Criminal Justice Section  


Criminal Justice Magazine
Winter 2002
Volume 18 Issue 1

Prison Litigation Reform Act Raises the Bar

By Elizabeth Alexander

Elizabeth Alexander is the director of the National Prison Project of the American Civil Liberties Union Foundation. She has litigated a number of significant prisoners’ rights cases, including three cases that she argued in the United States Supreme Court. The author thanks John Boston, director of the Prisoners’ Rights Office of New York Legal Aid, for allowing the use of his PLRA materials.

T he Prison Litigation Reform Act (PLRA), like its companion measure, the Anti-Terrorism and Effective Death Penalty Act (AEDPA), came into being as part of an appropriations bill to fund the Department of Justice for fiscal 1996. That particular budget process was, of course, an unusually contentious one. In the fall of 1995, the battle between the president and Congress over the 1996 budget led to a shut-down of the federal government, followed by the most famous pizza delivery in history.

Although PLRA was contained in an appropriations bill, its provisions are substantive. The sponsors of PLRA argued that frivolous prisoner litigation and activist federal courts needed to be curbed, and PLRA has certainly succeeded in reducing the number of civil rights cases filed by prisoners challenging their conditions of confinement. Immediately after its enactment, such filings fell substantially. The Act places significant restrictions on the ability of prisoners to file civil rights cases challenging the conditions under which they are confined, as well as restrictions on the powers of federal courts to issue relief in such cases. The provisions of PLRA now create a difficult obstacle course that prisoners seeking either injunctive relief or damages must successfully traverse to challenge living conditions in their facility or staff actions affecting constitutional and statutory rights. The question is whether the Act has made it so difficult for prisoners, who are often barely literate, to bring such cases that prisoners now have no effective remedy for serious constitutional abuses.

Because the restrictions that PLRA places on litigation challenging prison conditions of confinement are in many respects unique, and because many lawyers who practice in the criminal justice field will encounter PLRA issues, this article addresses the most significant features of this legislation.

General observations

Although PLRA is generally described as containing restrictions on prisoner civil rights litigation, its scope is somewhat broader. In general, it has been interpreted to apply to litigation on behalf of committed and detained juveniles and pre-trial detainees, as well as sentenced prisoners. Moreover, the Act continues to present many unresolved issues of statutory interpretation. In the five years since PLRA was enacted, its provisions have already resulted in three Supreme Court decisions, and a fourth PLRA issue has been granted certiorari for the coming Term.

Some of the interpretative issues arise from the fact that the drafters of PLRA designed the Act for codification in four different Titles of the United States Code. Because some of these sections of the Code contain their own definitions and other provisions that are arguably relevant to the interpretation of a particular provision of PLRA, it is possible that the same language in different provisions of the PLRA may be given different interpretations.

PLRA provisions fall into three rough categories: restrictions on the powers of the federal courts; restrictions on the relief available in prisoner cases; and restrictions on the ability of prisoner litigants to get into court.

Filing fees and costs

(28 U.S.C. § 1915(b) and (f)(2))

Indigent prisoners attempting to file a civil action undertake financial obligations not shared by others who file in forma pauperis in federal court. A complex statutory formula requires the indigent prisoner to pay an initial fee of 20 percent of the greater of the prisoner’s average balance or the average deposits to the account for the preceding six months. After the initial payment, the prisoner is to pay monthly installments of 20 percent of the income credited to the account in the previous month until the fee has been paid.

A major complication of this procedure is that it requires the prison or other facility holding the prisoner to cooperate administratively in the process by which the statutory fee is assessed by the court. The courts can require the prison administration to provide the necessary information. ( See Hall v. Stone, 170 F.3d 706 (7th Cir. 1999) (holding warden in contempt for failure to forward fees from the prisoner’s account).)

If the court assesses costs against a prisoner filing a civil suit, such costs are to be collected in the same manner that the initial filing fees are collected. A court can, however, exercise its discretion not to award costs against a prisoner plaintiff. ( See Feliciano v. Selsky, 205 F.3d 568 (2d Cir. 2000).)

