Prison Litigation Reform Act: An Overview

96-513 A

CRS Report for Congress

Prison Litigation Reform Act:

An Overview

Dorothy Schrader

Senior Specialist

American Law Division

May 30, 1996

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Congressional Research Service - The Library of Congress .

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PRISON LITIGATION REFORM ACT:

AN OVERVIEW

SUMMARY

The Prison Litigation Reform Act, Public Law 104-134, effective April 26,

1996, makes major procedural and substantive changes in the federal civil

rights of prisoners in federal or state custody. The Act also limits the authority

of federal courts to grant prospective relief to remedy prison conditions that

allegedly violate federal rights. This report briefly reviews the historical

background of prisoner civil rights law, and summarizes and analyzes the

Reform Act.

Prisoner civil rights litigation constitutes the largest category of federal

civil rights cases, 17% of district court civil cases, and 22% of federal civil

appeals. According to many observers, the federal courts have been inundated

with frivolous or harassing prisoner suits that have drained the resources of the

judicial system.

The opposing view is that prisoner civil rights cases reflect increased

litigation in our society in general, are responsive to serious violations of

constitutional rights, are necessary to correct inhumane prison conditions, and

ventilate grievances that might otherwise lead to increased violence and unrest

within prisons.

Prisoners file civil rights actions primarily to challenge their conditions of

confinement in prisons or jails. Supreme Court decisions in the 1960s opened

the federal courts to prisoner civil rights actions by finding jurisdiction over

state prisoners under the Civil Rights Act of 1871, codified as 42 U.S.C. §1983.

Alleged violations most commonly involve the "cruel and unusual punishments"

clause of the Eighth Amendment, the free exercise of religion clause of the First

Amendment, and the due process clause of the Fourteenth Amendment.

For the past 20 years, Supreme Court decisions have gradually curtailed

the substantive rights of prisoners for relief under §1983. Generally, prison

officials are not liable unless they act with subjective "deliberate indifference” to

violate a prisoner’s federal rights. These decisions have apparently had no

effect on the number of suits filed. Until now, prisoners have been able to file

as "paupers," seldom paid filing fees, and benefitted from pleading standards

that made it difficult to dismiss cases.

The Prison Litigation Reform Act generally requires payment of filing fees

and exhaustion of administrative remedies; curtails the authority of federal

courts to order prospective relief; including early release of prisoners to remedy

prison overcrowding; bars federal court-ordered prison construction and orders

to raise taxes as remedies; places limits on repeat frivolous filers; requires

judicial screening and early dismissal of nonmeritorious claims; and requires

that prisoners who win monetary damage awards must use the money to pay

their outstanding restitution orders to compensate crime victims.

TABLE OF CONTENTS

BACKGROUND ...... 0. cc ccc eee eens

Statutory Basis... 0.0... cece eee ees

Constitutional Norms ........ 0000 eee eee

JUDICIAL INTERPRETATION BEFORE 1996:

PROVIDING ACCESS TO PRISONERS’ CLAIMS

Monroe and Cooper Cases ..........50555

In Forma Pauperis Filings ...............

Due Process in Prison Discipline ..........

Actions Against Federal Officials ..........

RECENT SUPREME COURT DECISIONS:

PRISONER CIVIL RIGHTS LITIGATION ......

State-of-Mind Standards .................

Protected Liberty Interests ...............

PRISON LITIGATION REFORM ACT .........

Limits on Prison Condition Remedies ......

Federal Intervention ..........0.000e eevee

Exhaustion of Administrative Remedies .....

Judicial Screening ........... 0000s

Limitations on Relief for Prisoners ........

Conduct of Hearings.............00000ee

Attorney’s Fees 2... ... cece cee eee

In Forma Pauperis Filings ...............

Satisfaction of Restitution Orders .........

Revocation of Good Time Credits

for Malicious Suits ..............055

Waiver of Reply by Defendant:

Pleading Standards .................

CONCLUSION ...... ccc eee eee

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Prison Litigation Reform Act:

An Overview

In the view of many observers, prisoner civil rights litigation has exploded

in the last 25 years and strains the federal judicial system, diverting scarce

resources from other fields of civil litigation. The strain on the judicial system

is especially troublesome for these observers since they consider that the

overwhelming number of the lawsuits are frivolous or harassing in nature. The

opposing view is that prisoner civil rights litigation reflects increased litigation

within our society in general, is responsive to serious violations of

constitutional rights, is necessary to correct inhumane prison conditions, and

ventilates grievances that might otherwise lead to increased violence and unrest

within prisons.

The Prison Litigation Reform Act was enacted effective April 26, 1996 as

Title VIII of the fiscal 1996 appropriations act for the Departments of

Commerce, Justice, and State, the Judiciary, and related agencies.' This Act

makes major procedural and substantive changes in the federal civil rights of

prisoners in federal or state custody. The Reform Act also curtails the authority

of federal courts to remedy prison conditions, including prison overcrowding,

that allegedly violate prisoners’ federal rights.

This report briefly surveys the historical background of prisoner civil rights

litigation,?. and summarizes and analyzes the Prison Litigation Reform Act.

