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LEGAL CLAIMS INITIATED BY FEDERAL PRISONERS,
FISCAL YEARS 1992-2001

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BETH MELLEN IIARRISON

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IlARvARD LAW SCHOOL

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MAy 2003

Submitted to Professor Margo Schlanger
in fulfillment of the Written Work Requirement

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TABLE OF CONTENTS

I.

INTRODUCfION

3

D.
A.

THE LEGAL FRAMEWORK GOVERNING CLAIMS INITIATED BY FEDERAL PRISONERS

8

The Federal Bureau of Prisons' Administrative Remedies Program ••••••••••••••••••••.••••••.•••••.•• 8
1)

The History and Purpose of the Administrative Remedies Program .................................... 9

2)

The Administrative Remedies Program Today ••••.••••.••••••••••••••••••••••••••..••••.••••••.•••••••••.••••••••• 10

B.

J

1)

Statutory and Regulatory Requirements Governing FTCA Claims Involving the Bureau
of Prisons ••••••••••••••••••••••••••••.••••••••••••••••••••••••.•••••••••••••••••••••••.••••••••••••••••••••••••••••••••••••••••••••••••••••• 14

2)

Case Law on Issues of Particular Concern for Federal Prisoners ....................................... 20

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Bivens Claims Against Bureau of Prisons Officials.•••••••••••••••••.•••••••••••.•••••••••••••••••••••••••••••••• 22
1)

Federal Civil Rights Actions Under the Bivens Case ............................................................ 22

2)

The Relationship Between FTCA and Bivens Claims •••••••••.••••••••••••••••••••••••••••••••••••••••••••••••• 25

3)

Restrictions on Bivens Claims of Particular Concern for Federal Prisoners•••••••••••••••••••••• 26

D.
E.

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The Federal Tort Claims Act and the Bureau of Prisons ..................................................... 14

Collateral Attacks and Habeas Corpus Petitions by Federal Prisoners.•••••••••••••••.••.•••••••••• 27
Overlaps Among Prisoner Claims and Responses by the Courts ........................................ 31
1)

The Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••.••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 33

2)

The Relationship Between Bivens and Habeas Corpus Claims •••••••••••••••••••••••••••••••••••••••••••• 36

3)

Special Treatment of Pro Se Litigants and the Practice of Construing Filings •••••••••••••••••• 40

)
m.

AN INTRODUCTION TO THE DATA SOURCES

A.
B.
C.

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A General Introduction to the Datasets •••••••••••••••••••••••••••••••••••••.••••••••••••••••••••••••••••••••••••••••••• 43
Distinguishing Between the 1Wo Datasets ••••••••••••.•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 44
Limitations in the Two Data.sets ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 46
1)

Limitations in the Bureau of Prisons Data ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 46

2)

Limitations in the Administrative Office Data ••••••••••••••••••••••••••••••••••••••••.••••••••••••••••••••••••••••• 46

J

(a)

Limits in the Classification of Filings.............................................................................. 47

(b)

Limits in the Recording of Judgments •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 49

(c)

Limits in the Recording of Monetary Awards •••.•••••.••••••••••••••••••••••••••.••••••••••••.••••••••••••• 50
DATA RESULTS & ANALYSIS - LEGAL CLAIMS INITIATED By FEDERAL PRISONERS

IV.

A.

S3

Administrative Claims and Litigation Actions Filed by Federal Prisoners •.•••••••••••••••••••••• 53
1)

~)

43

The Bureau of Prisons' Administrative Remedies Program ................................................ 53
(a)

Filing Rates and Total Filings for Administrative Remedies ....................................... 54

(b)

Administrative Remedies Filings by Subject Matter••••••••••••••••••••••••••••••.•••••••••••••••••••••• 57

(c)

Grants and Denials of Administrative Remedies ••••••••••••••••••••••••••••••••••••••••••••••••.••••.••••• 58

(d)

)

2)

Federal Tort Claims Act Administrative Claims and Litigation Actions •••••••••••••••••••••••••••• 61
(a)

Filing Rates and Total Filings for FTCA Administrative Claims ................................ 61

(b)

Filing Rates and Total Filings for FTCA Litigation Actions ........................................ 64

(c)

Settlements and Denials of FTCA Administrative Claims••••••••••••••.••••.••••••••••••••••••••.••• 66

(d)

The Relationship Between the FTCA Administrative System and Subsequent
Litigation Actions •••••••••••••••••••••••••••••••••••••••••••..•••••••••••••••••••••••••••.••••••.•••••••••••••..••••.•••.••••. 67

3)

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Litigation Actions by Federal Prisoners •••••••••.•••••••••••••.••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 67
(a)

Filing Rates and Total Filings for Civil Rights Actions ................................................ 68

(b)

Litigation Actions by Type of Action •.•••••••••••••••••••••••••••••••.•••••••.•••••••••••.•••••••••.•••••••••••••• 71

(c)

Pro Se Status of Litigants in Civil Rights Actions ......................................................... 74

(d)

Dispositions, Trials, and Judgments in Civil Rights Actions ........................................ 75

(e)

Awards and Settlements in Civil Rights Actions ........................................................... 78

B.

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Comparisons of Civil Rights Actions in Federal Court by State and Federal Prisoners••• 78
1)

Total Filings and Filing Rates for Civil Rights Actions ........................................................ 79

2)

Pro Se Status of Litigants in Civil Rights Actions ................................................................. 80

3)

Dispositions, Trials, and Judgments in Civil Rights Actions ••••••••••••••••••••••••••••••••.••••••••••••••• 81

4)

Awards in Civil Rights Actions ••••••.•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••.•••••••••••••••••••• 82

S)

Conclusions •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••.•••••••••••••••••••••.••••••••••.•••••••••••••••••••••••••••••••• 82

C.

Analysis and Conclusions •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••.••••••••••••••••.•••.••••••••.•• 83

1)

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V.

Appeals of Adverse Decisions Under the Administrative Remedies Program •••••••••••• 60

Conclusions About Legal Remedies Available to Federal Prisoners ................................... 83
(a)

The Administrative Remedies Program ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 83

(b)

The Federal Tort Claims Act •••••••••••••.•••••••••••••••••••••••.••••••••••••••••••••••••••••••••••••••••••••••••••••• 84

(c)

Civil Rights Actions Pursuant to Bivens ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 86

2)

Comparisons Among the Administrative Remedies Program, the FTCA, and Bivens•••••• 86

3)

The Effects of the PLRA on Legal Activity by Federal Prisoners •••••••••••••••••••••••••••••••••••••••• 87
89

CONCLUSION

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2

)

I.

INTRODUCTION

The Federal Bureau of Prisons provides a valuable case study for examining the nature and
impact of legal claims initiated by prisoners in custody. With approximately 161,681 prisoners currently
under the jurisdiction of federal authorities, the Bureau of Prisons has become the single largest
correctional system in the nation.) For authors interested in empirical analysis, the federal correctional
system is unique because of the wealth of~at is available on legal claims initiated by prisoners in

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federal custody.2 Authors have relied on data collected by the Administrative Office of the United States
Courts to examine civil rights and habeas corpus actions filed by prisoners in the federal courts, but most
of these studies have aggregated claims filed by state and federal prisoners.3 Few authors have attempted

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1 See PAIGE M. HARRIsON & JENNIFER C. KARBERG, BUREAU OF JUSTICE STATISTICS, PRISON AND JAIL INMATES AT
MIDYEAR 2002 3 (2003).
2 The Administrative Office of the United States Courts dataset provides a wealth of information about all case
filings and terminations in the federal courts. See infra Data Appendix, Part I.B. By contrast, reliable and consistent
data on legal claims filed in state courts is fairly limited. See generally National Center for State Courts, Court
Statistics Project, at http://www.ncsconline.orgID_Researchlcsp/CSP_Main_Page.html.
3 Researchers working with the federal Bureau of Justice Statistics have performed some of the most comprehensive
studies of prisoner litigation in the federal courts. See generally JOHN SCALIA, BUREAU OF JUSTICE STATISTICS,
PRISONER PETITIONS FILED IN U.S. DISTRICT COURTS, 2000, WITH TRENDS 1980-2000 (2002) (examining trends in
habeas corpus and civil rights action filed by state and federal prisoners); JOHN SCALIA, BUREAU OF JUSTICE
STATISTICS, PRISONER PETITIONS IN THE FEDERAL COURTS, 1980-1996 (1997) (same); ROGER A. HANSON & HENRy
W.K. DALEY, BUREAU OF JUSTICE STATISTICS, FEDERAL HABEAS CORPUS REVIEW: CHALLENGING STATE COURT
CRIMINAL CONVICTIONS (1995) (studying habeas corpus actions filed by state prisoners in 18 federaljudicial
districts in nine states); ROGER A. HANSON & HENRy W.K. DALEY, BUREAU OF JUSTICE STATISTICS, CHALLENGING
THE CONDmONS OF PRISONS AND JAILS: A REPORT ON SECTION 1983 LITIGATION (1994) (same for civil rights
actions filed by federal and state prisoners). For a recent comprehensive study of civil rights actions filed by state
and federal prisoners in federal, see Margo Schlanger, Inmate Litigation, 116 HARv. L. REv. 1555 (2003). Other
studies have focused on samples of cases from shorter time periods or from particular judicial districts. See
generally, e.g., Kim Mueller, Comment: Inmate Civil Rights Cases and the Federal Courts: InsighJs Derived From a
Field Research Project in the Eastern District ofCalifornia, 28 CREIGHTON L. REv. 1255 (1995) (studying prisoner
civil rights actions in the Eastern District of California); Theodore Eisenberg, Litigation Models and Trial Outcomes
in Civil Rights and Prisoner Cases, 77 OEO. L.J. 1567 (1989) (comparing case outcomes in civil rights and prisoner
cases terminated between 1978 and 1985); Stewart J. Schwab & Theodore Eisenberg, Explaining Constitutional
Tort Litigation: The Influence ofthe Attorney Fees Statute and the Government as Defendant, 73 CORNELL L. REv.
719 (1988) (examining constitutional tort actions filed in the Eastern District of Pennsylvania and the Northern
District of Georgia in 1980 and 1981); Theodore Eisenberg & Stewart Schwab, The Reality ofConstitutional Tort
Litigation, 72 CORNELL L. REv. 64 1 (1987) (same for constitutional tort actions filed in the Central District of
California in 1980 and 1981); Judith Resnik, Tiers, 57 S. CAL. L. REv. 837 (1984) (describing trends in overall
prisoner filings between 1944 and 1983); Theodore Eisenberg, Section 1983: Doctrinal Foundations AndAn
Empirical Study, 67 CORNELL L. REv. 482 (1982) (analyzing § 1983 actions filed in the Central District of
California in 1975 and 1976); William Bennett Turner, When Prisoners Sue: A Study ofPrisoner Section 1983 Suits
in the Federal Courts, 92 HARv L. REv. 610 (1979) (studying prisoner cases tenninated in five districts in 1975,
1976 and 1977); David L. Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 HARV. L. REv. 321

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to analyze claims filed by federal prisoners as a separate category.4 More important, no previous study

has included data on legal claims initiated by federal prisoners that never reach the federal courts (and
thus are not captured by the Administrative Office data}--namely those grievances handled through
internal administrative processes.
The focus of this paper is on individual administrative and litigation claims initiated by prisoners
in federal custody, seeking damages or various forms of corrective action related to the conditions of their
confmement.S Federal prisoners seeking to challenge the conditions of their confinement may choose

...1

from three distinct legal remedies-administrative grievances under the Bureau of Prisons'
Administrative Remedies Program, administrative claims and litigation actions authorized under the
Federal Tort Claims Act (FTCA), and civil rights actions against individual federal officials pursuant to
the Supreme Court decision in Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics, 403
U.S. 388 (1971).6 This study analyzes litigation activity by federal prisoners in these three categories
during the past ten years, based on two data sources-the traditional dataset provided by the

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(1973) (examining habeas corpus filings in the District of Massachusetts between 1970 and 1972). Authors such as
Richard Posner and Marc Galanter also have analyzed the AO data on prisoner litigation, in the course of exploring
more general claims that a litigation explosion is inundating the federal courts. See RICHARD A. POSNER, THE
FEDERAL COURTS: CHALLENGE AND REFORM 54-58, 62-64, 102-04,297-303 (1996) (relying on the AO data to
identify the sources of docket pressures in the federal courts and to support specific proposals for refonn, including
restrictions on habeas corpus and civil rights cases); RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND
REFORM 59-65, 81-83, 186-89 (1985) (same); Marc Galanter, The Life and Times ofthe Big Six, or the Federal
Courts Since the Good Old Days, 1988 WIS. L. REv. 921 (1988) (relying on the AO data to examine filing trends
for, in/era alia, civil rights cases and prisoner petitions filed in the federal courts from 1960 to 1986); Marc S.
Galanter, The Day After the Litigation Explosion, 46 MD. L. REv. 3 (1986) (relying on the AO dataset to examine
changes in the federal caseload between 1975 and 1984).
4 In the course of discussing trends over time in overall prisoner filings in the federal courts, Judith Resnik reports
on the different filing rates for state and federal prisoners. See Resnik, supra note 3, at 943-46 & n. 489-99.
5 The federal courts frequently use the term "conditions of confinement" broadly to refer to any prisoner suit that is
not a collateral attack on the prisoner~s sentence or conviction, and I use the phrase in this broad sense as well. The
Prison Litigation Reform Act uses a similar phrase, ''with respect to prison conditions," see, e.g., 18 U.S.C.A. §
3626,42 U.S.C.A. § 1997e(a), (c)(I), and (f)(1), which the Supreme Court has described as encompassing "all
inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
6 In addition, federal prisoners may file collateral attacks under 28 U.S.C. § 2255 or similar actions to challenge the
fact or duration of their confinement, litigation actions that are fundamentally criminal rather than civil in nature.
Cf. Schlanger, supra note 3, at 1558 n.4 (noting that habeas corpus petitions and other collateral attacks by prisoners
"are properly conceptualized as part of the criminal, rather than civil, justice system"). While collateral attacks and
habeas corpus petitions are discussed in brief, the primary focus of this paper is on individual, non-criminal claims
initiated by federal prisoners.

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Administrative Office of the U.S. Courts, as well as a unique set of internal data provided by the Federal
Bureau of Prisons. Combining these two data sources produces a more complete picture of the overall
grievance system available to federal prisoners seeking to challenge the conditions of their confinement,
including crucial components of that system that have been overlooked by previous studies.
This paper has three main goals. The frrst objective is to provide a descriptive narrative of the
overall grievance system available to federal prisoners for challenging the conditions of their
confinement. A general introduction to the legal framework governing claims initiated by federal

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prisoners describes the forms of relief that are available to federal prisoners seeking to challenge the
conditions of their confinement, and highlights the procedural and substantive barriers to recovery under

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each legal regime. The data results and analysis answer basic questions about how these legal regimes

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operate on a daily basis, including the rate at which federal prisoners file administrative claims and
litigation actions, the total number of filings on an annual basis, the kinds of subject matters that are

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raised, how persistent prisoners are in pursing their claims to the highest levels of the legal system, and
how successful prisoners are in wining some form of relief.
Related to this goal is the second objective, to understand the comparative roles played by each of
the various legal remedies that are available for prisoners seeking to challenge the conditions of their
confinement. While previous studies have focused on prisoner litigation in the federal courts, one of the
goals of this paper is to demonstrate the critical role played by the administrative grievance systems that
are available to federal prisoners. The data results presented in this paper will show that federal prisoners
file many more administrative claims than litigation actions, and that they are far more successful in
winning some relief under the administrative systems.
Finally, in focusing on administrative remedies and litigation actions challenging a prisoner's
conditions of confinement, this paper will touch on the effects of the Prison Litigation Reform Act
(PLRA) of 1996 on legal activity by federal prisoners. The discussion will focus on two of the PLRA's

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key goals-to decrease litigation by prisoners in the federal courts, and thereby to improve the overall

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quality of the litigation actions that survive. 7 Although a full analysis of the PLRA is beyond the scope of
this paper, even a cursol)' examination of the data on recent administrative and litigation actions by
federal prisoners suggests several areas in which the PLRA has made an impact (and additional areas
where little or no impact can be detected).
Part nJ'rovides the legal framework for understanding the three major types of claims initiated
by federal prisoners seeking to challenge the conditions of their confinement-grievances under the
Administrative Remedies Program, administrative claims and litigation actions under the FTCA, and civil

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rights actions under Bivens. Part n?aiso includes a brief discussion of the legal framework governing

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collateral attacks on federal convictions and sentences and other forms of habeas corpus relief, an

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overlapping but distinct area of litigation activity by federal prisoners. A general introduction to

doctrines governing each of these types of prisoner actions is critical, not only for understanding the

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mechanics of how prisoners' legal claims are handled, but also in order to appreciate the remedial options

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facing a tooeral prisoner who seeks to challenge the conditions of his continement. This legal framework
provides the context for understanding the statistics and analysis that are presented in Part nl.
Part m. provides a brief introduction to the data provided by the Administrative Office and by the
Bureau of Prisons, and notes the potential limitations

~ each of these two data sources.

