# Hudson v. McMillian/Concurrence Blackmun

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Stevens Blackmun
* Dissenting Opinion Thomas
Justice Blackmun, concurring in the judgment.
The Court today appropriately puts to rest a seriously misguided view that pain inflicted by an excessive use of force is actionable under the Eighth Amendment only when coupled with "significant injury," e. g., injury that requires medical attention or leaves permanent marks. Indeed, were we to hold to the contrary, we might place various kinds of state-sponsored torture and abuse—of the kind ingeniously designed to cause pain but without a telltale "significant [p. 14] injury"—entirely beyond the pale of the Constitution. In other words, the constitutional prohibition of "cruel and unusual punishments" then might not constrain prison officials from lashing prisoners with leather straps, whipping them with rubber hoses, beating them with naked fists, shocking them with electric currents, asphyxiating them short of death, intentionally exposing them to undue heat or cold, or forcibly injecting them with psychosis-inducing drugs. These techniques, commonly thought to be practiced only outside this Nation’s borders, are hardly unknown within this Nation's prisons. See, e. g., Campbell v. Grammer, 889 F.2d 797, 802 (CA8 1989) (use of high-powered fire hoses); Jackson v. Bishop, 404 F.2d 571, 574–575 (CA8 1968) (use of the "Tucker Telephone," a hand-cranked device that generated electric shocks to sensitive body parts, and flogging with leather strap). See also Hutto v. Finney, 437 U.S. 678, 682, n. 5 (1978).
Because I was in the dissent in Whitley v. Albers, 475 U.S. 312, 328 (1986), I do not join the Court's extension of Whitley 's malicious-and-sadistic standard to all allegations of excessive force, even outside the context of a prison riot. Nevertheless, I otherwise join the Court's solid opinion and judgment that the Eighth Amendment does not require a showing of "significant injury" in the excessive-force context. I write separately to highlight two concerns not addressed by the Court in its opinion.

#### I

Citing rising caseloads, respondents, represented by the Attorney General of Louisiana, and joined by the States of Texas, Hawaii, Nevada, Wyoming, and Florida as amici curiae, suggest that a "significant injury" requirement is necessary to curb the number of court filings by prison inmates. We are informed that the "significant injury requirement has been very effective in the Fifth Circuit in helping to control its system-wide docket management problems." Brief for Texas et al. as Amici Curiae 15.
[p. 15] This audacious approach to the Eighth Amendment assumes that the interpretation of an explicit constitutional protection is to be guided by pure policy preferences for the paring down of prisoner petitions. Perhaps judicial overload is an appropriate concern in determining whether statutory standing to sue should be conferred upon certain plaintiffs. See, e. g., Associated General Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 529–546 (1983) (identifying "judge-made rules" circumscribing persons entitled to sue under §4 of the Clayton Act); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 737–749 (1975) (identifying judicial "policy" considerations limiting standing under §10(b) of the Securities Exchange Act of 1934). But this inherently self-interested concern has no appropriate role in interpreting the contours of a substantive constitutional right.
Since the burden on the courts is presumably worth bearing when a prisoner's suit has merit, the States' "concern" is more aptly termed a "conclusion" that such suits are simply without merit. One's experience on the federal bench teaches the contrary. Moreover, were particular classes of cases to be nominated for exclusion from the federal courthouse, we might look first to cases in which federal law is not sensitively at issue rather than to those in which fundamental constitutional rights are at stake. The right to file for legal redress in the courts is as valuable to a prisoner as to any other citizen. Indeed, for the prisoner it is more valuable. Inasmuch as one convicted of a serious crime and imprisoned usually is divested of the franchise, the right to file a court action stands, in the words of Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), as his most "fundamental political right, because preservative of all rights."
Today's ruling, in any event, does not open the floodgates for filings by prison inmates. By statute, prisoners—alone among all other §1983 claimants—are required to exhaust administrative remedies. See 94 Stat. 352, 42 U.S.C. §1997e(a); Patsy v. Board of Regents of Florida, 457 U.S. [p. 16] 496, 507–512 (1982). Moreover, prison officials are entitled to a determination before trial whether they acted in an objectively reasonable manner, thereby entitling them to a qualified immunity defense. Procunier v. Navarette, 434 U.S. 555, 561–562 (1978); see also Harlow v. Fitzgerald, 457 U.S. 800, 817–818 (1982) (unsubstantiated allegations of malice are insufficient to overcome pretrial qualified immunity). Additionally, a federal district court is authorized to dismiss a prisoner's complaint in forma pauperis "if satisfied that the action is frivolous or malicious." 28 U.S.C. §1915(d). These measures should be adequate to control any docket-management problems that might result from meritless prisoner claims.

#### II

I do not read anything in the Court's opinion to limit injury cognizable under the Eighth Amendment to physical injury. It is not hard to imagine inflictions of psychological harm—without corresponding physical harm—that might prove to be cruel and unusual punishment. See, e. g., Wisniewski v. Kennard, 901 F.2d 1276, 1277 (CA5) (guard placing a revolver in inmate's mouth and threatening to blow prisoner's head off), cert. denied, 498 U.S. 926 (1990). The issue was not presented here, because Hudson did not allege that he feared that the beating incident would be repeated or that it had caused him anxiety and depression. See App. 29.
As the Court makes clear, the Eighth Amendment prohibits the unnecessary and wanton infliction of "pain," rather than "injury." Ante, at 5. "Pain" in its ordinary meaning surely includes a notion of psychological harm. I am unaware of any precedent of this Court to the effect that psychological pain is not cognizable for constitutional purposes. If anything, our precedent is to the contrary. See Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (recognizing Article III standing for "aesthetic" injury); Brown v. Board of Education, 347 U.S. 483, 494 (1954) (identifying schoolchildren's [p. 17] feelings of psychological inferiority from segregation in the public schools).
To be sure, as the Court's opinion intimates, ante, at 9, de minimis or nonmeasurable pain is not actionable under the Eighth Amendment. But psychological pain can be more than de minimis. Psychological pain often may be clinically diagnosed and quantified through well-established methods, as in the ordinary tort context where damages for pain and suffering are regularly awarded. I have no doubt that to read a "physical pain" or "physical injury" requirement into the Eighth Amendment would be no less pernicious and without foundation than the "significant injury" requirement we reject today.