Chipping Away at the Physical / Psychological Harm Distinction: 8th Amendment Edition

Although this makes two of my posts in a row on the topic, I promise I’m not unduly fixated on Judge Posner’s cruel-and-unusual-punishment jurisprudence. It just happens that his recent decision in Beale v. Foster highlights an accelerating doctrinal development that I think about all the time as a neurolaw scholar — and, yes, Posner’s adroit and accessible writing style makes for positively choice grade-A blog fodder. (The opinion is under 6 pages and is a snap for lay readers. Give it a whirl, really.) Writing for a unanimous panel of the 7th Circuit Court of Appeals, he reversed part of a motion to dismiss plaintiff Beale’s case that had been granted by the magistrate judge below.

What caught my interest about the case? Chiefly, I think it’s a nice snapshot of the law’s increasingly unstable treatment of the distinction between physical and psychological injury. I talk all the time (thanks to Francis Shen’s magnificent treatment of it) about Allen v. Bloomfield Hills School District, in which the Court of Appeals of Michigan held that a plaintiff might be able to prove at trial that his post-traumatic stress disorder satisfied a statutory “bodily injury” requirement. I think Beale fits into that same thematic space — revisiting and undermining the law’s traditional skepticism toward the “reality” or actionability of psychological harm.

Beale, as with so many cruel and unusual punishment cases, features entirely believable allegations of pointless and wanton indignities visited on an inmate by his jailor, pleaded without assistance of counsel and met with hasty judicial dismissal. Even if you’re inclined to think that prisoners exaggerate or fabricate 8th Amendment claims, the magistrate judge rejected Ronald Beale’s case on the grounds that even if believed, his tale of his prison guard, one Schneider, inflicting pervasive and sadistic harassment on him could never amount to an actionable cruel-and-unusual punishment claim because Schneider never physically laid a hand on Beale.

“Standing alone,” the magistrate judge wrote in dismissing Beale’s complaint, “verbal harassment of an inmate does not constitute a constitutional violation.” This kind of dismissal, known as failure to state a claim, makes for a particularly pointed condemnation of a lawsuit’s legal sufficiency because it comes at the earliest possible moment in the process. It is the litigation equivalent of a first-round, first-punch knockout, except the referee delivers it before the other fighter even steps into the ring.

Unsurprisingly in view of the legal system’s historical treatment of these issues, the magistrate cited precedent case law in dismissing Beale’s suit, as the panel noted. “Standing alone,” acknowledged Judge Posner, quoting from a prior 7th Circuit case, “simple verbal harassment does not constitute cruel and unusual punishment.”

The panel, though, went on to stress that the operative word here is simple. Approvingly citing language from a 9th Circuit case indicating that the pain of cruel and unusual punishment may be physical or psychological, Posner went on to explain that the harassment here might not have been all that “simple” in the sense of limited or fleeting — that it may well have been sufficiently sustained and severe to inflict pain of constitutional significance. Beale had, for instance, alleged that Schneider was in the habit of publicly urinating in full view of Beale while smirking at him, as part of a larger effort to portray Beale to the other inmates as homosexual and thereby increase the likelihood of sexual assaults against him.

One observation that I make with particular interest is how different this case is from Bloomfield Hills — further strengthening my impression that the physical / psychological harm distinction is under pressure not merely in any particular area of law, but across many doctrinal fronts. Bloomfield Hills was a statutory interpretation / personal injury case: it dealt with a state law that explicitly required “bodily injury” and considered whether PTSD could conceivably fit into that category. Beale, by contrast, pertains to federal civil rights rather than common-law-inspired causes of action, and the case grapples with judge-made constitutional doctrine that appeared to derogate the pain caused by emotional trauma as necessarily and definitionally inferior in severity to that caused by physical battery.

So while these cases exhibit a common thematic significance, they differ in source of law, interpretative method, rights implicated, even the court systems and procedural postures involved. That’s pretty cool — for neurolaw folks interested in these issues, it strengthens our confidence that these cases are representative of a broader set of changing attitudes rather than the artifact of idiosyncratic conditions in any particular area of law.

As for Mr. Beale, he will have a second try at his 8th Amendment case now that the Court of Appeals reversed the initial dismissal. We can hope that the added visibility generated by his appearance in a published 7th Circuit opinion will secure him competent pro bono counsel — or that the presiding judge takes to heart Judge Posner’s exhortation to at least interview the plaintiff rather than rely on the written pleadings of someone without a legal education — so that his claims can be fairly and accurately adjudicated.

Postscript: While writing this post I had forgotten that, in addition to his longer-form article on the topic, Francis Shen recently wrote a blog post over at Petrie-Flom similar to this one, highlighting a case out of New South Wales. The list grows longer!

2 Responses to Chipping Away at the Physical / Psychological Harm Distinction: 8th Amendment Edition
  1. While I agree wholeheartedly with Judge Posner’s reasoning, I’m troubled by the ease in which the panel disposes–on thin textual grounds–of its prior decision in DeWalt v. Carter. The idea that the differing disposition of Beale, the instant case, turned on what the word “simple” meant is, well, ridiculous. It seems clear that the panel wanted to overturn DeWalt. And with that in mind, I wish the panel had followed the Circuit’s own rules–namely, Circuit Rule 40 which requires, by vote, the approval of the larger court. There’s no indication from Beale that the panel here followed that procedure (usually indicated in a footnote), which is a shame. Ironically perhaps, the Beale decision–expanding the bounds of what constitutes unusual punishment in the 7th Circuit–is, itself, unusual, procedurally.

  2. Looking at C.R. 40, doesn’t it only require an opportunity for en banc rehearing when a panel decision purports to overrule a prior decision — as distinct from narrowing it? I actually don’t know who makes the (often quite debatable) call between what counts as overruling versus limiting — is it the panel or the full court?

    At any rate, I could at least see a world in which DeWalt is still good law as to “simple” cases and Beale kicks in for “not-so-simple” cases. The textual grounds for that doctrinal innovation are admittedly thin-to-nonexistent, but when are the textual grounds for new judge-made wrinkles to existing constitutional rules ever otherwise?

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