8

Part IV. presents results and analysis from these two data sources for the three major types of

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legal claims noted above. The discussion in each section generally tracks the three main objectives
outlined above-providing a description of the numbers and types of claims that are filed under each legal
regime and the outcomes for prisoners, discussing the relative significance of each type of claim
compared to other available forms of relief, and noting any recent changes in filing patterns that might be
attributable to the PLRA.
There are a number of related research questions that are beyond the scope of this paper. This
paper is focused on the quantitative information that can be gleaned from the Bureau of Prisons' internal

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8

See Schlanger, supra note 3, at 1565-70.
For a full description of the two datasets, as well as raw data and results from each, see infra Data Appendix.

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records. These records also provide a wealth of qualitative information on the types of complaints raised
by federal prisoners, the Bureau's general approach to prisoner complaints, and so forth. In addition, the
quantitative data in the Bureau's records could be refined further to provide more detailed analysis on

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specific research questions. Finally, an in-depth analysis of recent trends in collateral attacks and other
habeas corpus petitions by federal prisoners and the effects of the Anti-Terrorism and Effective Death
Penalty Act of 1996 is beyond the scope of this paper.

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THE LEGAL FRAMEWORK GOVERNING CLAIMS INITIATED BY FEDERAL PRISONERS

Federal prisoners seeking to challenge the conditions of their confinement face an intricate web of
statutory provisions, regulations, and legal doctrines that govern prisoners' grievances. Recovery is
blocked by both procedural and substantive rules that serve to discourage frivolous claims and to protect
government agencies and officials from liability. The purpose of this part of the paper is to describe the
legal framework governing the main types of legal claims initiated by federal prisoners, with particular

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emphasis on the forms of relief that are available, the procedures for processing claims, and the governing
rules that may block recovery. The fIrst four sections provide general introductions to the four major

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forms of legal claims initiated by federal prisoners-administrative remedies, claims under the Federal

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Tort Claims Act, Bivens actions, and collateral attacks on prisoners' convictions. The final section
discusses the potential overlaps among several of these types of legal claims, and responses by the courts

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to th~s~ challenges. The basic legal framework governing prisoners' grievances provides the context for

understanding the statistics and analysis presented in Part IV.
A. The Federal Bureau of Prisons' Administrative Remedies Program

Ever since its inception, the Federal Bureau of Prisons has provided some form of an internal,
quasi-legal grievance system for responding to prisoners' complaints regarding the conditions of their
confinement. The history and animating purposes of the Bureau's Administrative Remedies Program
underscore the significance of the Program for day-to-day prison management. With this background in
mind, the Bureau of Prisons has established rules and regulations governing the Administrative Remedies
Program that prescribe the general types of complaints that may be flIed, and the processes for filing
complaints, investigating and responding to claims, and appealing adverse decisions. Claims filed under
the Program often are ends in themselves, or they may become the fIrst steps toward subsequent litigation
actions by federal prisoners.

)
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1) The History and Purpose ofthe Administrative Remedies Program

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The modem Administrative Remedies Program evolved from earlier grievance
provided less-formal mechanisms for responding to prisoner complaints. During the ~
federal prison system, the wardens handled internal prisoner grievances in an informal manner that
probably discouraged prisoners from making complaints.9 The creation of the federal Bureau of Prisons
in 1930 resulted in the adoption of more formal procedures for prisoners to submit grievances directly to
the Bureau, known as the Prisoners' Mail Box. IO The Bureau's modem grievance system initially grew
out of complaints by federal judges during the 1970's that prisoners' lawsuits-including many frivolous
and trivial complaints-were overwhelming the federal courts' dockets. I I The Bureau responded to these
concerns in 1978 with the Administrative Remedies Program, a more structured grievance system that

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would allow the Bureau and its individual institutions to resolve many prisoner complaints before they
reached the courts' dockets. 12 The Bureau's Administrative Remedies Program became a model for the

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adoption of similar grievance systems by correctional agencies throughout the United States.13
One of the central goals of the Prisoners' Mail Box and the subsequent Administrative Remedies
Program has been to provide a safe and effective mechanism for prisoners to express their dissatisfaction

Federal prisoners could submit grievances to their local wardens but they had to pass these complaints through the
guards first (who might be the subject of many such complaints), and complaints to persons outside of the institution
were discouraged because the wardens were authorized to read all prisoner mail. See Ira P. Robbins, The Prisoners' . 11 ~
Mail Box and the Evolution 0/Federal Inmate Rights, in ESCAPING PRISON MYTHS: SELECfED TOPICS IN THE
I~
HISTORY OF FEDERAL CORRECfIONS 111, 114-15, 117 (John W. Roberts ed., 1994).
.
10 See id at 119-21. One of the first regulations adopted by the new Bureau of Prisons authorized prisoners to
communicate directly with the Attorney General and the Director of the Bureau of Prisons through "mailboxes"
provided in each institution for that purpose. See id at 121. However, any matter that could be handled by the
warden or other institution officials was to be directed to their attention first. See id During the early years of this
system, the Bureau struggled with breaches of promised confidentiality, infrequent collections from the mailboxes,
and delayed responses to the grievances. See id at 121-25.
II See John W. Roberts, View From the Top: The Bureau o/Prisons' Five Directors Discuss Problems and Ethics in
Corrections, FEDERAL PRISON JOURNAL, Summer 1990, at 27, 40. In the early 1970's Nonnan Carlson, thenDirector of the Bureau of Prisons, met with a group ofjudges from the Eighth Circuit Court of Appeals and heard
their complaints about federal prisoner litigation. See id at 40. It is worth noting that the "flood" of prisoner suits at
the time amounted to only 15,000 prisoners suits annually for the entire federal court system, compared to current
totals of over 50,000 such suits annually. See infra Data Appendix, Part II., Table 14.
12 See Robbins, supra note 9, at 133-35; Roberts, supra note 11, at 40. The Administrative Remedies Program was
first tested in 1973 at the Federal Medical Center in Springfield, Missouri, the source of many of the lawsuits filed in
the Eighth Circuit which Director Carlson had heard complaints about. See Roberts, supra note 11, at 40.
13 See id at 45.
9

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)

9

and frustration. Bureau Director Sanford Bates, who was primarily responsible for the implementation of
the Prisoners' Mail Box during the 1930's and 1940's, observed:
It seems to me important that the inmates in [an] institution should have some reasonable
and dignified method of making known any real or fancied grievance that they might
have. An institution is a good deal like a steam boiler, and needs a safety valve
occasionally. 14
Ultimately the hope is that prisoners will be less likely to resort to violence if they are provided with an
opportunity to communicate constructively with staff about their grievances, IS a goal that continues to
animate the Administrative Remedies Program to this day.16 It is important to keep these animating

"'-1

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purposes in mind in evaluating the relative significance of the Program, which remains the most
frequently used component in the overall grievance system available to federal prisoners for challenging
the conditions of their confmement. 17
2) The Administrative Remedies Program Today

The Administrative Remedies Program provides a fonna) administrative process for prisoners to
submit grievances seeking non-monetary relief related to any aspect of their confmement. 18 The program
does not cover grievances for which separate administrative processes have been established,19 including
claims under the Federal Tort Claims Act (FTcAio and the Inmate Accident Compensation program?1

J

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)

1

14 Robbins, supra note 9, at 119. The Bureau's manual on the Prisoners' Mail Box from 1947 similarly
commented: "TheMail Box serves a useful purpose as an outlet for inmates who are unsettled or in an emotional
state over some critical event." ld at 127.
IS See Interview with Michael Pybas, Senior Counsel, Office of General Counsel, Federal Bureau of Prisons, in
Washington D.C. (Feb. 28, 2002) (hereinafter "Pybas Interview").
16 See id; FEDERAL BUREAU OF PRISONS, ABOUT THE FEDERAL BUREAU OF PRISONS 3 (2001), available at
http://www.bop.gov/pubinfo.html.
17 See discussion infra Parts IV.A.l(a) and C.2.
18 See 28 C.F .R. § 542.10 (2002). Complaints may not be submitted on behalf of another prisoner, see id §
542. 12(a), but the president of a recognized prisoner organization may submit a complaint on behalf of that
organization regarding an issue that specifically affects the organization. See FEDERAL BUREAU OF PRISONS,
PROGRAM STATEMENT 1330.13 AoMINISTRATlVE REMEDY PROGRAM 4 (1997) [hereinafter "P.S. 1330.13."].
19 See 28 C.F.R. § 542.12(b). Ifa prisoner incorrectly submits a complaint that is covered by another administrative
process, a staff member will inform the prisoner in writing of the correct administrative process. See id
20 The separate administrative process for claims under the Federal Tort Claims Act is discussed in further detail in
the next section. See infra Part n.B.I.
21 Prisoners who suffer injuries (or the survivors of prisoners who die) while performing duties for any paid work
assignments within a federal prison are eligible for compensation under the Lost-Time Wage Program and the

10

Relief under the Administrative Remedies Program is limited to corrective action-requests for monetary
damages generally fall under the FTCA administrative process instead. 22 As discussed in further detail in
Section IV .A. I (b), infra, complaints filed under the Administrative Remedies Program typically involve
disciplinary decisions, medical treatment, staff, or classification issues.
The Administrative Remedies Program is designed to encourage resolution of prisoner
complaints infonnally and at the institutional level first. Most prisoner complaints under the
Administrative Remedies Program must be filed at the institutional level first. 23 Exceptions are

i]

provided-allowing a prisoner to proceed directly to the next administrative level by filing a claim with
one of the Bureau's regional offices-for "sensitive" issues24 and for appeals of certain disciplinary

]

decisions.

25

Prior to filing a fonnal administrative complaint, a prisoner must attempt to infonnally

resolve the issue by bringing it to the attention of institutional staff under procedures adopted by the
6

warden at each prison.2 If infonnal resolution fails, then the prisoner may file a fonnal administrative
complaint within twenty calendar days of the underlying incident.21

0}

)

Compensation for Work-Related Physical Impairment or Death Program, collectively the Inmate Accident
Compensation Program. See generally 28 C.F.R. part 301. These programs are a prisoner's exclusive remedy for
work-related injuries. See, e.g., United States v. Demko, 385 U.S. 149, 152-54 (1966) (holding that a prisoner may
not recover for work-related injuries under the Federal Tort Claims Act, because the prisoner accident compensation
programs are the exclusive remedy).
22 See P.S. 1330.13, supra note 18, at 5 (noting exceptions for claims involving correction of prisoner pay,
commissary errors, or a prisoner's telephone charge account).
23 See 28 C.F.R. § 542.14.
24 Sensitive filings are defined as those where ''the inmate reasonably believes...[his] safety or well-being would be
placed in danger if the Request became known at the institution." See id § 542. 14(d)(I). Sensitive filings must
include a written explanation of the reason(s) for not submitting the complaint at the institutional level. See id If
the complaint is deemed sensitive by counsel in the regional office, then it will be accepted for investigation and
review. See id If the request is not deemed sensitive, then counsel in the regional office will send a written
rejection and explanation to the prisoner, and the prisoner may appeal this detennination, or may re-submit the
request at the institutional level. See id Michael Pybas, Senior Counsel in the Bureau's Office of General Counsel,
reports that many prisoners try to file ordinary administrative remedies as "sensitive" in order to avoid dealing with
staff at their institution. See Pybas Interview, supra note 15.
2S See 28 C.F.R..§ 542.l4(d)(2) to (4). Disciplinary actions at the institutional level are the responsibility of the
Unit Discipline Committee (UDC) for offenses involving minor sanctions, or the Disciplinary Hearing Officer
(DHO) for more serious offenses. See id §§ 541.2, 541.15. A prisoner may appeal a UDC decision by filing an
administrative remedy at the institutional level, while appeals ofDHO decisions must be filed directly with the
appropriate regional office. See id § 541.19.
26 See 28 C.F.R. § 542.13(a). However, the requirement of informal resolution ''may be waived in individual cases
at the Warden or institution Administrative Remedy Coordinator'S discretion when the inmate demonstrates an
acceptable reason..." Id § 542. 13(b). Acceptable reasons for waiver include "when infonnal resolution is deemed

11

Tight deadlines at every level within the Administrative Remedies Program ensure that
complaints will be resolved within a short period of time. Grievances generally proceed from an initial
complaint at the institutional level, through appeals to the Bureau's six regional offices, and ultimately to
the Central Office in Washington, D.C. 28 A warden must respond to an initial complaint within twenty
calendar days,29 and the prisoner then may appeal an adverse decision to a regional director in the
appropriate regional office within twenty calendar days.3o A regional director must respond to an appeal
within thirty calendar days,ll and the prisoner may appeal an adverse decision at this level to general
--1
"

}

counsel in the Central Office within thirty calendar days.32 The Central Office must respond to an appeal
within forty calendar daYS.33 Whenever a complaint or an appeal is denied, the Bureau must provide the

l

prisoner with written notice of the basis for denial, and if the problem is considered correctable then the
prisoner must be provided with a reasonable time period for correcting and resubmitting the filing. 34

)

)

inappropriate due to the issue's sensitivity." See P.S. 1330.13, supra note 18, at 5. In addition, the informal
resolution requirement will be waived if a prisoner is represented by counsel. See Pybas Interview, supra note 15.
27 See 28 C.F.R. § 542.14(a). A prisoner will be granted an extension ifhe can demonstrate a valid reason for
failing to meet the deadline, such as an extended physical incapacitation or an extended period of attempts at
informal resolution. See id § 542. 14(b). The prisoner generally must submit written verification from staff
members supporting any claimed reason for delay. See P.S. 1330.13, supra note 18, at 6.
28 The Bureau of Prisons is organized into six geographic regions, which provide the administrative structure for
tracking and responding to legal claims involving the Bureau and its employees, including appeals under the
Administrative Remedies Program, administrative claims under the FTCA, and FTCA and Bivens litigation actions.
For a complete listing of the institutions and states within each region, see FEDERAL BUREAU OF PRISONS, LEGAL
RESOURCE GUIDE TO THE FEDERAL BUREAU OF PRISONS 43-55 (2003), available at
http://www.bop.gov/pubinfo.htmI.Prisoners must file administrative remedies appeals with the regional office for
the institution where they are confined at the time of filing. See P.S. ]330.13, supra note 18, at 8. A prisoner may
need to appeal a denial all the way to the Central Office in order to fully exhaust his administrative remedies before
filing suit in court. See id
29 See id 28 C.F.R. § 542.18. This deadline for the warden to respond may be extended once by an additional
twenty days, upon written notice to the prisoner. See id On the other hand, if a complaint is considered ''to be of an
emergency nature which threatens the inmate's immediate health or welfare," then the Warden must respond no later
than the third calendar day following the date of filing. See id
30 See id § 542.15(a).
31 See id § 542.18.
32 See id § 542. 15(a). The filing deadlines for appeals may be extended for the same reasons described above with
regard to filings at the institutional level. See id § 542.15(a).
33 See id § 542.18. The deadlines for the regional office and the Central Office to respond may be extended once
by an additional thirty days and twenty days respectively, upon written notice to the prisoner. See id
34 See id § 542. 17(b). Examples of correctable errors include failure to sign a form or to submit the required
number of copies. See P.S. 1330.13, supra note 18, at 9. The additional period for resubmission is generally five
days at the institutional level, ten days at the regional office level, and fifteen days at the central office level. See id

12

)

The Bureau of Prisons also has established general procedures for the investigation of complaints
that are filed under the Administrative Remedies Program. Once a request or appeal is accepted by one of
the Bureau's offices, the complaint is assigned for investigation, review, and response. 3S The Bureau
instructs its staff that all complaints and appeals are to be thoroughly investigated, with supporting
documentation and notes maintained in the investigator's file. 36 Responses to a prisoner's complaint or
appeal must state the decision and the reasons supporting the decision, with references to applicable
statutes, regulations, and internal policies whenever possible.37
Issues that are raised initially through the Bureau of Prisons' administrative remedies program
may become the bases for subsequent legal actions by prisoners in federal court. Claims raised in Bivens

J

suits or habeas corpus petitions often involve a prisoner's conditions of confinement, issues that fall
within the scope of the administrative remedies program. Exhaustion of these administrative remedies is
a prerequisite to filing a Bivens suit or a petition for habeas cOrpUS. 38 Specific examples of issues raised
initially in administrative claims that might give rise to Bivens suits or habeas corpus petitions include
challenges to disciplinary sanctions, mistreatment by staff, medical treatment decisions, losses of
privileges, transfers between facilities, and sentence calculations.39 In addition, prisoners may be able to

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)

When a problem with a complaint or appeal is not considered to be correctable, the prisoner may appeal this
determination through the same process outlined above. See id § 542.17(c).
35 See P.S. 1330.13, supra note 18, at 10. Complaints involving specific statTmembers may not be investigated by
either those statT members involved or any statT members under their direct supervision. See id Allegations of
physical abuse by institutional statT are referred to the Office of Internal Affairs for a separate investigation. See id
36 See id Investigators may ask statT members to provide written statements, if necessary. See id
37 See id However, responses are not to include the names of any prisoners, and should not include the names of
statT or other persons unless absolutely essential. See id
38 Provisions in the Prison Litigation Reform Act require administrative exhaustion for Bivens suits. See infra Part
II.E.l. Prisoners seeking habeas corpus relief to challenge the conditions of their confinement under 28 U.S.C. §
2241 also must exhaust any available administrative remedies. See, e.g., Carmona v. United States Bureau of
Prisons, 243 F.3d 629,634 (2d Cir. 2001); Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2001); United States v.
Chappel, 208 F.3d 1069, 1069 (8th Cir. 2000); Rogers v. United States, 180 F.3d 349,356 (lst Cir. 1999). Suits
under the FTCA also require administrative exhaustion, through the special administrative program established by
the Bureau of Prisons under the FTCA. See infra notes 62-63 and accompanying text.
39 See generally infra Parts H.C.1, 11.0.

