The opinion of the court was delivered by: DAVID HOMER, Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Presently pending is the motion of defendants County of
Schoharie, John S. Bates, Jr., and Jim Hazzard (collectively
referred to herein as the "County") for leave to file an amended
answer. Docket No. 37. Plaintiffs oppose the motion. Docket No.
38. For the reasons which follow, the County's motion is denied. I. Background
The two named plaintiffs commenced this action against the
County on behalf of a proposed class of individuals alleging that
their rights under the Fourth Amendment were violated when the
County improperly strip searched them following their arrests for
misdemeanor offenses. The County answered and a scheduling order
was entered pursuant to Fed.R.Civ.P. 16 requiring that
pleadings be amended by November 1, 2004 and discovery be
completed by July 1, 2005. Docket Nos. 4, 12, 33.
On June 1, 2005, the County moved for leave to file and serve
an amended answer to add an affirmative defense under the Prison
Litigation Reform Act of 1995 (PLRA), Pub.L. No. 104-134,
-803(d), 110 Stat. 1321-66, -71 (1996). Under the PLRA provision
in 42 U.S.C. § 1997e(e), "[n]o 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." The
County now seeks to add the affirmative defense that plaintiffs
are limited to nominal damages by § 1997e(e) because they cannot
prove any physical injury.
Fed.R.Civ.P. 15(a) requires that on a motion for leave to
amend a pleading, leave be "freely given when justice so
requires." This "`facilitate[s] a decision on the merits'" and
identifies the material issues of the case. Torres v. Oakland
Scavenger Co., 487 U.S. 312, 320 (1988) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)). Courts have broad discretion
to grant a party leave to amend its pleadings, Local 802,
Associated Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir.
1998). Amending a pleading is futile where the proposed amendment
does not cure the deficiencies in the original pleading, Acito
v. Imcera Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995), or would
not survive a motion to dismiss. Ricciuti v. N.Y.C. Transit
Auth., 941 F.2d 119, 123 (2d Cir. 1991). Therefore, to determine
whether the proposed amendment is futile, a court must apply "the
same analysis as that applied on a motion to dismiss" under
Fed.R.Civ.P. 12(b)(6). Stetz v. Reeher Enterprises, Inc.,
70 F. Supp. 2d 119, 121 (N.D.N.Y. 1999) (McAvoy, C.J.). Accordingly,
the facts alleged by the County here are treated as true and are
viewed in the light most favorable to the County. See id.
The issue presented here is whether § 1997e(e) applies where
plaintiffs were no longer incarcerated when the action was
commenced. The plain language of § 1997e(e), the declared purpose
of the PLRA, and case law support the conclusion that the
limitation of § 1997e(e) is inapplicable where a plaintiff is no
longer incarcerated. The plain language of § 1997e(e) limits its
applicability to "a prisoner confined in a jail, prison, or other
correctional facility." That language clearly limits the
provision to individuals who are incarcerated when an action is
commenced. There is no dispute here that the named plaintiffs and
potential class members were not incarcerated when the action was
This interpretation of that language is supported by the
purpose of the PLRA, which was "to curtail what Congress
perceived to be inmate abuses of the judicial process." Ortiz v.
McBride, 380 F.3d 649, 658 (2d Cir. 2004); see also Greig v.
Goord, 169 F.3d 165, 167 (2d Cir. 1999) (finding that the
Congressional concern motivating the enactment of the PLRA was that lawsuits had become a "recreational activity for
long-term residents of our prisons" and presented "a means of
gaining a short sabbatical in the nearest Federal courthouse").
Thus, where, as here, the plaintiffs are not inmates when an
action is commenced, the purposes of the PLRA would not be served
by application of the statute.
Although the Second Circuit has yet to address the issue, it
appears that the two courts of appeals which have considered the
issue have drawn the same conclusion. See Harris v. Garner,
216 F.3d 970, 976-80 (11th Cir. 2000) (en banc) ("Because
section 1997e(e) applies only to claims filed while an inmate is
confined, it does not prevent a former prisoner from filing after
release a monetary damages claim for mental and emotional injury
suffered while confined, without a prior showing of physical
injury."); Kerr v. Puckett, 138 F.3d 321, 322-23 (7th Cir.
1998) (holding that "by waiting until his release from prison
Kerr avoided § 1997e(e).").