1 Pub. L. 104-184, Act of April 26,1996. The Prison Litigation Reform Act amends

18 U.S.C. §3626 ("appropriate remedies with respect to prison conditions"); 18 U.S.C.

§3624(b) (technical changes); 42 U.S.C. §1997 ("Civil Rights of Institutionalized

Persons"); 28 U.S.C. §1915 ("in forma pauperis filings"); 28 U.S.C. §1346(b) ("federal

tort claims"); and 11 U.S.C. §523(a) ("exception to discharge of debt in bankruptcy

proceeding"). The Act also adds two new sections -- §1915A ("Screening") and §1932

("Revocation of earned release credit") -- to title 28, and new free-standing provisions

regarding satisfaction of victim restitution orders and notice to crime victims of pending

damage awards to prisoners. By reference, the Act alters the rights of prisoners pursuant

to 42 U.S.C. §§1983 and 1988. Finally, as a technical adjustment, the Act repeals

subsections (b) and (d) of section 20409 of the Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. 103-322 (Act of September 13, 1994).

2 For a more comprehensive review and analysis of pre-1996 prisoner civil rights

litigation, see D. Schrader, Prisoner Civil Rights Litigation and the 1996 Reform Act,

CRS Report No. 96-468A.

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BACKGROUND

At common law, a person imprisoned on a felony conviction could neither

be a witness in, nor file, a lawsuit.® (The prisoner could challenge the

jurisdiction of the court that convicted him/her through the equitable writ of

habeas corpus;* this was not an action at law.) The convicted felon could not

be trusted to abide by the oath to tell the truth, which was required of lawsuit

witnesses.

Prisoner civil rights litigation in the United States had its primary genesis

in Supreme Court decisions in the 1960s. These decisions changed legal doctrine

that had formerly barred most prisoner civil rights suits.

Statutory Basis

Prisoners file civil rights actions primarily to challenge their conditions of

confinement in prisons or jails.> Federal district courts have jurisdiction over

cases by state prisoners under the Civil Rights Act, 42 U.S.C. §1983. The text

of section 1983 is substantially the same as when it was originally enacted as

Section 1 of the Civil Rights Act of 1871.6 Section 1983 is now interpreted as

creating a private cause of action against any person who, under color of state

law, deprives another citizen or person within the jurisdiction of the United

States of "any rights, privileges, or immunities secured by the Constitution and

laws" of the United States.

3 Doumar, Prisoners’ Civil Rights Suits: A Pompous Delusion, 11 GEO. MASON

L. REV. 1, 5 (1988).

“ Concerns have also been expressed about the volume of prisoner petitions for writs

of habeas corpus, which are filed to obtain release from prison, to delay execution of the

death penalty, or have the death penalty reduced to life in prison. The caseload

statistics of the Administrative Office of the U.S. Courts distinguish between prisoner

civil rights filings and habeas corpus petitions. This report covers only prisoner civil

rights filings. As a matter of interest, however, habeas corpus reform was enacted April

24, 1996 as Title I of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. 104-132. For an overview of this Act, see C.Doyle, Habeas Corpus & the Antiterrorism

and Effective Death Penalty Act of 1996, CRS Report No. 96-423.

5 This report focuses on litigation by those confined in prisons rather than jails. Jails

are both pretrial detention facilities and places of punishment for short periods -- usually

one year or less -- for lesser offenses. Many of the prison conditions of confinement

cases apply in the jail context. Pretrial detainees, however, retain more constitutional

rights than convicted felons. See

Bell v. Woifish, 441 U.S. 520, 539 (1979) (punishment "may not constitutionally

be inflicted upon detainees qua detainees").

8 Act of April 20. 1871, ch. 22, 17 Stat. 18. Section 1983 was amended slightly in

1979 to include the District of Columbia within its purview. Pub. L. 96-170, 93 Stat.

1284, Act of December 29, 1979.

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The Civil Rights Act of 1871 was passed during the Reconstruction Period

in response to Ku Klux Klan activity in the South primarily. The scope of the

1871 Act was circumscribed by the Supreme Court until the middle of the 20th

Century.”

Although 42 U.S.C. §1983 provides the statutory cause of action for most

prisoner civil rights claims, violations of civil rights may also be asserted under

the Religious Freedom Restoration Act of 1993.8 The Civil Rights of

Institutionalized Persons Act of 1980° does not create a private cause of

action.!° The Act empowers the Attorney General to initiate suits and to certify

that a place of civil confinement, prison, or other correctional facility meets

appropriate standards relating to conditions of confinement and procedural due

process in disciplinary proceedings.

Constitutional Norms

Section 1983 does not itself create any substantive rights. Instead, it is the

vehicle for civil actions to obtain relief against violation of a constitutional right.

The constitutional norms have been developed by the courts. In prisoner civil

rights litigation, alleged violations most commonly involve the "cruel and

unusual punishments" clause of the Eighth Amendment, the free exercise of

religion clause of the First Amendment, or the due process clause of the

Fourteenth Amendment.