13

seek judicial review of final administrative decisions in federal court through a claim under the
Administrative Procedure Act, governed by the arbitrary and capricious standard.40
B. The Federal Tort Claims Act and the Bureau of Prisons

The FTCA creates a federal cause of action that allows federal prisoners to bring ordinary tort
claims against the United States for injuries or losses caused by employees of the Bureau of Prisons.
Although the FTCA constitutes an apparently broad waiver of sovereign immunity, recovery is limited by
a number of doctrines, including a statutory exception for "discretionary" government functions and
ordinary tort rules. Federal prisoners submitting claims also must comply with the general procedural
requirements under the FTCA, as well as specific rules created by the Bureau ofPrisons.41 Although

J

FTCA litigation actions involving the Bureau of Prisons are not common, federal prisoners file thousands
of FTCA administrative claims every year, making this legal regime a critical component of the overall
grievance system for challenging the conditions of their confinement.
1) Statutory and Regulatory Requirements Governing FTCA Claims Involving the Bureau 0/

)

Prisons
The FTCA waives sovereign immunity, and allows individuals to bring ordinary tort claims
against the United States for injuries or losses caused by federal employees,42 including employees of the

]

.

40

\

)

See, e.g., Thompson v. U.S. Federal Prison Industries, Inc., 492 F.2d 1082 (5 th Cir. 1974) (holding that a prisoner

may seek review of an Inmate Accident Compensation claim under the Administrative Procedure Act, governed by
the arbitrary and capricious standard); Johnstone v. United States, 980 F. Supp. 148 (B.D. Pa. 1997) (same); see
generally 5 U.S.C.A. §§ 701-06 (providing for judicial review to set aside agency action if, inter alia, it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law").
41 All administrative claims under the FTCA are governed by general regulations issued by the Department of
Justice, but agencies are authorized to issue their own regulations to supplement these general provisions. See 28
C.F.R. § 14.11. The Bureau of Prisons has adopted additional regulations that provide answers to frequently asked
questions about the procedures for filing an FTCA administrative claim. See id §§ 543.30-.32.
42 Sovereign immunity ordinarily bars suits against the United States, federal agencies, or federal employees, but
Congress may waive sovereign immunity for specific claims by federal statute. See, e.g., Dep't of Anny v. Blue
Fox, Inc., 525 U.S. 255, 260 (1999) (recognizing that sovereign immunity generally shields the federal government
and its agencies from suit, absent an explicit waiver); Lane v. Pena, 518 U.S. 187, 192 (1996) (holding that Congress
may waive sovereign immunity only through an unequivocal statutory provision, and that such provisions must be
strictly construed); see generally 14 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE & PROCEDURE JURISDICTION 3d. § 3654 (1998 ed.). The FTCA constitutes such a statutory waiver. See,
e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 475 (recognizing that the FTCA waives the United States' sovereign
immunity for certain torts committed by federal employees).

]4

Bureau of Prisons. 43 Under the FTCA, an injured plaintiff may bring a claim in federal court against the
United States as the named defendant for:
[I]njury or loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the
scope of his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.44
In United States v. Muniz, 374 U.S. ISO (1963) the Supreme Court recognized that the FTCA
encompasses actions against the United States for tort injuries suffered by federal prisoners during their
incarceration that are caused by employees of the Bureau of Prisons.
In general, the United States is liable in actions under the FTCA "in the same manner and to the

J

same extent as a private individual under like circumstances.',4S This includes liability for some
intentional torts-assault, battery, false imprisonment, false arrest, abuse of process, or malicious
prosecution-but only when these acts are committed by a federal investigative or law enforcement

)

officer.46 Under provisions enacted in the Prison Litigation Reform Act of 1996,47 prisoners who have
been convicted of a felony may not bring a civil action under the FTCA "for mental or emotional injury
suffered while in custody without a prior showing of physical injury.,,48 In addition, awards for pre-

J
]

It should be noted that some claims under the FTCA for conduct involving the Bureau of Prisons' employees
involve non-prisoner claimants such as staff members or visitors. See BUREAU OF PRIsONS, PROGRAM STATEMENT
1320.05 FEDERAL TORT CLAIMS ACT 2 (2000) [hereinafter P.S. 1320.05].
44 28 U.S.C.A. § 1346(bXl). Liability under the FTCA is determined by the law of the state in which the
underlying incident(s) occurred. See, e.g., Meyer, 510 U.S. at 478.
4S 28 U.S.C.A. § 2674. This choice of wording does not mean that the United States cannot be held liable for its
employees' performance of functions that private persons generally do not perform. See, e.g., Indian Towing Co. v.
United States, 350 U.S. 61, 64-65 (1955) (rejecting this argument); Concrete Tie of San Diego, Inc. v. Liberty
Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (same).
46 See 28 U.S.C.A. § 2680(h). The term investigative or law enforcement officer includes "any officer of the United
States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal
law," a definition that covers employees of the Bureau of Prisons. Id This provision is an exception to the general
rule under the FTCA that the United States is not liable for specified intentional torts committed by federal
employees. See 28 U.S.C.A. § 2680(h).
47 Prison Litigation Reform Act, Pub. L. No. 104-134, §806, 110 Stat. 1321, 1321-66 to -77 (Apr. 26, 1996)
(codified at II U.S.C. § 523; 18 U.S.C. §§ 3624, 3626; 28 U.S.C. §§ 1346, 1915, 1915A; 42 U.S.C. §§ 1997I 997h).
48 28 U.S.C.A. § 1346(bX2).
43

1

)

IS

judgment interest and punitive damages are excluded under the FTCA.49 However, a prevailing party
may be awarded costs and reasonable attorney's fees, within the court's discretion. so Venue for FTCA
actions is limited to ''the judicial district where the plaintiff resides or wherein the act or omission
complained of occurred, ,,5 1 and there is no right to ajury trial. S2

__

The primary barriers to recovery under the FTCA are a series of statutory exceptions i~h Jv'sovereign immunity is not waived. 53 The most important exception-in general and specifically as to
claims involving employees of the Bureau of Prisons-is

~J

refe~o as the discretionary function

exception:
Any claim based upon an act or omission of an employee of the Government, exercising
due care, in the execution of a statute or regulation, whether or not such statute or
regulation be valid, or based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a federal agency or an employee
of the Government, whether or not the discretion involved be abused. 54

ill
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The stated purpose of the discretionary function exception is to prevent judicial review of government

~

'j ")
,./

actions that are based on social, economic or political policy considerations.55 With this purpose in mind,
the exception only protects a federal employee's decision if two requirements are met. First, the decision
must involve judgment or choice-"if a 'federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow,'" then the exception does not apply.56 Second, the decision

J

must involve public policy considerations, meaning only that the nature of the conduct at issue lends itself

J

49

'1

)
.

]
}

See id § 2674.

so See id § 2412(b) (1994). However, an attorney litigating a claim under the FTCA is limited to a fee no greater
than twenty-five percent of any judgment or settlement of a claim filed in federal court, or twenty percent of any
administrative settlement. See id § 2678.
51 See id § 1402(b).
52 See id § 2402.
53 Other exceptions bar liability for claims related to postal matters, id § 2680(b), combatant actions by the armed
forces during time of war, ide § 2680(j), and claims arising in a foreign country, id § 2680(k). If one of the statutory
exceptions applies, then the federal courts lack subject matter jwisdiction over the claim. See, e.g., Alfrey v. United
States, 276 F.3d 557, 561 (9th Cir. 2002); Tippett v. United States, 108 F.3d 1194, 1196 (lOth Cir. 1997); Mundy v.
United States, 983 F.2d 950,952 (9th Cir. 1993).
aI
54 28 U.S.C.A. § 2680(a). See generally WRIGHT, ET\AL., supra note 42, at § 3658.1 (describing the discretionary
function exception as ''undoubtedly, one of the FTCA's most important and frequently litigated provisions").
55 See, e.g., United States v. Gaubert, 499 U.S. 315, 322-23 (1991); Berkovitz by Berkovitz v. United States, 486
U.S. 531, 536-37 (1988).
56

See, e.g., Gaubert, 499 U.S. at 322; Berkovitz, 486 U.S. at 536.

16

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to policy analysis. S7 It also is important to remember that the discretionary function applies even if the
actual conduct at issue is negligent or involves an abuse of discretion. S8
If the FTCA applies, it becomes the exclusive remedy for a party who has been injured by a
federal employee. Any tort claim against a federal employee that falls within the scope of the law will be
preempted by the FTCA and barred. S9 However, an injured party may bring a tort claim against an
individual federal employee if the complaint alleges a constitutional violation, 60 an exception that allows
federal prisoners to sue individual officers in Bivens actions alleging "constitutional torts." Plaintiffs
who wish to pursue both remedies must proceed with caution, because an injured party who has accepted
an administrative settlement or won a court judgment under the FTCA is barred from bringing any further

?1..

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claims involving the same subject matter.61
The FTCA encourages administrative adjustment of claims, by requiring plaintiffs to present their
complaint to the appropriate federal agency for settlement before filing suit in federal court. An injured
party may not file a civil action under the FTCA until he has presented an administrative claim to the

See, e.g., Gaubert, 499 U.S. at 324-25; Alfrey, 276 F.3d at 562. The subjective intent of the federal employee is
irrelevant to this inquiry, and the courts will presume that a decision is guided by policy considerations when an
employee is exercising discretion pursuant to established government policies. See, e.g., Gaubert, 499 U.s. at 32425; Cohen v. United States, 151 F.3d 1338, 1341 (lIth Cir. 1998) (noting that in determining whether the
discretionary function exception applies, the court does ''not focus on the subjective intent of the government
employee or inquire whether the employee actually weighed social, economic, and political policy considerations
before acting").
58 See 28 U.S.C.A. § 2860~a) (''whether or not the discretion involved be abused"); see a/so, e.g., Bailor v. Salvation
Army, 51 F.3d 678,685 (7 Cir. 1995); Blakey v. U.S.S. Iowa, 991 F.2d 148, 152 (4th Cir. 1993); Redmon v. United
States, 934 F.2d 1151, 1157 (lOth Cir. 1991).
59 See 28 U.S.C.A. § 2679(b)( 1) (barring any other civil claims or proceedings for money damages "by reason of
the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of
such employee"). Ifa plaintiff brings a civil action against a federal employee and that claim is cognizable under
the FTCA, the court is authorized to substitute the United States as the defendant and to treat the action as one under
the FTCA. See id § 2679 (d)(I) to (3).
60 See id § 2679(b)(2).
61 The FTCA provides that the acceptance of an administrative settlement shall be "final and conclusive" and
"constitute a complete release of any claim against the United States and against the employee...by reason of the
same subject matter." See id § 2672; 28 C.F.R. § 14.10(b); see also Serra v. Pichardo, 786 F.2d 237,239 (6th Cir.
1986) (interpreting ''by reason of the same subject matter" to mean "arising out of the same actions, transactions or
occurrences"). Similarly, the Act provides that ajudgment in any civil action under the FTCA "shall constitute a
complete barto any action by the claimant, by reason of the same subject matter, against the employee of the
government whose act or omission gave rise to the claim." See 28 U.S.C.A. § 2676.
57

.1

]
.1

17

)

appropriate federal agency62 and that claim has been "fmally denied by the agency in writing.,,c;3 The
party who has suffered the loss generally must submit the claim himself, 64 within two years of the date
that the claim accrues.6S At a minimum, the claim must be in writing, provide sufficient detail in order for
the agency to begin its own investigation of the incident, and claim a "sum certain" in damages. 66 The
filing party may amend an administrative claim at any time, or may submit a written request for
reconsideration to the agency once he receives a response. 67 A fmal denial of an FTCA administrative
claim by an agency must be sent to the filing party or his agent or legal representative via certified or
registered mail.68 An individual whose administrative claim had been fmally denied by the appropriate

~]

agent may file an action in federal court within six months of the notice's mailing date.69 A litigation

J
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I
-

-)

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l

)

The appropriate agency is the agency whose activities gave rise to the claim. See 28 C.F.R. § 14.2(bXl). The
Bureau of Prisons further requires a claimant to file an FTCA claim with the appropriate regional office for the
region in which the underlying incident occurred. See id § 543.31(c). A claim should be filed with the Bureau's
Central Office if the incident occurred in the Central Office, see id, or if it involves private halfway houses or prison
facilities that are not assigned to any particular region. See Pybas Interview, supra note 15. Ifa claim is filed with
the wrong office, it will be transferred to the appropriate Bureau office. See P.S. 1320.05, supra note 43, at 3.
63 See 28 U.S.C.A. § 2675(a). The requirement ofa final agency denial is ajurisdictional prerequisite that cannot
be waived. See, e.g., Gonzalez v. United States, 284 F.3d 281,288 (1st Cir. 2002); Kokotis v. U.S. Postal Service,
223 F.3d 275, 278-79 (4tb Cir. 2000). However, if the agency fails to make a final decision within six months ofa
claim being filed, then the claimant may deem this lack of response to be a final denial and may bring a civil action.
See id In McNeil v. United States, 508 U.S. 106, I I 1-13 (1993) the Supreme Court settled a circuit split by holding
that this requirement is not satisfied where a plaintiff receives a final agency denial after his civil action has been
filed in federal court but prior to any substantial progress in the litigation.
64 See 28 C.F.R. § 14.3 (requiring filing by the injured party or his agent or representative, with special provisions
for a claim of wrongful death). The Bureau of Prisons also requires a claimant to provide a written statement
verifying that a representative or agent has authority to act on his behalf. See id § 543.3 I (a).
65 See 28 U.S.C.A. § 2401(b).
66 See 28 C.F.R. § 14.2(a)(I) (describing the minimal presentment requirements as "written notification ofan
incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal
injury, or death alleged to have occurred by reason of the incident"); see also, e.g., Blair v. I.R.S., 304 F.3d 861,864
(9th Cir. 2002); Burchfield v. United States, 168 F.3d 1252, 1254-55 (I Itb Cir. 1999); Bowden v. United States, 106
F.3d 433, 44 I (D.C. Cir. 1997).
67 See 28 C.F.R. § 14.2(c); id § 14.9(b). Either of these actions will restart the six-month deadline for the agency to
render a final decision. See id §§ 14.2(c), 14.9(b). The Bureau of Prisons' regulations further specify that a
prisoner who is dissatisfied with an initial denial and files a request for reconsideration of his claim should include
additional evidence of injury or loss. See id § 543.32(g).
68 See id § 14.9(a).
69 See 28 U.S.C.A. § 2401(b).
62

18

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)

action under the FTCA generally may not seek damages above the amount sought in the administrative
claim70
The FTCA itself empowers the heads of all federal agencies to consider and settle claims properly
brought under the Act, but settlements above a certain level may require prior approval from or
consultation with the Department of Justice. 71 Any settlement of more than $5,000 must be approved by
an agency head or his designee,72 and settlements in excess of an agency's statutory authority ($10,000
for the Bureau of Prisons) must receive written approval from the Attorney General's office.73 Regardless
of the proposed settlement amount, an agency must consult with the Department of Justice if the
settlement involves a new precedent or a question of policy, or if the United States or a federal employee
or agent is involved in litigation arising out of the same incident or transaction. 74
The Bureau of Prisons has adopted supplementary policies for the processing of FTCA
administrative claims. When the Bureau receives a complete and properly-presented claim, it is referred
out to the appropriate institution or oftice within the Bureau for further investigation.7s For claims filed
with a regional office, the Regional Counselor his designee will review the results of the investigation
and all supporting documents and decide how to proceed with the claim.76 The appropriate Regional
Counsel may make a settlement offer to a claimant ifhe determines that a settlement is in the best

