United States District Court, D. Oregon, Eugene Division
OPINION & ORDER
AIKEN, UNITED STATES DISTRICT JUDGE.
both parties had several objections to the jury instructions.
These objections were about whether § 1997e(e) of the
PLRA barred Plaintiffs claim for emotional distress damages
and whether Plaintiff could sustain a damages claim for
"loss of liberty" either in addition to or instead
of the claim for emotional distress damages. I will explain
my decision with respect to both of these issues in turn.
Section 1997e(e) of the PLRA
with respect to the § 1997e(e) issue, Plaintiffs trial
memorandum states that he believed § 1997e(e) of the
PLRA was an affirmative defense that should have been raised
by Defendants. Section 1997e(e) simply states that prisoners
cannot sustain claims for emotional damages without a showing
of physical injury. Williams v. Paramo, 775 F.3d
1182, 1185 (9th Cir. 2015).
Douglas v. Yates, the Eleventh Circuit explained
that § 1997e(a), which requires prisoners to exhaust
administrative remedies before filing in federal court, was
interpreted by the Supreme Court in Jones v. Bock to
be an affirmative defense and that § 1997e(e)'s
language is similar to §1997e(a). 535 F.3d 1316, 1320-21
(11th Cir. 2008) (citing Jones v. Bock, 549 U.S. 199
(2007)). The Eleventh Circuit stated that it would therefore
"contravene normal rules of statutory construction"
to interpret the two provisions differently. Id. at
1320. The Ninth Circuit has also interpreted § 1997e(a)
as an affirmative defense in Albino v. Baca. 747
F.3d 1162, 1166 (9th Cir. 2014).
reviewing the language of §1997e(a) and §1997e(e),
I find the Eleventh Circuit's reasoning persuasive
because "similar language contained within the same
section of a statute must be accorded a consistent
meaning." Douglas, 747 F.3d at 1320-21. Section
1997e(e) is therefore an affirmative defense which, like most
other defenses, must be pled in a timely manner in a
defendant's responsive pleading or else it is waived.
See e.g., Nardi v. Stewart, 354 F.3d 1134, 1140 (9th
Cir. 2004) ("There is no dispute that AEDPA's
statute of limitations is an affirmative defense ...
Accordingly, [FRCP] 8(c) and 12(b) require that the state
raise the statute of limitations in its first responsive
pleading to avoid waiving the defense.").
Ninth Circuit has said in cases such as Wyshak v. City
National Bank that plaintiffs must have fair notice of
an affirmative defense. 607 F.2d 824, 827 (9th Cir. 1979);
see also Simmons v. Navajo Cnty, Ariz,, 609 F.3d
1011, 1023 (9th Cir. 2010). Districts courts have discretion
to allow an affirmative defense if it's not prejudicial
to the plaintiff even though it wasn't raised in
accordance with Rule 8 of the Federal Rules of Civil
Procedure. Simmons, 609 F.3d at 1023.
however, the defense had two opportunities to raise this
defense-both in the answer to the first amended complaint
(doc. 18) in 2012 and also in their answer to the second
amended complaint (doc. 152) in 2018. They neglected to do so
in both instances despite being required to by Rule 8(c) of
the Federal Rules of Civil Procedure. Nor did they include it
in any dispositive motions before or after discovery. I see
no reason to make an exception and allow the affirmative
defense to be raised in the middle of trial as it would be
highly prejudicial to Plaintiff. I will therefore allow
Plaintiffs claim for emotional damages to proceed.
Loss of Liberty Damages
respect to the loss of liberty damages, in his second
objection Plaintiff asked the Court to instruct the jury to
award damages for "loss of liberty" to Mr.
Tarabochia in lieu of or in addition to emotional distress
Memphis Community School District v. Stachura, the
Supreme Court has held that damages may not be awarded under
1983 to compensate the abstract value or importance of
constitutional rights. 477 U.S. 299, 299 (1986); see also
Sloman v. Tadlock, 21 F.3d 1462, 1472 (9th Cir. 1996).
Additionally, damages are not presumed to flow from every
constitutional violation but in Carey v. Piphus the
Supreme Court held that presumed damages can be appropriate
when there is a great likelihood of injury coupled with great
difficulty in proving damages. 435 U.S. 247, 264 (1978). In
Trevino v. Gates, while citing Memphis School
District, the Ninth Circuit stated that "a presumed
damage instruction is not required when the jury was fully
authorized to compensate respondent for both monetary and
nonmonetary harms caused by petitioners' conduct."
99 F.3d 911, 921-22 (9th Cir. 1996) (internal citations
to allow Plaintiffs damages claim for compensation for a loss
of liberty, separate and apart from his claim for emotional
distress damages for the same conduct, would run afoul of
both Carey and Memphis School District.
Plaintiffs damages claim for loss of liberty would require
the jury to speculate about the inherent value and importance
of its constitutionally protected status-an outcome
explicitly barred by Memphis School District.
Moreover, Carey v. Piphus only allows presumed
damages for a constitutional violation when it is difficult
to prove damages but Plaintiff hasn't presented any
arguments explaining why his lack of outdoor exercise would
lead to great difficulty in proving damages. In fact, this
seems like an area where the emotional damages can be
sensible and reasonably explainable. And, even if I were to
allow the presumed damages theory for loss of liberty to go
forward, the case law is clear that a plaintiff can't
recover both presumed damages and compensatory damages for an
actual injury. In Trevino, the Ninth Circuit
affirmed a district court decision to not include a presumed
damages instruction because the plaintiff "ably
presented evidence and argued to the jury that she was
entitled to compensatory damages for emotional harm." 99
F.3d at 922. The court in Trevino said that a
presumed damages instruction was not mandated under the logic
of Carey v. Piphus. Id. The same situation is
present here: Mr. Tarabochia has argued for emotional
distress damages for the jail's failure to provide
reasonable access to outdoor recreation opportunities or
otherwise meaningful recreation opportunities in violation of
the Fourteenth Amendment. Just like in Trevino,
there is no reason to think presumed damages are appropriate,
and under the logic of Carey, I decline to include
them in the jury instructions.
respect to plaintiffs assessment of Hazle v.
Crofoot, that case held that a plaintiff is entitled to
compensatory damages as a matter of law when he suffers an
actual injury. 727 F.3d 983, 992 (9th Cir. 2013). However, I
find Hazle and the logic of its cited cases to be
readily distinguishable and don't think it requires
instructing the jury to award plaintiff damages for his
alleged loss of liberty.
even if loss of liberty was an independent compensable actual
injury apart from emotional distress or physical injuries,
there is no loss of liberty analogous to what was discussed
in Hazle in Mr. Tarabochia's case.
Hazle involved a plaintiff who was imprisoned after
refusing to attend a religious drug treatment program and the
imprisonment was without a doubt a loss of liberty issue.
Id. at 986. The other cases cited by Hazle
are also about clear loss of liberty issues such as being
placed in solitary confinement or being placed in segregation
and not about a lack of outdoor exercise while an individual
is incarcerated as in the case of Mr. Tarabochia. See H.C
ex rel. Hewett v, Jarrard,786 F.2d 1080,
1087-88 (11th Cir. 1986) (rejecting an award of merely
nominal damages to a juvenile who was unlawfully placed in