VI. The Physical Injury Requirement

In 2004, images of sadistic abuse at Iraq’s Abu Ghraib prison shocked the world. Photos showed naked prisoners terrorized by snarling dogs, hooded prisoners made to stand in "stress positions," and prisoners piled naked into pyramids for the amusement of guards. If those abuses had occurred in a US prison, compensation for the victims would be barred by the "physical injury" requirement of the PLRA.[84]

The general rule in US law is that mental or emotional injury to a person, if caused intentionally, is harm for which monetary compensation can be claimed (“compensable” in legal terminology). For example, victims of verbal sexual or racial harassment in the workplace can recover money damages for the resulting emotional distress, even if they suffer no physical injury.

The PLRA abolishes this rule for prisoners. It provides that a prisoner may not sue “for mental or emotional injury suffered while in custody without a prior showing of physical injury.”[85] The physical injury requirement simply declares a certain category of injury to be noncompensable, without regard to the merit of the prisoner’s claim or the culpability of the defendant. Thus, even a prisoner who is the victim of intentionally abusive staff conduct, resulting in extreme emotional distress, cannot recover compensation. As one federal judge put it,

[I]magine a sadistic prison guard who tortures inmates by carrying out fake executions—holding an unloaded gun to a prisoner's head and pulling the trigger, or staging a mock execution in a nearby cell, with shots and screams, and a body bag being taken out (within earshot and sight of the target prisoner). The emotional harm could be catastrophic but would be non-compensable [under the PRLA].[86]

One witness testifying before the Commission on Safety and Abuse in America’s Prisons suggested that this provision of the PLRA “seems to make it national policy ... that mental torture is not actionable.”[87] And indeed, a recent study of 279 survivors of torture in the former Yugoslavia concluded that “psychological stressorscannot be easily distinguished from physical torture in termsof their relative psychological impact.” The study’s authors identified “sham executions, threats of rape, sexual advances, threatsagainst self or family, witnessing the torture of others, humiliatingtreatment, isolation, deprivation of urination/defecation, blindfolding,sleep deprivation, and certain forced stress positions” as forms of abuse that “seemedto be as distressing as most physical torture stressors.”[88] Many of these abuses have been documented in US prisons, and under the PLRA, all of them would be considered “mental or emotional injury” that would not be compensable without a “prior showing of physical injury.”

The physical injury provision of the PLRA is particularly anomalous in light of the fact that, under US criminal law, many acts that produce only “mental or emotional injury” are treated as serious crimes. For example, a person may be convicted of assault on a federal officer and sentenced to prison even if there is no physical contact, as long as there is “such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death.”[89] However, if the same conduct were directed toward a prisoner by a corrections officer, the PLRA’s physical injury requirement would bar any compensation.

Indeed, some courts have ruled that the PLRA bars compensation for even the most extreme mistreatment of prisoners. Stephen Jarriett filed a lawsuit alleging that prison officials forced him to stand in a two-and-a-half foot square cage for about 13 hours, naked for the first eight to ten hours, and unable to sit for more than 30 or 40 minutes of this time. He was in acute pain from a clearly visible swelling in his leg from a previous injury and repeatedly asked to see a doctor, but his requests were ignored. The court ruled that the PLRA barred compensation for this treatment because any physical injury was “de minimis,” a legal term meaning too trivial to deserve the court’s attention.[90]

Although the plain language of the PLRA suggests that any “physical injury” is enough to support compensation, many courts have ruled that injuries they deem minor do not qualify. Conditions courts have found insufficient to satisfy the PLRA’s physical injury requirement include:

• Facial burns[91]
• An “open wound” to the head causing “severe pain”[92]
• Being forced to defecate in one’s clothing and sleep in feces[93]
• An asthma attack requiring hospitalization in the critical care unit[94]
• Extreme pain resulting from broken teeth with exposed nerve[95]
• Sexual touching and even assault (see details below)

Under the physical injury requirement, courts have also ruled that prisoners who suffer violation of their constitutional right to practice their religion cannot recover compensation for that violation.[96] And at least one court has ruled that racially discriminatory treatment by prison staff is a “mental or emotional injury” for which the PLRA bars compensation.[97] Before enactment of the PLRA, prisoners were able to recover damages both for violation of their religious rights and for racial discrimination.[98]

