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PLRA Exhaustion Requirement Not Retroactive

The court of appeals for the Ninth circuit held that the administrative remedies exhaustion provision of 42 U.S.C. § 1997e(a), as amended by the PLRA, does not apply retroactively to prisoner actions filed prior to its enactment date of April 26, 1996. The court also held that the prisoner substantially complied with a court-ordered exhaustion requirement under pre-PLRA provisions.

Stephen Bishop, an Arizona prisoner, brought a pre-PLRA 42 U.S.C. § 1983 action alleging unhealthy air in the prison. The district court dismissed Bishop's complaint for failure to file a court-provided "Notice of Exhaustion of Administrative Remedies" form, as ordered by the court. The order was issued pursuant to the pre-PLRA § 1997e(a) provisions allowing the judge the discretion of ordering the exhaustion of administrative remedies, provided that the remedies "meet certain minimum standards."

In response to the district court's exhaustion order, Bishop filed a writ of mandamus with copies of his grievance and administrative appeal, and asserted "that Arizona's internal prison remedies did not meet the [pre-PLRA] standard."

Without ruling on whether the Arizona DOC's grievance procedures were in compliance with the minimum standards, the appeals court held that it was an abuse of discretion for the district court to dismiss Bishop's complaint. It noted that due to inappropriate wording of the court-ordered form, "Bishop's failure to file the form was understandable." The appeals court went on to find that Bishop's writ of mandamus showing he had unsuccessfully attempted to exhaust his administrative remedies substantially complied with the district court's order.

This was a question of first impression for the Ninth circuit concerning retroactive application of 42 U.S.C. § 1997e (a). The appeals court stated that "[a] plain reading of the section makes it clear that it applies only to actions that have yet to be brought" after the effective date of the PLRA - "not to ones that have already been filed" prior to that date. For those cases filed prior to the PLRA enactment date the pre-PLRA version of 42 U.S.C. § 1997e(a) takes precedent. See: Wright v. Morris, 111 F.3d 414, 418 (6th Cir. 1997). [ PLN , July, 1997.]

The dismissal was reversed and remanded back to the district court for Bishop to "proceed with his action." See: Bishop v. Lewis, 155 F.3d 1094 (9th Cir. 1998).

Eighth Circuit Upholds, Defines IFP Provisions

The court of appeals for the Eighth circuit, in two separate rulings, has upheld and defined the In Forma Pauperis (IFP) provisions of the PLRA.

Kenneth Murray filed a petition under the All Writs Act, 28 U.S.C. § 1651, claiming a court clerk had violated his rights by refusing to file his civil rights lawsuit unless he paid a partial filing fee as required by 28 U.S.C. § 1915. The appeals court held that the IFP provisions of the Prison Litigation Reform Act (PLRA), codified in § 1915, are constitutional.

The court observed that prisoners have a due process liberty interest in their trust fund accounts, but by filing suit and agreeing to pay the filing fee in installments they receive all process that is due. See: Murray v. Dosal, 150 F.3d 814 (8th Cir. 1998). District judge Waters, sitting on the panel by designation, filed a concurring opinion. Judge Waters noted that in his district in Arkansas prisoner suits have declined dramatically since the PLRA was enacted. Judge Heaney filed a dissent. "I am deeply troubled when constitutional rights are trampled in the name of political expediency, and prisoners are certainly an easy target." Judge Heaney stated the PLRA would have little effect on frivolous litigation and bars the courthouse door to poor prisoners.

In a second ruling, the Eighth circuit held that the fee provisions of the PLRA apply to all civil actions by prisoners, not just those involving prison conditions. The court clarified that the PLRA's requirement that prisoners pay their IFP filing fees in 20% of their monthly income installments, applies to each case they have filed, not to the prisoner. Thus, a prisoner who files two lawsuits with IFP status must pay 40% of his monthly income towards the fee payments. See: Lefkovowitz v. Citi-Equity Group Inc., 146 F.3d 609 (8th Cir. 1998).

PLRA Fee Provisions Apply to All Pending Cases in 5th Circuit

The court of appeals for the Fifth circuit held that 28 U.S.C. § 1915(a), which requires that prisoners ultimately pay all filing fee costs, applies retroactively to cases filed before the PLRA's enactment, if they are still pending. In Strickland v. Rankin County Corr. Facility, 105 F.3d 972 (5th Cir. 1997)[ PLN , June, 1997] the court held that the PLRA's fee requirements applied to all appeals still pending in the Fifth circuit at the time of the PLRA's April 26, 1996, enactment. Prisoners with appeals pending at the time were required to refile their notice of appeal with the required prison trust fund statement and affidavit.