The filing fees provision does not apply to habeas actions, which for this purpose are not treated as civil actions. ( See, e.g., Martin v. Bissonette, 118 F.3d 871 (1st Cir. 1997); Santee v. Quinlan, 115 F.3d 355 (5th Cir. 1997); Smith v. Angelone, 111 F.3d 1126 (4th Cir. 1997).) The provisions also do not apply to INS detainees. ( See Ojo v. INS, 106 F.3d 680 (5th Cir. 1997).) The majority rule is that, after a prisoner’s release, the former prisoner may utilize the general procedures for in forma pauperis status. ( See, e.g., In re Smith, 114 F.3d 1247 (D.C. Cir. 1997); In re Prison Litigation Reform Act, 105 F.3d. 1131 (6th Cir. 1997); McCann v. Commissioner, 96 F.3d 28 (2d Cir. 1996); but see Gay v. Texas Dep’t of Corrections, 117 F.3d 240 (5th Cir. 1997) (holding that, despite prisoner’s release after he filed a notice of appeal, he remained subject to the PLRA filing fee requirements); Robbins v. Switzer, 104 F.3d 895 (7th Cir. 1997) (same).)

Finally, challenges to the constitutionality of these provisions have been unsuccessful. ( See, e.g., Murray v. Dosal, 150 F.3d 814 (8th Cir. 1998); Tucker v. Branker, 142 F.3d 1294 (D.C. Cir. 1998).)

Screening provisions

(42 U.S.C. § 1997e(c)(1))

The court, on its own motion, as well as on motion by a party, is to dismiss a prisoner’s conditions of confinement action if it is frivolous or malicious, or if it fails to state a claim upon which relief can be granted. The courts are split on whether this provision removes the court’s power to dismiss with leave to amend to cure the deficiencies in the initial complaint. ( See Shane v. Fauver, 213 F.3d 113 (3d Cir. 2000) (recognizing court’s power to allow leave to file an amended complaint); Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc) (same); contra McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997) (holding that leave to amend no longer allowed); cf. Christiansen v. Clarke, 147 F.3d 655 (8th Cir. 1998) (holding that PLRA allows court to dismiss without granting leave to amend).)

Three strikes provision

(28 U.S.C. § 1915(g))

These expanded grounds for dismissal under PLRA are particularly important because prisoners who have had three "strikes"—cases dismissed as frivolous or malicious, or because they failed to state a claim—may not proceed in forma pauperis (IFP) in a civil action unless they are in imminent danger of serious physical injury. For these purposes, a habeas action is not a civil action.

An appeal of a dismissed action that is dismissed is a separate strike. ( See Jennings v. Natrona Co. Detention Center, 175 F.3d 775 (10th Cir. 1999); Patterson v. Jefferson Corrections Center, 136 F.3d 626 (5th Cir. 1998).) Even dismissals that occurred prior to the effective date of PLRA count as strikes. ( See, e.g., Ibrahim v. District of Columbia, 208 F.3d 1032 (D.C. Cir. 2000); Welch v. Galie, 207 F.3d 130 (2d Cir. 2000).)

The exception to denial of IFP status may be invoked if the prisoner is in imminent danger of serious physical injury. In Gibbs v. Cross, 160 F.3d 962 (3d Cir. 1998), the court held that the plaintiff had alleged an imminent danger of serious physical injury by claiming that dust, lint, and shower odor came through his cell vent, causing him to suffer "severe headaches, changes in voice, mucus that is full of dust and lint, and watery eyes." ( See also Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998) (allegations that staff placed plaintiff in proximity to known enemies satisfied imminent danger requirement).)

Challenges to the constitutionality of the three-strikes provision have yet to succeed at the court of appeals level. ( See, e.g., Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999); Rodriguez v. Cook, 169 F.3d 1176 (9th Cir. 1999); White v. State of Colorado, 157 F.3d 1226 (10th Cir. 1998); but see Lewis v. Sullivan, 135 F. Supp. 2d 954 (W.D. Wis. 2001); Ayers v. Norris, 43 F. Supp. 2d 1039 (D. Ark. 1999); Lyon v. Krol, 940 F. Supp. 2d 1433 (S.D. Iowa 1996), appeal dismissed and remanded, 127 F.3d 763 (8th Cir. 1997) (remanded with directions to dismiss challenge to constitutionality because plaintiff lacked standing).)

