The opinion of the court was delivered by: Suzanne B. Conlon, United States District Court
MEMORANDUM OPINION AND ORDER
Tyrone Calhoun, a prisoner in the custody of the Illinois Department of Corrections, brought this suit under 42 U.S.C. § 1983 complaining of an intentionally humiliating strip search conducted at Stateville Correctional Center on May 10, 1996, only weeks after the Prison Litigation Reform Act (PLRA) "ushered in a new and far more restrictive era for prisoner litigation." Walker v. O'Brien, 216 F.3d 626, 628 (7th Cir. 2000). This suit has twice been derailed by the PLRA, and this may be the third time.
History of Calhoun's Claim
Calhoun initially raised the claim asserted in this action in Calhoun v. DeTella, No. 96 C 3564 (N.D. Ill.) ("Calhoun I"), filed June 12, 1996, a month after the alleged incident took place. Calhoun consented to have a magistrate judge conduct the initial review required by the PLRA, 28 U.S.C. § 1915A, and after a brief hearing at Stateville, Magistrate Judge Guzman entered a short opinion on February 18, 1987, granting Calhoun leave to proceed in forma pauperis.*fn1 Magistrate Judge Guzman noted that because Calhoun's complaint alleged that the strip search caused him psychological injury with no accompanying physical injury, his claim appeared to be barred by a provision of the PLRA providing 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). Nevertheless, believing this provision might not survive an equal-protection challenge, Magistrate Guzman allowed the suit to proceed. Calhoun I, 1997 WL 75658 (Feb. 18, 1997).
The defendants filed a motion to dismiss, invoking another provision of the PLRA requiring prisoners to exhaust available administrative remedies before bringing suit under federal law. 42 U.S.C. § 1997e(a), which Calhoun clearly had not done. On June 9, 1997, this court granted defendants' motion and dismissed the suit without prejudice.
On March 31, 1998, Calhoun filed the present suit based on the same incident, but this time alleging that he had exhausted administrative remedies.*fn2 While this cured the defect leading to the dismissal of the prior suit, it appeared that the PLRA placed yet another obstacle in Calhoun's path. While Calhoun had been exhausting administrative remedies, the Court of Appeals resolved the question raised in Magistrate Judge Guzman's order, holding that the physical-injury requirement of 42 U.S.C. § 1997e(e) is constitutional and does not violate the Equal Protection Clause. Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir. 1997).
When this court reviewed Calhoun's new complaint as required by 28 U.S.C. § 1915A, it appeared that the complaint, seeking compensatory and punitive damages for a purely emotional injury, fell squarely within § 1997e(e). The court granted Calhoun leave to proceed in forma pauperis, assessed an initial payment of the filing fee as required by 28 U.S.C. § 1915 (b), and entered judgment dismissing this suit on May 29, 1998.
Calhoun moved for reconsideration, pointing out that § 1997e(e) did not bar injunctive or declaratory relief. The court denied the motion, acknowledging that although injunctive or declaratory relief might be available in an appropriate case, allegations of a single incident nearly two years before the complaint was filed did not show "some cognizable danger of recurrent violation," as required for injunctive relief, Wilk v. American Medical Ass'n, 895 F.2d 352, 367 (7th Cir. 1990), nor even an existing controversy "of sufficient immediacy and reality to warrant issuance of a declaratory judgment." Trippe Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 627 (7th Cir. 1995) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).
On July 6, 1998, Calhoun filed a notice of appeal and a motion for leave to proceed on appeal in forma pauperis. After initially denying Calhoun's motion because he had failed to submit a current trust fund account statement as required by 28 U.S.C. § 1915 (a)(2), on December 1, 1988, the court denied leave to appeal in forma pauperis because, in addition to the dismissal in this case, Calhoun had accrued three "strikes" under 28 U.S.C. § 1915 (g), i.e., three suits dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted.*fn3 The court listed as "strikes" Calhoun v. Allen, No. 95 C 6092, dismissed by this court as frivolous on November 28, 1995, pursuant to former 28 U.S.C. § 1915 (d),*fn4 Calhoun v. Allen, No. 96 C 2864, dismissed by this court on October 18, 1996, pursuant to 28 U.S.C. § 1915A, and Calhoun I, this court's dismissal without prejudice of the claim asserted in this suit. Calhoun did not challenge his eligibility to appeal in forma pauperis by filing a motion with the Court of Appeals under Rule 24(a)(5), F.R.A.P., but paid the appellate filing fee.
Four and a half years later, on February 13, 2003, the Court of Appeals affirmed this court's judgment in part, reversed in part, and remanded for further proceedings. Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003). The Court of Appeals held that while strip searches are unpleasant and humiliating, they do not in themselves violate the Eighth Amendment. Nevertheless, "wanton infliction of psychological pain" does violate the Eighth Amendment, even in the absence of physical injury. Id. at 939. By alleging that the defendants "sexually harassed him through behavior unrelated to legitimate prison needs," and "in a manner designed to demean and humiliate Calhoun," Calhoun had stated an Eighth Amendment claim. Id. at 940.
Although noting that Calhoun's transfer to another institution mooted any claim for injunctive or declaratory relief, id. at 939, the Court of Appeals held that Calhoun could seek monetary damages. Although 42 U.S.C. § 1997e(e) prevents a prisoner-plaintiff from seeking compensatory damages for deliberate infliction of emotional suffering in the absence of physical injury, psychological torture in violation of the Eighth Amendment would permit recovery of nominal damages, and, in appropriate cases, punitive damages as well. Id. at 940-42.
Calhoun's In Forma Pauperis Status
This court accordingly reinstates this action in accordance with the mandate of the Court of Appeals. Having regained jurisdiction from the Court of Appeals, the court must face a question it lacked jurisdiction to decide while the appeal was pending: whether the court erred in granting Calhoun leave to proceed in forma pauperis at the commencement of this action. Calhoun was not permitted to proceed in forma pauperis on appeal because he had accrued three "strikes" under 28 U.S.C. § 1915 (g), yet each of the dismissals cited by this court had been entered before this suit was filed.
In permitting Calhoun to proceed in forma pauperis in May of 1998, the court probably did not count the prior dismissal in Calhoun v. Allen, No. 95 C 6092, because it predated the effective date of the PLRA, overlooking the Seventh Circuit's January 7, 1998, opinion in Lucien v. Jockisch, 133 F.3d 464 (7th Cir. 1998), assuming that pre-PLRA dismissals qualified as "strikes" under § 1915(g).*fn5 When Calhoun sought to proceed in forma pauperis on appeal, the Seventh Circuit had issued its opinion in Evans v. Illinois Dept. of ...