"To maintain consistency in our interpretation of § 1915(a)(2), and seeing no reason why we should treat the case sub judice differently simply because it was in the district rather than the appellate court when the PLRA went into effect, we extend Strickland's holding to cases pending in the district court on the PLRA's effective date."

The court held that prisoners who had filed lawsuits before the PLRA's enactment, which are still pending in the district court can be required to pay the filing fee. Failure to pay the filing fee can result in dismissal of the suit. Readers should note that every other circuit to consider this issue has held that § 1915(a) applies only to lawsuits and appeals filed after the PLRA's enactment. The ruling in this case seems motivated more by the Fifth Circuit's obsession with diminishing its prisoner litigation docket than by concepts of statutory retroactivity. See: Larson v. Scott, 157 F.3d 1030 (5th Cir. 1998).

IFP Application Not Required When Suit Filed

The court of appeals for the Eighth Circuit held that the PLRA does not require the filing of a trust fund account statement and an In Forma Pauperis (IFP) application at the same time the complaint is filed. Walter Garret, a Missouri state prisoner, mailed a lawsuit and IFP application to a federal district court on September 23, 1996. Garrett sought damages from police over a search that had occurred on September 30, 1991. The court clerk stamped the complaint "received" on September 24 but returned it to Garrett with a letter stating he had not submitted a certified copy of his prison trust fund account statement as required by 28 U.S.C. § 1915.

Garrett mailed the complaint back to the court with an uncertified trust fund statement. The clerk again returned the complaint with instructions that Garrett file a certified statement. On October 16 Garrett sent the court the lawsuit with a certified trust fund account statement. The district court held the lawsuit was filed on October 17, 1996, and dismissed it as frivolous because it was barred by Missouri's five year statute of limitations.

The court of appeals reversed and remanded. "For purposes of the statute of limitations, the filing of a complaint commences a federal cause of action.... The Prison Litigation Reform Act does not say that a prison account statement must be supplied when the compliant is filed. Instead, the prisoner should be allowed to file the complaint, and then supply a prison account statement within a reasonable time.... Because Garrett presented his complaint to the district court clerk for filing before the statute of limitations ran, we conclude his action is timely." See: Garrett v. Clarke , 147 F.3d 745 (8th Cir. 1998).

Physical Injury Requirement Not Retroactive

The court of appeals for the Ninth circuit held that 42 U.S.C. § 1997e(e) does not apply retroactively to suits filed before the Prison Litigation Reform Act's April 26, 1996, enactment. Byron Swan, a California state prisoner, filed suit in 1994 claiming a guard had announced over a loudspeaker that unless other prisoners "did something" to Swan, they would not receive a fan. Apparently no injury resulted from the guard's actions.

The district court dismissed the suit, holding the complaint did not satisfy the PLRA's physical injury requirement. 42 U.S.C. § 1997e(e) states "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 showing of physical injury."

In a brief ruling, the appeals court reversed and remanded. The court held that 42 U.S.C. § 1997e(e) "applies only to actions that were brought after enactment of the PLRA, and not to actions that had already been filed." The court was careful to note it was not expressing a view as to whether § 1997e(e) would bar actions such as Swan's filed after the PLRA's enactment. Past issues of PLN have reported all published decisions on § 1997e(e) to date. See: Swan v. Banks, 160 F.3d 1258 (9th Cir. 1998).

PLRA Doesn't Ban Class Actions

A federal district court in Georgia held that the Prison Litigation Reform Act (PLRA) does not ban class action suits by prisoners. In the October, 1998, issue of PLN we reported the Georgia DOC's settlement of a class action suit involving the beating and brutalization of Georgia prisoners during so called "shakedowns" of prisons. When the suit was first filed as a class action, the defendants argued that the PLPA had done away with class action suits by prisoners.

The court disagreed and held that the PLRA affected only the relief available to prisoner litigants, not the ability to initiate class action suits themselves. The court cites several post PLRA rulings that support this proposition.

The court gives a detailed summary and analysis of the standards courts should consider when granting class certification. Attorneys researching class certification issues will find this ruling helpful. Readers should note this ruling was issued on September 11, 1997, but not published until December 1, 1998. Since the underlying case was settled, this ruling is final. See: Anderson v. Garner , 22 F. Supp.2d 1379 (ND GA 1997).