Exhaustion of remedies

(42 U.S.C. § 1997e(a))

Prisoners must exhaust such administrative remedies "as are available" before bringing actions with respect to prison conditions.

Consequences of nonexhaustion. The exhaustion requirement is not jurisdictional. ( See Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999), cert. denied, 120 S. Ct. 787 (2000); Wendell v. Asher, 162 F.3d 887 (5th Cir. 1998); Wright v. Morris, 111 F.3d 414 (6th Cir.), cert. denied, 522 U.S. 906 (1997).) The courts differ on which party has the burden of raising the exhaustion issue. The Sixth Circuit requires sua sponte dismissal if the prisoner does not demonstrate exhaustion in the complaint. ( Brown v. Toombs, 139 F.3d 1102 (6th Cir.), cert. denied, 523 U.S. 833 (1998).) The Eighth Circuit also puts the burden on the prisoner to show exhaustion. ( McAlprin v. Morgan, 216 F.2d 680 (8th Cir. 2000).) In contrast, the Second and Seventh Circuits treat the failure to exhaust administrative remedies as an affirmative defense that defendants must raise or waive. ( Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999); Massey v. Helman, 196 F.3d 727 (7th Cir. 1999); Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001) (treating failure to exhaust as affirmative defense but allowing amendment to raise defense); see also Jackson v. District of Columbia, 254
F. 3d 262 (D.C. Cir. 2001) (same); Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998) (exhaustion requirement may be subject to waiver).)

If the court finds that the prisoner has not exhausted administrative remedies, the case is dismissed without prejudice. ( Perez v. Wisconsin Dep’t of Correction, 182 F.3d 532 (7th Cir. 1999); Wendell v. Asher, 162 F.3d 887 (5th Cir. 1998); Wright v. Morris, 111 F.3d 414 (6th Cir.), cert. denied, 522 U.S. 906 (1997); but see Williams v. Norris, 176 F.3d 1089 (8th Cir. 1999) ( per curiam) (no dismissal if prisoner exhausts prior to court ordering dismissal).)

There is little case law yet addressing whether a prisoner who is time-barred from an administrative remedy (many grievance systems have deadlines of five to 15 days) thereafter forever loses his or her constitutional or statutory claim. A prisoner in this situation would be well advised to appeal through all the levels of the grievance system and explain in the grievance the reasons for the failure to file on time. ( See Harper v. Jenkins, 179 F.3d 1311 (11th Cir. 1999) (holding that prisoner who filed an untimely grievance was obliged to seek a waiver of the time limits in the grievance system).)

Finally, the statute of limitations is tolled while the prisoner is in the process of exhausting. ( Brown v. Morgan, 209 F.3d 593 (6th Cir. 2000); Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999).)

Qualifying as exhaustion. Accomplishing exhaustion requires pursuing all available administrative appeals. ( White v. McGinnis, 131 F.3d 593 (6th Cir. 1997).) All claims raised in the lawsuit must be exhausted. ( See, e.g., Bey v. Pennsylvania Dep’t of Corrections, 98 F. Supp. 2d 650 (E.D. Pa. 2000); Cooper v. Garcia, 55 F. Supp. 2d 1090 (S.D. Cal. 1999).) Arguably, these cases may be wrongly decided. ( See Sims v. Apfel, 120 S. Ct. 2080 (2000) (interpreting Social Security Act exhaustion requirement not to require issue exhaustion; stating that arguments for issue exhaustion are weakest when administration proceedings are not adversarial).)

A related question is whether attempts at exhaustion that are arguably technically deficient qualify. If a prisoner does not file a grievance because he or she is unable to obtain grievance forms, no administrative remedy is "available" and the prisoner may file in court. ( See Miller v. Norris, 247 F.3d 736 (8th Cir. 2001).) In a multilevel grievance system, if staff fail to respond within the time limits established in the grievance system’s procedure, the prisoner must appeal to the next stage. ( See White v. McGinnis, 131 F.3d 593 (6th Cir. 1997).) If the prisoner does not receive a response at the final appeal level, and the time for response has passed, the prisoner has exhausted. ( See Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999).)

