his emotional injuries: fear of correctional officers holding knives, dreaming about the incident, and fear of being cut by an officer. (10) Defendants sought Sims's psychiatric records, and Sims objected on grounds that the psychotherapist-patient privilege protected the records. (11)

The magistrate judge held that Sims had waived his psychotherapist-patient privilege because fear of knives was not "garden variety" emotional distress--a category of judicially determined emotions usually protected by the psychotherapist-patient privilege. (12) Further, the defendants contended that the psychiatric records contained vital information for their defense, such as Sims suffering from mental illness rather than fear of defendants. (13) On appeal, however, the Second Circuit disagreed with the district court. The Second Circuit held that plaintiffs do not forfeit a privilege--not subject to a balancing test of party needs--by merely asserting a claim for injuries, which may include depression or anxiety. (14) Further, the court stated, the defense cannot overcome the psychotherapist-patient privilege when they place the plaintiff's mental state in issue. (15) To hold otherwise would eviscerate the psychotherapist-patient privilege. (16)

Civil rights violations and damages from such violations rarely depend on mental health history. Yet, the suggestion that a plaintiff has a mental disorder has proven a powerful defense in civil rights cases. (17) Unlike character evidence and sexual history, courts often permit defendants' introduction of mental health histories to prove alternative theories of causation and even to discredit civil rights plaintiffs. (18) When courts admit a plaintiffs mental health records as evidence, they operate under the assumption that the plaintiff implicitly waived his or her psychotherapist-patient privilege. (19) These admissions frequently go unexamined, unquestioned, and unregulated. (20)

This Note considers whether incarcerated persons waive their psychotherapist-patient privilege upon filing civil rights claims against correctional institutions for mental or emotional injury. Scholarship on the subject has mostly focused on employment discrimination and sexual harassment. (21) This Note analyzes the scope of waiver for the psychotherapist-patient privilege in the context of prison litigation. Part I of this Note provides background for this unique analysis and reviews the rights of the incarcerated under the Eighth Amendment of the Constitution. (22) These rights include the right to adequate medical and mental health care, the right to be free from assault and battery, and the right to access courts. Part I also reviews the law governing evidentiary privileges and closes with the Supreme Court's codification of the psychotherapist-patient privilege.

Part II of this Note surveys the circuit split (and divergent district courts) on waiver of the psychotherapist-patient privilege. Courts have adopted "broad" and "narrow" approaches as well as a "middle view" compromise in assessing whether to waive the psychotherapist-patient privilege when a plaintiff claims mental or emotional injury. Finally, Part III of this Note analyzes the three approaches to waiver through tort law, civil rights litigation policy, and normative frameworks. Part III critiques the "garden variety" approach for imposing normative limitations on the subjective experience of incarcerated persons who experience civil rights violations. Such limitations reinforce bias and stigma, carry a potential to discriminate against persons with mental illness, and fail to consider the context of incarceration.

This Note concludes that the narrow approach to waiver would be necessary to effectuate the policy of civil rights statutes to make plaintiffs "private attorneys general." Although sensible in many circumstances, the middle view's limitation of the psychotherapist-patient privilege to "garden variety" emotional distress devalues the subjective experience of incarceration, as well as histories of violence-induced trauma, oppression, poverty, and racial disparities in the justice system.

1. CIVIL RIGHTS, EVIDENTIARY PRIVILEGES, AND THE PSYCHOTHERAPIST-PATIENT PRIVILEGE

   The United States leads the world in incarceration. (23) In 2012, prisons and jails housed 2.2 million people, a population that has increased over five hundred percent in the last forty years. (24) Such a rapid expansion of the prison population has resulted in prison overcrowding and fiscal burdens on the state that, ultimately, affect the living conditions and health needs of incarcerated persons. (25) For example, California's Receiver--the person appointed by the court to oversee remedial efforts in state prisons--noted that overcrowding and staff shortages created "regular 'crisis' situations," which increased incidences of infectious disease, prison violence, and inhibited the delivery of medical care. (26)

   1. Mass Incarceration and Mental Illness

      Persons with mental illness are overrepresented in corrections. (27) Experts estimate that 200,000 to 400,000 persons with mental illness are currently incarcerated, which is 8%-19% of the prison population, while mental illness appears in about 5% of the U.S. population. (28) Mental health professionals frequently link the mass incarceration of persons with mental illness to inadequate community mental health services and criminal justice policies that punish unemployment, homelessness, and poverty. (29) Drug policy has also played a significant role. (30) Because many persons with mental illness cannot access adequate mental health treatment, they turn to substance abuse to control their behavior. (31) As a result, 25%-40% of all mentally ill persons in the United States can expect to engage with the criminal justice system at some point in their lives. (32)

      1. Stigma and Mental Illness

         Persons with mental illness are more likely to experience stigma, discrimination, and segregation from the general population. (33) Society generally sees persons with mental illness as "shameful, dangerous, and irresponsible." (34) Stigma and discrimination are often implacable barriers to social inclusion and recovery. (33) Legal institutions also have difficulty in shedding assumptions about mental illness, especially the view that disabilities are limited only to the physically observable disabilities. (36) For example, tort law holds persons with physical disabilities to "a reasonably prudent person with the same physical disability" standard while rejecting similar standards for persons with mental disabilities. (37)

      2. Access to Mental Health Care in Prison

         Prisons and jails have a legal duty to provide adequate mental health services to the people in their custody. (38) The legal duty placed on correctional institutions runs in contrast to the common law's understanding that healthcare providers have "no obligation" to provide care absent a special relationship (i.e., the physician-patient relationship). (39) Although individuals do not have a constitutional right to medical care, (40) an exception exists for those...