No Leave to Amend Complaint for IFP Litigants

In an important procedural ruling, the court of appeals for the Ninth circuit held that the Prison Litigation Reform Act (PLRA) had overruled prior circuit rulings requiring that In Forma Pauperis (IFP) litigants be given an opportunity to amend their complaints before the suit Is dismissed for failing to state a claim. The court also held this new standard does not apply to cases where the filing fee is prepaid in full.

Max Lopez, a California state prisoner, challenged various conditions of his confinement in a control unit. The district court dismissed the suit on the defendants' motion for summary judgment. The court of appeals affirmed.

Under 28 U.S.C. § 1915(e)(2) courts must dismiss prisoner lawsuits that fail to state a claim upon which relief can be granted. Under Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987) prisoners had to be given leave to amend their complaints after the court told them how their complaint was deficient. Lopez was not given notice of the defects in his complaint nor an opportunity to amend it. "We hold, pursuant to the PLRA, that a court can no longer, at its discretion, provide an opportunity for the pro se litigant proceeding in forma pauperis to amend deficiencies In his complaint. The PLRA provides that a court 'shall dismiss' a complaint or appeal for failure to state a claim and has therefore overruled Ninth Circuit law to the contrary."

In a footnote, the court observed that dismissal without leave to amend is still improper in cases where the litigant has paid the filing fee. See: Schneider v. Cal. Dept. of Corrections, 151 F.3d 1194 (9th Cir. 1998).

The court also held that Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998)(en banc), which requires that pro se prisoner litigants be given fair notice of the requirements of summary judgment, does not apply to Fed.R.Civ.P. 12(b)(6) dismissals for failing to state a claim upon which relief can be granted. The court noted that while Lopez did not receive a Rand notice, the error was harmless because Lopez understood the requirements of summary judgment and filed 129 page opposition to summary judgment.

This ruling shows that one effect of the PLRA is to further distinguish between prisoner litigants who prepay the filing fees in full and those who proceed IFP, paying the filing fees in Installments. Prisoners will encounter less hurdles and more procedural protections if they prepay the filing fees in civil cases. See: Lopez v. Smith , 160 F.3d 567 (9th Cir. 1998).

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Related legal case

Bishop v. Lewis

Bishop v. Lewis, 155 F.3d 1094, 98 Cal. Daily Op. Serv. 7037 (9th Cir. 09/09/1998)

[1] U.S. Court of Appeals, Ninth Circuit

[2] No. 95-15035

[4] September 09, 1998


[6] D.C. No. CV-94-00559-EHC

[7] Counsel Joyce Tom, Smith & Wong, Kentfield, California, for the plaintiff-appellant. Lorrie L. Luellig, Assistant Attorney General, for amicus curiae the State of Arizona.

[8] Before: Stephen Reinhardt, John T. Noonan, and David R. Thompson, Circuit Judges.

[9] The opinion of the court was delivered by: Reinhardt, Circuit Judge


[11] Appeal from the United States District Court for the District of Arizona Earl H. Carroll, District Judge, Presiding

[12] Argued and Submitted

[13] July 16, 1998--Pasadena, California

[14] Opinion by Judge Reinhardt


[16] In March of 1994, Arizona inmate Stephen Bishop filed a S 1983 complaint regarding prison conditions, which was dismissed by the district court later that year. We first address the question whether the new exhaustion requirement of the Prison Litigation Reform Act (PLRA) applies retrospectively to cases brought prior to its enactment on April 26, 1996. We conclude that it does not.*fn1 We then consider whether the district court's dismissal of Bishop's complaint for failure to comply with the former exhaustion requirement was proper. Again, we answer the question in the negative.

[17] I.

[18] When Bishop filed his complaint, 42 U.S.C. S 1997e(a) allowed a district Judge some discretion to stay a prisoner's action so that the prisoner could exhaust his administrative remedies. The PLRA amended the section to read as follows:

[19] No action shall be brought with respect to prison conditions under S 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted.

[20] 42 U.S.C. S 1997e(a) (West Supp. 1996).