Prisoners have filed suits alleging violations of constitutional rights in a

wide variety of circumstances.!!' The following list is indicative but not

exhaustive of the issues litigated: freedom from cruel and unusual punishment;

freedom from unlawful physical violence by corrections officers or other inmates;

procedural due process for a protected "liberty interest;" equal protection of

laws; property rights; access to courts, including legal materials; religious

freedom; medical care; right to receive and send communications; access to

information; contacts with the press and media; freedom of speech; freedom of

association; and protection from unreasonable searches and seizures.

7 Unlawful acts by state officials were not considered "state" actions. Barney v. City

of New York, 193 U.S. 480, 438 (1904) (state courts can remedy acts of state officers

done without the authority of or contrary to state law).

8 Pub. Law 103-141, 107 Stat. 1488, Act of November 16, 1993; codified as 42

U.S.C. §2000bb.

9 Pub. Law 96-247, 94 Stat. 349, Act of May 23, 1980; codified at 42 U.S.C. §1997;

amended by Pub. Law 104-134, April 26, 1996.

10 Price v. Brittain, 874 F.2d 252 (5th Cir. 1989).

11 Their success rate is very low, however, which will be discussed in the section

relating to judicial caseload in prisoner civil rights actions.

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In some areas, the prisoners’ claims have not been recognized at all. For

example, there is no protection against searches and seizures in prison; there

is no right to meet with the press or media.’? Where rights have been

recognized, they are subject to many restrictions.

JUDICIAL INTERPRETATION BEFORE 1996:

PROVIDING ACCESS TO PRISONERS’ CLAIMS

Although the precursor of §1983 was enacted in 1871 to enforce the 14th

Amendment, the statute was seldom successfully invoked before the 1960s

(except for an initial period of activity soon after enactment). The federal courts

followed a "hands- off" policy concerning prison administration.”

Monroe and Cooper Cases

The Supreme Court applied §1983 to an unauthorized illegal act by state

officials for the first time in Monroe v. Pape, 365 U.S. 167 (1961), when it

reversed a lower court dismissal of a civil action by black plaintiffs against the

police for an unlawful search and seizure. The illegal search and seizure were

held to occur "under color of law" even though the state law provided a remedy.

Section 1983 was held supplementary to the state remedy and could be invoked

without exhaustion of state remedies. This was a nonprisoner case.

After Monroe, plaintiffs alleging constitutional wrongs could invoke §1983

not only to attack the constitutionality of official state policies but also to attack

individual misconduct in excess of state law. In the latter case, officials have

personal liability for damages.’®

12 Hudson v. Palmer, 468 U.S. 517 (1984).

13 Pell v. Procunier, 417 U.S. 817 (1974).

14 Two nonprisoner 1940s criminal cases prepared the way for the coming changes

in prisoners’ civil rights. United States v. Classic, 318 U.S. 299 (1941) (action is taken

"under color of" state law if state election officials misused power granted by state law);

Screws v. United States, 325 U.S. 91 (1945) (federal remedy is available for violation of

constitutional right even if state police exceeded their state law authority and state law

provides a remedy.

15 Personal liability was emphasized initially because the Monroe case exempted local

governments from paying the §1983 damages where state law was violated. This part

of the Monroe decision was later reversed by Monell v. Dept. of Social Services, 436 U.S.

658 (1978), which extended liability to municipalities. Even after the Monell decision,

however, the Court continued initially to frame municipal liability in terms of individual

wrongdoing. The most recent decisions clarify that where local policies or obviously

inadequate training programs caused the constitutional wrongs, there is no need to

search for individual wrongdoing.

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The first case to apply §1983 to an action by a state prisoner was Cooper

v. Pate, 378 U.S. 546 (1964). In a two-paragraph opinion, the Court reversed a

lower court dismissal of the complaint, which alleged deprivation of the right

to purchase Muslim religious publications and denial of other privileges to the

prisoner because he practiced the Muslim religion.

"In light of the prior inaccessibility of courts to most prisoner civil suits,

Cooper v. Pate was a monumental decision."'® According to one federal judge,

"[nJo one anticipated that this brief opinion would trigger the subsequent flood

of cases, nor that it would have as profound an effect as it did upon the federal

court system."!” In fiscal year 1966, prisoners filed 218 civil rights cases. By

1972, the annual filing by state prisoners reached 3500; by 1982, these filings

reached 16,000.'* By fiscal 1995, prisoner civil rights filings numbered 41,

679.'°

State governments are not liable for money damages in prisoner civil rights

suits unless the state has waived its sovereign immunity under the 11th

Amendment.2? Nonmonetary relief may be obtained against the states. Local

governments may be liable for monetary or nonmonetary relief under Monell v.

Dept. of Social Services, 436 U.S. 658 (1978). Individual prison officials may be

personally liable if they violate the federal civil rights of prisoners.

In Forma Pauperis Filings

Before 1996, virtually all prisoner civil rights cases were filed pro se and

in forma pauperis. The Supreme Court in 1972 ruled that a prisoner pro se

petition cannot be dismissed for failure to state a claim unless it appears

"beyond doubt" that the plaintiff can prove no set of facts to support the claim.