An exception to the requirement that all appeals be taken occurs if the prisoner cannot appeal without a decision from the lower level of the grievance system, and the lower level did not respond to the grievance. ( See Taylor v. Barrett, 105 F. Supp. 2d 483 (E.D. Va. 2000); see also Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999) (prisoner had exhausted when told by staff no appeal possible); Pearson v. Vaughn, 102 F. Supp. 2d 282 (E.D. Pa. 2000) (same). Cf. Hall v. Sheahan, 2001 WL 111019 (N.D. Ill., Feb. 2, 2001) (holding that prisoner was not required to exhaust grievance system that he did not know about; whether he knew about it was factual question).)

Failure to sign and date the grievance does not defeat exhaustion if the grievance procedures do not require these steps. ( See Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999); see also Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000) (dictum that substantial compliance with grievance procedure will satisfy exhaustion requirement); cf. Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (holding that investigation of complaint by Secretary of Corrections office rather than regular grievance system satisfied exhaustion requirement); but see Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999) (investigations by use of force committee and state police not exhaustion).)

Prison officials often argue that more than one type of administrative remedy must be exhausted. They have generally lost these arguments. ( See Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999).) Judicial remedies need not be exhausted. ( See Jenkins v. Morton, 148 F.3d 257 (3d Cir. 1998); Mullins v. Smith, 14 F. Supp. 2d 1089 (E.D. Mich. 1998).) Similarly courts have rejected requiring exhaustion of notice of claim procedures. ( Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999), cert. denied, 120 S. Ct. 787 (2000); Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1998).)

Exclusions from the exhaustion requirement. In Booth v. Churner, 121 S. Ct. 1819 (2001), the Supreme Court resolved a conflict among the circuits and held that a prisoner seeking to bring a damages action must exhaust available administrative remedies even if the administrative remedy in question, like almost all prison grievance systems, does not provide money damages as a possible remedy.

The Supreme Court has granted certiorari to resolve a related exhaustion issue. ( See Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), cert. granted sub nom. Porter v. Nussle, 121 S. Ct. 2213 (2001).) In Nussle, the Second Circuit held that the section of PLRA that provides that, absent exhaustion, "no action shall be brought with respect to prison conditions," does not apply to claims such as the use of force and retaliation because such claims do not involve prison conditions.

In the only decision to address this issue, the District of Columbia Circuit Court of Appeals said that PLRA does not preclude courts from exercising their traditional equitable powers to issue injunctions to prevent irreparable injury pending exhaustion of administrative remedies. ( See Jackson v. District of Columbia, 254 F.3d. 262 (2001).)

The exhaustion requirement does not apply to detainees in INS facilities. ( See Edwards v. Johnson, 209 F.3d 772 (5th Cir. 2000).) Finally, there is general agreement that the exhaustion requirement does not apply to cases filed before the effective date of PLRA. ( See, e.g., Salahuddin v. Mead, 174 F.3d 271 (2d Cir. 1999); Bishop v. Lewis, 155 F.3d 1094 (9th Cir. 1998); Brown v. Toombs, 139 F.3d 1102 (6th Cir.), cert. denied, 523 U.S. 833 (1998).)

Physical injury requirement

(42 U.S.C. § 1997e(e))

Section 1997e(e) provides that no federal action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered in custody, without a prior showing of physical injury.

Although the provision speaks of an "action," implying that the entire action, not individual claims, is measured against the provision, the cases analyze conformity to the provision claim by claim. ( See, e.g., Robinson v. Page, 170 F.3d 747 (7th Cir. 1999) (stating that claims are analyzed separately).) This result is contrary to the ordinary meaning of the word "action." ( See Nolan v. Boeing Co., 919 F.2d 1058, 1066 (5th Cir. 1990) (in federal practice, "action" means "the entirety of a civil proceeding"); Addamax Corp. v. Open Software Foundation, Inc., 149 F.R.D. 3, 4 (D. Mass. 1993) (as used in Fed. R. Civ. P. 41(a), "action" means not "an individual cause of action" but rather "the whole case").)

