DAVID L. RUSSELL, District Judge.
Before 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.
Plaintiff 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. § 1997e(e).
The statute plainly applies here—Plaintiff has shown de minimis physical injuries,
While 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 emotional damages.
Nonetheless, Plaintiff can recover nominal damages. Nominal damages are appropriate for the protection of certain "absolute" rights:
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.
Defendant's 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 A.M.
IT IS SO ORDERED.