Haines v. Kerner. 404 U.S. 519 (1972). Under this pleading standard, it has

been difficult to dismiss prisoner claims as frivolous, without at least requiring

the government defendants to respond to the claims with motions supported by

affidavits or briefs. The Reform Act apparently alters this pleading standard.

16 Doumar, Prisoners’ Civil Rights Suits: A Pompous Delusion, 11 GEO. MASON

L. REV. 1, 5 (1988). Robert Doumar is a federal district judge for the Eastern District

of Virginia, Norfolk Division.

” Td. at 6.

18 Tid.

19 Administrative Office of the U.S. Courts.

20 Edelman v. Jordan, 415 U.S. 651 (1974).

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The Court also struck down prison regulations that banned the activities

of "jailhouse lawyers"! -- inmates who provide "legal" services to other

inmates. Johnson v. Avery, 393 U.S. 483 (1969). Moreover, prison authorities

must either establish prison law libraries or otherwise establish systems for

assuring access to the courts. Bounds v. Smith, 430 U.S. 817 (1977).”

Due Process in Prison Discipline

Prisoners are entitled to minimal due process before disciplinary

punishment can be imposed by prison officials for violation of prison rules or

other misconduct, except for the withdrawal of lesser privileges. Wolff v.

McDonnell, 418 U.S. 539 (1974). Generally, the prisoner must be given notice

of the charges, have an opportunity to be heard and present reasons why the

discipline should not be imposed (but not necessarily the right to call other

witnesses), and receive written notice of a specific decision by a neutral decisionmaker. If minimal due process is not accorded prisoners before punishment,

they can file §1983 actions. The Reform Act requires exhaustion of

administrative remedies.

Actions Against Federal Officials

Section 1983 applies only to alleged violations of constitutional rights or

federal law by state actors.

In the case of federal prisoner litigation against federal officials, however,

the Supreme Court created a remedy analogous to §1983 for constitutional

wrongs by federal officials. Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971). The Court held that where federal

officials, acting under color of federal authority, conducted an illegal search and

seizure, the complaint stated a cause of action under the Fourth Amendment

for damages upon proof of injuries resulting from the constitutional violation.

Prisoner civil rights cases against federal officials are referred to as Bivens cases.

21 Prison administrators sought to justify the ban as related to prison security and

order. Jailhouse lawyers often received payments for "legal" services in drugs or sexual

favors, or otherwise dispensed their services as a means of power and control over other

inmates. The Supreme Court attached great importance to the need for access to the

courts and assistance in prisoner habeas corpus petitions. Any problems relating to

prison security and control could be resolved without a complete ban on inmate

"lawyering." While this case involved habeas corpus petitions, it is clear that jailhouse

lawyers also cannot be prohibited from providing assistance in civil rights petitions.

Reasonable restrictions on the activities of jailhouse lawyers may be upheld.

22 The scope of this obligation to provide access to legal materials is before the

Supreme Court this term. Oral arguments were heard in Lewis v. Casey,

No. 94-1511, on November 29, 1995. A group of inmates allege the Arizona prisons fail

to provide adequate access to legal libraries and fail to provide foreign language services

for non-English-speaking inmates.

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Although federal prisoners account for only about 4% of the prisoner civil

rights litigation,”’ they file proportionately more claims than state prisoners.

An important distinction between §1983 and Bivens cases is that attorney’s fees

are available in §1983 cases*4 but not in Bivens actions.”°

RECENT SUPREME COURT DECISIONS:

PRISONER CIVIL RIGHTS LITIGATION

Within 10 years of opening the door to prisoner civil rights litigation, the

Supreme Court began a 20-year series of decisions that significantly restrict

prisoners’ substantive rights. "The flow of prisoner filings continues, however,

because these restrictive decisions merely limit the substantive rights of

prisoners and not their procedural access to federal courts for any and all

complaints."”°

In providing guidance to the lower courts in the handling of $1983 prisoner

claims, the Supreme Court has 1) developed state-of-mind standards governing

the liability of individual government officials, and 2) developed due process

standards relating to imposition of disciplinary punishment where official

conduct threatens a protected "liberty interest.”

State-of-Mind Standards

Section 1983 itself "contains no state-of-mind requirement independent of

that necessary to state a violation of the underlying constitutional right.”

Daniels v. Williams, 474 U.S. 327 (1986). The particular state-of-mind

requirement in any given §1983 case depends upon the constitutional violation

for which the plaintiff seeks redress. Later cases have established that the

prisoner must generally prove that the officials acted with "deliberate

indifference" in violating a constitutional right.

In a 1994 opinion, the Court again held that "a prison official cannot be

found liable under the Eighth Amendment for denying an inmate humane

23 H. Eisenberg, Rethinking Prisoner Civil Rights Cases and the Provision of

Counsel, 17 SO.ILL. U. L. JOUR. 417, 422 (1993).

74 A §1983 claimant who receives only nominal damages is nevertheless entitled to

receive attorney’s fees as the prevailing party, but the amount of damages is relevant

to the issue of the reasonableness of the attorney’s fee. Farrar v. Hobby, 506 U.S. 103

(1992).