See 28 U.S.C.A. § 2675(b). An exception is provided if a higher claim for damages is based on newly discovered
evidence that was not previously available or on intervening facts that affect the amount of the claim. See id
71 See generally id § 2672.
72 See 28 C.F.R. § 14.5. These settlements also must be reviewed by the legal officer for the agency. See id
73 See 28 U.S.C.A. § 2672; 28 C.F.R. § 14.6(c); P.S. 1320.05, supra note 43, at 5.
74 See 28 C.F.R. § 14.6(d)(l), (2). Consultation also is required if the United States might be entitled to indemnity
or contribution from a third party, or if the settlement might affect the outcome of a related claim that is for an
amount in excess of the agency's statutory authority to settle claims. See id § 14.6(d)(l).
75 See id § 543 .32(c). Prisoners may be required to provide additional infonnation during the investigation of their
claims, and failure to respond can result in denial or rejection of the claim. See id If a claim is referred to an
individual institution for investigation, the warden will appoint staff members to investigate the claim and prepare a
report. See P.S. 1320.05, supra note 43, at 3. Claims involving medical care also must be reviewed by institution
health services staff. See id at 4. Claims that are properly filed with the Central Office are investigated by staff in
that office. See id
76 See 28 C.F.R. § 543.32(d).
70

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interests of the government. 77 The General Counsel perfonns the same function for claims properly filed

)

with the Central Office. 78
2) Case Law on Issues ofParticular Concern for Federal Prisoners

One of the most common contested issues in FTCA actions-generally, and particularly those
involving the Bureau of Prisons-is the scope of the discretionary function exception. While its
application varies with the facts of each case, the courts appear more than willing to invoke the exception
in FTCA claims by federal prisoners. Circuit court decisions have held that the exception applies to
decisions concerning classification of prisoners and their assignment to particular institutions,79 whether
to warn prisoners about potential safety risks from other prisoners,80 responses to threats from other
prisoners,S1 and parole decisions. 82 In a high-profile example, Buchanan v. United States, 915 F.2d 969
(5 th Cir. 1990), the Fifth Circuit affll1lled that the discretionary function exception barred an FTCA claim
by federal prisoners who had been held hostage during a prison uprising at the Federal Detention Center
in Oakdale, Louisiana by Cuban nationals who had entered the United States during the Marie! boatlift.
The court reasoned that the emergency responses by prison employees during the uprising involved
judgment and public policy considerations, and were precisely the kind of discretionmy decisions that the
exception is intended to protect.S3 Cases against the Bureau of Prisons in which the discretionary function

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}
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77 See P.S. 1320.05, supra note 43, at 5. The regional counsels' settlement authority is limited to $2,500, so claims
in excess ofS2,500 but under $10,000 must be approved by the Central Office. See ide As noted above, settlements
in excess of $1 0,000 must be approved by the Department of Justice. See id Claimants must be notified when their
claims are delayed pending approval. See id
78 See 28 C.F.R. § 543.32(d).
79 See Cohen, 151 F.3d at 1341-44 (applying the exception to the decision to assign a prisoner to a minimum
security prison, in a suit for injuries sustained by a fellow prisoner in an attack); Bailor, 51 F.3d at 685 (applying the
exception to a decision to release a prisoner to a halfway house, in a suit by a victim of rape and violent assault
committed by a prisoner who had escaped from the halfway house).
th
80 See Dykstra v. United States Bureau of Prisons, 140 F.3d 791, 795-96 (8 Cir. 1998) (applying the exception to a
claim alleging failure to warn a prisoner that he might be wlnerable to attacks by other prisoners, or to place him in
protective custody).
81 See Alfrey, 276 F.3d at 562-67 (applying the exception to a wrongful death claim, based on the alleged negligence
of corrections officers in responding to a prisoner's threats against the deceased); Calderon v. United States, 123
F.3d 947, 949-51 (7th Cir. 1997) (same).
th
82 See Payton v. United States, 679 F.2d 475,480-82 (5
Cir. 1982) (applying the exception to a wrongful death
action by the surviving family of a woman murdered by a prisoner who had been released on parole).
th
83 See Buchanan v. United States, 915 F.2d 969, 971-72 (5 Cir. 1990).

20

exception has been raised and held to be inapplicable have involved action prescribed by regulations84 or
careless conduct.8S
There are several other issues worth noting that often arise in FTCA claims brought by federal
prisoners. While it is clear that the Inmate Accident Compensation program provides the exclusive
remedy for prisoners' work-relate injuries,86 it is not clear whether a prisoner may bring an FTCA claim
for additional injuries caused by negligence or malpractice in the treatment of the prisoner's work-related
injuries.

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87

There also appears to be a circuit split over whether it is sufficient for an agency to send a

notice of final denial of an administrative claim under the FTCA to a prisoner but not to his attorney. 88
Examples of ordinmy tort questions that may arise in FTCA litigation brought by federal prisoners
include statute of limitations calculations,89 causation,90 and whether an employee is acting within the

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)

84 See Alfrey, 276 F.3d at 562-63 (holding that summary judgment based on the discretionary function exception
was precluded by a fact issue as to whether regulations mandated monitoring and evaluation of a prisoner before
placing him in a cell with another prisoner); Payton, 679 F.2d at 482 (holding that the discretionary function
exception would not bar liability for a complaint alleging that the Bureau of Prisons failed to release a prisoner's
records to the parole board, where disclosure of the records was required by statute).
8S See Coulthurst v. United States, 214 F.3d 106, 109-11 (2d Cir. 2000) (holding that the discretionary function
exception would not bar liability for an injury caused by failure to properly inspect a machine, if federal employees
did not perform the inspections out of laziness or carelessness).
86 See Demko, 385 U.S. at 152-54.
th
87 Compare Vander v. United States Dep't of Justice, 268 F.3d 661,663-64 (9 Cir. 2001) (holding that the Inmate
Accident Compensation program provides the exclusive remedy for subsequent aggravation of a work-related
injury) with Wooten v. United States, 825 F.2d 1039, 1044-45 (6th Cir. 1987) (holding that the Inmate Accident
Compensation program is the exclusive remedy for subsequent aggravation of a work-related injury, but that a
prisoner can bring an FfCA claim alleging denial of adequate medical care in the treatment of these injuries). Cf.
Bagola v. Kindt, 131 F.3d 632, 642-45 (7 Cir. 1997) (holding that a prisoner suffering a work-related injury that is
compensable under the Inmate Accident Compensation Program is not therefore barred from bringing a Bivens
action under the Eighth Amendment alleging deliberate indifference to safety in the prison's working conditions).
88 Compare Shoffv. United States, 245 F.3d 1266, 1268 (lIth Cir. 2001) (per curiam) (holding that it was sufficient
for an agency to send a notice offinal denial to either a prisoner or his attorney) with Graham v. United States, 96
F.3d 446,448-50 (9th Cir. 1996) (holding that when a federal agency knows that a federal prisoner is represented by
counsel, then the agency must send the notice of final denial to the attorney or representative, and sending the notice
only to the prisoner in such cases is not sufficient). In general, the Bureau of Prisons' policy is to communicate only
with a lawyer or other appointed representative and not with the claimant himself. See 28 C.F.R. § 543.31(a)..
th
89 See, e.g., McCoy v. United States, 264 F.3d 792, 794-96 (8 Cir. 2001) (applying continuing treatment doctrine
for tolling of statute of limitations to a prisoner's claim for medical malpractice); Diaz v. United States, 165 F.3d
1337, 1339-40 (lIth Cir. 1999) (holding in medical malpractice claim for treatment ofa prisoner who subsequently
committed suicide that statute of limitations began to run when the prisoner's surviving personal representative
knew or reasonably should have known that the prisoner had received psychological or medical treatment that was
somehow linked to his subsequent suicide).

21

)

scope of his employment. 91 Finally, FTCA claims brought by federal prisoners are subject to many of the
procedural and substantive limits imposed by the Prison Litigation Refonn Act of 1996, which are
discussed in further detail below.92
C. Bivens Claims Against Bureau of Prisons Officials

In addition to claims under the FTCA, federal prisoners may be able to bring civil rights actions
against Bureau of Prisons officials under the Supreme Court's decision in Bivens v. Six Unknown Named
Agents o/Federal Bureau o/Narcotics, 403 U.S. 388 (1971). Litigation suits under Bivens seek monetary

1

damages for injuries or losses caused by a federal employee who has violated a prisoner's constitutional
rights. Although the scope of liability under Bivens is limited, and recovery often is barred by affirmative

J

defenses, Bivens suits continue to provide a critical legal device for federal prisoners.
1) Federal Civil Rights Actions Under the Bivens Case

Under the Civil Rights Act of 1871, as amended and recodified at 42 U.S.C. § 1983,93 a prisoner
may bring suit for monetary damages in federal court when a person acting under color of state law
deprives the prisoner of "any rights, privileges, or immunities secured by the Constitution and laws.,,94 In
the Bivens case the Supreme Court recognized a similar cause of action against federal officials, holding

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See, e.g., Jutzi-Johnson v. United States, 263 F.3d 753, 755-58 (7th Cir. 2001) (holding that the estate ofa
prisoner who had committed suicide failed to establish causation, because the plaintiffs did not prove that the suicide
90

risk was foreseeable or that any treatment would have prevented the suicide).
th
91 See, e.g., Flechsig v. United States, 991 F.2d 300, 302-03 (6 Cir. 1993) (holding that a corrections officer was
not acting within the scope of his employment when he took a female prisoner to his home and sexually assaulted
her, when the officer was supposed to be transporting the prisoner to a medical appointment).
92 Many provisions in the PLRA apply to actions ''with respect to prison conditions," see, e.g., 18 U.S.C.A. § 3626,
42 U.S.C.A. § 1997e(a), (c)(l), and (f)(1), a phrase that might appear not to encompass all FTCA actions. However,
the Supreme Court has interpreted this language broadly to include "all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."
Porter, 534 U.S. at 532. Nonetheless, certain provisions in the PLRA are not applicable to FTCA claims. For
example, the FTCA itself already requires administrative exhaustion of all claims, making a similar requirement in
the PLRA duplicative for prisoner suits under the,FTCA. See 42 U.S.C.A. § 1997e(a). The PLRA also contains
restrictions on attorney's fees that apply only to actions "in which attorney's fees are authorized under section 1988,"
42 U.S.C.A. § 1997e(d), a statutory provision that-applies to § 1983 actions.
93 See 42 U.S.C.A. § 1983 ("Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rigbts, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress...").
94 See generally Monroe v. Pape, 365 U.S. 167 (1961) (describing the scope of liability under § 1983).

22

that an individual could bring a suit for damages in federal court alleging that a federal agent, acting
under color of federal authority, had violated his constitutional rights under the Fourth Amendment. 9s
The Supreme Court now describes a Bivens claims as "an implied private action for damages against
federal officers alleged to have violated a citizen's constitutional rights." 96
The substantive and procedural aspects of Bivens claims are governed by a combination of state
and federal law. The statute of limitations for Bivens claims is determined by reference to the statute of
limitations in the forum state that applies to personal injury actions.97 Bivens suits fall under the principal

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federal venue statute, 28 U.S.C. § 1391,98 and may be brought in ajudicial district (1) where any
defendant resides, if all defendants reside in the same State; (2) in which a substantial part of the events or

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omissions giving rise to the claim occurred; or (3) in which any defendant may be found, if there is no

,
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.-)

district in which the action may otherwise be brought.99 The plaintiff in a Bivens claim may elect ajury
trial.

-)

100

In these latter two respects Bivens actions are more favorable to plaintiffs than suits under the

FTCA, in which venue is limited to the place of injury and there is no right to a jury trial. IOI
Not every constitutional violation by a federal employee will give rise to liability under Bivens.
Federal agencies themselves are not liable under Bivens,102 nor are private entities acting under color of
federal law. 103 These rules not only require a prisoner to style a complaint appropriately as one against an

J
95

See Bivens, 403 U.S. at 390-92, 395-97.

Correctional Services Corp. v. Malesko, 534 U.S. 61,66 (2001).
th
97 See, e.g., Papa v. United States, 281 F.3d 1004, 1009 (9 Cir. 2002); King v. One Unknown Federal Correctional
th
Officer, 201 F.3d 910,913 (7 Cir. 2000); Brown v. Nationsbank Corp., 188 F.3d 579,590 (5 th Cir. 1999).
98 The venue statute also contains a special provision for actions brought against "an officer or employee of the
United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of
the United States, or the United States," 28 U.S.C.A. § 1391 (e), but this provision does not apply to Bivens actions,
which are brought against the defendants in their individual capacities. See, e.g., Cameron v. Thornburgh, 983 F.2d
253,256 (D.C. Cir. 1993).
99 28 U.S.C.A. § 1391(b).
100 The Seventh Amendment guarantees the right to jury trial in actions at law, which typically includes all actions
for monetary damages. See generally Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558,
565,570-73 (1990); see also Carlson v. Green, 446 U.S. 14,22-23 (1980) (noting that Bivens plaintiffs may elect a
jury trial).
101 See supra notes 51 and 52 and accompanying text.
102 See Meyer, 510 U.S. at 484-86.
103 See Malesko, 534 U.S. at 70-74.
96

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individual officer, but also have implications for available relief. In addition, the Court has declined to
allow Bivens claims where "special factors counsel[] hesitation"l04 or where there is an explicit
congressional statement that injured persons are to be compensated solely through "another remedy,
equally effective in the view ofCongress.,,105
Finally, there is some uncertainty regarding the outer reaches of Bivens liability. The Supreme
Court has recognized Bivens claims for only three different substantive constitutional violations--under
the Fourth Amendment (in the Bivens case itselt),106 the due process clause of the Fifth Amendment and

.]

its equal protection component, 107 and the Eighth Amendment bar against cruel and unusual
punishment. 10S In Correctional Services Corp. v. Malesko, 534 U.S. 61,68 (2001), Chief Justice

ill
~-"

Rehnquist's majority opinion interprets the paucity of recent cases extending Bivens liability as a refusal

--1

by the Court ''to extend Bivens liability to any new context or new category of defendants."lo9

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)
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)

104 See Biven", 403 U.S. at 397. Relying on this principle, the Court has declined to allow Bivens claims by military
personnel, based on "special factors" that include the explicit constitutional delegation of authority over military
matters to Congress and the degree of disruption that could result from judicial interference. See United States v.
Stanley, 483 U.S. 669,683-86 (1987); Chappell v. Wallace 462 U.S. 296,298-305 (1983).
lOS See Bivens, 403 U.S. at 397. Relying on this second principle, the Court has refused to extend Bivens liability in
cases where the plaintiffs have an existing remedy under federal law, even where these statutory remedies do not
provide for monetary damages. See, e.g., Schweiker v. Chilicky, 487 U.S. 412, 424-29 (1988); Bush v. Lucas, 462
U.S. 367,380-90 (1983). But see Carlson, 446 U.S. at 19-23 (1980) (holding that a plaintiff could bring a Bivens
action even though her allegations could state a claim under the Federal Tort Claims Act, because Congress intended
these two causes of action to serve as parallel remedies).
th
106 See also Robinson v. Jones, 142 F.3d 905,906-07 (6 Cir. 1998) (recognizing a Bivens action for searches at
prisoner's home and place of business, which preceded his prosecution and conviction); Del Raine v. Williford, 32
F.3d 1024, 1040-41 (7th Cir. 1994) (recognizing a Bivens action for a search in prison).
107 See Davis v. Passman, 442 U.S. 228,233-48 (1979) (holding that the fonner employee of a U.S. Congressman
could bring a Bivens claim under the equal protection component of the Fifth Amendment due process clause,
claiming sex discrimination in employment); see also Papantony v. Hedrick, 215 F.3d 863,865 (8th Cir. 2000) (per
curiam) (recognizing a Bivens action for violations of substantive due process rights, based on allegations that prison
officials forcibly administered antipsychotic medication to a prisoner); Pena v. United States, 157 F.3d 984,987 (5th
Cir. 1998) (recognizing a Bivens claim for violations of due process rights, seeking property that prison officials had
seized).
108 See Carlson, 446 U.S. at 18-23. (holding that the administrator ofa deceased federal prisoner's estate could
bring a Bivens claim alleging that the prisoner suffered injuries from which he died because federal prison officials
violated his Eighth Amendment rights); see also Fanner v. Brennan, 81 F.3d 1444, 1450-51 (7th Cir. 1996)
(recognizing a Bivens claim for Eighth Amendment violations, based on allegations that prison officials failed to
acknowledge and respond to a risk of physical hann to a prisoner); Terrell v. Brewer, 935 F.2d 1015, 1018-19 (9th
Cir. 1991) (holding that a prisoner had stated a Bivens claim based on allegations that prison guards deliberately
injured him and interfered with his attempt to receive immediate medicate treatment).
109 See also Malesko, 534 U.S. at 75 (Scalia, J., concurring) ("Bivens is a relic of the heady days in which this Court
assumed common-law powers to create causes of action.. .I would limit Bivens and its two follow-on cases (Davis

