'Tis enough, 'twill serve: defining physical injury under the Prison Litigation Reform Act.

• Author: Detmold, Hilary

"Courage, man. The hurt cannot be much." (1)

1. INTRODUCTION

   Congress passed the Prison Litigation Reform Act (PLRA) in 1995. (2) Since that time, no provision of the PLRA has created more confusion than the limitation-on-recovery provision, or [section] 1997e(e), commonly referred to as the "physical-injury requirement." (3) The provision reads: "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." (4) Because the statute itself does not define physical injury, the provision leaves the task of defining the phrase to the courts. (5)

   The First Circuit has yet to address the physical-injury requirement of the PLRA. (6) Other courts of appeals have heard cases addressing the requirement, yet their definitions have varied substantially. (7) The language of the statute requires courts to draw a line between injuries that are physical in nature, and those that are purely mental or emotional. (8) Such a distinction, however, is often unclear. (9)

   Congress enacted the PLRA to curb the tide of prisoner litigation, as increasingly frivolous lawsuits clogged the court system. (10) The statute may have succeeded in limiting the court access of many prisoners whose claims lacked merit, but it has also prevented some litigants with valid claims from having their day in court. (11) Federal judges continue to wrestle with the meaning of physical injury and its implications for constitutional violations. (12) In the First Circuit, district courts continue to address the merits of claims under the PLRA, but the court of appeals has yet to hear a case hinging on the definition of the provision. (13) As district court judges continue to draw their own distinctions between physical injury and mental or emotional injury, the First Circuit will eventually need to draw a line in the sand. (14)

   This Note examines the jurisdictional split in defining physical injury under the PLRA. (15) Part II.A outlines the historical circumstances that brought about the need for such legislation, while Part II.B analyzes the congressional intent behind it. (16) Part II.C examines the major consequences of the statute (both intended and otherwise), while Part II.D surveys the circuit courts' conflicting interpretations of the PLRA. (17) Part III.A argues that the First Circuit must address the physical-injury provision before district-court case law becomes increasingly scattered in its application of the statute. (18) Finally, Part III.B recommends that the First Circuit define physical injury more broadly than its sister circuits. (19)

2. HISTORY

   1. Prisoner Lawsuits Before the PLRA

      Prior to the enactment of the PLRA, prisoners' rights were considered a relatively recent concern both in the United States and internationally. (20) In fact, there are no annual statistics of prisoner civil rights litigation prior to 1966. (21) While the international community agreed upon several human rights standards, many global activists and lawmakers paid little attention to the enforcement of these same rights within the prison population. (22) As the issue of inmate access to courts gradually gained attention, the dramatic rise in prisoner litigation throughout the late 1960s and the 1970s provided an important context for the legislative response that followed. (23)

      Prior to the PLRA, the number of inmates who filed lawsuits in district courts, many of them pro se, steadily increased each year. (24) By 1996, prisoner-litigants accounted for twenty-five percent of all lawsuits filed in federal courts. (25) Most of these lawsuits were unsuccessful, with one estimate placing the success rate of prisoner-litigants below fifteen percent. (26) Inmates became increasingly aware of the right to both court access and other legal resources. (27)

   2. Congress Takes Action

      On May 25, 1995, Senator Bob Dole addressed his colleagues to introduce the Prison Litigation Reform Act and explain the need for such legislation:

      As Chief Justice William Rehnquist has pointed out, prisoners will now "litigate at the drop of a hat," simply because they have little to lose and everything to gain. Prisoners have filed lawsuits claiming such grievances as insufficient storage locker space, being prohibited from attending a wedding anniversary party, and yes, being served creamy peanut butter instead of the chunky variety they had ordered. (28) Dole's co-sponsor on the bill, Senator Jon Kyl of Arizona, also addressed the chamber, explaining a similar statute passed in his own state only one year earlier that had already cut the number of state-prisoner lawsuits in half. (29) "Most inmate lawsuits are meritless," stated Senator Kyl, and they have "become a recreational activity for long-term residents of our prisons." (30) He then outlined the purpose of each section of the proposed bill, without defining the provision that would limit recovery to cases where there existed a prior showing of physical injury. (31)

