Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Prison Litigation Reform Act Passed

On April 27, 1996, president Clinton signed the Prison Litigation Reform Act (PLRA) into law attached as a rider to the budget for the Justice Department. The PLRA is the culmination of a lengthy campaign waged by prisoncrats and the National Association of the Attorney Generals (NAAG) to restrict prisoners' right of access to the federal courts and to limit the ability of courts to remedy constitutional violations when they are found [See January, 1996, PLN 'Texas Anti-Litigation Law" by Dan Pens]. A significant part of this campaign has been each state's attorney general posturing before the media with a "Top Ten List of Frivolous Lawsuits" allegedly filed by prisoners. That these lists were often disingenuous, misleading or inaccurate made no difference as no one in the corporate media bothered checking the cases being cited. When they were checked, the reality was often different [See April, 1996, PLN, 'Not All Prisoner Lawsuits are Frivolous" by Judge Jon Newman].

The increase in prisoner litigation has largely corresponded with the explosion of the prison population, however, the per capita number of suits by prisoners has actually declined in the last 20 years. [See April, 1996, PLN, 'Damn Lies and Statistics."] Faced with a dramatically increasing prison population, this law is designed to ensure that prisoners can't seek any relief from the courts to relieve overcrowding or other inhumane conditions of confinement. An upcoming article in PLN will examine the facts and the hype that preceded the passage of this law. For now this article will inform readers of what the law says and its most immediate impact.

The definitions used in the PLRA are interesting. "Prisoner" includes 'any person subject to incarceration, detention, or admission to 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 programs." So much for the presumption of innocence. The PLRA specifically states it is intended to apply to all prospective relief judgments whether they were approved or entered on, before or after passage of the PLRA.

Prisoner Release

The 1994 crime bill [PLN, Dec. 1994] included a measure, the "Helms Amendment," designed to limit the ability of federal courts to remedy overcrowding. This was codified at 28 U.S.C. § 3626. The PLRA, in subsection (a)(1) [this section is continuously referred to throughout the PLRA] modifies the Helms Amendment and explicitly limits any prospective relief granted by a federal court to extend no further than necessary to correct the violation of federal rights and such relief must be narrowly drawn. The law states it does not authorize courts to raise taxes or order the construction of new prisons in the exercise of their remedial powers.

Before a court can enter an order requiring the release of prisoners in a civil rights action, the court must have previously entered a less intrusive order that failed to remedy the deprivation sought to be remedied by the prisoner release order. The defendant also has to have had a reasonable amount of time to comply with previous orders. 'A party seeking a prisoner release order in Federal court shall be entered only by a three-judge court in accordance with section 2284 of title 28." Single judges who believe a prisoner release order is required can sua sponte request the convening of a three judge court to consider the order. "The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that: (i) crowding is the primary cause of the violation of a federal right; and (ii) no other relief will remedy the violation of the federal right."

The law provides prison officials with standing to intervene in overcrowding litigation where prisoners or detainees might be released a result. It defines the party with standing to intervene, even if they are not a named defendant or party to the underlying action as: "government unit or official who funds, operates or maintains prison facilities, the prosecution or custody of persons who may be released from or not admitted into a prison as a result of a prisoner release order." These officials "shall have standing to oppose the imposition or continuation in effect of such relief, and shall have the right to intervene in any proceeding relating to such relief." The law defines any population limit to be a release order.

Preliminary Injunctions

The PLRA drastically limits the ability of federal courts to enter Preliminary Injunctions (PI) or Temporary Restraining Orders (TRO) by stating such PI's will automatically expire after 90 days of being entered, unless the court makes the findings required in subsection (a)(1) [see preceding section of this article] of the law, and makes the order final before the end of the 90 day period. This applies only to civil actions with respect to prison conditions.

Ending Relief

Assuming a prisoner has won a case at trial and achieved injunctive relief the PLRA states that in any civil action involving prison conditions where prospective relief was ordered, including consent decrees, the relief (i.e. an injunction or decree) will be terminable upon the motion of any party two years after the court granted the relief; one year after a court has denied a motion for relief under the PLRA and for cases where relief was entered before passage of the PLRA, two years after its enactment into law.

'In any civil action with respect to prison conditions, defendant or intervenor shall be entitled to immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation of the federal right." The prospective relief won't terminate if a court makes the written findings based on the written record that prospective relief remains necessary to correct a current or ongoing violation of a federal right, etc.

The PLRA provisions that affect damage claims after they have accrued are of dubious constitutionality. In Logan v. Zimmerman Brush Company, 455 US 422, 102 S.Ct. 1148 (1982) the supreme court held that a tort claim is a type of property, which should apply to constitutional claims which are frequently referred to as constitutional torts. Thus, legislation that terminates a damage claim after the fact may violate due process.