25 H. Eisenberg, Rethinking Prisoner Civil Rights Cases and the Provision of

Counsel, 17 SO. ILL. U. L. JOUR. 417, 422 (19993).

26 Doumar, Prisoners’ Civil Rights Suits: A Pompous Delusion," 11 GEO. MASON

L. REV. 1, 15 (1988).

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conditions of confinement unless the official knows of and disregards an

excessive risk to inmate health or safety; the official must both be aware of

facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference." Farmer v. Brennan, 114

S.Ct. 1970, 1979 (1994). This is a standard of subjective deliberate indifference

by prison officials to inmate health or safety.

Farmer clarifies that official violations of the Eighth Amendment in prison

conditions cases give rise to liability under §1983 or Bivens*’ only if prison

officials have a subjective knowledge and awareness of the risk of a

constitutional wrong amounting to criminal recklessness.”

The Court also affirmed that, for liability to exist on the ground of a

violation of the Eighth Amendment, the alleged deprivation of a constitutional

right must be objectively "sufficiently serious."

Protected Liberty Interests

In its most recent prisoner civil rights case, the Court abandoned the

methodology it had established in Hewitt v. Helms, 459 U.S. 460 (1983), in favor

of a more restrictive standard or methodology for determining when a prisoner

enjoys a protected liberty interest that cannot be changed or withdrawn without

due process. Chief Justice Rehnquist wrote the majority opinion in both cases.

The new standard set by Sandin v. Conner, 115 §.Ct. 2293 (1995) in prison

disciplinary punishment is that the prisoner must have suffered a hardship that

is atypical and significant in ordinary prison life.

The Court spoke approvingly of the minimal due process standards created

by Wolff v. McDonnell, 418 U.S. 539 (1974), and emphasized that the Wolff due

process standards are required only in cases of serious misconduct involving

issues of real substance. "Discipline by prison officials in a wide range of

misconduct falls within the expected parameters of the sentence imposed by a

court of law.” 115 8.Ct. at 2301.

27 Although the Farmer case is a Bivens action against federal prison officials, it is

clear that the same state-of-mind requirement applies in §1983 prison conditions cases.

78 It is not clear how the Court will apply the subjective deliberate indifference

standard in cases where the prisoner asserts that actions of prison officials pose an

unreasonable risk of serious harm to the prisoner’s future health. One year earlier, in

Helling v. McKinney, 113 8.Ct. 2475 (1993), the Court refused to dismiss a complaint

based on exposure to second-hand tobacco smoke without giving the prisoner a chance

to prove his allegations. At the same time, the Court emphasized that the prisoner

would have a high burden to carry in proving both subjective deliberate indifference and

objectively serious harm. Moreover, the Court noted that the Nevada prisons had adopted

smoking policies which undercut the prisoner’s allegation of future harm and would bear

heavily on the prisoner’s ability to prove officials’ deliberate indifference.

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PRISON LITIGATION REFORM ACT

The Prison Litigation Reform Act, Public Law 104-134,” revises the

criminal code regarding the appropriate remedies for prison conditions in

violation of the Constitution or federal law, including prison overcrowding.”

These provisions limit the authority of the federal courts to fashion remedies to

correct violations of federal rights.

The Act also amends the Civil Rights of Institutionalized Persons Act (42

U.S.C. §1997) to make major changes in the procedural and substantive rights

of federal and state prisoners and in their ability to sue for alleged violations of

federal civil rights.

Limits on Prison Condition Remedies

The Reform Act prohibits 1) prospective relief®! regarding prison

conditions from extending further than necessary to correct violation of federal

rights of particular plaintiffs; 2) the court from granting any relief other than

the least intrusive means necessary to correct the violation.®” The court is also

directed to give substantial weight to any adverse impact on public safety or

operation of the criminal justice system caused by the relief, and to respect

principles of comity set out in the Reform Act. Termination of prospective relief

is authorized upon motion of any party or intervenor within 2 years after its

entry, or, in the case of pre-Reform Act orders, within 2 years after April 26,

1996.8

29 The Reform Act was passed as Title VIII of H.R. 3019, the fiscal 1996

appropriation for the Departments of Commerce, Justice, and State, and the Judiciary

and related agencies. Act of April 26, 1996. The Senate version of the Reform Act was

S. 1279. SEC. 611 of the appropriations act includes provisions similar to those in H.R.

663 ("No Frills Prison Act"), but these provisions only affect use of appropriated funds

for the remainder of FY 1996. They do not change positive law, unlike the Prison

Litigation Reform Act amendments.

30 Amendment of 18 U.S.C. §3626. As enacted in the Violent Crime Control and Law

Enforcement Act of 1994, section 3626 placed some limits on the authority of federal

courts to order remedies for prison overcrowding. The Reform Act now places limits on

the authority of federal courts not only with respect to prison overcrowding but also

prison conditions in general.

51 "Prospective relief" means all relief other than compensatory monetary

damages.

52 18 U.S.C. §3626, as amended by Pub. L. 104-134.

33 18 U.S.C. §3626(b).