24

Nonetheless, the lower courts continue to recognize the possibility of Bivens liability for violations of the
First Amendment, )10 and generally appear to assume that a Bivens remedy is available for any
constitutional violation. Regardless of the ultimate outcome on this issue in the Supreme Court, most
prisoner claims for damages stemming from constitutional violations will fall within the scope of claims
already recognized by the Court.) ))
2) The Relationship Between FTCA and Bivens Claims

The overlap between prisoner claims under the FTCA and in Bivens suits has not raised many

]

difficult issues, primarily because the courts have held that the two remedies are not mutually exclusive.
In Carlson v. Green, 446 U.S. 14 (1980) the Supreme Court held that a plaintiff may pursue a Bivens

J

action for a constitutional tort even when the same allegations could support a claim under the FTCA. 112

--1

The Seventh and Ninth Circuit have applied the same reasoning to hold that Bivens suits and claims under
the Inmate Accident Compensation Program are not mutually exclusive remedies. 113 Although Bivens

~

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effect on a subsequent claim. A prior judgment in a suit under the FTCA--either favorable or

v. Passman and Carlson v. Green} to the precise circumstances that they involved"} (internal citations omitted).
110 See, e.g., Ledennan v. United States, 291 F.3d 36, 46-48 (D.C. Cir. 2002); Trulock v. Freeh, 275 F.3d 391, 399-

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and FTCA claims are not mutually exclusive, a judgment in one type of action may have a preclusive

)

400 (4th Cir. 2001); McLaughlin v. Watson, 271 F.3d 556, 572-74 (3d Cir. 2001); Edwards v. Johnson, 209 F.3ed
772, 777, 779 (5th Cir. 2000).
111 See supra notes 106, 107, and 108 (noting Bivens claims by prisoners under the Fourth Amendment, the Fifth
Amendment due process clause, and the Eighth Amendment).
112 In Carlson, the mother of a deceased federal prisoner brought suit claiming that her son's death while in federal
custody had resulted from prison officials' deliberate indifference to his medical needs, allegations that could
support an FTCA action or a Bivens suits under the Eighth Amendment. See 446 U.S. at 16-18. The Supreme Court
concluded that Congress had intended the FTCA and Bivens claims to serve as ''parallel, complementary causes of
action." Id at 19-20. The Court also noted that Bivens suits are more effective than FTCA actions in at least four
respects-Bivens suits serve a deterrent purpose by imposing liability on the individual officials involved, punitive
damages and jury trials are available in Bivens suits but not in FTCA actions, claims under the FTCA are subject to
varying state laws, and in some cases will not be available at all. See id at 20-23. Although Bivens suits may be
preferable for all of these reasons, the standard of liability often will be lower under the FTCA-for example, in a
medical care case such as Carlson, a prisoner proceeding on an Eighth Amendment Bivens claim must prove
deliberate indifference, while an FTCA claim only requires proof of negligence. Michael Pybas, Senior Counsel in
the Bureua's Office of General Counsel, reports that federal prisoners often prefer to file medical care claims under
the FTCA rather than Bivens, because of the lower standard of liability. See Pybas Interview, supra note 15.
th
113 See Bagola, 131 F.3d at 642-44; Vaccaro v. Dobre, 81 F.3d 854,857 (9 Cir. 1996).

2S

unfavorable to the plaintiff-will bar a subsequent claim under Bivens for the same subject matter. I 14

)
However, ajudgment in a prior Bivens suit against an individual official may not bar a subsequent FTCA

I

claim for the same incident, liS although any prior monetaJy award may be set off against any award for
the same injuries in a subsequent action, I 16 and general rules of res judicata would apply.
3) Restrictions on Bivens Claims of Particular Concern for Federal Prisoners

The critical issue in many Bivens claims, particularly those filed by federal prisoners, turns on an
affirmative defense-whether the defendant's conduct is protected from liability by principles of absolute

]

or qualified immunity.117 Absolute immunity is limited to officials performingjudicial functions, such as
judges and prosecutors, 118 while government officials performing discretionary functions are protected by

J

the concept of qualified immunity. I 19 To overcome a claim of qualified immunity, a court must find that

1

the plaintiff "has alleged the deprivation of an actual constitutional right," and ''that right was clearly

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114 See 28 U.S.C.A. § 2676; see also, e.g., Farmer v. Perrill, 275 F.3d 958,963 (lOth Cir. 2001) (holding that any
FTCA judgment, regardless of its outcome, bars a subsequent Bivens action on the same conduct); Hoosier Bancorp
of Ind. v. Rasmussen, 90 F.3d 180, 184 (7th Cir. 1996) (same); Gasho v. United States, 39 F.3d 1420, 1437-38 (9th
Cir. 1994) (same).
th
115 See Sterling v. United States, 85 F.3d 1225, 1227-28 (7 Cir. 1996) (applying principles of issue preclusion to
hold that a prior dismissal ofa prisoner's Bivens claim did not bar a subsequent claim under the FTCA for the same
alleged conduct, because Bivens liability requires a showing of intentional misconduct while FTCA liability may be
premised on a lesser showing of negligence); Gasho, 39 F.3d at 1436-38 (holding that a plaintiff may concurrently
pursue FTCA and Bivens remedies and may recover under both if the Bivens judgment is entered first); Kreines v.
United States, 959 F.2d 824 (9th Cir. 1992) (allowing double recovery in the plaintiff's simultaneous Bivens and
FTCA actions, because the court entered the Bivens judgment first). Cj. Engle v. Mecke, 24 F.3d 11 (lOth Cir. 1994)
(holding that when a plaintiff elects to continue an FTCA action after winning a jury award in a Bivens claim,
success in the FTCA action may constitute grounds for vacating the prior Bivens award, based on election of
remedies principles).
116 Cj. Bagola, 131 F.3d at 645 n.17 (applying this principle to parallel claims under Bivens and the Inmate Accident
Compensation program).
117 The absolute and qualified immunity analyses are identical for Section 1983 and Bivens claims. See Butz v.
Economou, 438 U.S. 478, 500-04 (1978) (holding that, in the absence of Congressional direction to the contrary,
federal officials should be protected by the same principles of absolute and qualified immunity in Bivens suits as
state officials are in § 1983 suits); see also Wilson v. Layne, 526 U.S. 603, 609 (1999) (noting that the qualified
immunity analysis is identical for Bivens and § 1983 claims).
118 See generally Buckley v. Fitzsimmons, 509 U.S. 259,268-71 (1993); see also Imbler v. Pachtman, 424 U.S. 409,
418-19, 430-31 (1976) (recognizing absolute immunity for judges acting within their judicial duties, and prosecutors
acting within their prosecutorial duties). As the name implies, absolute immunity confers absolute protection from
liability. See Buck/ey, 509 U.S. at 268-69.
119 See Buck/ey, 509 U.S. at 268.

26

established at the time of the alleged violation.,,120 A constitutional right is clearly established if the
contours of the rights are " sufficiently clear that a reasonable official would understand that what he is
doing violates that right.,,121
In addition to immunity bars to liability, Bivens claims brought by federal prisoners are subject to
many of the procedural and substantive limits imposed by the PLRA, which are discussed in further detail
below.

I22

One of the most significant limitations under the PLRA is that federal prisoners must exhaust

any available administrative remedies before filing a Bivens action in federal court. I23
D. Collateral Attacks and Habeas Corpus Petitions by Federal Prisoners

Federal prisoners may rely on two different statuto!), versions of the historical writ of habeas
corpus for challenging the validity or the execution of their sentences. Under 28 U.S.C. § 2255, a federal
prisoner may bring a motion in federal court attacking the validity of his sentence, a collateral attack akin
to a habeas corpus petition filed by a state prisoner in federal court. While this is the primaty form of
habeas-like relief for federal prisoners, they also may bring habeas corpus petitions under 28 U.S.C. §

)

2241 to challenge the execution of their sentences or the conditions of their confmement. Claims in this
latter catego!)' may overlap with the scope of claims that are cognizable under the FTCA or in a Bivens
action. Although collateral attacks and habeas corpus petitions by federal prisoners are not the focus of
this paper, it is important to understand the potential overlap among these different types of prisoner

]

,)

120 See Wilson, 526 U.S. at 609. The Supreme Court has recently reiterated that the qualified immunity analysis
must be treated as a threshold question, and must be answered in this prescribed order-first identifying a
constitutional right, and then identifying whether the right was clearly established. See Saucier v. Katz, 533 U.S.
194,200-01 (2001).
121 See Wilson, 526 U.S. at 614-15, quoting Anderson v. Creighton,483 U.S. 635, 640 (1987). This test is
understood as one of "objective legal reasonableness." See id at 614; see also Katz, 533 U.S. at 202 ("The relevant,
dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.")
122 See generally infra Part II.E.I. As was noted above with respect to FTCA claims, see supra note 92, there are
many provisions in the PLRA that apply to actions "with respect to prison conditions," brought under "Federal law,"
see, e.g., 18 U.S.C.A. § 3626,42 U.S.C.A. § 1997e(a), (c){l), and (f){l), a phrase that might appear no~ to
encompass all Bivens actions. However, in Porter v. Nussle, the Supreme Court made clear that these statutory
phrases apply to all Bivens claims. See Porter, 534 U.S. at 524. Other provisions in the PLRA are not directly
applicable to Bivens claims. See 42 U.S.C.A. § 1997e(d) (restricting attorney's fees for actions "in which attorney's
fees are authorized under section 1988," the statutory provision that authorizes attorney's fees for § 1983 actions).
123 See infra Part I1.E.l.

27

claims, particularly in light of the legislative reforms enacted in 1996 under the PLRA and the Anti-

)
Terrorism and Effective Death Penalty Act. The following discussion provides only a brief introduction
to the scope of habeas corpus relief for federal prisoners, which is necessary background for
understanding the issues that arise in delineating various types of prisoner claims.
The current statutory provisions authorizing collateral attacks and habeas corpus petitions by
federal prisoners date back to the first Judiciary Act of 1789. 124 The 1789 Act allowed federal prisoners
in custody "under or by colour of the authority of the United States, or...committed for trial before some
court of the same" to petition the federal courts for a writ of habeas corpus "for the purpose of an inquiry
into the cause of commitment.,,12s In 1948 Congress reorganized the existing habeas corpus remedies and
added a new statutory remedy at 28 U .S.C. § 2255, which allows a federal prisoner to "move the court
which imposed the sentence to vacate, set aside or correct the sentence" on the grounds that the sentence
''was imposed in violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to unpose such sentence, or that the sentence was in excess of the maximum authorized by

)

law, or is otherwise subject to collateral attack.,,126 The purpose of the new § 2255 motion was to provide
a substitute for a traditional collateral attack under a habeas corpus petition, creating a comparable
remedy but changing the proper venue from the confining court to the sentencing court.127 However,

J

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124 The federal statutory provisions for habeas corpus relief are grounded in the common law writ of habeas corpus.
At common law a court, upon petition ofa prisoner, could issue a writ of habeas corpus against the executive
authority that was detaining the prisoner, requiring that authority to produce the prisoner in court and to state the
reasons for the detention. See 3 BLACKSTONE'S COMMENTARIES ON THE LAWS OF ENGLAND 131-34, 138 (Wayne
Morrision ed., 2001); RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART & WECHSLER'S
THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1284-85 (5 th ed. 2003). These common law origins reflect a
limited remedy, intended only to address arbitrary or secret detentions without cause. See 1 BLACKSTONE'S
COMMENTARIES, supra, at 136; 3 Blackstone's Commentaries, supra, at 134. The Constitution enshrined the
common law writ by providing that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art I., § 9, cl. 2.
125 See Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82 ("Sec. 14...thejustices of the supreme court, as well
as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into
the cause of commitment. Provided, That writs of habeas corpus shall in no case extend to prisoner in gaol, unless
where they are in custody, under or by colour of the authority of the United States, or are committed for tiral before
some court of the same.").
126 See Act of June 25, 1948, ch. 646, part VI, ch. 153, §§ 2241-55,62 Stat. 869,964-68.
127 Petitions for habeas corpus traditionally were brought in the district of confinement, see, e.g., Ahrens v. Clark,
335 U.S. 188 (1948), but this jurisdictional requirement was problematic because as the number of habeas petitions

28

federal prisoners also could continue to bring traditional habeas corpus petitions pursuant to 28 U.S.C. §
2241, the general grant to the federal court ofjurisdiction over habeas corpus actions, in cases in which
the new remedy under § 2255 was "inadequate or ineffective to test the legality of [the] detention.,,128
For purposes of this paper, the critical issue to understand from modem federal habeas corpus
practice is the potential overlap of claims that might be filed under § 2241 as a habeas corpus petition, or
alternatively might be styled as an FTCA claim or a Bivens action. Much of the potential overlap
between various prisoner claims arises because of the broad scope of claims by federal prisoners that have
been recognized as cognizable under § 2241. 129 The courts have allowed § 2241 habeas corpus petitions

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when federal (or sometimes state) prisoners seek to challenge parole decisions,130 sentence calculations,131

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filed by federal prisoners steadily increased, the federal districts containing the largest federal prisons became
inundated. In the five years preceding the 1948 Act, 63% of all habeas petitions filed by federal prisoners were filed
in five of the eighty-four federal district courts-Northern California (Alcatraz), Northern Georgia (Atlanta), Kansas
(Leavenworth), Western Washington (McNeil Island), and Western Missouri (Springfield Medical Center). See
Hayman, 342 U.S. at 213-14 and n.18. The chiefpurpose of the new section § 2255 remedy was to minimize these
procedural and administrative difficultics, "by affording the same rights in another and more convenienL forum."
See id at 219; see also Davis v. United States, 417 U.S. 33, 343 (1974) (noting that § 2255 was intended to provide
"a remedy identical in scope to federal habeas corpus").
128 28 U.S.C.A. § 2255 ("An application for a writ of habeas corpus in behalf of a prisoner who is authorized to
apply for reliefby motion pursuant to this section, shall not be entertained if it appears that the applicant has failed
to apply for relief: by motion, to the court which sentenced him, or that such court has denied him relief: unless it
also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.") This
exception is also referred to as the "savings clause."
129 On the general scope of § 2241, see FALLON, et al., supra note 124, at 1398; RANDy HERTZ & JAMES S.
LIEBMAN, FEDERAL HABEAS CORPUS PRACfICE & PROCEDURE § 41.2(b) (4th ed. 2001).
130 See, e.g., Gometz v. U.S. Parole Comm'n, 294 F.3d 1256, 1258 (lOth Cir. 2002) (allowing challenge under §
2241 to a parole decision); Duckett v. Quick, 282 F.3d 844, 846 (D.C. Cir. 2002) (same); Malave v. Hedrick, 271
F.3d 1139, 1140 (8th Cir. 2001) (per curiam) (same); Urbina v. Thoms, 270 F.3d 292,293-94 (6th Cir. 2001) (same);
Wilson v. U.S. Parole Comm'n, 193 F.3d 195, 196-97 (3d Cir. 1999) (same); Davis v. Fechtel, 150 F.3d 486, 486
(5th Cir. 1998) (same); Blair-Bey v. Quick, 151 F.3d 1036, 1039-40 (D.C. Cir. 1998) (same as to challenge to
procedures for denying parole); Valona v. United States, 138 F.3d 693, 693-94 (7th Cir. 1998) (same as to parole
decision); Martin v. U.S. Parole Comm'n, 108 F.3d 1104, 1105-06 (9th Cir. 1997) (per curiam) (same); United States
v. Robinson, 106 F.3d 610,611 (4th Cir. 1997) (same). See also RULE I of the RULES GOVERNING § 2255
PROCEEDINGS (noting that challenges to the revocation of parole or probation should be brought under habeas
corpus rather than § 2255). But see Grady v. United States, 929 F.2d 468, 469-71 (9th Cir. 1991) (holding that §
2255 motion is appropriate method for challenging revocation of probation when that decision is made by the
original sentencing court).
131 See, e.g., Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002) (allowing § 2241 petition for a challenge to
computation of credit for time served on pri~r sentence); Weekes v. Fleming, 301 F.3d 1175, 1176 (10th Cir. 2002)
(same); Greene v. Tennessee Dep't of Corrections, 265 F.3d 369, 370 (6th Cir. 2001) (same); United States v.
Newman, 203 F.3d 700, 701-02 (9th Cir. 2000) (same for challenge seeking credit for pretrial detention period);
Patterson v. Knowles, 162 F.3d 574,575 (lOth Cir. 1998) (same for challenge to computation of good time credits);
Crowell v. Walsh, 151 F.3d 1050, 1051 (D.C. Cir. 1998) (same); Chambers v. United States, 106 F.3d 472,473-74
Bell v. United States, 48 F.3d 1042, 1043-44 (8th Cir. 1995) (same for challenge to computation of credit for pretrial