The courts are in agreement that the provision acts to bar only damage claims, and leaves injunctive and declaratory relief claims unaffected. ( See Harper v. Showers, 174 F.3d 716 (5th Cir. 1999); Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803 (10th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998).) Some courts have suggested the possible availability of nominal and punitive damages when compensatory damages are barred by the provision. ( See Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000) (claims for nominal and punitive damages can go forward); Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803 (10th Cir. 1999) (remanding for consideration of question); Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998) (noting possibility that nominal damages would survive).)

The courts are split on whether a claim for violation of constitutional rights is intrinsically a claim for mental or emotional injury in the absence of an allegation of a resulting physical injury (or injury to property). ( See Rowe v. Shake, 196 F.3d 778 (7th Cir. 1999) (First Amendment claim not subject to physical injury requirement); Cannell v. Lightner, 143 F.3d 1210 (9th Cir. 1998) (claim for violation of First Amendment is not a claim for mental or emotional injury); contra Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000) (First Amendment claims involve mental or emotional injuries); Davis v. District of Columbia, 158 F.3d 1342 (D.C. 1998) (claim for violation of privacy is claim for mental or emotional injuries).)

Not surprisingly, the courts differ in their evaluation of what constitutes sufficient harm to qualify as a physical injury. ( See Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999) (allegations of cuts and abrasions satisfy physical injury requirement); Liner v. Goord, 196 F.3d 132 (2d Cir. 1999) (intrusive body searches qualify as physical injury); compare to Harpers v. Showers, 174 F.3d 716 (5th Cir. 1999) (confinement in filthy cell where exposed to mentally ill patients not physical injury); Sigler v. Hightower, 112 F.3d 191 (5th Cir. 1997) (bruised ear does not qualify as physical injury).) The Seventh Circuit, in the context of a case challenging the plaintiff’s exposure to excessive lead in the prison drinking water, has left open whether exposure to a current condition that is not injurious in itself but is likely to lead to a physical injury in the future is barred by the provision. The court accordingly reversed the dismissal and remanded for development of the record.

In Davis v. District of Columbia, 158 F.3d 1332 (D.C. Cir. 1998), the court held that physical manifestations of emotional distress do not satisfy the statutory requirement. In contrast, the Tenth Circuit remanded the same question. ( Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803 (10th Cir. 1999).)

The provision does not bar a former prisoner who, after release, files suit for damages based on the conditions to which the plaintiff was subjected in prison. ( See Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998); cf. Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc) (provision applies even if, at time judgment entered, plaintiff had been released from prison).)

The "physical injury" requirement does not apply to cases filed prior to the effective date of PLRA. ( See Craig v. Eberly, 164 F.3d 490 (10th Cir. 1998); Swan v. Banks, 160 F.3d 1258 (9th Cir. 1998); cf. Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997) (dismissing case based on physical injury provision when plaintiff had failed to raise retroactivity issue in the trial court).)

Constitutional challenges to the provision have been rejected at the appellate level. ( Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc); Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998); Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997).)

Requirements for injunctive relief

(18 U.S.C. § 3626(a)(1))

Required findings. In order to enter injunctive relief regarding conditions of confinement, the judge must find that the relief is narrowly drawn, extends no further than necessary to correct the violation of a federal right, and that the relief is the least intrusive means necessary. These findings must be recited in entering the relief. In addition, the court is to give substantial weight to any adverse impact on public safety and operation of the criminal justice system.

Termination of injunctive relief (18 U.S.C. § 3626(b)). If these restrictions on relief had simply been imposed prospectively, these requirements would have had limited application. Courts granting relief would generally have treated these requirements as boilerplate. The major impact of the restrictions on relief flows from application of these restrictions to relief previously granted. If relief was entered without these findings, defendants are entitled to immediate termination unless relief remains necessary to correct a "current and ongoing" violation. If entered with these findings, defendants are entitled to a new hearing two years after entry of the findings or one year after denial of the previous motion to terminate. Again, relief must terminate unless a "current and ongoing" violation remains.

Important cases regarding injunctive relief. All circuits to consider the issue have upheld the constitutionality of the termination provisions against separation of powers, due process, equal protection, and other challenges. ( See, e.g., Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. ) (en banc), cert. denied, 120 S. Ct. 72 (1999).)