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Bar on court-ordered prison construction. Federal courts are prohibited

from ordering the construction of prisons or the raising of taxes as remedies for

prison conditions in violation of federal rights.**

Preliminary relief. If the court orders preliminary injunctive relief, the

injunction shall automatically expire 90 days after its entry, unless the court

makes the statutory findings required to justify prospective relief and makes the

order final before expiration of the 90-day period. The preliminary injunctive

relief must also be narrowly drawn, extend no further than necessary to correct

a violation, and be the least intrusive means necessary to correct the violation.

In addition to giving substantial weight to any adverse impact on public safety

in ordering preliminary relief, the court must respect principles of comity set out

in the Reform Act.*®

Comity. The statutory principles of comity require that the court not order

any prospective relief that requires or permits a state or local government

official to exceed his or her authority or otherwise violate state or local law

unless the relief is necessary to correct the violation of a federal right and no

other relief will correct the violation.*®

Prisoner release orders. Only a three-judge court pursuant to 28 U.S.C.

§2284 can enter a prisoner release order as relief for prison conditions violations

of Federal rights. To enter such an order, the three-judge court must find by

clear and convincing evidence that crowding is the primary cause of the violation

of a federal right and that no other relief will remedy the violation.*” As preconditions to convening a three-judge court, the district court must have issued

a less intrusive prior order which failed to remedy the violation, and the

defendants must have had a reasonable amount of time to comply with the

previous court order.

Any state or local official or unit of government whose jurisdiction or

function includes responsibility for the jail, prison, or correctional facility

affected by a possible prisoner release order has standing to oppose imposition

of the order or its continuation.”

34 18 U.S.C. §3626(a)(1)(C). The term "prison" is defined to mean any Federal,

State, or local facility that incarcerates or detains juveniles or adults accused of,

convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law.

35 18 U.S.C. §3626(a)(2).

6 18 U.S.C. §3626(a)(1)(B).

37 18 U.S.C. §3626(a)(3).

38 18 U.S.C. §3626(a)(3)(A).

389 18 U.S.C. §3626(a)(3)(F).

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Special masters. If special masters are appointed, they must be paid from

funds appropriated to the Judiciary.

Settlements. The courts are prohibited from entering or approving a

consent decree unless it complies with the limitations on relief set by 18 U.S.C.

§3626(a). Private settlement agreements must also comply with the same

limitations on relief if the terms of the agreement are subject to court

enforcement.*!

All prospective relief affected. The amended section 3626 of title 18 U.S.C.

applies to all orders for prospective relief in prison condition cases, including

pre-Reform Act orders.”

Federal Intervention

The Attorney General must personally sign any complaint by the federal

government to initiate a civil action, or any motion by the federal government

to intervene in civil rights litigation, under the Civil Rights of Institutionalized

Persons Act.*% The Attorney General must also personally sign any

certification of compliance with federal regulations or standards by state

governments regarding conditions of confinement in state institutions.“

Exhaustion of Administrative Remedies

The Prison Litigation Reform Act mandates exhaustion of federal and state

administrative remedies before filing any $1983 action or other federal action

with respect to prison conditions.*® Exhaustion is required for persons

confined in any jail, prison, or other correctional facility.

Before passage of the Reform Act, the courts had discretion to require

exhaustion, but they did not require exhaustion where monetary relief was

sought and the state did not provide damages as an administrative remedy.

Since most §1983 petitioners seek monetary relief, exhaustion was generally not

required.

40 18 U.S.C. §8626(f)(4).

4118 U.S.C. §8626(c).

42 SEC. 802(b) of Pub. L. 104-134.

43 Amendments of 42 U.S.C. §§1997a and 1997c.

44 Amendment of 42 U.S.C. §1997b.

45 Amendment of 42 U.S.C. §1997e.

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The Reform Act also provides that the failure of a state to adopt or adhere

to an administrative grievance procedure for prisoners shall not constitute a

basis for action under section 3 or 5 of the Civil Rights of Institutionalized

Persons Act.

Judicial Screening

The Reform Act directs the courts to screen and dismiss actions, as soon as

possible either before or after docketing, that are frivolous or malicious, fail to

state a claim upon which relief could be granted, or seek monetary relief from

defendants who are immune from such relief (i.e., state governments that have

not waived sovereign immunity). 46

The same standards are set out in a new dismissal provision in §1997e of

the Civil Rights of Institutionalized Persons Act. Prisoner claims must be

dismissed on the court’s own motion or on the motion of a party if the claims

are frivolous, malicious, fail to state a claim upon which relief can be granted,

or seek monetary relief from a defendant who is immune to such relief.

Limitations on Relief for Prisoners

No prisoner confined in a jail, prison, or other correctional facility may

bring a Federal civil rights action for mental or emotional injury suffered while

in custody without a prior showing of a physical injury.*’

For purposes of filing a federal civil rights action, the Reform Act defines

"prisoner" to mean "any person incarcerated or detained" in any facility who is

"accused of, convicted of, sentenced for, or adjudicated delinquent for, violations

of criminal law or the terms and conditions of parole, probation, pretrial release,

or diversionary program."* The limitations on prisoner civil rights actions

legislated by the Reform Act therefore apply to persons detained in jail awaiting

trial, to juvenile detainees or offenders, and, of course, to adult offenders

confined in a jail, prison, or other correctional facility.

