11.12.2007

Fifth Circuit Notes Split Re whether § 1997e(e) Bars Recovery for Nominal and Punitive Damages

Per Brown v. Sudduth, Slip Copy, 2007 WL 3283777 (5th Cir. Nov. 7, 2007):

This court has not addressed the issue of whether § 1997e(e) bars a claim for nominal and punitive damages absent an allegation of physical injury. We need not do so today because the issue of damages is premature given that there has been no determination of whether Brown has even suffered a constitutional violation in the first place.FN4

FN4. We do note, however, that the issue has divided our sister circuits. See, e.g., Thompson v. Carter, 284 F.3d 411, 418 (2d Cir.2002) (holding that § 1997e(e) does not bar recovery for nominal and punitive damages); Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3d Cir.2000) (same); Calhoun v. Detella, 319 F.3d 936, 940 (7th Cir.2003) (same); Munn v. Toney, 433 F.3d 1087, 1089 (8th Cir.2006) (same); Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir.1998) (same); Searles v. Van Bebber, 251 F.3d 869, 880-81 (10th Cir.2001) (same); but see Harris v. Garner, 190 F.3d 1279, 1282, 1287-88 & n. 9 (11th Cir.1999), vacated & reh'g en banc granted by 197 F.3d 1059, reinstated in pertinent part by 216 F.3d 970 (2000) (holding that § 1997e(e) bars recovery for punitive damages, but reserving issue of whether it also barred nominal damages); Davis v. District of Columbia, 158 F.3d 1342, 1348-49 (D.C.Cir.1998) (same).

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