29

eligibility detenninations for early release programs,132 prison disciplinary decisions,133 transfers between
facilities or placement decisions,l34 the implementation of fine payments,13S pretrial detention,136
extradition,137 deportation,138 mental health commitments,139 and court martial proceedings. 14o The

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detention); McClain v. United States Bur. of Prisons, 9 F.3d 503, 504-05 (6th Cir. 1993) (per curiam) (same for
denial of credit for time spent in federal prison awaiting sentencing); United States v. Garcia-Gutierrez, 835 F.2d
585,586 (5th Cir. 1988) (same for credit for time in state custody). But see Story v. Collins, 920 F.2d 1247, 1250
(5 th Cir. 1991) (holding that § 2255 motion, rather than § 2241 habeas petition, is proper method for challenging
administrative revocation of good time credit).
132 See, e.g., Hamm v. Same, 300 F.3d 1213, 1216 (loth Cir. 2002) (allowing § 2241 petition for challenge to
withdrawal from preparole conditional release program); Murphy v. Hood, 276 F.3d 475, 476 (9th Cir. 2001) (same
for chaUenge to denial of eligibility for early release program); Cunningham v. Scibana, 259 F.3d 303,305 (4th Cir.
2001) (same); Grove v. Federal Bureau of Prisons, 245 F.3d 743, 744-45 (8th Cir. 2001) (same); Cook v. Riley, 208
F.3d 1314, 1316-17 (11 th Cir. 2000) (same); Orr v. Hawk, 156 F.3d 651,651 (6th Cir. 1998) (same); Parsons v.
Pitzer, 149 F.3d 734, 735 (7th Cir. 1998) (same); Stiver v. Meko, 130 F.3d 574, 576 (3d Cir. 1997) (same).
133 See, e.g., Wallace v. Nash, 311 F.3d 140, 141-42 (2d Cir. 2002) (allowing § 2241 petition for challenge to
conviction in disciplinary proceeding, based on interpretation of the applicable regulations); Espinoza v. Peterson,
283 F.3d 949, 950-51 (8 th Cir. 2002) (same for claim of denial of due process in disciplinary hearing); Carmona, 243
F.3d at 630 (same for challenge seeking to expunge disciplinary sanctions from record); Henson v. U.S. Bureau of
Prisons, 213 F.3d 897,897-98 (5th Cir. 2000) (per curiam) (same for challenge to revocation of good time credit in
disciplinary proceedings); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 758-59 (3d Cir. 1996) (same for
constitutional claims against disciplinary hearing procedures); Henderson v. U.S. Parole Comm'n, 13 F.3d 1073,
1075 (7th Cir. 1994) (same for challenge to punishment imposed).
th
134 See, e.g., Montez v. McKinna, 208 F.3d 862, 864-65 (10 Cir. 2000) (allowing § 2241 for challenge to
determination as to where sentence will be served); Rogers, 180 F.3d at 357 (same for r~esting state prison as
place of confinement for federal sentence); United States v. Tubwell, 37 F.3d 175,1 77 (5 Cir. 1994) (same as to
transfer between federal and state authorities); Dunne v. Keohane, 14 F.3d 335,336-37 (7th Cir. 1994) (same for
challenge to successive transfers between state and federal facilities); United States v. Jalili, 925 F.2d 889, 893-94
(6th Cir. 1991) (same for action seeking designation of particular facility for petitioner's sentence).
th
135 See, e.g., Matheny v. Morrison, 307 F.3d 709, 711-12 (8 Cir. 2002) (allowing § 2241 petition for challenge to
payment of fines under Inmate Financial Responsibility Program); Montano-Figueroa v. Crabtree, 162 F.3d 548,
548-49 (9th Cir. 1998) (same).
.
th
136 See, e.g., Jacobs v. McCaughtry, 251 F.3d 596,597-98 (7 Cir. 2001) (per curiam) (holding that § 2241 petition
is proper remedy for challenging pretrial detention); Palmer v. Clarke, 961 F.2d 771, 772-73 (8th Cir. 1992) (same);
Capps v. Sullivan, 13 F.3d 350, 351 (lOth Cir. 1993) (same for speedy trial claim). Challenges to pretrial detention
are a special case because they do not appear to fall within the plain language of either § 2254 habeas petitions for
state prisoners or § 2255 motions for federal prisoners, both of which speak of claims by persons in custody
pursuant to the judgment ofa court. See 28 U.S.C.A. §§ 2254,2255. The same applies to extradition, deportation,
and mental health commitments, infra notes 137 to 139.
137 See, e.g., Murphy v. United States, 199 F.3d 599, 601 (2d Cir. 1999) (per curiam) (allowing § 2241 petition to
challenge extradition order); In re Extradition of Drayer, 190 F.3d 410,412 n.2 (6th Cir. 1999) (same); Mainero v.
Gregg, 164 F.3d 1199, 1201-02 (9th Cir. 1999) (same); Ludecke v. Unites States Marshal, 15 F.3d 496,497 (5 th Cir.
1994) (same).
138 See, e.g., Leitao v. Reno, 311 F.3d 453,454-55 (lst Cir. 2002) (allowing alien to file § 2241 petition to challenge
deportation order); Gomes v. Ashcroft, 311 F.3d 43,44 (1 st Cir. 2002) (same).
th
139 See, e.g., Phelps v. U.S. Bureau of Prisons, 62 F.3d 1020, 1022 (8 Cir. 1995) (allowing § 2241 petition by
insanity acquittee, claiming that he was not placed in a suitable facility); Cancel v. Rison, 985 F.2d 404, 405 (8th Cir.
1993) (per curiam) (same).
140 See, e.g., Clinton v. Goldsmith, 526 U.S. 529, 538 n.11 (1999) (noting that a fmal criminal conviction under the
Uniform Code of Military Justice may be collaterally attacked under § 2241).

30

1

)

subject matter of these claims--conceming the execution of a sentence or conditions of confinement-do
not appear to fall within the plain language of § 2255, which only extends to collateral attacks on the
validity of a prisoner's sentence .141 For such claims traditional habeas corpus relief under § 2241 is
available, at least for federal prisoners, because § 2255 is simply inapplicable. 142 Problems arise because
federal prisoners can raise many of these same claims in Bivens suits. The challenges presented by this
and similar overlaps among different types of prisoner claims, and the responses by the federal courts to
these challenges, are discussed in the following section.

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E. Overlaps Among Prisoner Claims and Responses by the Courts
Any analysis of recent trends in litigation by federal prisoners must account for the theoretical

J

overlaps among the four main causes of action available to federal prisoners (FTCA, Bivens, collateral

-1

attacks under 28 U.S.C. § 2255, and habeas corpus petitions under 28 U.S.C. § 2241), and the responses

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141 Courts often draw this distinction between the scope of § 2241 and § 2255. See, e.g., Matheny, 307 F.3d at 711
(allowing § 2241 petition to challenge implementation of fine payments under Inmate Financial Responsibility
Program, characterizing this as an attack on the execution of the sentence rather than its validity); Carmona, 243
F.3d at 632 (same for challenge seeking to expunge disciplinary sanctions from prisoner's record); Rublee v.
Fleming, 160 F.3d 213,214 (5 th Cir. 1998) (same for challenge to eligibility determination for early release
program); Bell, 48 F.3d at 1043 (same for challenge to computation of credit for time served on prior sentence);
Jalili, 925 F.2d at 893-94 (same for challenge to place of confinement). See also HERTZ & LIEBMAN, supra note
129, § 41.3(b) (noting that a federal prisoner's challenge to the execution of his sentence or the conditions of his
confinement are cognizable under § 2241, while challenges to the validity or terms of the sentence are cognizable
under § 2255).
142 In holding that federal prisoners can (and must) bring these types of claims in a § 2241 habeas corpus petition,
the courts usually speak in terms of subject matter jurisdiction, rather than relying on the savings clause to hold that
§ 2255 is "inadequate or ineffective." See, e.g., Coady v. Vaughn, 251 F.3d 480,485 (3d Cir. 2001) ("Section 2241
is the only statute that confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the
validity but the execution of his sentence."); Carmona, 243 F.3d at 632 (holding that petitioner's claim, "as a
challenge to the execution of his sentence rather than the underlying conviction, is properly brought via an
application for a writ under § 2241"); Warren v. Miles, 230 F.3d 688,694 (5 th Cir. 2000) ("Section 2255 provides
the primary means of collateral attack of a federal sentence. Section 2241, on the other hand, is the proper habeas
remedy for challenging the execution ofa sentence.") (internal citations omitted); Capaldi v. Pontesso, 135 F.3d
1122, 1123 (6th Cir. 1998) ("In general, a petition for a writ of habeas corpus under § 2241 is reserved for a
challenge to the manner in which a sentence is executed, rather than the validity of the sentence itself."); Bell, 48
F.3d at 1043 ("In this claim, Bell is not contending that his conviction was illegal, he is only contesting the
execution of his sentence. This type of claim is not cognizable under section 2255."). In addition to the claims noted
in this discussion, a federal prisoner may resort to a traditional habeas corpus petition under § 2241 in circumstances
in which § 2255 is deemed "inadequate or ineffective." See generally HERTZ & LIEBMAN, supra note 129, §
41.2(b), n. 19. The interpretation of this "savings clause" is beyond the scope of this paper.

31

by the federal courts to this problem. 143 The apparent overlaps among prisoner claims creates the
potential for prisoner plaintiffs who are barred from filing suit under one cause of action-for example,
by the restrictions imposed under the PLRA or the Anti-Terrorism and Effective Death Penalty Act
(AEDPA)-to restyle their complaints in order to get into federal court. This potential for the
"migration" of claims from one category to another is compounded by the fact that most of the prisoner
plaintiffs are appearing pro se,l44 and thus may be more likely to err in the fIrSt place in explaining the
bases for their claims. Courts have responded to these challenges by clarifying the lines between habeas

]

corpus and civil rights actions, and by adopting informal rules for construing and re-classifying prisoner

~

suits. This section provides the necessary legal background for assessing the data results on recent trends

8
t

in prisoner litigation presented in Part IV.A.3(b), infra, which suggest that federal prisoners may be filing

1

Bivens-type claims as petitions for habeas corpus under § 2241, in order to avoid the limitations imposed
under the PLRA. 145

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Changes recently enacted under the PLRA and AEDPA are only part of the relevant calculusthere are a variety of strategic (and competing) considerations that might influence a prisoner's choice to
style a complaint under a particular cause of action. Chart 2.1 summarizes some of the key differences
among FTC A, Bivens, collateral attacks under § 2255, and habeas corpus petitions under § 2241 that
might influence a prisoner's litigation choices.

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143 Consider a federal prisoner's claim that officials have revoked his good time credit without providing him with
due process---is this claim "an implied private action for damages against federal officers alleged to have violated a
citizen's constitutional rights," Malesko, 534 U.S. at 66 (describing the Bivens cause of action), or a claim that the
prisoner "is in custody in violation of the Constitution or laws or treaties of the United States"? 28 U.S.C.A. §
2241(c)(3). This line between constitutional torts under Bivens and habeas corpus petitions under § 2241 has been
one of the most difficult for the courts to draw.
144 See infra Part IV.A.3(c).
14S In the years since the implementation of the PLRA the federal courts have witnessed a decline in civil rights
actions filed by federal prisoners, coupled with a rise in filings by federal prisoners under § 2241. See infra Part
IV.A.3(b). When these two trends are considered together, it appears at least possible that the PLRA's intended
effects have been mitigated by a migration of prisoner actions between these two categories.

32

lable 2.1 Comparison of Litigation Actions Under the FlCA. Bivens. & 28 U.S.C. §§ 2255 and 2241

)
FTCA
Filing Fee148
PLRA147
AEDPA148
Venue149

J

Statute of
Limitations160

Jury Trial151
Proper
152
Defendant

$150
Yes
No
District where the
plaintiff resides or
where the act or
omission complained
of occurred

Two years from the
alleged act or
omission, and six
months from the final
denial of an
administrative claim
No
United States

Bivens

$150
Yes
No
District where (1) any
defendant resides, if
all reside in the same
State; (2) a
substantial part the of
events or omissions
giving rise to the
claim occurred; or (3)
any defendant may
be found, if (1) or (2)
don't apply
Determined by state
statute of limitations
for personal injury
actions

Yes
Officials On their
individual capacity)

§ 2255

§ 2241 (Habeas)

None
No
Yes
District of the
sentencing court

$5
No
No
District of
confinement

One year

One year

No
United States

No
Agencies or officials
(in their official
capacitY)

1) The Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act
Because the PLRA and AEDPA each impose restrictions on some prisoner claims but not on

.J

others, it is important to understand the implications for those claims that fall under each statute. The
following abbreviated review of the substantive and procedural limits imposed under the PLRA and

J
146 See 28 U.S.C.A. § 1914(a); Advisory Committee Note to RULE 3 of the RULES GOVERNING § 2255
PROCEEDINGS.
147 See infra Part II.E.2.
148 See id
149 See 28 U.S.C. §§ 1391, 1402(b), 2241, 2255; supra notes 51, 98, and 99 and accompanying discussion.
ISO See 28 U.S.C. §§ 240 I (b), 2244(d)(l), 2255; supra notes 65 and 97 and accompanying discussion; infra note
165 and accompanying discussion.
lSI See supra notes 52 and 100 and accompanying discussion.
IS2 The differences in the proper defendant for each action also are significant for prison administrators and staff.
Michael Pybas, Senior Counsel in the Bureau of Prisons' Office of General Counsel, reports that the Bureau's staff
and administrators generally prefer for federal prisoners to file claims challenging their conditions of confinement
under either the FTCA or a habeas corpus petition, because suits under Bivens carry the possibility of individual
liability. See Pybas Interview, supra note 15. FTCA claims also are preferred because settlements or awards above
a certain amount are paid out of a general judgment fund-although eventually these amounts are supposed to be
charged back to the Bureau, and ultimately to individual institutions. See id

33

AEDPA is intended only to emphasize that federal prisoners now face different incentives in choosing
how to style a potential claim. These statutory limits on prisoner suits and the incentives that they create
are critical, given the apparent overlaps among different types of prisoner suits and the potential for the
migration of claims from one category to another.
As noted above, provisions in the Prison Litigation Reform Act of 1996 apply to prisoner claims
filed under the Federal Tort Claims Act and Bivens actions. IS3 All of the Courts of Appeals have now
held that the PLRA does not apply to collateral attacks by federal prisoners under § 2255,IS4 and most of
the courts of appeals also have held that the PLRA does not apply to § 2241 habeas corpus petitions. lss

J

The key provisions of the PLRA:

[l

-1

•

Require a prisoner to exhaust "such administrative remedies as are available" prior to filing a civil
action in federal court; 1S6

•

Require an indigent prisoner filing a civil action or appealing a judgment in a civil action to pay the
applicable filing fee in full, through periodic payments,IS7 and authorize the courts to dismiss a suit
filed by an indigent prisoner at any time if the court determines that the claim of indigence is not
true;IS8

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153

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See discussion supra, notes 92 and 122.

See Malave, 271 F.3d at 1139-40; Walker v. O'Brien, 216 F.3d 626,628-29 (7th Cir. 2000); Jennings v. Natrona
County Detention Medical Facility, 175 F.3d 775, 779 (lOthCir. 1999); Davis, 150 F.3d at 489-90; Blair-Bey, 151
F.3d at 1039-40; Martin v. Bissonette, 118 F.3d 871,874 (1st Cir. 1997); Kincade v. Sparkman, 117 F.3d 949,951
154

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(6th Cir. 1997); Smith v. Angelone, III F.3d 1126, 1129-31 (4th Cir. 1997); Anderson v. Singletary, III F.3d 801,
802 (lIth Cir. 1997); Naddi v. Hill, 106 F.3d 275,277 (9th Cir. 1997); Santana v. United States, 98 F.3d 752 (3d Cir.
1996); Reyes v. Keane, 90 F.3d 676,678 (2d Cir. 1996).
155 Several courts of appeals first held that the PLRA does not apply to § 2254 or § 2255 motions, and then have
extended this holding to § 2241 petitions. See Davis, 150 F.3d at 488-90; Blair-Bey, 151 F.3d at 1039-40; McIntosh
v. U.S. Parole Commission, 115 F.3d 809,811 (lOth Cir. 1997). The Seventh Circuit originally held that the PLRA
would apply to § 2241 actions, see Newlin v. Helman, 123 F.3d 429, but reversed this decision in Walker v.
O'Brien. See Walker, 216 F.3d at 628-29. Decisions from other courts of appeals have been less clear. See
Kincade, 117 F.3d at 951 (holding that the PLRA does not extend to motions under § 2254 or § 2255, but not
mentioning § 2241); Santana, 98 F.3d at 756 (same).
156 See 42 U.S.C.A. § 1997e(a). The same requirement of administrative exhaustion applies even if a prisoner is
seeking forms of relief that are not available through the prison administrative process (such as monetary damages).
See Booth v. Churner, 532 U.S. 731, 736-40 (2001).
157 See 28 U.S.C.A. § 1915(b). The law provides for initial payment of a partial filing fee, followed by monthly
payments on the remaining balance. See id This new requirement creates an exception to the general doctrine of in
forma pauperis, which allows indigent plaintiffs to file suit without paying such fees. The current filing fee for a
civil action in the federal district courts is $150. See id § 1914(a). The current docketing fee for an appeal in a civil
action in the federal courts of appeals is $100. See id § 1913, Judicial Conference Schedule of Fees.
158 See id § 1915(e)(2). In addition, the court may dismiss such a suit at any time if the action is frivolous or
malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who
is immune. See id; 42 V.S.C.A. § 1997e(c).