Conduct of Hearings

To the extent practicable, where a prisoner’s participation is required in

pretrial proceedings, the proceedings shall be conducted by telephone, video

46 New §1915A added to title 28 U.S.C.

47 SEC. 7(e) of 42 U.S.C. §1997e as amended by Pub. L. 104-184. The Reform Act

erects the same bar on mental or emotional injury tort claims by convicted felons. 28

U.S.C. §1346(b)(2).

48 SEC. 7(h) of 42 U.S.C. §1997e as amended by Pub. L. 104-134.

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conference, or other telecommunications technology without removing the

prisoner from his or her place of confinement. Subject to the agreement of the

Federal or state custodial officials, hearings may be conducted at the place of

confinement.”

Attorney’s Fees

The Reform Act sets limits on an award of attorney’s fees in prisoner civil

rights actions. Attorney fee awards pursuant to 42 U.S.C. $1988 are prohibited

except to the extent the fee was directly and reasonably incurred in proving an

actual violation of a prisoner’s rights protected by statute and then only if one

of two other conditions is met: i) the amount of the fee is proportionately

related to the court ordered relief, or ii) the fee was directly and reasonably

incurred in enforcing the relief ordered for the violation.”

The first condition addresses cases where a jury has awarded a prisoner

nominal damages (e.g., ten cents), but the court allows significant attorney’s

fees (e.g., $28,000).°! The second condition relates to cases where attorneys are

involved in enforcing nonmonetary relief.

The Reform Act also requires the prisoner to pay up to 25% of any

monetary damages to satisfy the fees of his/her attorney. Also, the hourly rate

shall not be greater than 150% of the rate established by 18 U.S.C. §3006A for

court-appointed counsel.

In Forma Pauperis Filings

Filing fees. A prisoner seeking to file in forma pauperis must submit a

certified copy of his prison trust fund for the most recent six-months and pay

the full amount of a filing fee, if any funds are available. The court must set

49 SEC. 7(h) of 42 U.S.C. §1997e.

50 SEC. 7(d) of 42 U.S.C. §1997e as amended by Pub. L. 104-134.

51 These were the facts in Lucas v. Guyton, 901 F. Supp. 1047 (D. So. Car. 1995).

A jury found for a death-row inmate on one claim and awarded 10 cents in damages.

The evidence demonstrated that the inmate had a history of self inflicted injuries and a

habit of fighting with guards. The day of the incident, the inmate was admittedly

drunk, swung the first punch, possibly spat at the guard, and violently resisted transfer

to an isolation cell. The district court thought it significant that the jury awarded even

10 cents in damages. (Apparently the court did not consider the possibility that the

award was actually in effect an insulting award for wasting the jury’s time.) The court

awarded attorney’s fees of $28,700 because counsel had been instrumental in vindicating

a constitutional right. (The jury knew of course that the prisoner was on death-row but

did not know the facts of the crime. Lucas had murdered two elderly people in their

home.)

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a schedule for collecting the fees from the individual trust fund.” If no funds

are available to pay the filing fee, the prisoner may file the civil rights action

without paying a fee.

False allegations of poverty. If the court finds that the allegation of poverty

is untrue, it shall dismiss the case at any time. For a third time, the Reform

Act also specifies dismissal of the case if the court determines the action or

appeal is frivolous or malicious, fails to state a claim on which relief may be

granted, or seeks monetary relief against a defendant who is immune from such

relief.

Repeat frivolous filings. A prisoner is prohibited from filing in forma

pauperis if three or more earlier actions or appeals have been dismissed on the

grounds the case was frivolous, malicious, or failed to state a claim upon which

relief could be granted, unless the prisoner is under imminent danger of serious

physical injury.”

Satisfaction of Restitution Orders

Any compensatory damages award to a prisoner for a civil rights violation

must be paid directly to satisfy any outstanding restitution orders pending

against the prisoner. The prisoner receives any amount that remains after

full payment of the restitution order.

The Reform Act also requires, that prior to payment of an award to a

prisoner, reasonable efforts shall be made to notify the prisoner’s crime victims

concerning the pending award. The intent is to ensure that victims are

compensated before the perpetrator of the crime receives a civil rights money

damages award.

Revocation of Good Time Credit for Malicious Suits

Another disincentive to filing malicious or harassing suits applies only to

prisoners in federal custody. The court on its own motion or on the motion of

any party may order revocation of any earned good time credit under 18 U.S.C.

§3624(b) that has not yet vested if the court finds the claim was filed for a

52 Amendment of 28 U.S.C. §1915.

53 New 28 U.S.C. §1915(g), as added by Pub. L. 104-134.

54 SEC. 807 of Pub. L. 104-134.

55 SEC. 808 of Pub. L. 104-134.

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malicious purpose or solely to harass the defendant, or the prisoner testifies

falsely or knowingly presents false evidence.

A related amendment provides that good time credit awarded under 18

U.S.C. §3624 after enactment of the Prison Litigation Reform Act (i.e., after

April 26, 1996) shall vest on the date the prisoner is released from custody.

