Tyrone Calhoun v. George E. D E Tella

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 98-2894
T YRONE C ALHOUN ,
Plaintiff-Appellant,
v.
G EORGE E. D E T ELLA , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 1987—Suzanne B. Conlon, Judge.
____________
A RGUED S EPTEMBER 13, 2001—D ECIDED F EBRUARY 13, 2003
____________
Before R IPPLE , R OVNER , and E VANS , Circuit Judges.
R OVNER , Circuit Judge. Illinois prisoner Tyrone Calhoun
sued under 42 U.S.C. § 1983, alleging in relevant part that
prison employees at the Stateville Correctional Center
conducted a deliberately harassing strip search in front
of female guards that constituted cruel and unusual pun-
ishment under the Eighth Amendment. Relying on 28
U.S.C. § 1915A, the district court sua sponte dismissed
Calhoun’s complaint prior to service for failure to state
a claim upon which relief may be granted. Calhoun ap-
peals, and we vacate the dismissal of his Eighth Amend-
ment claims and remand for further proceedings.
According to his amended complaint, prison guards
removed Calhoun from his cell and escorted him from the

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2 No. 98-2894
prison’s segregation unit to an open telephone area of the
day room to conduct a strip search. When they reached the
day room, Calhoun pleaded for the guards to take him to a
more private area, but the guards ordered him to strip
directly in front of several female guards who had no offi-
cial role in conducting the search. Calhoun contends that
he was forced to remove his clothing even after informing
the guards that such a search, absent emergency circum-
stances, would violate the federal constitution, state law,
and prison regulations. Further, he alleges that during
the search the male and female officers laughed at him,
made “sexual ribald comments,” forced him to perform
“provocative acts,” and “pointed their sticks towards his
anal area” while he bent over and spread his buttocks to
permit visual inspection for contraband. Moreover, Calhoun
contends, then-warden George DeTella and an assistant
warden observed the search but took no corrective action.
Finally, Calhoun alleges that the search constituted “sex-
ual harassment,” and that after his “traumatic experience”
he sought psychological treatment, but did not receive
the help he needed. He requested compensatory and
punitive damages and injunctive and declaratory relief,
as well as “such other relief as it may appear plaintiff
is entitled.”
In screening and dismissing the amended complaint
under 28 U.S.C. § 1915A, the district court reasoned that
Calhoun’s suit was precluded by 42 U.S.C. § 1997e(e)
because he alleges only psychological, and not physical
injury. Calhoun timely moved to alter or amend the judg-
ment, pointing out that § 1997e(e) does not foreclose
injunctive and declaratory relief. See Zehner v. Trigg, 133
F.3d 459, 462-63 (7th Cir. 1997); Davis v. Dist. of Columbia,
158 F.3d 1342, 1346 (D.C. Cir. 1998). The district court
denied the motion, concluding that the amended com-
plaint did not allege grounds for either injunctive or de-
claratory relief. Calhoun appealed, and we appointed
counsel to represent him.

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No. 98-2894 3
In his amended complaint Calhoun asserts that the
strip search violated Illinois law and various constitu-
tional guarantees, but on appeal he pursues only the
Eighth Amendment claim and has thus abandoned the
others. See Duncan v. Wis. Dep’t of Health & Family Servs.,
166 F.3d 930, 934 (7th Cir. 1999). He argues that the
allegations in his amended complaint state a viable Eighth
Amendment claim, and that even absent physical injury
§ 1997e(e) does not preclude him from recovering nominal
and punitive damages for the constitutional violation. He
concedes, however, that § 1997e(e) bars his recovery of
compensatory damages for mental and emotional harm,
and that his claims for declaratory and injunctive relief
are now moot because he was transferred from Stateville
to the Pontiac Correctional Facility during the pendency
of this appeal. See Higgason v. Farley, 83 F.3d 807, 811
(7th Cir. 1996).
We review dismissals under § 1915A for failure to state
a claim de novo, viewing all allegations in the complaint
as true and in the light most favorable to the plaintiff.
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000).
With this standard in mind, we must first determine
whether Calhoun’s allegations, that prison guards purpose-
fully demeaned and sexually harassed him while strip
searching him in front of female officers, are sufficient
to state a claim of cruel and unusual punishment under
the Eighth Amendment.
There is no question that strip searches may be unpleas-
ant, humiliating, and embarrassing to prisoners, but not
every psychological discomfort a prisoner endures amounts
to a constitutional violation. For example, the strip search
of a male prisoner in front of female officers, if conducted
for a legitimate penological purpose, would fail to rise to
the level of an Eighth Amendment violation. See Johnson
v. Phelan, 69 F.3d 144, 150-51 (7th Cir. 1995). Instead, the
Eighth Amendment prohibits unnecessary and wanton