Consent Decrees

The PLRA orders courts not to enter any consent decrees on prison conditions unless it complies with the limitations on relief of subsection (a)(1). The PLRA states it will not affect private settlement agreements that are not subject to court enforcement (i.e. the worthless ones).

Special Masters

In a classic piece of micro-management the PLRA gives detailed instructions of who can be appointed as special masters in prison litigation and the process for appointment. The PLRA shifts the burden of paying the special masters from the prison official defendants to the federal judiciary and limits special master payment to that afforded to attorneys in prison litigation ($40 an hour for out of court work; $75 an hour for court appearances). The likely result will be a shortage of people with the necessary expertise willing to serve as special masters. Recent news reports have stated that special masters appointed to implement changes in the Pelican Bay litigation have already suspended their efforts until the matter of their payment is resolved. In essence this shifts the burden of paying masters from the state defendants to the federal judiciary-from funds appropriated to their budget by Congress!


The Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 allows the attorney general to file suit against jails or prisons which are violating the federal rights of those confined within them. Under a new amendment any such suits must be personally signed by the attorney general, not the assistant US attorney actually filing the suit. Likewise the AG must personally sign any motions to intervene in ongoing prison litigation.

Previously CRIPA set forth criteria for the establishment of grievance systems. The PLRA has now modified 42 U.S.C. § 1983 to require the exhaustion of administrative remedies before prisoners can file suit challenging conditions of confinement. Since many suits seek money damages and no state grievance systems PLN is aware of provide money damages the relief available in administrative forums is limited. The PLRA notes that the failure of a state to institute a grievance system won't be cause for it to be sued. The PLRA states that if a court wants to dismiss a prisoner's suit because it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief, the court can dismiss the suit without requiring exhaustion of administrative remedies.

Attorneys' Fees

Anyone doing prison litigation knows that it is extremely difficult to find counsel willing to take on prison civil rights actions. That situation is now going to get a lot worse. The PLRA modifies 42 U.S.C. § 1988, which allows the award of attorney fees to civil rights plaintiffs who prevail in their suits. It codifies the existing law that requires the fee award to be directly related to proving the violation of the plaintiff's rights; the fee awarded is proportionate to the relief awarded and the fee was directly and reasonable incurred in enforcing the relief ordered for the violation. Which given the limits on relief won't be much!

Until now courts would award attorney fees to prevailing plaintiffs based on a number of factors such as the experience and skill of the attorney, the prevailing market rate in that area for comparable attorneys, etc. The fee award was paid in its entirety by the losing defendant. That has all changed now. The law states: "Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.

"(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than the amount authorized under section 3006A of title 18, United States Code, for payment of court appointed counsel." The problem with this is that the rates established for court appointed counsel apply to criminal actions, where the government is required to provide counsel. It will remain to be seen how many attorneys will now take prisoner cases when, if they win, they face only the prospect of $40 an hour for their out of court work and $75 an hour for in court appearances. The intended result of this is to make attorneys unwilling to take on prison litigation. This will have a major impact on prison litigation.

Of immediate interest is whether this limitation on attorney fees can be applied to cases that were pending when the law was passed or, at a minimum, to work performed before the passage of the statute. This portion is also vulnerable to challenge as violating both due process and equal protection.

Limitation on Recovery

"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 without a prior showing of physical injury." This goes directly against numerous cases which have held that prisoners can recover monetary damages for constitutional violations that result only in fear, mental or emotional injury. This seems to indicate an intent to allow psychological torture or torment with complete impunity by prison officials.


The PLRA requires that any pretrial court hearings be conducted by phone, video conferencing or in the prison itself if possible.

Waiver of a Reply

"Any defendant may waive the right to reply to any action brought by a prisoner confined in any jail, prison or other correctional facility under... 42 U.S.C. 1983 or any other federal law. Notwithstanding any other law or rule of procedure, such waiver shall not constitute an admission of the allegations contained in the complaint. No relief shall be granted to the plaintiff unless a reply has been filed.

"The court may require any defendant to reply to a complaint brought under this section if it finds that the plaintiff has a reasonable opportunity to prevail on the merits." This effectively eliminates default judgments in prison litigation.

In Forma Pauperis

In 1894 congress enacted 28 U.S.C. § 1915 to allow poor people access to the courts without requiring prepayment of the filing fee needed to file a lawsuit. Since most prisoners are too poor to pay the current $120 filing fee required in federal court, the bulk of prisoner litigation is filed In Forma Pauperis (or as an indigent). The PLRA extensively modifies the IFP statute and essentially makes indigent prisoner filings a thing of the past. It requires a prisoner seeking to file suit without prepayment of the filing fee to submit an affidavit of their assets and income, and a certified copy of their prison trust account for the six month period immediately preceding the filing of the complaint or the notice of appeal, obtained from the appropriate prison official.

