Please Pass the Dictionary: Defining De Minimis Physical Injury Under the Prison Litigation Reform Act § 1997e(e)

Please Pass the Dictionary: Defining De Minimis Physical Injury Under the Prison Litigation Reform Act § 1997e(e) Elizabeth A. Etchells  ABSTRACT: In an attempt to control nonmeritorious and frivolous prisoner litigation, Congress drafted the Prison Litigation Reform Act (“PLRA”) in 1995. The legislative debate over the PLRA was largely anecdotal, and Congress neglected to define many of the key terms in the bill, including the physical injury requirement codified at 42 U.S.C. § 1997e(e). This forced lower federal courts to interpret many of the PLRA’s key provisions. Since the PLRA’s passage, these federal courts have largely agreed that a qualifying injury under the PLRA must be more than de minimis but need not be significant. However, a circuit split has developed over the definition of de minimis injury with regard to failure to protect claims under the Eighth Amendment. This Note argues that the Supreme Court should adopt the Ninth Circuit’s definition of de minimis injury because the restrictive approach of the Fifth Circuit is unnecessary. Further, the Ninth Circuit’s expansive definition most closely aligns with Congress’s intent, while the Fifth Circuit’s narrow definition prevents meritorious lawsuits from being litigated.  J.D. Candidate, The University of Iowa College of Law, 2015; M.A., Durham University, 2003; B.A., Bradley University, 2000. I would like to thank the Volume 99 and 100 Iowa Law Review editors and student writers for their skilled and dedicated work. Molly McPartland and Whitney Martin, I will forever appreciate your sharp minds and bright smiles. Alex Pratt, thanks so much for your never-ending flexibility and keen editing. Rosie Romano, since you edited the very first draft of this Note, it’s only fitting that you use your Bluebook ninja skills on the final draft. I would also like to thank my family and friends, especially Katie and Sean McCarthy, Rich Cotton, Laura and Cara Farmer, Ashley Brosius, Milly Dick, and Emily Sohn, for picking me up when I (literally) fell down. And finally—Ross Etchells, thank you for your unfailing awesomeness and for reminding me that Leslie Knope wouldn’t quit. 804 IOWA LAW REVIEW [Vol. 100:803 I. INTRODUCTION ............................................................................. 805 II. HISTORY OF PRISONER ACCESS TO THE COURTS ........................... 807 A. A CCESS TO C OURT P RESERVES P RISONER R IGHTS AND A BILITY TO A DVOCATE R EFORM ................................................................. 808 1. 42 U.S.C. § 1983 Provides Prisoners Access to the Federal Courts ............................................................... 809 2. Eighth Amendment Failure to Protect Claims and 42 U.S.C. § 1983 ........................................................... 810 3. Prisoner-Initiated Litigation Successfully Protects Prisoner Rights and Challenges Prison Conditions .... 811 B. C ONGRESS C ONSTRICTS P RISONER A CCESS TO THE C OURTS BY E NACTING THE PLRA ............................................................. 812 1. Legislative History of the PLRA ................................... 813 2. The Physical Injury Requirement of 42 U.S.C. § 1997e(e) ..................................................................... 814 3. The Fifth Circuit Uses Eighth Amendment Precedent to Create the “ De Minimis But Not Significant” Standard ......................................................................... 815 III. CIRCUITS DEVELOP DIVERGENT DEFINITIONS OF D E M INIMIS PHYSICAL INJURY IN FAILURE TO PROTECT CLAIMS UNDER 42 U.S.C. § 1997e(e) ................................................................................... 815 A. T HE M AJORITY V IEW : T HE F IFTH C IRCUIT ................................ 816 B. T HE M INORITY V IEW : T HE N INTH C IRCUIT .............................. 817 C. M ISCELLANEOUS A PPROACHES : O THER C IRCUITS ..................... 818 IV. THE SUPREME COURT SHOULD ADOPT THE NINTH CIRCUIT’S EXPANSIVE DEFINITION OF D E M INIMIS INJURY ............................. 819 A. T HE N INTH C IRCUIT ’ S T EST E NFORCES C ONGRESS ’ S I NTENT B EHIND THE PLRA AND G RANTS J UDGES THE F LEXIBILITY TO A LLOW M ERITORIOUS C LAIMS W HILE B ARRING F RIVOLOUS O NES ......... 820 B. P RE -PLRA M ETHODS OF D ISMISSING N ONMERITORIOUS AND F RIVOLOUS P RISONER L ITIGATION A RE S TILL AN E FFECTIVE M EANS OF C ONTROL ........................................................................... 821 C. T HE PLRA P ROVIDED J UDGES WITH A DDITIONAL T OOLS TO D ISMISS N ONMERITORIOUS AND F RIVOLOUS P RISONER L AWSUITS ........... 823 V. CONCLUSION ................................................................................ 823 2015] PLEASE PASS THE DICTIONARY: DEFINING DE MINIMIS 805 “It is hard to conceive of any relationship between two adults in America being less equal than that of prisoner and prison guard. . . . [T]he extreme inequality of the daily relationship between prisoners and their jailers leads very naturally into abuses of many flavors, from small humiliations to hideous crimes.” 