The federal appeals court based in Denver has revived an inmate’s cruel and unusual punishment claim against two state prison personnel, finding Jabari J. Johnson had plausibly alleged the defendants exacerbated his existing injuries when they reportedly stomped on and slammed him.

Johnson and the Colorado Department of Corrections had argued over whether the Prison Litigation Reform Act (PLRA) required Johnson to show he suffered more than a minor, or “de minimis” injury at the hands of corrections officers. A trial judge previously dismissed the lawsuit after believing Johnson had only claimed he felt physical pain, which amounted to a minor injury.

But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit declined to answer that legal question, instead finding Johnson’s injuries were more than minor.

“Johnson immediately requested medical treatment, his exacerbated injuries persisted into the next calendar year, and he claimed that the pain was ‘excruciating’ and made it difficult for him to walk,” wrote Judge Gregory A. Phillips in the panel’s Jan. 11 opinion. “Johnson has alleged a serious physical injury beyond pain alone.”

Under the PLRA, prisoners who seek damages for mental or emotional harms need to only show “physical injury.” Other appellate courts across the country have interpreted that phrase to mean more than a de minimis injury, but the 10th Circuit has yet to adopt that interpretation. The panel deciding Johnson’s appeal acknowledged the phrase will remain an open question.

Johnson was incarcerated at Limon Correctional Facility in May 2018 when, according to his lawsuit, a case manager summoned Johnson to his office. The case manager allegedly asked Johnson about the numerous other lawsuits he filed, then became upset at Johnson’s answer. The case manager ordered Johnson to put on handcuffs and three employees showed up to escort Johnson to his cell.

According to Johnson, he complained the prison was violating his rights, and Sgt. Joaquin Reyna allegedly stepped on Johnson’s already-injured foot, “knowingly inflicting pain.” When Johnson positioned himself to carefully walk on a staircase, “Reyna and staff slamms (sic) the Plaintiff on his untreated fractured jaw.”

Another employee, named Wargo, again stomped on Johnson’s injured foot. Johnson claimed he has major depression and anxiety from the assault, and still suffers injuries to his jaw and foot. 

Originally, U.S. Magistrate Judge Michael E. Hegarty recommended dismissing Johnson’s lawsuit. He noted that other circuit courts adopted the more-than-de minimis standard for physical injuries, and Johnson had only alleged pain that fell into the category of minor.

“Plaintiff does not allege that he suffered any new physical injury (or even exacerbation of his prior condition) from this incident,” Hegarty wrote in November 2020. “Taking Plaintiff’s allegations as true, and giving them a liberal construction, the Court finds that Plaintiff only alleges pain from the incidents at issue.”

Johnson objected to the magistrate judge’s findings, but U.S. District Court Chief Judge Philip A. Brimmer agreed with Hegarty and dismissed the case.

On appeal, Johnson argued, in part, that he had actually alleged further physical injury, and not just an episode of pain.

“Mr. Johnson pled that defendants’ assault caused further injury to his jaw and foot – to the point he required surgery for his jaw and physical therapy for his foot – when they stepped on his previously injured foot and slammed his previously fractured jaw,” wrote his attorneys at the Roderick & Solange MacArthur Justice Center.

During oral arguments last year before the 10th Circuit panel, the judges questioned the scope of the phrase “physical injury” and mused whether waterboarding, for example, could fit that description. Johnson’s attorney argued that the PLRA contains no limitation on physical injury, and Johnson had clearly alleged his existing injuries were made worse in the assault.

“Drawing all inferences in his favor, he went in with a mild jaw fracture that did not require surgery,” said Kathrina Szymborski. “And after he was slammed onto the concrete floor on his jaw, he required surgery.”

The government countered that all Johnson experienced was pain from his already-existing problems, and he had failed to allege another injury.

“Isn’t exacerbating a broken jaw an injury?” asked Senior Judge Stephanie K. Seymour.

If so, “it does need to appear in your complaint,” responded Assistant Attorney General Cole J. Woodward.

“So we’re required to read that complaint to say, ‘You had a broken jaw, you got slammed onto a hard surface, but no problem?'” Phillips interjected.

The appellate panel concluded Hegarty and Brimmer had not given credit to Johnson’s allegations of an exacerbated injury when they dismissed Johnson as only suffering de minimis physical pain.

“Far from the minor ailments and transient aches that other circuits have found de minimis, Johnson alleged an intense, prolonged, exacerbated injury that still required medical treatment a year later,” Phillips wrote.

The 10th Circuit also continued its practice of more generously interpreting Johnson’s claims to the trial court because he represented himself from prison at the time. The defendants tried to convince the panel otherwise, pointing out that Johnson had filed over 100 lawsuits by mid-2022 and, as a “frequent filer,” was experienced at litigating cases.

But the panel agreed with Johnson’s lawyers who argued that his lengthy and largely-unsuccessful history in court was “no substitute for years of law school, access to legal research databases, and the like.”

The panel reinstated Johnson’s cruel and unusual punishment claim against Reyna and Officer Brett Corbin. It agreed with the dismissal of the defendant identified as Wargo because Johnson had not objected to Hegarty’s recommendation to dismiss Wargo from the case.

The case is Johnson v. Reyna et al.