Some courts will interpret pre-PLRA litigated orders as implicitly containing the required findings. ( See, e.g., Gilmore v. California, 220 F.3d 987, 1008 n.25 (9th Cir. 2000); Smith v. Arkansas Dep’t of Corrections, 156 F.3d 637, 647 (8th Cir. 1996); but see Cagle v. Hutto, 177 F.3d 253, 257 (4th Cir. 1999) (holding that post hoc PLRA findings are not permitted).)

Ordinarily a plaintiff facing a termination motion is entitled to an evidentiary hearing upon request if there are disputed facts. ( Ruiz v. United States, 243 F.3d 941 (5th Cir. 200I); Hadix v. Johnson, 228 F.3d 662 (6th Cir. 2000); Laaman v. Warden, New Hampshire State Prison, 238 F.3d 14 (1st Cir. 2001); Cason v. Seckinger, 231 F.3d 777 (11th Cir. 2000); Loyd v. Alabama Dep’t of Corrections, 176 F.3d 1336, 1342 (11th Cir. 1999).)

An imminent constitutional violation does not satisfy the requirement that to retain relief there must be a "current and ongoing" violation. ( Cason v. Seckinger, 231 F.3d 777 (11th Cir. 2000); Gilmore v. California, 220 F.3d 987, 1009 n.27 (9th Cir. 2000).)

Automatic stay

(18 U.S.C. § 3626(e)(2))

If a court does not decide a motion for termination within 30 days (a period of time that can be extended to a maximum of 90 days), an automatic stay of relief goes into effect, which ends only when the court makes a final decision on the motion to terminate.

In Miller v. French, 120 S. Ct. 2246, 2259 (2000), the Supreme Court rejected constitutional challenges to the automatic stay provision, including separation of powers challenges based on the argument that the stay provision suspends a final judgment. The Court left open the possibility that application of the automatic stay might violate the Due Process Clause in cases in which the complexity of the issues would make it impossible for a court to reach a decision on a termination motion within 90 days. ( Id. at 2260.)

The Court also rejected a construction of the automatic stay provision by several lower courts that would have allowed a court to suspend the stay under ordinary equitable principles. ( Id. at 2255.)

Attorney fees

(42 U.S.C. § 1997e(d))

Applicability of caps. As set forth in 42 U.S.C. § 1997e(d), PLRA limits an attorney’s fees in any action filed by a prisoner under the Civil Rights Attorney’s Fees Act of 1976 (42 U.S.C.
§ 1998). Thus, PLRA fees limitations do not apply if the plaintiff is not a prisoner at the time the action is filed. ( See James v. Hernandez, 215 F.3d 541 (5th Cir. 2000); Doe v. Washington Co., 150 F.3d 920, 924 (8th Cir. 1998); cf. Montcalm Publishing Corp. v. Virginia, 199 F.3d 168 (4th Cir. 1999) (where publisher intervened in lawsuit filed by prisoner, publisher as prevailing party was subject to PLRA fees limitations).) Although the PLRA fees provision specifically refers to prisoners, the provision has been interpreted to apply to those committed as juveniles also. ( See Alexander S. v. Boyd, 113 F.3d 1373 (4th Cir. 1997), cert. denied, 118 S. Ct. 880 (1998); District of Columbia v. Jerry M., 717 A.2d 866 (D.C. 1998).) The fees restriction does not apply to fees that are based on a statutory entitlement separate from section 1988. Fees are authorized under 42 U.S.C. § 1988 for cases filed under 42 U.S.C. § 1983. ( See Lucas v. White, 63 F. Supp. 2d 1046 (N.D. Cal. 1999) (EAJA); Beckford v. Irvin, 60 F. Supp. 2d 85 (W.D.N.Y. 1999) (ADA).)

Finally, the PLRA fees limitations do not apply to fees earned prior to April 26, 1996, the effective date of PLRA. ( Martin v. Hadix, 119 S. Ct. 1998 (1999).)