[21] [1] Whether the amended 1997(e) applies retrospectively is a question of first impression in this Circuit. *fn2 The answer, however, is simple. The amended section provides that "[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted." 42 U.S.C. S 1997e(a) (emphasis added). A plain reading of the section makes it clear that it applies only to actions that have yet to be brought -- not to ones that have already been filed. See Wright v. Morris, 111 F.3d 414, 418 (6th Cir. ), cert. denied, 118 S. Ct. 263 (1997) (finding Section 1997e(a) expressly to "govern the bringing of new actions, not the Disposition of pending cases"). In Canell v. Lightner, we determined that nearly identical language in a different PLRA provision showed that Congress intended that it not apply to pending cases. 143 F.3d 1210, 1212 (9th Cir. 1998) (concluding that 28 U.S.C. S 1915(g) does not apply retrospectively).*fn3 Because "Congress has prescribed the statute's proper reach," Jeffries v. Wood, 114 F.3d 1484, 1494 (9th Cir.), cert. denied, 118 S. Ct. 586 (1997), we hold that S 1997e(a), as amended by the PLRA, does not apply to actions filed prior to its enactment.

[22] II.

[23] On August 26, 1994, the district court dismissed Bishop's complaint because he failed to comply with the court's order of April 15, 1994, which required him to exhaust his internal prison remedies and to file with the court a "Notice of Exhaustion of Administrative Remedies" form (the "Form") along with a copy of all documents relating to the grievance.*fn4 The complaint alleged that the air in the prison was unhealthy and that the prison's ban on fans exacerbated the health hazard. In his motion for reconsideration, Bishop referred to a petition for writ of mandamus that was pending before the same district Judge. Bishop had filed the petition on May 2, 1994, just over two weeks after the court's April 15 order. Of particular import, in his motion Bishop referred to and described two documents that were attached to his mandamus petition: 1) a copy of a grievance he filed with prison officials on March 6, 1994 regarding the problems involving unhealthy air; and 2) a copy of the appeal he filed on April 17, after the prison apparently failed to respond to the grievance. Bishop also contended in those papers that he had not received a response to his internal appeal. He now appeals to this court both the dismissal of the complaint and the denial of the motion for reconsideration. We apply an abuse of discretion standard in reviewing the district court's orders. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); United States v. Nutri-Cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992).

[24] [2] The facts in this case simply do not show the kind of conduct by a pro se litigant that warrants the dismissal of a civil rights complaint. Shortly after the court issued its order requiring exhaustion, Bishop filed his mandamus petition, attaching a copy of his grievance and his appeal. Further, the petition contended that the prison had failed to respond to his efforts to exhaust his internal remedies, had a practice of delaying meritorious grievances, and failed to meet the standards for grievance procedures required by the then applicable statute. Under the circumstances, Bishop's failure to file the Form was understandable -- he had already filed with the court a petition showing that he had unsuccessfully attempted resolution of his complaint through the grievance procedure. Moreover, neither of the two choices on the Form was appropriate to his situation. The first, stating that he had "[e]xhausted all available administrative remedies," was inaccurate, given that his appeal had not been answered and that it seemed improbable that it would ever be processed. The second choice, that a satisfactory solution had been reached, simply was not true.

[25] [3] Both because Bishop substantially complied with the exhaustion requirement in the order and because his failure to submit the Form was not willful or unreasonable, his actions simply do not constitute non-compliance for purposes of Fed. R. Civ. P. Rule 41 (b). We therefore hold that the district court abused its discretion in dismissing the complaint and reverse the dismissal so that Bishop may proceed with his action.*fn5



Opinion Footnotes


[27] *fn1 Bishop appealed pro se the dismissal of his complaint for failure to exhaust his internal prison remedies. The district court applied the statute in effect prior to the PLRA. A screening panel of this court appointed counsel for Bishop and directed her to brief, inter alia, the question whether the exhaustion requirement of the PLRA applies retrospectively. The State of Arizona filed an amicus brief but took no position on the issue in its brief.

[28] *fn2 The Sixth Circuit has held that the amended S 1997e(a) does not apply retrospectively in Wright v. Morris, 111 F.3d 414 (6th Cir.), cert. denied, 118 S. Ct. 263 (1997).

[29] *fn3 The section at issue in Canell provided: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this action if the prisoner [has already brought three frivolous appeals]. 28 U.S.C. S 1915(g) (West Supp. 1996). There is little, if any, distinction between the wording of the provision at issue in this case and that in Canell.

[30] *fn4 The April 15 order was issued pursuant to the pre-PLRA 42 U.S.C. S 1997e(a) (1994), which allows a district court to continue a case in order to require exhaustion if doing so "would be appropriate and in the interests of Justice" and if the available internal remedies meet certain minimum standards. While Bishop asserts that Arizona's internal prison remedies did not meet the applicable standard, our resolution of other issues makes it unnecessary to decide that question.

[31] *fn5 For purposes of this opinion, we consider the appeals from the order of dismissal and the order denying reconsideration together. Reversal of either one is sufficient to warrant the relief we grant here.