HEANEY, Circuit Judge, dissenting.

Based on court precedent, the language of the physical injury requirement, and the legislative history of the Prison Litigation Reform Act (PLRA), I disagree with the majority's holding that 42 U.S.C. § 1997e(e) bars compensatory damages for violations of the First Amendment, and therefore, respectfully dissent.

I. BACKGROUND

Jeff Royal was convicted of "cattle rustling" and sentenced on August 10, 1998, to a term of five years in the Iowa Department of Corrections system. Prior to his conviction, Royal fell through a haymow and suffered a spinal cord injury requiring him to use a wheelchair. Royal was initially sent to the Iowa Medical and Classification Center (IMCC) and assigned to the general population. Royal became dissatisfied with the medical treatment he received and filed a pro se complaint on September 10, 1998. His complaint included allegations that: 1) he could not turn his wheelchair in his cell; 2) he was unable to get to the toilet or shower; 3) he had blood in his catheter but no action was taken by medical staff because he did not have an elevated temperature; 4) he was transferred in a van that was not handicapped accessible, requiring him to fall to the floor before pulling himself onto the van's seat; 5) he had to fall on the ground and pull himself up onto a shower chair in order to shower; 6) he had to lay on the floor after using the toilet to pull on his prison-issue jumpsuit, and his request to wear pants instead of a jumpsuit was denied; and 7) his requests for an enema were delayed — once for ten days and once for six days. Royal's request for the assistance of counsel was granted on September 29, 1998.

In October of 1998, the IMCC medical director decided that Royal did not need his analgesics and confiscated his wheelchair. Royal complained that the crutches he was expected to use caused him pain and tingling in his hands and that the health service unit was far away, making it difficult for him to show up for his periodic exercises. Between November 1998 and January 1999, Royal submitted seventeen grievances in attempt to regain his wheelchair. On December 24, 1998, Royal filed a preliminary injunction motion to get his wheelchair back. Accompanying the motion was an affidavit in which Royal stated that his leg brace had broken and, without his wheelchair, he had to crawl on the floor. Royal also asserted in the affidavit that when Tom Reid, the IMCC Security Director, was notified that Royal had to crawl on the floor, Reid issued a memorandum stating that any inmate seen crawling on the floor would be subject to discipline.

On January 12, 1999, prior to the preliminary injunction hearing, Royal had a consultation with a neurosurgeon at the University of Iowa Hospitals and Clinic. The doctor stated that the use of crutches was putting pressure on Royal's ulnar nerve and recommended that Royal's wheelchair be returned to him. The prison authorities returned his wheelchair and the preliminary injunction hearing was cancelled.

On January 28, 1999, Royal was "written up" after a confrontation with a nurse in the health services unit. Shortly thereafter, Royal was removed from the general population and placed in summary administrative segregation or, "lock up." Prior to being placed in segregation, Royal had been rated as above average in adjusting to prison work and outstanding in adjusting to his living unit. He remained in segregation until March 25, 1999, when he was transferred to another facility. Royal was paroled in December 1999.

Royal brought this suit pursuant to 42 U.S.C. § 1983, alleging that he was retaliated against for exercising his right of access to the courts when he was placed in segregation for almost two months. The magistrate judge agreed, holding that Royal was placed in segregation in retaliation for filing complaints in violation of his First Amendment rights. The magistrate judge, however, denied Royal's claims for both compensatory and punitive damages, awarding Royal $1.00 in nominal damages and his attorney $1.50 as 150% of the damages award. Royal now appeals the denial of compensatory and punitive damages and the limitation on attorney's fees.

II. PRISON LITIGATION REFORM ACT

The PLRA was enacted on April 26, 1996, as part of an extensive omnibus appropriations bill. Section 1997e(e) of the PLRA is entitled "Limitation on recovery" and states that "[n]o Federal civil action may be brought by a prisoner . . . for mental or emotional injury . . . without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The physical injury requirement of this provision has been litigated in almost every circuit, with extremely varying results. One of the key disputes is whether the physical injury requirement applies to constitutional claims in which physical injuries rarely occur, such as violations of the First and Fourteenth Amendments. The majority states in its opinion that the majority of circuits have held that § 1997e(e)'s limitation on damages applies to First Amendment claims. A review of the case law, however, reveals that courts in a majority of the circuits have either affirmatively held that § 1997e(e) does not apply to First Amendment claims, or have declined to apply the physical injury requirement to such claims.

