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Dismissal of Inmate’s Speech Suit Stands Despite Circuit Split

Oct. 17, 2019, 4:14 PM

The full Eleventh Circuit said Oct. 16 it won’t review a panel opinion rejecting an inmate’s claim he was retaliated against in violation of the First Amendment after he complained about the way he was treated during a frisk.

The Prison Litigation Reform Act prevents inmates from filing a civil action against a prison “for mental or emotional injury” suffered in custody unless they’ve shown a “physical injury.”

Eleventh Circuit precedent interprets the provision as barring punitive damages for First Amendment claims when prisoners haven’t suffered the requisite physical injury.

After a three-judge panel ruled Demetruis Carter couldn’t recover punitive damages in his free speech suit for this reason, he asked the full court to consider his case.

Judge William H. Pryor Jr., who concurred in the denial of en banc review, noted that nine other circuits disagree with the panel.

But this case isn’t the proper vehicle to address the split, he said. Even if the precedent is overruled, it wouldn’t make any difference to Carter, Pryor said, because the panel’s discussion of his request for punitive damages was arguably dictum.

Judge Beverly B. Martin dissented. She said the panel’s opinion isn’t supported by the plain language of the statute and First Amendment violations aren’t likely to be accompanied by physical injury.

The precedent therefore “leaves inmates with nominal damages as their only remedy for violations of this bedrock constitutional right, no matter how egregious the violation,” she said.

The First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth circuits also don’t bar inmates without physical injury from seeking punitive damages based on the violation of a constitutional right, Martin said.

Parker Hudson Rainer & Dobbs, LLP represented Carter. The Georgia Attorney General’s Office represented the prison.

The case is Carter v. Allen, 2019 BL 396444, 11th Cir., No. 17-10797, 10/16/19.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com