"(l) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of the filing fee. The court shall assess, and when funds exist, collect, as a partial payment of any court fees required by law, an initial filing fee of 20 percent of the greater of (A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the six month period immediately preceding the filing of the complaint or notice of appeal.

"(2) After payment of the initial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

'(3) In no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action or an appeal of a civil action or criminal judgment.

'(4) In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."

It will be interesting to see how much time will be spent administering the small amounts of funds that most prisoners receive. A prisoner earning say $20 a month would pay $4 a month for 30 months to pay the $120 filing fee. The amount of time spent administering these funds will likely cost more than the filing fee itself. But the paramount purpose of imposing the filing fee is to limit the number of suits filed by prisoners.

The PLRA also amended the Bankruptcy Code so that prisoners cannot seek relief 'for a fee imposed by a court for the filing of a case, motion, complaint, or appeal, or for other such costs and expenses assessed with respect to such filing, regardless of an assertion of poverty by the debtor...." The law also allows for the collection of costs assessed against prisoners pursuant to § 1915 in the same manner as the filing fee.

PLN has already received copies of orders from federal courts in California, less than three weeks after passage of the PLRA, informing prisoner litigants of the new fee requirements and asking the prisoners if they want to voluntarily dismiss the action or continue and pay the fee. The wording of the order makes it clear the court would prefer the action be withdrawn. Readers should note that they can seek reimbursement for any filing fee that is paid under 42 U.S.C. § 1988. Given the fact that prisoner litigants will be forced to pay the entire filing fee eventually, even if they file in forma pauperis, prisoners may consider paying the filing fee up front and avoiding IFP status. This will ensure the complaint is served on the defendants, removes the pre-screening hurdle, and requires the defendants to respond to the complaint.

The law also limits the number of suits prisoners can file under some circumstances. "In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." It also requires courts to screen IFP complaints before docketing or as soon after docketing as possible if it is an action filed by a prisoner.

Payment of Damage
Awards for Restitution Orders

"Any compensatory damages awarded to a prisoner in connection with a civil action brought against any Federal, State, or local jail, prison or correctional facility, shall be paid directly to satisfy any outstanding restitution orders pending against the prisoner. The remainder of any such award, after full payment of all pending restitution orders shall be forwarded to the prisoner." Past court rulings have upheld the diversion of damage awards to pay for restitution orders. See: Beeks v. Hundley, 34 F.3d 658 (8th Cir. 1994). However, such funds cannot be used to pay for, say, the cost of incarceration or similar kickbacks to prison officials. See: Hankins v. Finnel, 964 F.2d 853 (8th Cir. 1992).

Victim Notification
of Damage Awards

"Prior to a payment of any compensatory damages awarded to a prisoner in connection with a civil action brought against any Federal, State, or local jail, prison, or correctional facility or against any official or agent of such jail, prison, or correctional facility, reasonable efforts shall be made to notify the victims of the crime for which the prisoner was convicted and incarcerated concerning the pending payment of an such compensatory damages."

Loss of Earned Time

Federal prisoners who earn a measly 56 days a year in earned time credits face the loss of such credits if they have not yet been earned, if a court finds that the claim was filed for a malicious purpose, to harass the defendant, or if the prisoner testifies falsely or presents false evidence or information to the court. Readers will note this applies only to federal prisoners. More tellingly, no such sanctions are leveled against prison official defendants or their attorneys.

It would probably not be an understatement to say that the PLRA is the biggest development, and a bad one at that, to hit prisoner litigants in the past 30 years. As we come up on the 25th anniversary of the Attica uprising this September prisoners find themselves in essentially the same situation they did then: without adequate recourse to the courts or other forums in which to seek justice and equitable relief. It was the Attica uprising, with its attendant 43 deaths, that marked a turning point in the courts' until then, largely "hands off" attitude towards the constitutional rights of prisoners. To the extent that history repeats itself first as tragedy then as farce, congress appears to have forgotten why the courts got involved in prison conditions to begin with.

PLN has already received reports that prison officials in various states, including South Carolina, Michigan and Iowa, are already moving to vacate long-standing consent decrees and injunctions. Since at least 430 prisons in the U.S. are under some form of consent decree or injunction, the impact of the PLRA cannot be overstated. The ACLU's National Prison Project has already prepared sample pleadings and motions to combat the institutional litigation provisions of the PLRA. [This applies only to the class action aspects of the PLRA, not the IFP or individual litigant portions.] We will report the court decisions interpreting and applying the PLRA as they are issued. Next month's PLN will have a report on the so called Counter Terrorism bill which gutted federal habeas corpus.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login