In the first circuit court opinion to hold that § 1997e(e) does not apply to First Amendment claims regardless of the form of relief sought, the Ninth Circuit in Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998), held that "[t]he deprivation of First Amendment rights entitles a plaintiff to judicial relief wholly aside from any physical injury he can show." The Seventh Circuit agreed, holding that a "deprivation of First Amendment rights standing alone is a cognizable injury," therefore "[a] prisoner is entitled to judicial relief for a violation of his First Amendment rights aside from any physical, mental, or emotional injury he may have sustained." Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999). The Fifth and Sixth Circuits have both declined to apply § 1997e(e) to First Amendment claims. See Oliver v. Scott, 276 F.3d 736, 747 n. 20 (5th Cir. 2002) (applying the physical injury requirement to claims of cruel and unusual punishment under the Eighth Amendment, but declining to reach the issue in a First Amendment case); Williams v. Ollis, 230 F.3d 1361 (6th Cir. 2000) (unpublished table decision) (stating that the plaintiff's First Amendment claim was not precluded by § 1997e(e)). The First Circuit Court of Appeals has not addressed the application of § 1997e(e) to First Amendment claims, but a district court in Massachusetts held that § 1997e(e) does not apply to violations of abstract rights reasoning that "the harms proscribed by the First Amendment, Due Process, or Equal Protection are assaults on individual freedom and personal liberty, even on spiritual autonomy, and not on physical well-being." Shaheed-Muhammad v. Dipaolo, 138 F.Supp.2d 99, 101 (D.Mass. 2001). Lastly, district courts in the Second Circuit have also held that § 1997e(e) does not apply to First Amendment claims. See Lipton v. County of Orange, 315 F.Supp.2d 434, 456-59 (S.D.N.Y. 2004); Amaker v. Haponik, 1999 WL 76798, at *7-*8 (S.D.N.Y. Feb.17, 1999); Birth v. Pepe, 1999 WL 684162, *2 (E.D.N.Y. July 21, 1999).

Only three circuits have definitively held that the PLRA's physical injury requirement applies to all constitutional claims. In Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000), the Third Circuit asserted that § 1983 compensatory damages are governed by general tort-law compensation theory and the plain language of § 1997e(e) makes no distinction between different types of federal action. The Tenth Circuit in Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001), also held that "[t]he plain language of the statute does not permit alteration of its clear damages restrictions on the basis of the underlying rights being asserted," therefore "[t]he statute limits the remedies available, regardless of the rights asserted, if the only injuries are mental or emotional." The D.C. Circuit in Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998), also held that § 1997e(e) bars compensatory damages for First Amendment claims without physical injury.

Our court has yet to reach this issue. We are, however, faced with an intra-circuit split: two district courts have considered the applicability of § 1997e(e) to constitutional claims and have reached opposite results. In Mason v. Schriro, 45 F.Supp.2d 709, 719 (W.D.Mo. 1999), the court held that § 1997e(e) did not prevent the plaintiff from recovering damages for violations of the Fourteenth Amendment because such actions are not brought for mental or emotional injury. The court in Todd v. Graves, 217 F.Supp.2d 958, 961 (S.D.Iowa 2002), however, declined to follow Mason and held that § 1997e(e) barred recovery of compensatory damages for violations of Fourteenth Amendment rights.

Absent guidance from our circuit, I look to the statute itself to determine if it was intended to limit constitutional claims. When interpreting a statute, a court should always begin with the plain meaning of the statute. Dowd v. United Steel Workers of Am., Local No. 286, 253 F.3d 1093, 1099 (8th Cir. 2001). If the plain language of the statute is unambiguous, the judicial inquiry ends. Id. Courts interpreting the plain language of § 1997e(e), however, have reached differing results which leads me to the conclusion that the language is neither plain nor unambiguous.

Some courts read § 1997e(e) and focus on the language " for mental or emotional injury." These courts have generally held that § 1997e(e) does not apply to First Amendment claims reasoning that First Amendment claims are not claims for mental or emotional injury, but are for violations of intangible and invaluable rights whose deprivation is an injury in and of itself.

Other courts, however, focus on the statute's " no Federal civil action" language. They argue that the use of the word "no" shows Congress's intent that there not be any exceptions to the physical injury requirement. They reason that, in order to receive compensatory damages, the plaintiff must prove a compensable injury which, under general tort-law theory, is limited to physical or emotional injury. Therefore, if a claim does not allege a physical injury, as most First Amendment claims do not, yet seeks compensatory damages, the plaintiff must be asserting a claim for mental or emotional damages which would be barred under § 1997e(e). One court, however, focused on this same "plain language" yet reached the opposite result. Amaker, 1999 WL 76798, at *7. In that case, the district court held that § 1997e(e) does not apply to First Amendment claims reasoning that if the physical injury requirement applied to all federal civil suits the language "for mental or emotional injury" would be superfluous which is "contrary to the well-established principle that all words in a statute should be read to have meaning." Id. In other words, "[i]f Congress had intended to apply § 1997e(e)'s restriction to all federal civil suits by prisoners, it could easily have done so simply by dropping the qualifying language `for mental or emotional injury.'" Id.