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4 No. 98-2894
infliction of pain, thus forbidding punishment that is “so
totally without penological justification that it results in
the gratuitous infliction of suffering.” Gregg v. Georgia,
428 U.S. 153, 173, 183 (1976). Such gratuitous infliction of
pain always violates contemporary standards of decency
and need not produce serious injury in order to violate
the Eighth Amendment. See Hudson v. McMillan, 503 U.S.
1, 9 (1992). Moreover, physical injury need not result for
the punishment to state a cause of action, for the wan-
ton infliction of psychological pain is also prohibited. See
id. at 16 (Blackmun, J., concurring); Delaney v. DeTella,
256 F.3d 679, 685 (7th Cir. 2001); Babcock v. White, 102
F.3d 267, 273 (7th Cir. 1996). Accordingly, to state an
Eighth Amendment claim Calhoun must show that the
strip search in question was not merely a legitimate search
conducted in the presence of female correctional officers,
but instead a search conducted in a harassing manner
intended to humiliate and inflict psychological pain. See
Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 697 (7th Cir.
1998); Johnson, 69 F.3d at 147.
The Attorney General of Illinois, who appears as amicus
curiae in support of the defendants, urges us to conclude
that Calhoun failed to state a claim because, although
he objected to the manner in which the guards conducted
the search, he never explicitly alleged that the guards
searched him for an illegitimate purpose. But the Federal
Rules provide a liberal system of notice pleading, see Fed.
R. Civ. P. 8, and Calhoun’s complaint includes enough
to give the defendants fair notice of his Eighth Amend-
ment claim and the grounds upon which his claim rests.
See Leatherman v. Tarrant County Narcotics Intelligence
& Coordination Unit, 507 U.S. 163, 168 (1993); Payton v.
Kane County, 308 F.3d 673, 676 (7th Cir. 2002). Calhoun
alleges that the officers sexually harassed him through
behavior unrelated to legitimate prison needs. In particular,
he alleges that the guards made “ribald comments” and

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No. 98-2894 5
sexually explicit gestures during the search, and that
they forced him to perform sexually provocative acts. Fur-
thermore, he alleges that the female guards present dur-
ing the search were neither mere passersby nor perform-
ing the legitimate penological function of conducting or
monitoring the search; they were instead invited specta-
tors. These allegations, if true, can only lead to the conclu-
sion that the prison guards conducted the strip search in
a manner designed to demean and humiliate Calhoun,
and we therefore conclude that he sufficiently states a
claim under the Eighth Amendment. See Johnson, 69
F.3d at 147.
Because Calhoun does not claim to have suffered a
physical injury, we must next consider whether § 1997e(e)
precludes his suit altogether by barring him from seek-
ing recovery of nominal and punitive damages for the
alleged Eighth Amendment violation. Section 1997e(e)
provides that “[n]o Federal civil action may be brought
by a prisoner . . . for mental or emotional injury suffered
while in custody without a prior showing of physical injury.”
42 U.S.C. § 1997e(e). The Attorney General argues that a
plain reading of § 1997e(e) bars Calhoun’s suit entirely,
reasoning that the statute makes a showing of physical
injury a filing prerequisite for every civil rights lawsuit
involving mental or emotional injury. We cannot agree.
This contention if taken to its logical extreme would
give prison officials free reign to maliciously and sadisti-
cally inflict psychological torture on prisoners, so long
as they take care not to inflict any physical injury in the
process.
Clearly this argument sweeps too broadly, and there is
no longer room for the position the Attorney General
espouses. As we have observed before and reemphasize
here, “[i]t would be a serious mistake to interpret section
1997e(e) to require a showing of physical injury in all
prisoner civil rights suits.” Robinson v. Page, 170 F.3d 747,

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6 No. 98-2894
748 (7th Cir. 1999). On several occasions we have ex-
plained that § 1997e(e) may limit the relief available to
prisoners who cannot allege a physical injury, but it does
not bar their lawsuits altogether. See Cassidy v. Ind. Dep’t
of Corr., 199 F.3d 374, 376-77 (7th Cir. 2000) (damages
for mental and emotional injuries barred, but prisoner
may pursue all other claims for damages); Zehner, 133 F.3d
at 462 (injunctive relief available). As its title suggests,
§ 1997e(e) is a “limitation on recovery.” Accordingly, phys-
ical injury is merely a predicate for an award of damages
for mental or emotional injury, not a filing prerequisite
for the federal civil action itself. See Robinson, 170 F.3d
at 749.
We agree that, absent a showing of physical injury,
§ 1997e(e) would bar a prisoner’s recovery of compensa-
tory damages for mental and emotional injury. See Cas-
sidy, 199 F.3d at 376. But if that same prisoner alleges
some other type of non-physical injury, the statute would
not foreclose recovery, assuming that the damages sought
were not “for” any mental or emotional injuries suffered.
See id.; Robinson, 170 F.3d at 749. This view is not novel.
Indeed, in the context of First Amendment claims, we
have held explicitly that prisoners need not allege a physi-
cal injury to recover damages because the deprivation of
the constitutional right is itself a cognizable injury, regard-
less of any resulting mental or emotional injury. Rowe
v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999); see also
Searles v. Van Bebber, 251 F.3d 869, 879-81 (10th Cir. 2001)
(nominal and punitive damages for First Amendment
violation not barred); Allah v. Al-Hafeez, 226 F.3d 247, 252
(3d Cir. 2000) (same); Canell v. Lightner, 143 F.3d 1210,
1213 (9th Cir. 1998) (any form of relief for First Amend-
ment violations available, if not for mental or emotional
injury). Using a similar rationale, several of our sister
circuits have concluded that § 1997e(e) does not bar all
recovery for violations of due process or the right to pri-

