In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1013

ANTHONY L. SMITH,

Plaintiff-Appellant,

v.

GILBERT PETERS, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Evansville Division.

No. 3:09-cv-101-RLY-WGH—Richard L. Young, Chief Judge.

SUBMITTED NOVEMBER 4, 2010—DECIDED JANUARY 19, 2011

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. Anthony Smith, an Indiana

state prisoner, filed this civil rights suit which charges

that prison employees had violated the Eighth Amendment by forcing him to work at hard labor in dangerous

conditions, and had violated the First Amendment by

penalizing him for questioning the propriety of the work

assignment and preparing to sue. He seeks damages.

He also seeks injunctive relief, but that claim is moot

because he’s been moved to a different prison. The dis-
2 No. 10-1013

trict court dismissed the complaint for failure to state

a claim.

Smith was assigned to uproot tree stumps. Workers

on the stump crew were forced, the complaint alleges

(and since the complaint was dismissed on its face, we

take its allegations to be true, though of course without

vouching for their truth), to work in “freezing cold” with

axes, pickaxes, and shovels and without having received any safety instruction or protective gear—not

even gloves. Stump-crew workers are alleged to be at

risk of getting hit by the blades of their tools because

the heads of the tools slip from their handles as the prisoners hack away without proper training. Smith developed blisters from handling these heavy tools in the

cold without gloves.

He filed grievances with prison officials complaining

about the hazards that members of the stump crew face.

The prison eventually responded by transferring him to

a recreational job, but also, he claims, retaliated against

him by limiting his access to the law library and firing

him from his new job on the pretext that he was using

the law library during the hours in which he was supposed to be working in the new job.

The district court dismissed the Eighth Amendment

claim, insofar as it complained about failure to provide

gloves for outdoor work in cold weather, on the ground

that Smith’s blisters were nothing more than “the usual

discomforts of winter” rather than deprivations of the

“minimal civilized measure of life’s necessities,” and

brushed off his fear of dangerous working conditions
No. 10-1013 3

because it was, the court ruled, a claim of emotional or

psychological injury, which is not actionable unless the

result of a physical injury. 42 U.S.C. § 1997e(e). The

court did not discuss the First Amendment claim.

Although no one much likes to work out of doors

during the winter, the normal discomfort that such work

involves does not make the work cruel and unusual

punishment. But that is provided that the worker is

properly clothed. Smith does not specify the temperature in which he was working without gloves and

got blisters on his hands but it was during the winter

of 2008-2009, and the average temperature at the location of the Branchville Correctional Facility in Indiana

where he was imprisoned was only 29.6 degrees

Fahrenheit in January (it was 35.2 in December, 38.8

in February, and 50.2 in March); on January 16 it

plunged to -7.

“The Eighth Amendment ‘forbids knowingly compelling an inmate to perform labor that is beyond the

inmate’s strength, dangerous to his or her life or health, or

unduly painful.’ ” Ambrose v. Young, 474 F.3d 1070, 1075

(8th Cir. 2007). It forbids forcing prisoners to “perform

physical labor which is beyond their strength, endangers

their lives or health, or causes undue pain.” Berry v.

Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (per curiam).

Failure to provide a prisoner required to work out of

doors with minimal protective clothing, obviously including gloves, can therefore violate the Eighth Amendment, as countless cases have found. See, e.g., Knight v.

Wiseman, 590 F.3d 458, 463 (7th Cir. 2009); Gillis v. Litscher,
4 No. 10-1013

468 F.3d 488, 493 (7th Cir. 2006); Dixon v. Godinez, 114 F.3d

640, 642 (7th Cir. 1997); Murphy v. Walker, 51 F.3d 714, 720-

21 (7th Cir. 1995); Bibbs v. Early, 541 F.3d 267, 272 (5th Cir.

2008); Spencer v. Bouchard, 449 F.3d 721, 728 (6th Cir.

2006); Palmer v. Johnson, 193 F.3d 346, 352-53 (5th Cir. 1999).

The “usual discomforts of winter” to which the

district judge referred do not include handling heavy

tools with gloveless hands in subzero weather. Our

prison system is not the gulag. Smith’s blisters could

have been caused by his handling the stump removal

tools without gloves, or could even have been precursors

to or consequences of frostbite—the record does not

say. But the allegations of the complaint are sufficient

to preclude dismissal for failure to state a claim.

Smith’s allegations regarding the hazardous work

environment to which he was subject present an

Eighth Amendment claim that is distinct from the claim

we’ve just been discussing. There is a difference between experiencing actual pain or injury, on the one

hand (conceivably including a “condition not injurious

in itself but likely to ripen eventually into a palpable

physical injury,” a matter left unresolved in Robinson v.

Page, 170 F.3d 747, 749 (7th Cir. 1999)), and being

subjected to hazards merely threatened, on the other.

Because Smith was transferred to another prison before

such dangers as being struck by an axe blade occurred,

he could not seek either injunctive relief or (because

“no 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
No. 10-1013 5

without a prior showing of physical injury,” 42 U.S.C.

§ 1997e(e)) compensatory damages.

This limitation on the relief available in prisoner suits

charging violations of the Eighth Amendment is constitutionally permissible. Zehner v. Trigg, 133 F.3d 459, 461-

62 (7th Cir. 1997); Harris v. Garner, 216 F.3d 970 (11th

Cir. 2000) (en banc), reinstating 190 F.3d 1279, 1288-90

(11th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342,

1346-48 (D.C. Cir. 1998). But this does not make actual

physical injury “a filing prerequisite for the federal action

itself.” Calhoun v. Detella, 319 F.3d 936, 940 (7th Cir. 2003);

see also Helling v. McKinney, 509 U.S. 25, 33 (1993); Cassidy

v. Indiana Dep’t of Corrections, 199 F.3d 374, 376-77 (7th Cir.

2000); Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000).

Prison officials who recklessly expose a prisoner to a

substantial risk of a serious physical injury violate his

Eighth Amendment rights, and therefore are subject to

those remedies that are not barred by section 1997e(e)—

injunctive relief of course (unless as in this case an injunctive claim is moot) but also nominal and even (most

courts have ruled) punitive damages. E.g., Calhoun v.

Detella, supra, 319 F.3d at 940-41; Hutchins v. McDaniels, 512

F.3d 193, 198 (5th Cir. 2007) (per curiam); Mitchell v. Horn,

318 F.3d 523, 533 (3d Cir. 2003); Royal v. Kautzky, 375

F.3d 720, 723 (8th Cir. 2004); Thompson v. Carter, 284

F.3d 411, 418 (2d Cir. 2002); but see Harris v. Garner, supra;

Davis v. District of Columbia, supra, 158 F.3d at 1348.

The district court’s failure to address Smith’s First

Amendment claim was another error. If the facts alleged

in the complaint are true, which has yet to be deter-
6 No. 10-1013

mined, he was punished for complaining about mistreatment, and such punishment is an infringement of the freespeech rights, limited as they are, of prison inmates.

The judgment is reversed and the case remanded

for further proceedings consistent with this opinion.

1-19-11