Several courts have relied on this provision of the PLRA to dismiss prisoner claims of sexual abuse by staff. The following claims have been dismissed under the physical injury requirement:

• A prisoner who alleged that a female corrections officer had grabbed his penis and held it in her hand.[99]
• A prisoner who alleged that a prison employee reached between his legs and rubbed his genitals.[100]
• Prisoners who alleged that an officer had fondled their genitals and “sexually battered them by sodomy;” the court dismissed the case because “the plaintiffs do not make any claim of physical injury beyond the bare allegation of sexual assault.”[101]
• Two female prisoners who alleged that they were strip-searched by male guards. After the incident, one woman began to suffer migraine headaches, while the other attempted suicide by drug overdose. The court ruled that the women had not satisfied the PLRA’s physical injury requirement; “a few hours of lassitude and nausea and the discomfort of having her stomach pumped is no more than a de minimis physical injury.”[102]

Courts have also ruled that people who are wrongly imprisoned, or wrongly placed in segregation or solitary confinement, cannot recover compensation due to the physical injury requirement. For example, Christopher Brumett alleged that he was illegally jailed for approximately six months; the court ruled that the PLRA barred any compensation because he did not allege a physical injury.[103]

The PLRA bars damages even for prisoners placed in segregation due to intentional staff misconduct. A court specifically found that prison staff unconstitutionally retaliated against Jeffery Royal for his complaints about inadequate medical care by placing him in segregation for 60 days. Nevertheless, because Royal did not allege any physical injury as a result of this violation of his rights, he could recover only $1 in damages.[104]

According to Dr. Kupers, confinement in segregation, while not compensable under the PLRA, can result in injuries that are very real:

What we know is that long-term isolated confinement causes difficulty thinking, cognitive impairment, and difficulty with memory. A very frequent, almost universal symptom is that they’ve stopped reading, because it’s useless to read—they can’t remember what they read three pages ago.... I’ve never met anybody who hasn’t been damaged by long-term confinement in segregation.[105]

Similarly, in a 2005 filing in the US Supreme Court, a group of psychologists and psychiatrists surveyed the literature on isolated confinement and concluded that “[n]o study of the effects of solitary or supermax-like confinement that lasted longer than 60 days failed to find evidence of negative psychological effects.”[106]

Case Study: No Remedy for a Year in Solitary Confinement

Alex Pearson was just two days away from transfer out of Tamms Correctional Center, Illinois’s most restrictive prison, when he was found guilty of a disciplinary infraction. This infraction halted his transfer to a less restrictive prison and extended his time at Tamms by more than a year. A court described conditions at Tamms as follows:

In contrast to inmates in a typical “general population” prison, inmates in Tamms have no contact with other inmates. Instead, they are housed in single cells, which they leave for only an hour each day for “individualized recreation” in a 30-foot long, 15-foot wide partially-covered cement enclosure. Inmates at Tamms do not hold prison jobs, do not interact with other prisoners, and are allowed contact with visitors, if at all, only through a glass partition while in restraints.[107]

Pearson described to Human Rights Watch the effects of his extra year at Tamms:

I was at my lowest I could possibly be. I was super stressed out.... I couldn’t write, I couldn’t eat—it took me at least six months to where I could gain my full functioning back. It affected me physically, and it also affected me emotionally in terms of my relationship with my family. It took me six months to get up the strength to write to them and tell them I wouldn’t be leaving [Tamms].[108]

With the assistance of counsel, Pearson filed a civil lawsuit, and a jury found that prison staff had unlawfully given him the infraction in retaliation for complaining about conditions and for refusing to act as an informant. However, when Pearson tried to recover compensation for the harsh conditions he had endured at Tamms as a result of the retaliatory infraction, the court ruled that recovery was barred by the PLRA because Pearson had suffered no physical injury. Although Pearson testified that during the additional year at Tamms he had become depressed and lost approximately 50 pounds, the court ruled that this did not constitute a physical injury that would allow him to recover compensation.[109]

Pearson described the lasting effects of this experience with the PLRA:

You want to think that the justice system works for those who are in the right.... [But] if you are a prisoner, no matter what you do, even if you’re right, the justice system is still not going to acknowledge you or treat you like someone else whose rights have been violated. They’re not going to treat you the way they would treat an average person, just because you are a prisoner.[110]