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No. 98-2894 7
vacy. See Thompson v. Carter, 284 F.3d 411, 418 (2d
Cir. 2002) (nominal and punitive damages available for
deprivation-of-property claim); Oliver v. Keller, 289 F.3d
623, 630 (9th Cir. 2002) (compensatory, nominal, or puni-
tive damages available if premised on alleged unconsti-
tutional conditions of pretrial confinement, and not emo-
tional or mental distress suffered); Doe v. Delie, 257 F.3d
309, 314 n.3 & 323 (3d Cir. 2001) (nominal and punitive
damages available for violation of inmates’ newly recog-
nized right to medical privacy); but cf. Harris v. Garner,
190 F.3d 1279, 1282, 1287-88 & n.9 (§ 1997e(e) precludes
compensatory and punitive damages for alleged viola-
tions of Fourth, Eighth, and Fourteenth Amendments, but
expressing no view on nominal damages), vacated & reh’g
en banc granted, 197 F.3d 1059 (11th Cir. 1999), reinstated
in pertinent part, 216 F.3d 970 (11th Cir. 2000); Davis, 158
F.3d at 1348-49 (compensatory and punitive damages
for violations of constitutional right to privacy barred,
but expressing no view on nominal damages). These
decisions reflect an emerging view that § 1997e(e), as the
plain language of the statute would suggest, limits recov-
ery “for mental and emotional injury,” but leaves unaf-
fected claims for nominal and punitive damages, which
seek to remedy a different type of injury. See Robinson, 170
F.3d at 748.
We believe that the same reasoning effectively answers
the question posed here, namely, whether § 1997e(e)
forecloses an action for nominal or punitive damages for
an Eighth Amendment violation involving no physical
injury. Just as a “deprivation of First Amendment rights
standing alone is a cognizable injury,” Rowe, 196 F.3d
at 781, so too is the violation of a person’s right to be free
from cruel and unusual punishment, see Harper v. Showers,
174 F.3d 716, 719 (5th Cir. 1999) (claim of Eighth Amend-
ment violation “is distinct from” any claim to entitlement
for compensation for resulting mental or emotional dam-

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8 No. 98-2894
ages). Although § 1997e(e) would bar recovery of compen-
satory damages “for” mental and emotional injuries suf-
fered, the statute is inapplicable to awards of nominal or
punitive damages for the Eighth Amendment violation
itself.
This conclusion readily follows from the fact that nom-
inal damages “are not compensation for loss or injury, but
rather recognition of a violation of rights.” Redding v.
Fairman, 717 F.2d 1105, 1119 (7th Cir. 1983); see Sahagian
v. Dickey, 827 F.2d 90, 100 (7th Cir. 1987). The Attorney
General, relying on an isolated statement in Babcock, 102
F.3d at 271, argues that an award of nominal damages
for Eighth Amendment violations would be inappropri-
ate because the constitutional guarantee against cruel
and unusual punishment, unlike the right to procedural
due process, is not an “absolute” right. Cf. Carey v. Piphus,
435 U.S. 247, 266 (1978) (because right to procedural due
process is “absolute,” nominal damages are available for
denial of right even absent actual injury). But Babcock’s
comment about nominal damages was dicta because the
appellant never argued that their availability could sal-
vage his claim, see Babcock, 102 F.3d at 273, and because
he did not the panel had no occasion to explore our prior
opinions on the subject. We long ago decided that, at a
minimum, a plaintiff who proves a constitutional viola-
tion is entitled to nominal damages. See Hessel v. O’Hearn,
977 F.2d 299, 302 (7th Cir. 1992); Ustrak v. Fairman, 781
F.2d 573, 578 (7th Cir. 1986). In particular, we have ap-
proved the award of nominal damages for Eighth Amend-
ment violations when prisoners could not establish actual
compensable harm. See Madison County Jail Inmates
v. Thompson, 773 F.2d 834, 844 (7th Cir. 1985); see also
Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir. 1996) (nomi-
nal damages available to remedy Fourth Amendment
excessive force claim). Moreover, we note that several of
our sister circuits have expressed similar approval of

