United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Coffey's Motion for Summary
Judgment, Doc. 113. Plaintiff has one claim remaining against
Defendant Coffey for retaliation under the First
Amendment. Coffey is a correctional officer who
allegedly made various retaliatory threats against Plaintiff
from March of 2015 to December of 2016 during Plaintiff's
incarceration at Cleveland County Detention Center. Defendant
moves for summary judgment on Plaintiff's retaliation
claim on the basis that because Plaintiff has only alleged
emotional distress damages, the PLRA bars relief. The Court
grants Defendant partial summary judgment for the following
is barred under the Prison Litigation Reform Act
(“PLRA”) from recovering for “mental or
emotional injury.” The PLRA, 42 U.S.C. § 1997e(e),
governs Plaintiff's First amendment retaliation claim.
See Searles v. Van Bebber, 251 F.3d 869, 876 (10th
Cir. 2001) (in a First Amendment prisoner case, finding that
the PLRA “limits the remedies available, regardless of
the rights asserted, if the only injuries are mental or
emotional.”). Section 1997e(e) bars prisoners from
recovering for “mental or emotional injury suffered
while in custody without a prior showing of physical injury
or the commission of a sexual act.” 42 U.S.C. §
statute plainly applies here-Plaintiff has shown de minimis
physical injuries, yet he seeks “$50, 000 dollars for
punitive damages/pain and suffering, menta[l] tra[u]ma,
” and “anguish.” Doc. 1 at 8; see
Report and Recommendation, Doc. 80, at 13-14, 16-17 (finding
Plaintiff's injuries “de minimis”); Doc. 82
(adopting the Report and Recommendation). Plaintiff alleges
another physical injury, that Defendant repeatedly and
“improperly used his flashlight to contact the glass of
Plaintiff's cell during sight checks” in the middle
of the night to deprive him of sleep. Doc. 118, at 3.
However, Plaintiff fails to cite evidence in the record that
he actually suffered sleep deprivation or some other physical
response to Defendant's conduct. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256, (1986)
(“Rule 56(e) itself provides that a party opposing a
properly supported motion for summary judgment may not rest
upon mere allegation or denials of his pleading, but must set
forth specific facts showing that there is a genuine issue
for trial.”); Jackson v. Hill, 569
Fed. App'x 697, 699 (11th Cir. 2014) (holding that
prisoner's complaints of “sleepless nights”
did not “qualify as a physical injury under section
1997e(e)”). Thus, Plaintiff is left with a mere de
minimis handcuffing injury in his argument for mental or
the Tenth Circuit has not addressed this question directly,
the Court agrees with numerous other courts that a de minimis
injury is insufficient to satisfy the PLRA's
“physical injury” requirement for mental or
emotional damages. See, e.g., Flanory v.
Bonn, 604 F.3d 249, 254 (6th Cir. 2010); Mitchell v.
Horn, 318 F.3d 523, 536 (3d Cir. 2003); Oliver v.
Keller, 289 F.3d 623, 627 (9th Cir. 2002); Mitchell
v. Brown & Williamson Tobacco Corp., 294 F.3d 1309,
1312-13 (11th Cir. 2002); Liner v. Goord, 196 F.3d
132, 135 (2d Cir. 1999); Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997). Therefore, Plaintiff cannot
recover for “menta[l] tra[u]ma” or
“anguish” (Doc. 1 at 8), and Defendant is
entitled to summary judgment on the issue of mental and
Plaintiff can recover nominal damages. Nominal damages are
appropriate for the protection of certain
Common-law courts traditionally have vindicated deprivations
of certain “absolute” rights that are not shown
to have caused actual injury through the award of a nominal
sum of money. By making the deprivation of such rights
actionable for nominal damages without proof of actual
injury, the law recognizes the importance to organized
society that those rights be scrupulously observed . . . .
Searles, 251 F.3d at 878 (quoting Carey v.
Piphus, 435 U.S. 247, 266 (1978)). The First Amendment
is undoubtedly one of those absolute rights. See Elrod v.
Burns, 427 U.S. 347, 373 (1976) (“The loss of
First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”).
Because Plaintiff has already shown a genuine and material
dispute regarding his First Amendment retaliation claim (Doc.
80, at 8-10), and the PLRA bars mental or emotional damages,
he is entitled to proceed to trial and seek only nominal and
punitive damages. See Stoedter v. Gates, 704 F.
App'x 748, 758 (10th Cir. 2017); Searles, 251
F.3d at 879 (“[W]e now hold that section 1997e(e) does
not bar recovery of nominal damages for violations of
prisoners' rights. . . . Moreover, the rule
seems to be that an award of nominal damages is mandatory
upon a finding of a constitutional violation, as the jury
Motion for Summary Judgment (Doc. 113) is therefore GRANTED
IN PART AS SET FORTH HEREIN. The Court will conduct a status
conference in chambers on March 22, 2018, at 10:00 AM
 On March 28, 2016, the Court dismissed
Plaintiff's claims under Oklahoma law against all
Defendants; all claims against Defendants Joe Lester, Barbara
McSwain and Garvin Thomas; and Plaintiff's harassment
claim against Defendant Coffey. See Doc. 48
(adopting Reports and Recommendations, Docs. 43-46). On
October 27, 2016, the Court granted Defendant Coffey summary
judgment on Plaintiff's excessive force claim.
See Doc. 82 (adopting Report and Recommendation,
 Defendant allegedly “wrench[ed
Plaintiff's] arms behind [his] back, where hand cuffs
were violently applied to [his] wrists and knees were applied
to [his] face and body, ” Doc. 16, at 2. Defendant
suggests that even if these alleged injuries are sufficient
to constitute a “physical injury” under the PLRA,
they resulted from Plaintiff's unrelated excessive force
claim and not from Defendant's alleged retaliation. It is
unclear if the PLRA requires the “physical
injury” to originate from the same claim (retaliation)
as the alleged mental or emotional injuries. Regardless, ...