With two exceptions discussed below, district courts have held
the same. See, e.g., Smith v. Franklin County,
227 F. Supp. 2d 667, 676 (E.D. Ky. 2002) (holding that plaintiff who had been
released from the county jail before commencing an action
concerning the conditions of her incarceration was not bound by
the limitations of the PLRA); Doan v. Watson,
168 F. Supp. 2d 932, 935 (S.D. Ind. 2001) (holding that where former inmates
filed suit to recover damages based on strip searches conducted
by defendants, "[b]ecause Plaintiffs filed their claims following
their detention, the PLRA does not require them to produce
evidence of physical injury to pursue their claims."); Lee v.
State of New York Dep't of Correctional Servs., No. 97 Civ.
7112(DAB), 1999 WL 673339, at *4 & n. 7 (S.D.N.Y. Aug. 30, 1999)
("Moreover, at the time that this suit was filed, Plaintiff's son
was no longer even incarcerated, thereby removing him even
further from the definition of `prisoner' under the PLRA.").
Defendants rely on Cox v. Malone, 199 F. Supp. 2d 135
(S.D.N.Y. 2002), aff'd, 56 Fed.Appx. 43 (2d Cir. 2003). There,
a former state prisoner sued state officials alleging the
excessive use of force during a search in violation of
42 U.S.C. § 1983. Defendants moved for summary judgment on the ground,
inter alia, that the physical injury alleged by plaintiff was
de minimis and, therefore, failed to satisfy the physical
injury requirement of § 1997e(e). The district court granted the
motion, holding that § 1997e(e) applied to plaintiff even though
he had been released from custody before commencing the action.
The court reasoned that
Section 1997e(e) . . . is a substantive limitation on
the type of actions that can be brought by prisoners.
Its purpose is to weed out frivolous claims where
only emotional injuries are alleged. This purpose is
accomplished whether section 1997e(e) is applied to
suits brought by inmates incarcerated at the time of
filing or by former inmates incarcerated at the time
of the alleged injury but subsequently released. The
fortuity of release on parole does not affect the
kind of damages that must be alleged in order to
survive the gate-keeping function of section
1997e(e). Because plaintiff's suit alleges only
emotional injuries, it is barred by the PLRA
irrespective of his status as a parolee at the time
Id. at 140. The Second Circuit affirmed the district court's
holding in an unpublished opinion "for substantially the reasons
stated in the district court's thorough and well-reasoned
opinion." 56 Fed.Appx. 43; see also Lipton v. County of
Orange, 315 F. Supp. 2d 434
, 456 & n. 29 (S.D.N.Y. 2004)
Cox does not address the contrary authority discussed above
and its rationale appears founded on an analysis not supported by
the plain language of § 1997e(e) upon which other courts have
relied. Cox correctly notes that limiting § 1997e(e) to those incarcerated at the time an action is commenced leaves to the
"fortuity" of a prisoner's release date whether he or she will
fall under or escape § 1997e(e)'s limitations. However, if
Congress intended § 1997e(e) to apply to prisoners released from
custody when an action is commenced, statutory language to
accomplish this end was available. The language chosen by
Congress in § 1997e(e) plainly limited its applicability to
prisoners incarcerated at the time an action is commenced, was
consistent with the purposes of the PLRA, and such Congressional
determination and intent are not unreasonable.
The Cox decision, of course, does not constitute binding
precedent for this Court. Were it simply a matter of analyzing
the Cox decision in light of the Kerr line of cases
addressing the scope of § 1997e(e), the Kerr line of cases
holding that the plain meaning of the language in § 1997e(e)
limits its applicability to prisoners incarcerated at the time an
action is commenced is most persuasive. The Second Circuit's
affirmance described that decision as "thorough and
well-reasoned." That affirmance, however, was unpublished and by
Second Circuit rule, may not be cited as authority outside the
Cox litigation. See 2d Cir. R. 0.23. Thus, the question
becomes whether the Second Circuit's unpublished affirmance of
Cox should lead a court in these circumstances to follow Cox.
For at least two reasons, it does not. First, Second Circuit
Rule 0.23, restated on the Cox affirmance, explicitly limits
the precedential value of the affirmance to the Cox case itself
and bars its use in this and other cases. That rule should be
followed unless and until the Second Circuit directs otherwise.
Second, neither Cox nor the Second Circuit have directly
considered or addressed the Kerr line of cases and their
compelling rationale. Accordingly, for the reasons discussed
above, the rationale of the Kerr line of cases is adopted.
Because plaintiffs were not incarcerated at the time this action
was commenced, § 1997e(e) is inapplicable and the ...