34

•

Require a prisoner to pay all fees when due if on three or more prior occasions as a prisoner he has
filed a civil action or appeal that was dismissed as frivolous or malicious, or for failing to state a
claim upon which relief may be granted; 159

•

Require courts to screen prisoner suits against governmental entities or employees, either before
docketing or as soon as practicable after docketing, and to dismiss those complaints that are frivolous,
malicious, or fail to state a claim upon which relief can be granted, or that seek monetal)' relief from
an immune defendant; 160

•

Authorize a court to order the revocation of the earned good time credit of a federal prisoner who files
suit in federal court, if the court fmds that the claim was filed for a malicious purpose or solely to
harass the defendant, or if the prisoner testifies falsely or knowingly presents false evidence or
information to the court;161 and,
.

•

Impose tight restrictions on the availability of prospective injunctive relief in prisoner suits,162 and
require prisoners seeking recovery for mental or emotional injury suffered while in custody to
establish a physical injury. 163

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In 1996 Congress also enacted significant changes to federal habeas corpus practice and
procedure in AEDPA. The key changes, which apply to petitions by both state and federal prisoners: l64

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•

Establish a one-year statute of limitations for habeas corpus and § 2255 petitions,165 which usually
will run from the date on which the underlying criminal judgment becomes final; 166

•

Limit second or successive habeas corpus and § 2255 petitions to those relying on a ncw rule of
constitutional law that was previously unavailable and that has been made retroactive to cases on
collateral by review,167 or relying on newly discovered evidence that would be sufficient to establish
by clear and convincing evidence that no reasonable factfinder would have found the prisoner guilty
of the underlying offense; 168

159 See 28 U.S.C.A. § 1915(g). There is an exception if the prisoner is "under imminent danger of serious physical
injury." Id
160 See id § 1915A. In addition, any defendant may waive the right to reply to such a prisoner action. See 42
U.S.C. § 1997e(g)(1). However, the court may require a defendant to reply "if it finds that the plaintiffhas a
reasonable opportunity to prevail on the merits." See id § 1997e(g)(2). The effect of these two provisions is to
delay the defendant's answer until the court has determined that the prisoner has a reasonable opportunity of
prevailing on the merits.
161 See 28 U.S.C.A. § 1932.
162 See 42 U.S.C.A. § 3626.
163 See id § 1997e(e); 28 U.S.C.A. § 1346(b)(2).
164 In addition to these changes, AEDPA contained a new set of special procedures for habeas petitions in capital
cases. See generally id §§ 2261 to 2266.
165 See id § 2244(d)(l), § 2255. Prior to 1996, there was no fixed statute of limitations for federal habeas corpus
petitions. See HERTZ & LIEBMAN, supra note 129, § 5.2.
166 See 28 U.S.C.A. § 2244(d)(l), § 2255. The Supreme Court held in a case this term that a federal criminal
conviction becomes final for these purposes when the Supreme Court affirms a conviction on direct review, or
denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires. See Clay v. United
States, 123 S Ct 1072, 1076 (2003).
167 See 28 U.S.C.A. § 2244(b)(2)(A); § 2255.
168 See id § 2244(b)(2)(B); § 2255.

35

•

Require prisoners seeking to file a second or successive petition first to obtain authorization from a
three-judge panel of the court of appeals; 169 and

•

Require prisoners seeking to appeal an adverse decision from the district court to the court of appeals
first to obtain a certificate of appealability, which requires a "substantial showing of the denial of a
constitutional right.,,170

It is important to note that AEDPA's restrictions on second or successive petitions and on appeals have
been held not to apply to habeas petitions properly brought under § 2241.171
2) The Relationship Between Bivens and Habeas Corpus Claims

The Supreme Court essentially has eliminated the overlap between collateral attacks by federal

J

prisoners under § 2255 and Bivens actions for constitutional violations, by holding that a § 2255 motion is

[]
IL

the exclusive remedy for a federal prisoner raising any claim that challenges the fact or duration of his

'·1

imprisonment. l72 In Preiser v. Rodriguez, 411 U.S. 475,499 (1973) the Court held that habeas corpus is

~\ '

the exclusive remedy where a prisoner is "challenging the very fact or duration of his physical

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imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a

.)

speedier release from that imprisonment.,,173 In Heckv. Humphrey, 512 U.S. 477, 486-87 (1994) the

169

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}

170

See id § 2244(b)(3).
See id § 2253(c).

171 See, e.g., Zayas v. INS, 311 F.3d 247,255 (3d Cir. 2002) (holding that AEDPA's requirements for second or
successive habeas petitions do not apply under § 2241); James v. Walsh, 308 F.3d 162, 166 (2d Cir. 2002) (noting
generally that AEDPA applies to prisoner filings under § 2254 and § 2255, but not to petitions under § 2241);
Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) (holding that AEDPA's requirements for second or
successive habeas petitions do not apply under § 2241); Sugarman v. Pitzer, 170 F.3d 1145, 1146 (D.C. Cir. 1999)
(per curiam) (holding that a prisoner appealing a decision under § 2241 is not required to obtain a certificate of
appealability under the new AEDPA restrictions); Valona, 138 F.3d at 694-95 (noting that AEDPA's requirements
for second or successive petitions do not apply to § 2241); McIntosh, 115 F.3d at 810 n.l (holding that a prisoner
appealing a decision under § 2241 is not required to obtain a certificate of appealabiliZ under the new AEDPA
restrictions); Ojo v. Immigration and Naturalization Service, 106 F.3d 680,681-82 (5 Cir. 1997) (same).
172 Although the Supreme Court cases discussed here all involve the contlict between federal habeas corpus relief
for state prisoners and civil rights actions against state officials under § 1983, the lower courts have applied the same
10fc to bar Bivens claims brought by federal prisoners. See, e.g., Whitmore v. Harrington, 204 F.3d 784, 784-85
(8 Cir. 2000) (per curiam); Robinson, 142 F.3d at 906-07; Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997) (per
curiam); Crow v. Penry, 102 F.3d 1086, 1087 (lOth Cir. 1996) (per curiam); Williams v. Hill, 74 F.3d 1339, 1340-41
(D.C. Cir. 1996) (per curiam); Abella v. Rubino, 63 F.3d 1063, 1065 (lIth Cir. 1995); Tavarez v. Reno, 54 F.3d 109,
110 (2d Cir. 1995) (per curiam); Stephenson v. Reno, 28 F.3d 26,27 (5 th Cir. 1994).
173 Among the concerns raised by the Court was that a prisoner would not be required to exhaust state remedies
before bringing a § 1983 action, but must exhaust state remedies before seeking federal habeas relief, raising the
possibility that a prisoner could avoid the habeas exhaustion requirements by filing a § 1983 action. See 411 U.S. at
477. Although the bar to § 1983 suits created in Preiser appears to be broad, the Court indicated that § 1983 still

36

Supreme Court extended this rule by holding that a prisoner may not bring a civil rights action for
damages "for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,,,174 unless the underlying conviction
has already been invalidated or called into question (for example, by a federal court having issued a writ
of habeas cOrpUS):7S Finally, in Edwards v. Balisok, 520 U.S. 641, 645-49 (1997) the Court held that a
prisoner may not bring a civil rights action for damages challenging the validity of disciplinary
procedures used to revoke good time credits. 176 The Court reasoned that this case fell within the logic of

]

the Heck rule because a decision in the prisoner's favor would necessarily imply the invalidity of the
underlying punishment--even though the prisoner was challenging the procedures rather than the result

tl

itself, and even though he did not seek restoration of the revoked good time credit. l77 However, the Court

,
-1

:1

indicated that a prisoner still might bring a civil rights action limited to prospective injunctive relief

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)

might be an appropriate remedy "for a state prisoner who is making a constitutional challenge to the conditions of
his prison life, but not to the fact or length of his custody." See id at 499.
174 In this case the defendant filed a § 1983 action alleging various constitutional violations in the investigation and
trial of the charges against him, and seeking damages but not injunctive relief. See 512 U.S. at 478-79. Because the
defendant did not directly challenge the fact or duration of his sentence, he did not come within the rule of Preiser.
See id at 481.
175 Appropriate evidence that the underlying conviction already has been invalidated or called into question includes
reversal on direct appeal, expungement by executive order, a successful postconviction collateral attack in state
court, or the issuance of a writ of habeas corpus in federal court. See id at 486-87. An example of a civil rights
claim that would escape this rule--because it would not necessarily imply the unlawfulness of the prisoner's
conviction-would be a suit for damages for an unconstitutional search that produced evidence used at the
prisoner's trial. See id at 487 n.7. Because of doctrines such as independent source, inevitable discovery, and
harmless error, a finding that such evidence was the result of an unconstitutional search would not necessarily
require the invalidation of the prisoner's conviction. See id; see also Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.
1996) (per curiam) (holding that Heck does not bar a § 1983 action alleging excessive forced during arrest, because
success in the suit would not necessarily imply the invalidity of the underlying conviction); Perez v. Sifel, 57 F.3d
503,505 (7th Cir. 1995) (per curiam) (holding that a § 1983 action challenging the search and arrest of the defendant
may not be barred under, as neither claim would necessarily undennine the validity of his conviction). But see
Schilling v. White, 58 F.3d 1081, 1085-86 (6th Cir. 1995) (applying Heck to dismiss a § 1983 action alleging
unconstitutional search and seizure); Jackson v. VannoY,49 F.3d 175, 177 (5 th Cir. 1995) (applying Heck to dismiss
a § 1983 action for unlawful arrest, because the arrest directly resulted in revocation of the petitioner's parole and
probation, and ajudgment in his favor would necessarily imply the invalidity of this revocation).
176 The prisoner in this case sought a declaration that the procedures used in a disciplinary hearing violated his due
process rights, a prospective injunction against future violations, and monetary damages. See 520 U.S. at 644.
177 See id at 644-4.

37

)

against allegedly unconstitutional procedures, because such relief would not necessarily imply the
invalidity of a previous punishment. 178
Despite this line of decisions, a significant area of overlap between Bivens and habeas corpus
remains because a federal prisoner still may bring a Bivens action for damages regarding his conditions of
confinement, claims that also may be cognizable in habeas corpus petitions under § 2241. 179 The courts
have continued to allow prisoners to bring Bivens or civil rights actions for challenges to the following:
(I)'disciplinary hearing 'procedures and/or decisions, where revocation of good time credit is not
involved;180 (2) other losses of privileges, including administrative segregation;181 (3) transfers to different

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178 See id at 648-49. The Court's decisions in Preiser, Heck, and Edwards have created a new dilemma-maya
former prisoner, who has served his full term and no longer can bring a habeas corpus action, bring a civil rights
claim for damages that necessarily would imply the invalidity of his underlying conviction? In Spencer v. Kemna,
523 U.S. 1 (1998), five justices endorsed the position taken by Justice Souter that the Heck rule should not apply
where a former prisoner who is no longer in custody brings a civil rights action for damages, even when that action
challenges the constitutionality of his conviction or confinement. The Second and the Seventh Circuits now have
held that a former prisoner who is barred from seeking habeas relief may bring a civil rights actions for damages,
even though his claims fall within the literal scope of Heck. See DeWalt v. Carter, 224 F.3d 607,613 (7th Cir.
1999); Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999). Other courts of appeals have refused to rely on the Spencer
dicta, emphasizing that they are bound by standing Supreme Court precedents until the Court chooses to overrule
them. See Huey v. Stine, 230 F.3d 226, 230 (6th Cir. 2000); Randell v. Johnson, 227 F.3d 300, 301 (5 th Cir. 2000);
Figueroa v. Rivera, 147 F.3d 77,81 n.3 (1 st Cir. 1998).
179 See supra notes 130-140 and accompanying discussion.
th
ISO See, e.g., Strong v. David, 297 F.3d 646, 647 (7 Cir. 2002) (allowing a § 1983 action to challenge disciplinary
sanctions that included segregation, loss of privileges, and transfer to another facility, noting that no loss of good
time credits was involved); Torres v. Fauver, 292 F.3d 141, 142-43 (3d Cir. 2002) (same for a challenge to a
decision resulting in disciplinary detention and administrative segregation, reasoning that only the conditions, and
not the fact or duration, of confinement were at issue); Sims v. Artuz, 230 F.3d 14, 24 (2d Cir. 2000) (samef or
challenging disciplinary hearing procedures, because the complaint did not challenge the prisoner's length of
confinement); Whitlock v. Johnson, 153 F.3d 380, 389-90 (7th Cir. 1998) (same for general allegations of due
process violations in a disciplinary hearing resulting in revocation of good time credits, as long as the petitioner does
not seek restoration of the good time credits).
th
181 See, e.g., Khaimov v. Crist, 297 F.3d 783, 785-86 (8 Cir. 2002) (recognizing that a prisoner may bring a § 1983
action for complaints regarding prison mail and segregation, because he is not challenging the fact or duration of his
confinement); Montgomery v. Anderson, 262 F.3d 641, 643-44 (7th Cir. 2001) (holding that a challenge to
disciplinary segregation must be brought under §1983 because it is challenge to the severity rather than the duration
of the sentence); Moran v. Sandalle, 218 F.3d 647,650-51 (7th Cir. 2000) (per curiam) (holding that § 1983 is the
proper cause of action for state prisoners challenging administrative segregation, exclusion from prison programs, or
suspension of privileges); Brown v. Plaut, 131 F.3d 163, 168 (D.C. Cir. 1997) (allowing a § 1983 challenge to
placement in administrative segregation, because it did not affect the length of confinement); Carson v. Johnson, 112
F.3d 818, 822-23 (5 th Cir. 1997) (allowing a § 1983 action challenging the petitioner's placement in administrative
segregation); Nelson v. Murphy, 44 F.3d 497,499 (7th Cir. 1995) (holding that a § 1983 action rather than a habeas
petition is the proper fonn for a challenge to a mental health facility's policy for off-grounds passes, which is a
condition of confinement).

38

)

facilities, including the conditions of confinement at those facilities; 182 and (4) issues related to medical
care, including forcible medical treatment. 183 In addition, there is a continuing circuit split on whether a
prisoner may bring a civil rights action seeking prospective injunctive relief that may have the indirect
result of shortening or ending a prisoner's sentence. Prior to the decision in Edwards, the courts of
appeals had allowed prisoners to bring civil rights action challenging the procedures used in disciplinary
hearings and determinations of parole eligibility.184 Although the holding and reasoning of Edwards cast
some doubt on these precedents, the courts of appeals have continued to divide over whether prisoners

1

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182 See, e.g., Boyce v. Ashcroft, 251 F.3d 911, 917-918 (lOth Cir. 2001), vacated as moot by 268 F.3d 953 (lOth Cir.
2001) (allowing a Bivens action to challenge the decision to transfer the petitioner to a higher-security facility and
resulting changes in his conditions of confinement); Rael v. Williams, 223 F.3d 1153, 1154 (lOth Cir. 2000)
(indicating that a prisoner may bring a § 1983 action challenging his transfer to a privately-run prison facility and
the resulting change in his conditions of confinement); Moran, 218 F.3d at 650-51 (holding that § 1983 is the proper
cause of action for state prisoners challenging transfer to a new facility); Montez, 208 F.3d at 865 n.2 (noting that a
prisoner might be allowed to bring a § 1983 action challenging conditions of confinement occasioned by a transfer
to a private correctional facility); Pischke v. Litscher, 178 F.3d 497,499-500 (7th Cir. 1999) (construing challenges
to the conditions in which the petitioners are being held or will be held in privately-run prisons to which they have
been or will be transferred as actions under § 1983); Abdul-Hakeem v. Koehler, 910 F.2d 66, 68-70 (2d Cir. 1990)
(allowing a § 1983 action alleging abuse by guards and officers, following transfer to a new facility, because the suit
challenges the conditions rather than the fact or duration of confinement).
th
183 See, e.g., Clark v. Hedrick, 233 F.3d 1093, 1094 n.l (8 Cir. 2000) (noting that the petitioner's claim alleging
deliberate indifference to his medical needs, could have been brought in a Bivens action); Papantony, 215 F.3d at
865 (construing a prisoner's challenge to prior forcible administration of antipsychotic drugs as a Bivens action for
damages); Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) (per curiam) (holding that a § 1983 action is the
proper remedy for challenging a state law requiring convicted sexual offenders to submit a blood sample for
placement in a DNA databank); Lee v. Winston, 717 F.2d 888, 890 (4th Cir. 1983) (allowing a § 1983 action to
prevent the state from forcing the petitioner to undergo surgery to remove a bullet from his chest).
th
184 See, e.g., Woodard v. Ohio Adult Parole Authority, 107 F.3d 1178, 1187-88 (6 Cir. 1997) (allowing a § 1983
action for a challenge to state clemency procedures, but not to any individual decision); Allison v. Kyle, 66 F.3d 71,
73-74 (5 th Cir. 1995) (per curiam) (same for a prisoner seeking to require annual parole hearings, because the effect
on his actual release is only indirect); Cook v. Tex. Dep't of Criminal Justice Transitional Planning Dep't, 37 F.3d
166, 168-69 (5 th Cir. 1994) (same for challenge to general procedures followed by the parole board); Otey v.
Hopkins,5 F.3d 1125, 1130-32 (8th Cir. 1993) (same for allegations of due process violations in clemency
procedures); Clark v. Thompkins, 960 F.2d 663,664-65 (7th Cir. 1992) (same for challenge to the procedures used
for considering parole, because it does not draw into question the basis for the petitioner's confinement); Akins v.
Snow, 922 F.2d 1558, 1559 n.2 (11 th Cir. 1991) (same for challenging the parole board's procedures for determining
eligibility but not directly challenging the results). But see Spina v. Aaron, 821 F.2d 1126, 1128 (5th Cir. 1987)
(holding that a prisoner challenging rules or procedures used by parole boards or by disciplinary officials must be
pursued in habeas corpus if resolution of the claims would automatically entitle one or more prisoners to accelerated
release). Cj Richards v. Bellmon, 941 F.2d 1015, 1018 (9th Cir. 1991) (allowing a §1983 action for a challenge to
the failure of state legislature to fund the public defender system, because the plaintiffs only seek monetary damages
and prospective relief).

