The opinion of the court was delivered by: William Alsup, United States District Judge.
ORDER OF DISMISSAL (Docs 3 & 5)
Plaintiff, an inmate at Salinas Valley State Prison, filed a pro se civil rights complaint under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of California. The claims arose when plaintiff was at Pelican Bay State Prison, which also is in this district. The eastern district court transferred the case here. He also requests leave to proceed in forma pauperis.
Plaintiff contends that when he was at Pelican Bay State Prison inmates who were classified as "close custody" and were in a special program were allowed conjugal family visits, whereas he, a "close B" classified inmate not in the special program, was not. He contends this violated his equal protection rights.
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. at 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a violation of a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff asks damages for "mental anguish, psychological injury, embarrassment and humiliation." He also asks for punitive damages and injunctive relief. "No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Failure to allege and establish an appropriate physical injury is ground for dismissal, Zehner v. Trigg, 952 F. Supp. 1318, 1321-35 (S.D. Ind.) (dismissing action for damages because no plaintiff developed physical injury by exposure to asbestos while in prison), aff'd, 133 F.3d 459 (7th Cir. 1997). Claims for declaratory and injunctive relief are unaffected by § 1997e(e); therefore, the statute "does not nullify the Eighth Amendment by leaving violations of it without a remedy." Zehner, 133 F.3d at 464; accord Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998). Nor does it bar claims seeking nominal or punitive damages that are not premised on any specified injury. Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002).
In this case plaintiff clearly asks for damages, including punitive damages, for mental distress. These claims are barred by section 1997e(e). They will be dismissed.
Plaintiff has now been transferred to Salinas Valley State Prison. His claims for injunctive relief against defendants, officials of Pelican Bay State Prison, will be dismissed as moot.
Plaintiff's claims for damages are DISMISSED with prejudice. His claims for injunctive relief are DISMISSED with prejudice as moot. Leave to proceed in forma pauperis (doc 3) is DENIED. No fee is due. Plaintiff's motion for information regarding this case (doc 5) is ...