Waiver of Reply by Defendant: Pleading Standards

Any defendant in a prisoner civil rights case under 42 U.S.C. $1983 or any

other federal law may waive the right to reply. This waiver shall not constitute

an admission of the allegations in the complaint.*”

No relief shall be granted to the prisoner unless a reply is filed.*® The

court may require any defendant to reply if it finds that the plaintiff has a

reasonable opportunity to prevail on the merits.

If defendants exercise their initial right not to reply in prisoner civil rights

cases, these waiver provisions coupled with the requirement for judicial

screening to identify frivolous or malicious petitions, or petitions that fail to

state a claim, could lead to early dismissals of a substantial number of prisoner

petitions. Under pre-Reform Act law, the Supreme Court had held that a

prisoner in forma pauperis petition could not be dismissed for failure to state a

claim unless it appears "beyond doubt" that the plaintiff can prove no set of facts

to support the claim. Haines v. Kerner, 404 U.S. 519 (1972). The Reform Act

appears to change this pleading standard by requiring the court to find that the

plaintiff has a reasonable opportunity to prevail on the merits before the court

can order the defendant to reply. Arguably, the waiver provisions modify the

Haines pleading standard.

CONCLUSION

The Prison Litigation Reform Act, Public Law 104-134, makes major

procedural and substantive changes in prison conditions of confinement cases,

including overcrowding, and in the federal civil rights of state and federal

prisoners to litigate about prison conditions.

56 New 28 U.S.C. $1932.

57 SEC. 7(g)(1) of 42 U.S.C. §1997e.

58 Ibid.

59 SEC. 7(g)(2) of 42 U.S.C. §1997e.

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The Reform Act, which took effect April 26, 1996, curtails the authority of

federal courts to remedy prison conditions, including overcrowding; requires that

any prospective relief be drawn as narrowly as possible; requires prisoners to

exhaust all state and federal administrative remedies before filing suit; requires

payment of filing fees; restricts the availability of attorney’s fees; directs the

courts to screen and dismiss as soon as possible petitions that are frivolous,

malicious, or fail to state a claim on which relief can be granted; bars in forma

pauperis petitions if three or more earlier petitions were dismissed as frivolous,

malicious, or for failure to state a claim -- except where the prisoner is in

imminent danger of serious physical injury; requires that any damages awarded

to a prisoner must be applied to satisfy pending restitution orders against the

prisoner; and requires that reasonable efforts must be taken to notify victims

of the prisoner that an award is pending.

Before passage of the Prison Litigation Reform Act, virtually all prisoner

civil rights cases were filed in forma pauperis. The Reform Act mandates

payment of filing fees, unless the prisoner has no funds whatsoever.

Prisoner civil rights litigation, although based upon the 1871 Civil Rights

statute, is a modern phenomenon. Supreme Court decisions in the 1960s

changed previously settled legal doctrine and gave prisoners access to the federal

courts. The initial emphasis was on personal liability for official conduct in

violation of federal rights. By the 1980s, the Court held local government

entities liable in damages for misconduct of high ranking officials whose actions

represent official policy. State governments are insulated from compensatory

damages under the Eleventh Amendment, unless the state waives its sovereign

immunity. Nonmonetary relief may be obtained if state officials violate the

constitutional rights of prisoners. The Prison Litigation Reform Act

significantly curtails the authority of the federal courts to order prospective

relief, such as release of prisoners to correct prison overcrowding.

Supreme Court decisions have gradually curtailed the substantive rights of

prisoners in the last 20 years. The standard of care imposed on prison officials

varies with the nature of the constitutional violation, but generally prison

officials are not liable unless they act with "deliberate indifference” with respect

to a prisoner’s rights. In Farmer v Brennan, the Court held this standard

requires subjective recklessness as defined in criminal law. With respect to

imposition of prison discipline, Sandin v. Conner holds that only serious

deprivations of rights can be litigated under 42 U.S.C. §1983 and a wrong occurs

only if the prisoner can show that the proposed punishment represents an

atypical, significant deprivation of rights.

These restrictive decisions have had little effect on the volume of prisoner

cases since they deal with substantive standards of liability rather than access

to the courts. Unlike the general population, prisoners have not ordinarily

made decisions to file lawsuits based on the relative probability of success

balanced by any possible costs. Prior to passage of the Reform Act, the lawsuits

were essentially cost-free to prisoners, and they have had time to pursue their

cases.

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It is expected that the Prison Litigation Reform Act will lead in due course

to a significant reduction in prisoner civil rights petitions.

The following provisions seem especially likely to reduce the incentive to

file: the requirements to pay filing fees and exhaust administrative remedies;

the provisions concerning restitution; the limits on repeat frivolous petitioners;

the required judicial screening to identify and dismiss frivolous or malicious

petitions, or those that fail to state a claim upon which relief can be granted;

and the altered pleading standard (the right of a defendant to waive reply

without admitting the allegations, the denial of relief unless a reply is filed, and

the requirement that the court must find the plaintiff has.a reasonable

opportunity to prevail on the merits before the court can order the defendant

to reply).