1 Piper Kerman, Orange is the New Black I. INTRODUCTION Over the last 40 years, the United States prisoner population has increased by over 500%. 2 By 2012, approximately one in every 35 adult Americans, or about 2.9% of all “adult residents,” was in jail, in prison, or on probation or parole. 3 Incarceration is now such a common occurrence in America that the topic is experiencing a pop culture boom. Television programs like Orange is the New Black target the adult market, while childhood mainstay Sesame Street broaches the difficult topic to young children using songs and puppets. 4 While the children’s programming is educational, the adult programming largely avoids confronting any of the thorny issues associated with incarceration. 5 Instead, the prevalence of jokes about topics like prison rape reflects a general comfort, both by those creating the jokes and those consuming them, with laughing at horrific events befalling a uniquely vulnerable and politically unpopular group: convicted criminals. 6 This attitude mirrors that of most state and federal legislatures, where 1. PIPER KERMAN, ORANGE IS THE NEW BLACK: MY YEAR IN A WOMEN’S PRISON 129–30 (2011) (describing the author’s direct observation of the relationship between female prisoners and correctional officers). 2. THE SENTENCING PROJECT, FACT SHEET: TRENDS IN U.S. CORRECTIONS 2 (2014), available at http://sentencingproject.org/doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf. 3. See LAUREN E. GLAZE & ERINN J. HERBERMAN, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2012, at 1 (2013), available at http://www.bjs.gov/content/pub/pdf/cpus12.pdf. 4. See Last Week Tonight with John Oliver (HBO television broadcast July 20, 2014), available at https://www.youtube.com/watch?v=_Pz3syET3DY. Last Week Tonight includes news “segments that can last anywhere from 15 to 20 minutes and often pack as much research as a front-page story you might see from a traditional outlet like a newspaper.” Brian Steinberg, How John Oliver and HBO Shattered TV’s Comedy-News Format , VARIETY (July 2, 2014, 10:47 AM), http://variety. com/2014/tv/news/how-john-oliver-and-hbo-shattered-tvs-comedy-news-format-1201257084/. One industry analyst and academic describes it as follows, “I suspect that John Oliver and his writers may have a wonderful and satirically subversive mission: I think the humor is there to serve the story.” Id. (internal quotation marks omitted). 5. Last Week Tonight with John Oliver , supra note 4 (including a clip of a Sesame Street skit explaining to children why their friends’ parents may be in jail). 6. Id. (collecting clips including prison-rape jokes from popular television shows and movies and explaining: “At least Sesame Street is actually talking about prison, the rest of us are much happier completely ignoring it, perhaps because it’s so easy not to care about prisoners: they are by definition convicted criminals. In fact, it’s so easy not to care, that we are really comfortable making jokes about one of the most horrifying things that can potentially happen to them”). 806 IOWA LAW REVIEW [Vol. 100:803 politicians have long avoided broadening the rights of prisoners or independently bettering prison conditions even in the face of serious civil rights deprivations. 7 Federal courts, instead, have been largely responsible for protecting the constitutional rights of incarcerated individuals, especially by granting these prisoners access to the courts. 8 From the 1960s through the mid-1990s, prisoner-initiated lawsuits successfully challenged conditions of confinement, 9 bettering the care for tens of thousands of incarcerated individuals. However, as the prison population continued to increase so too did total prisoner litigation. 10 Noting this surge, Congress began to worry that nonmeritorious and frivolous lawsuits were overburdening federal courts. 11 In 1995, Congress began considering the Prison Litigation Reform Act (“PLRA”) as a method to control nonmeritorious prisoner lawsuits by imposing strict limitations on when prisoners could initiate lawsuits, and in April 1996, President Bill Clinton signed it into law. 12 Proponents touted the PLRA as a grand solution that would reduce the courts’ expenditure of resources on prisoner lawsuits. 13 However, while the PLRA spent a year circulating through Congress, legislators put in a minimal amount of work at both the drafting and debate stages. 14 Congress, for example, failed to consider the courts’ existing doctrine on prisoner-initiated litigation, both deliberately and as a result of 7. See id. 8. Amy Petré Hill, Death Through Administrative Indifference: The Prison Litigation Reform Act Allows Women to Die in California’s Substandard Prison Health Care System , 13 HASTINGS WOMEN’S L.J. 223, 235 (2002). 9 . See William C. Collins, Bumps in the Road to the Courthouse: The...