Although many courts, and the majority in this case, have found that the language of § 1997e(e) is "unmistakably clear" ( ante at 723), based on the current circuit split as to whether § 1997e(e) applies to First Amendment claims, I disagree. Accordingly, because the plain language of the statute is ambiguous, I believe we must consider "the purpose, the subject matter and the condition of affairs which led to its enactment." United States v. McAllister, 225 F.3d 982, 986 (8th Cir. 2000) (internal quotation marks omitted). Furthermore, "[w]hen the meaning of a statute is questionable, it should be given a sensible construction and construed to effectuate the underlying purpose of the law." Id.

The legislative history of the PLRA shows a clear legislative intent to decrease the number of frivolous lawsuits filed by inmates. There is nothing in the legislative history of § 1997e(e), however, to suggest that Congress's intent was to prevent legitimate constitutional claims simply because the prisoner suffered no physical injury. Although the bill was called "far-reaching," the Senate focused almost exclusively on limiting "non-meritorious" and "frivolous" inmate litigation, while assuring that the legislation would not prevent legitimate claims and would actually "help protect convicted criminals' constitutional rights." 141 Cong. Rec. S14317 (1995) (statement of Sen. Abraham). According to Senator Hatch, the PLRA was intended to "help bring relief to a civil justice system overburdened by frivolous prisoner lawsuits . . . and will ensure that Federal court orders are limited to remedying actual violations of prisoners' rights." 141 Cong. Rec. S14418 (1995). The Senators repeatedly stated that legitimate constitutional claims would not be prevented. Instead, the legislation was aimed at prisoners who "file free lawsuits in response to almost any perceived slight or inconvenience." Id. (statement of Sen. Kyl). Examples of such frivolous lawsuits presented by the Senators included: inadequate locker space; a bad haircut given by a prison barber; the failure of prison officials to invite a prisoner to a pizza party for a departing prison employee; being served chunky instead of creamy peanut butter; being denied the use of a Gameboy video game; being issued shoes that were a quarter size too big; being served "hacked up" cake for dessert; prison officials throwing out an inmate's belongings after he escaped; and being denied dental floss.

There is a clear difference between the types of claims listed by Congress and historically actionable and meritorious claims under the First and Fourteenth Amendments. When a plaintiff files suit for a violation of his First Amendment rights, his claim is based on a deprivation of an intangible right. Whether his claim is valid is not linked to the existence or severity of his mental or emotional anguish. Certainly First Amendment violations can result in mental or emotional injury, and perhaps even physical injury, but § 1983 claims for First Amendment violations are not brought to redress such injuries. They are brought to redress the actual violation of the right. This is supported by the purpose behind the First Amendment. The First Amendment "is not concerned with preventing physical abuse by government agents, but rather with the invasion of the `sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.'" Shaheed-Muhammad, 138 F.Supp.2d at 108 (quoting West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)). In addition, First Amendment violations occur at the time of the deprivation, not at a later time when the physical or emotional harm manifests. First Amendment rights "are abridged the moment a state silences free speech or prevents a citizen from following the precepts of his religion. While the violation may be accompanied by psychological or even physical injury, the severity of incursion is not necessarily measured in those terms." Id. at 101.

The PLRA has many provisions other than § 1997e(e) which serve to prevent frivolous lawsuits, including frivolous First Amendment suits. The PLRA: 1) requires prisoner-plaintiffs to exhaust all administrative remedies before filing § 1983 actions; 2) requires prisoner-plaintiffs pay the initial filing fee or make monthly installment payments from their personal accounts when bringing suits in forma pauperis (IFP); 3) makes it easier for judges to dismiss malicious or frivolous suits; 4) prohibits a prisoner from filing a suit IFP after having three previous suits dismissed as frivolous, malicious, or failing to state a claim; and 5) allows judges to revoke an inmate's good time credit as a sanction for filing a malicious claim, filing a claim solely to harass the defendant, testifying falsely, or presenting false evidence. All of these provisions serve Congress's intent of decreasing frivolous lawsuits without effecting the ability of prisoners to vindicate there legitimate constitutional claims. Royal's ability to withstand all of these hurdles is further proof that his claim was not frivolous and was not they type of claim Congress intended to thwart.

III. CONCLUSION

Royal's claim is not frivolous. As found by the magistrate judge, Royal's First Amendment rights were violated when he was placed in segregation in retaliation for exercising his constitutional rights. Based on the language of § 1997e(e), the "purpose, subject matter and the condition of affairs which led to its enactment," and the other significant provisions of the PLRA which serve to put a stop to frivolous prisoner litigation, I would find that Royal's claim for compensatory damages is not barred by § 1997e(e) of the PLRA.