Content of the restrictions. Hourly rates are capped at 150 percent of CJA rates. In almost all federal judicial districts, the authorized CJA rate is $75, so the hourly PLRA rate is $112.50. In many districts, however, although a CJA rate of $75 is authorized, only a lower rate has been implemented. The courts are split on whether the PLRA cap is to be calculated on the basis of the authorized rate or the implemented rate. ( See Hernandez v. Kalinowski, 146 F.3d 196 (3d Cir. 1998) (implemented rate); Ilick v. Miller, 68 F. Supp. 2d 1169 (D. Nev. 1999) (authorized rate).)

In damages cases, a portion of the judgment, not to exceed 25 percent, is to be applied to satisfy the fees. The remainder of the fees, up to 150 percent of the judgment, is to be paid by defendants. Although the statute is badly worded, the above construction seems to be what was meant. Thus, assume damages were $20,000 and requested fees $50,000: only $30,000 in fees could be awarded; of that amount, up to $5,000 would come from the plaintiff’s damages award. ( See Madison v. Davis, 88 F. Supp. 2d 799, 811 (S.D. Ohio 2000) (construing statute to give judge discretion to apply less than 25% of damages to satisfy attorney’s fees; applying $1 of attorney’s fees to judgment); see also Collins v. Montgomery Co. Bd. of Prison Inspectors, 176 F.3d 679, 683 (3d Cir. 1999) (en banc) (noting that district court had applied 2.5% of judgment to attorney’s fees); Hernandez v. Kalinwoski, 146 F.3d 196 (3d Cir. 1998) (noting that district court applied 20% of judgment to attorney’s fees). But see Searles v. Van Bebber, 64 F. Supp. 2d 1033 (D. Kan. 1999) (must apply 25% to reduce fees award).) Of note, nothing in PLRA limits a lawyer’s fees arrangements with his or her client.

The First Circuit has recently ruled that the 150 percent of the judgment limitation applies in cases in which the only relief was nominal damages. In Boivin v. Black, 225 F.3d 36 (1st Cir. 2000), in dicta, the court indicated that the limitation of fees to 150 percent of the judgment would not apply to a case in which both damages and injunctive relief were awarded. ( Id. at 41 n.4.)

In addition to limitations on the amount of fees that may be awarded, PLRA limits the tasks for which fees can be awarded. Fees are not to be awarded except to the extent that the fees were directly and reasonably incurred in proving an actual violation of the plaintiff’s rights, and the amount of the fee is proportionately related to the relief ordered for the violation, or the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.

There has been surprisingly little litigation about the application of the provision. Courts have not required a formal, separate finding of an actual violation of the plaintiff’s rights as a prerequisite to an award of fees. ( See Weaver v. Clark, 933 F. Supp. 831 (D. Neb. 1996), aff’d on other grounds, 120 F.3d 852 (8th Cir. 1997), cert. denied, 532 U.S. 1098 (1998) (awarding attorney’s fees based on preliminary injunction when defendants ceased challenged practice after injunction was issued; plaintiff had established a "presumptive violation"; fee was therefore directly and reasonably incurred in proving an actual violation of the plaintiff’s rights).)

The leading case on the definition of tasks that are directly and reasonably incurred in proving an actual violation of the plaintiff’s rights is Hernandez v. Kalinowski, 146 F.3d 196 (3d Cir. 1998) (holding that time spent in litigating attorney’s fees is compensable).

Finally, there have been a number of equal protection challenges to the fees restrictions. The Sixth Circuit rejected a constitutional challenge in Hadix v. Johnson, 230 F.3d 840 (6th Cir. 2000); the Third Circuit divided equally on it, which had the effect of rejecting the challenge. ( Collins v. Montgomery Co. Bd. of Prison Inspectors, 176 F.3d 679 (3d Cir. 1999) (en banc).) The leading case finding the restrictions unconstitutional is Johnson v. Daley, 117 F. Supp. 2d 889 (W.D. Wis. 2000).


As a result of the passage of PLRA, there has been a significant reduction in new filings in the federal courts by prisoner plaintiffs despite continued growth in the prison population. There has also been a significant decrease in the number of prisons, juvenile facilities, and jails under court order. Although federal courts remain the major mechanism available for the redress of conditions and actions that violate the constitutional rights of prisoners, it remains to be seen how well the courts will continue to perform that function in light of the obstacles PLRA creates.

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