14-F-2. What Is Mental or Emotional Injury?
The courts have not completely worked out the meaning of "mental or emotional injury." Some courts have interpreted the phrase narrowly. One court said, for example, "[t]he term 'mental or emotional injury' has a well understood meaning as referring to such things as stress, fear, and depression, and other psychological impacts."454 Some courts have separately recognized a variety of constitutional injuries that are neither physical nor mental or emotional. Section 1997e(e) does not affect such injuries.455
Other courts, however, assume that any violation of your constitutional rights that does not result in physical injury is considered a mental or emotional injury.456 For example, in Allah v. Al-Hafeez,457 the prisoner complained that prison policies violated his constitutional rights by preventing him from attending religious services. In response, the court said he couldn't pursue compensatory damages because his injury was a mental or emotional one.458 Similarly, many courts have assumed that other constitutional violations cause only mental or emotional injury, including claims of unlawful arrest and confinement,459 racial discrimination,460 and many others.461 However, you should argue that these types of constitutional violations are really injuries to your liberty, and not just a matter of mental or emotional injury.
Some courts have also held that complaints of exposure to unconstitutional prison living conditions-that is, living conditions that deny the "minimal civilized measure of life's necessities"462-are claims of mental or emotional injury and are barred by Section 1997e(e) unless they also include a claim of physical injury.463 These holdings seem to conflict with the Supreme Court's statements that the objective state of prison conditions, and not their effect on the prisoner, determines whether they are lawful or not.464 It is questionable whether a claim alleging conditions that are clearly intolerable is really an "action for mental or emotional injury," even if the conditions also lead to such injury.465
Some courts have held that "the violation of a constitutional right is an independent injury that is immediately cognizable and outside the purview of [Section] 1997e(e),"466 completely separate from any mental or emotional injury. Some courts have also found that this same principle applies to cases about unconstitutional conditions of confinement or restrictive confinement without due process.467
That approach is consistent with tort law, which is supposed to be the basis of the law of damages under 42 U.S.C. Section 1983.468 Historically, tort law divided damages into six categories: injury to property, physical injuries, mental injuries, injuries to family relations, injuries to personal liberty, and injuries to reputation.469 Under that approach, deprivation of your religious freedom or placement in segregation without due process would injure your personal liberty. Those deprivations might inflict mental or emotional injury too, but that injury would be separate and in addition to the injury to your liberty.
A good example of the proper distinction between mental or emotional injury and deprivation of personal liberty is the Second Circuit decision in Kerman v. City of New York.470 In that case, the plaintiff had been placed in a mental hospital against his will, and he alleged both that he had been seized in violation of the Fourth Amendment and that he had been subjected to the tort of false imprisonment. The court treated the plaintiff's mental and emotional injury as a different type of injury from his loss of liberty, stating: "[t]he damages recoverable for loss of liberty for the period spent in a wrongful confinement are severable from damages recoverable for such injuries as physical harm, embarrassment, or emotional suffering; even absent such other injuries, an award of several thousand dollars may be appropriate simply for several hours' loss of liberty."471
You may not be able to get a court to look at your case this way. Some courts have rejected this approach outright.472 Others have not settled the issue. If you are bringing a case about something that did not cause you physical injury, you should make it very clear that you are seeking damages for something other than mental or emotional injury. For example, if you are suing for being placed in segregation for a long period without due process, and you were not physically injured as a result, do not write in your complaint that "plaintiff seeks damages for mental anguish and psychological torture." You are better off with something like this:
Plaintiff seeks compensatory damages for the loss of...