      The prospect of appearing "tough on crime" to their constituents proved difficult for many legislators to resist. (32) Politicians and the media alike focused on the most egregious, frivolous claims. (33) The persistence of this narrative made it easy to rally support for reform. (34) Both the National Association of Attorneys General and the National District Attorneys Association backed the legislation. (35) The PLRA eventually passed with very little legislative debate, and with no mention whatsoever of the limitation-on-recovery provision requiring prisoner-plaintiffs to show physical injury. (36)

      There was so much confusion and concern regarding the PLRA that the Senate held hearings regarding the effectiveness of its implementation a mere five months after the law took effect. (37) This is likely due to the fact that the language of [section] 1997e(e) defies easy interpretation. (38) Furthermore, there is no unanimity among jurists, lawyers, or legislators as to the true meaning and intent of the statute. (39) Because the statute does not define physical injury, courts will "construe [the] statutory term in accordance with its ordinary or natural meaning." (40) However, no such ordinary meaning of the phrase physical injury exists. (41) The limitation on recovery applies to claims of mental or emotional injury, but the statute left this phrase undefined as well, and thus in need of statutory interpretation. (42)

   3. Impact on Prisoner Litigation

      The passage of the PLRA resulted in a sharp decrease in prisoner litigation almost immediately. (43) Between 1995 and 2001, while the total incarcerated prison population increased by twenty-three percent, the number of inmate filings decreased by forty-three percent. (44) Few doubted that the PLRA had achieved its goal of preventing most frivolous lawsuits, but the extent to which the statute also barred meritorious claims remains unclear. (45)

      The PLRA's impact on damages also remains unclear and, in particular, its application to punitive damages continues to be the subject of some debate. (46) Although an inmate may seek nominal damages without showing prior physical injury, there is a split among the circuits as to his ability to collect anything more. (47) While some courts have declined to apply the limitation on recovery to punitive damages, others have refused to treat punitive damages any differently than compensatory damages, noting no evidence of congressional intent to distinguish between the two. (48)

      As prisoners' rights continue to gain traction as an area of concern relating to both civil and human rights, prisoners must increasingly rely on outside legal help to navigate the confusing language of the statute. (49) In addition to the poorly understood physical-injury requirement, the PLRA also created administrative-exhaustion requirements and limited in forma pauperis filings, all of which gave rise to a host of additional legal issues in the wake of the law's enactment. (50)

      The law's financial impact has also been the subject of much debate. (51) The PLRA may improve the financial accountability of our federal court and prison systems by limiting inmate-litigants' ability to seize limited time and resources for their own (sometimes meritless) claims. (52) On the other hand, if the physical-injury requirement and administrative-exhaustion provisions of the statute bar meritorious claims, the system will never adequately address instances of actual inmate abuse. (53)

      Civil rights claims, in particular, have felt the impact of the physical-injury requirement. (54) Because many legitimate constitutional violations fail to meet the more-than-de-minimis physical-injury standard set by various circuit courts, a large number of prisoners find themselves with no remedy for these abuses. (55) The PLRA's provisions affect a broad range of constitutional claims, which are interpreted differently from court to court. (56) As a result of the physical-injury requirement, it is insufficient for an inmate to allege constitutional violations conducted in prisons without a showing of actual, physical harm. (57)

      Prison litigation encompasses a wide range of topics related to medical care, all of which are affected by provisions of the PLRA. (58) Beyond access to general medical care, these problems include pregnant female inmates seeking adequate pre- and postnatal care. (59) Furthermore, Congress has only recently addressed the all-too-frequent need for medical attention and care following prison rape and sexual assault. (60) In a pre-PLRA case, the Supreme Court declined to "unjustly require" a showing of physical injury for a claim of inhumane prison conditions. (61) However, neither the courts nor the language of the statute itself provides clear guidance on how emotional or psychological injuries--even those resulting from torture or abuse--might satisfy the...