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No. 98-2894 9
nominal damage awards for Eighth Amendment claims.
See, e.g., Gibeau v. Nellis, 18 F.3d 107, 110-11 (2d Cir.
1994); Butler v. Dowd, 979 F.2d 661, 672 (8th Cir. 1992)
(en banc); Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir.
1986); Green v. McKaskle, 788 F.2d 1116, 1124 (5th Cir.
1986); Lancaster v. Rodriguez, 701 F.2d 864, 866 (10th Cir.
1983); Doe v. Dist. of Columbia, 697 F.2d 1115, 1122-23
(D.C. Cir. 1983); see also Slicker v. Jackson, 215 F.3d 1225,
1231 (11th Cir. 2000) (approving of nominal damage award
in excessive force case). Because nominal damages are
awarded to vindicate rights, not to compensate for result-
ing injuries, we hold that § 1997e(e) does not bar a suit
seeking nominal damages to vindicate Eighth Amendment
rights. See Thompson, 284 F.3d at 418 (holding that
§ 1997e(e) does not limit availability of nominal damages
for Eighth Amendment violations); see also Benefield v.
McDowall, 241 F.3d 1267, 1272 n.3 (10th Cir. 2001) (sug-
gesting without deciding that § 1997e(e) does not bar
nominal damages for Eighth Amendment claims); Cassidy,
199 F.3d at 376-77, aff’g 59 F. Supp. 2d 787 (S.D. Ind. 1999)
(claims for damages for mental and emotional injury
barred, but all other claims for damages for violation of
right to be free from disability-based discrimination avail-
able, including nominal damages).
For similar reasons we believe that § 1997e(e) does not
preclude claims for punitive damages for violations of
the Eighth Amendment. See Thompson, 284 F.3d at 418
(punitive damages for Eighth Amendment violations not
barred); see also Benefield, 241 F.3d at 1272 n.3 (suggest-
ing without deciding that punitive damages for Eighth
Amendment claims not barred); Oliver, 289 F.3d at 630
(punitive damages for constitutional violation not barred);
Doe, 257 F.3d at 314 n.3 (same); Searles, 251 F.3d at 881
(same); Allah, 226 F.3d at 251-52 (same); but see Harris,
190 F.3d at 1286-87 (punitive damages barred); Davis, 158
F.3d at 1348 (same). Punitive damages are awarded to

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10 No. 98-2894
punish and deter reprehensible conduct. See Memphis
Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 n.9 (1986);
Kemezy v. Peters, 79 F.3d 33, 34 (7th Cir. 1996). And in
Smith v. Wade, itself an Eighth Amendment case, the
Supreme Court established that punitive damages may
be awarded under § 1983 upon a showing of “evil motive
or intent, or . . . reckless or callous indifference to the
federally protected rights of others.” 461 U.S. 30, 56
(1983); see Kyle v. Patterson, 196 F.3d 695, 697-98 (7th Cir.
1999). Moreover, nothing prevents an award of punitive
damages for constitutional violations when compensa-
tory damages are not available. See Erwin v. Manitowoc
County, 872 F.2d 1292, 1299 (7th Cir. 1989); Sahagian, 827
F.2d at 100. Because punitive damages are designed to
punish and deter wrongdoers for deprivations of consti-
tutional rights, they are not compensation “for” emotional
and mental injury. See Stachura, 477 U.S. at 306. We
therefore conclude that Calhoun may pursue his claims
for punitive damages as well.
Finally, the Attorney General argues that, even if nomi-
nal and punitive damages are not barred by § 1997e(e),
Calhoun does not expressly request nominal damages in
his amended complaint, and therefore that prayer for re-
lief was never before the district court. But pleadings
filed by pro se litigants are to be construed liberally. See
Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).
Although Calhoun does not specifically request nominal
damages—as he did compensatory and punitive damages
and injunctive and declaratory relief—his amended com-
plaint contains a prayer for “such other relief as it may
appear plaintiff is entitled.” Moreover, Calhoun’s brief
on appeal makes clear that he is seeking nominal dam-
ages. Under these circumstances, Calhoun’s prayer for
“such other relief ” can be reasonably viewed as a request
for nominal damages. See Kyle, 196 F.3d at 697 (liberally
construing pro se prayer for $1 million in “monetary
relief” as a request for punitive damages).

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No. 98-2894 11
For the foregoing reasons, we V ACATE the dismissal of
Calhoun’s amended complaint insofar as it alleges an
Eighth Amendment violation, and R EMAND for further
proceedings on that claim. In all other respects, the judg-
ment of the district court is A FFIRMED . In light of this
decision, the district court erred when it concluded that
Calhoun had incurred one strike under 28 U.S.C § 1915(g).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-13-03

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