39

still can bring civil rights actions challenging the procedures used for determining parole or clemency
eligibility (but not the ultimate result). 185
The decisions in Preiser, Heck, and Edwards have eliminated any potential overlap between
collateral attacks by federal prisoners under § 2255 and Bivens actions, but considerable overlap remains
between Bivens suits and traditional habeas corpus petitions by federal prisoners under § 224 I. It is
precisely this remaining area of overlap that could lead to the migration of Bivens actions to petitions
-}

under § 2241, as federal prisoners seek to avoid the new requirements imposed under the PLRA.

a

J) Special Treatment 0/ Pro Se Litigants and the Practice 0/ Construing Filings

"

The ability of federal prisoners to avoid the consequences of the PLRA or AEDPA by restyling

~

their complaints is diminished further by the special treatment of pro se filings in the federal courts, and

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the practice of construing and re-classifying prisoner filings. For claims filed by prisoners acting pro se,
it not uncommon for the courts to construe a suit filed under one cause of action as actually stating a

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claim under another cause of action, a practice intended to benefit both litigants and the COurtS. 186

ISS

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Compare Dotson v. Wilkinson, 300 F.3d 661, 665-66 (6th Cir. 2002) (holding that the petitioner may pursue a §

1983 action challenging the regulations governing parole eligibility, because the only relief that he seeks is an
injunction ordering a new parole eligibility hearing and this would "no immediate effect" on his sentence or
conviction since all parole decisions are completely discretionary), Neal v. Shimoda, 131 F.3d 818,824 (9th Cir.
1997) (allowing a § 1983 action to challenge the state policy of requiring sex offenders to admit guilt as a condition
for parole eligibility, because the challenge is to the procedures rather than the results, and a favorable decision
won't necessarily change the ultimate parole decision), andWoratzeck v. Ariz. Bd. of Executive Clemency, 117
F.3d 400,403 (9th Cir. 1997) (allowing a § 1983 action challenging a clemency hearing, because the petitioner only
sought a new clemency hearing which would not necessarily lead to a reduction in his sentence), with Razzoli v.
Federal Bureau of Prisons, 230 F.3d 371, 373-76 (D.C. Cir. 2000) (holding that a prisoner seeking to overturn a
disciplinary decision resulting in the loss of good time and eligibility for parole must bring a habeas petition, and
adhering to a prior decision holding that habeas is the exclusive remedy even where a claim would "have a merely
probabilistic impact on the duration of custody"). See also Bogovich v.. Sandoval, 189 F.3d 999, 1003-04 (9th Cir.
1999) (allowing a prisoner to bring a claim that criteria preventing him from becoming eligible for parole violate the
Americans with Disabilities Act, noting that success in the suit would not necessarily imply the invalidity of the
underlying confinement because the Parole Board still might deny parole on a variety of other grounds); Carson,
112 F.3d at 822-23 (allowing a § 1983 action challenging the petitioner's placement in administrative segregation,
even though reassignment would result in the petitioner being eligible for parole, because his parole still would be
within the discretion of the parole board).
186 See, e.g., O'Ryan Castro v. United States, 290 F.3d 1270, 1272 (11 th Cir. 2002), quoting United States v. Jordan,
915 F.3d 622,624-25 (lIth Cir. 1990) ("District courts have always had the power to recharacterize pro se
petitioners' motions. In fact, due to the frequency in which pro se litigants draft incognizable motions, '[f]ederal
courts have long recognized that they have an obligation to look behind the label of a motion filed by a pro se
inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory
framework."'); Chambers, 106 F.3d at 475 ("It is routine for courts to construe prisoner petitions without regard to
labeling in determining what, if any, relief the particular petitioner is entitled to."). Although the practice typically

40

Examples include construing civil rights actions filed under § 1983 or Bivens as habeas corpus petitions187
and vice versa, 188 construing § 1983 actions as Bivens claims (because they are brought againstjederal
rather than state officials),189 and construing habeas petitions filed under § 2241 as petitions filed under §
2254 or § 2255

]

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190

or vice versa. 191 However, this traditional practice of construing pro se petitions has

is framed as benefiting the pro se litigants, the examples in the following notes should make clear that this is not
always the case-for example, when courts construe civil rights 'actions as habeas corpus petitions, and then dismiss
the suits under AEDPA. See, e.g., infra note 187.
th
187 See, e.g., Martinez v. Texas Court of Criminal Appeals, 292 F.3d 417, 420, 423 (5 Cir. 2002) (affinning a
district court decision construing a § 1983 action challenging the state's appointment of counsel for indigent
defendants as a "de facto habeas action," and dismissing the petition under AEDPA's gatekeeping requirements);
Spivey v. State Bd. of Pardons & Paroles, 279 F.3d 1301, 1302 n.l, 1303-04 (lIth Cir. 2002) (holding that because
habeas corpus is the exclusive remedy for the petitioner's request for a stay of his execution, the court must "deem"
his § 1983 action as the "functional equivalent" of a second habeas corpus petition and dismiss the petition under
AEDPA's gateekeeping requirements); Harvey v. Horan, 278 F.3d 370,374-75 (4th Cir. 2002) (treating a § 1983
claim seeking physical evidence for DNA testing as a habeas corpus petition, and dismissing under AEDPA's
gatekeeping requirements); Williams v. Hopkins, 130 F.3d 333,336 (8th Cir. 1997) (construing a § 1983 action
challenging a prisoner's impending execution as the "functional equivalent ofa successive habeas petition" and
dismissing under AEDPA's gatekeeping requirements); In re S~p, 118 F.3d 460,462-63 (6th Cir. 1997) (same);
McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5 Cir. 1995) (holding that a prisoner's § 1983 action
challenging the extension of his sentence should be construed as a habeas petition, and dismissed for failure to
exhaust).
188 See, e.g., Papantony, 215 F.3d at 864-65 (construing prisoner's petition for habeas relief against prior forcible
administration of antipsychotic drugs as a Bivens claim, because a habeas claim would be moot); Carson, 112 F.3d
at 820-21 (construing a prisoner's habeas petition challenging his administrative segregation as an action under §
1983, and then applying provisions of the PLRA); Kruger, 77 F.3d at 1073 (noting that the district court should
have construed a prisoner's habeas corpus petition as a § 1983 action, and then dismissed it as a successive claim
that had already been rejected by the state courts); Keeton v. Oklahoma, 32 F.3d 451,452 (lOth Cir. 1994) (affinning
district court decision construing prisoner's habeas petition raising an equal protection claim against the Oklahoma
Prison Overcrowding Emergency Powers Act as a § 1983 action, and dismissing it on the merits).
189 See, e.g., Roman v. Townsend, 224 F.3d 24, 26 n.2 (1st Cir. 2000); Cuoco v. Moritsugu, 222 F.3d 99, 105 (2d
Cir. 2000); Witherspoon v. White, 111 F.3d 399, 400 n.l (5th Cir. 1997); Tavarez, 54 F.3d at 109-10.
190 See, e.g., Powell v. Ray, 301 F.3d 1200, 1201 (lOth Cir. 2002) (treating a prisoner's § 2254 habeas petition "as if
it had been filed under 28 U.S.C. § 2241," because it challenged the execution of the prisoner's sentence rather than
its validity); Henderson v. Scott, 260 F.3d 1213, 1214 (lOth Cir. 2001) (same); Reyes-Requena v. United States, 243
F.3d 893, 906 (5th Cir. 2001) (affirming a district court's decision to construe a § 2255 motion as a § 2241 habeas
petition, based on a finding that § 2255 was inadequate or ineffective, and transferring the petition to the proper
district court of the confming institution for adjudication); Montez, 208 F.3d at 864-65 (construing a prisoner's filing
which the district court had treated as a petition under § 2254 as one arising under § 2241, because this was the
proper remedy for a challenge to interstate transfers between facilities); Stringer v. Williams, 161 F.3d 259,262 (5 th
Cir. 1999) (construing a prisoner's habeas petition which the district had construed as filed under § 2254 as tiled
under § 2241, because this was the proper remedy for a challenge to pending state prosecutions). Cf. Davis, 150
F.3d at 487-88 (affirming a district court decision construing a motion for mandamus under 28 U.S.C. § 1361
seeking an order against members of the U.S. Parole Commission as a habeas petition under § 2241); In re
Davenport, 147 F.3d 605,608 (7th Cir. 1998) (holding that a prisoner's petition for a writ under 28 U.S.C. § 1651,
the All Writs Act, should be construed as a § 2241 habeas petition).
191 See, e.g., Roccisano v. Menifee, 293 F.3d 51 (2d Cir. 2002) (affirming a district court decision treating a § 2241
habeas petition as a petition filed under § 2255, because § 2255 was not inadequate or ineffective for his claim);
Henderson v. Haro, 282 F.3d 862,863-64 (5 th Cir. 2002) (same); Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir. 2001)
(holding that when a prisoner files a § 2241 habeas petition raising claims that are properly the subject of a § 2255

41

been modified in recent years, because of the realization that this practice can result in unexpected and
relatively severe consequences for prisoners under AEDPA or the PLRA. 192 To avoid imposing adverse
procedural consequences on unsuspecting prisoner litigants, all but one of the courts of appeals have
adopted special rules for construing prisoner filings that are affected by AEDPA. 193

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motion, the district court should construe the petition as brought under § 2255). Cf, Fierro v.Johnson, 197 F.3d 147,
151 (5 th Cir. 1999) (noting general rule that motions filed by state prisoners under Fed. R. Civ. Proc. 60(b),
providing for relief from ajudgment or order, are construed as second or successive habeas petitions under § 2254);
Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998) (holding that the district court should have construed a § 2241
habeas petition challenging the Bureau of Prison's interpretation ofa statute as an action seeking a declaratory
judgment under 28 U.S.C. §§ 1331 and 2201); Mathenia v. Oel0, 99 F.3d 1476, 1480 (8th Cir. 1996) (affirming a
district court decision construing a motion under Fed. R. Civ. Proc. 60(b) as a successive habeas petition); Hawkins
v. Evans, 64 F.3d 543,546 (lOtti Cir. 1995) (construing a prisoner's habeas petition as a motion under Fed. R. Civ.
Proc. 59(e) to amend the court's judgment on his prior habeas petition, because it was filed within 10 days of the
district court's entry ofjudgment as required under the Rule).
192 The most significant implication for federal prisoners may be that if a motion filed under a different heading is
construed as the prisoner's initial § 2255 motion, then any subsequent § 2255 motion will be deemed second or
successive and will be subject to AEDPA's stringent restrictions on successive petitions. See, e.g., Raineri v. United
States, 233 F.3d 96,97 (1st Cir. 2000) ("This change in the law raised the stakes attendant to recharacterizing a postconviction motion as a habeas petition: conversion, though initially meant to guide a prisoner through the thicket of
legal technicalities, suddenly had the potential to deprive him of his one full and fair opportunity to seek habeas
relief."); Moore v. Pemberton, 110 F.3d 22,23-24 (7th Cir. 1997) (per curiam) (comparing § 1983 actions and
habeas corpus petitions under § 2254, and emphasizing the disadvantages for both the prisoner and the defendants if
the court recharacterizes a § 1983 action as a habeas petition). To cite another example, if a federal prisoner files a §
2255 motion that the court recharacterizes as a Bivens or FTCA claim, the filing fee jumps from nothing to $150 (an
amount which must be paid in full under the PLRA), and dismissal of the suit may result in a "strike" under the
PLRA. See Moran, 218 F.3d at 649; Pischke, 178 F.3d at 500.
193 The general approach of the circuits has been to hold that before construing a post-conviction motion filed under
a different label as an initial § 2255 motion, the district court must inform the prisoner of the potential consequences
of recharacterizing the motion, and then allow the prisoner to choose whether the court should (1) rule on the filing
as presented; (2) construe the filing as a § 2255 motion, and rule on the recharacterized motion; or (3) withdraw the
motion, without prejudice to a subsequent filing. See Morales v. United States, 304 F.3d 764, 767 (8th Cir. 2002); In
re Shelton, 295 F.3d 620,622 (6th Cir. 2002) (per curiam); United States v. Palmer, 296 F.3d 1135, 1146 (D.C. Cir.
2002); O'Ryan Castro v. United States, 290 F.3d 1270, 1274 (lIth Cir. 2002); United States v. Emmanuel, 288 F.3d
644,649-50 (4th Cir. 2002); United States v. Kelly, 235 F.3d 1238, 1242 (lOth Cir. 2000); United States v. Seesing,
234 F.3d 456,464 (9th Cir. 2000); United States v. Miller, 197 F.3d 644,652 (3d Cir. 1999); Adams v. United
States, 155 F.3d 582, 584 (2d Cir. 1998). The Supreme Court has granted certiorari this tenn in the case from the
Eleventh Circuit, o 'Ryan Castro v. United States, on the question whether a district court's recharacterization of pro
se prisoner's filing as a motion under § 2255 renders any subsequent motions under § 2255 a "second or successive
petition" under AEDPA. See 0 'Ryan Castro v. United States, 123 S. Ct. 993 (2003).

42

'\I

m.

AN INTRODUCTION TO THE DATA SOURCES

The analysis in this paper is based on statistics on administrative and litigation claims filed by
federal (and state) prisoners gathered from two different sources, the Bureau of Prisons (BOP) and the
Administrative Office of the United States Courts (AO). The fIrSt two sections below provide a general
introduction to these two datasets, and note some of the distinctions between the two sources. Additional
information on the datasets and raw data from both sources can be found in the Data Appendix. While
combining these two data sources provides a comprehensive picture of the overall grievance system

]

available to federal prisoners, it is important to recognize the limitations in each of the datasets. The third
section below notes the limits in the data reported by the Bureau of Prisons, as well as some of the
problems with the Administrative Office data that have been discovered in the course of prior research.

A. A General Introduction to the Datasets
Much of the analysis in this paper is based on a unique set of data provided by the Bureau of
Prisons, which is not publicly available and has not been the subject of prior research. In response to a
request under the Freedom of Information Act, the Bureau produced records containing data on
administrative grievances and litigation actions filed by federal prisoners for various periods during the
Fiscal Years 1992 through 2002. 194 These records include data on claims under the Bureau's
Administrative Remedies Program, administrative claims and litigation actions filed under the Federal

J

Tort Claims Act involving the Bureau's employees, and litigation actions brought in federal court as writs
of habeas corpus or Bivens suits. For the Administrative Remedies Program, the Bureau tracks statistics
on filings at the institutional level, appeals to the six regional offices, and appeals to the Central Office, as
reported by counsel working in offices at each level. 19S For administrative claims under the FTCA and

)

194 See Letter from Margo Schlanger, Assistant Professor of Law, Harvard Law School, to Freedom of Information
Act I Privacy Act Section, Office of General Counsel, Federal Bureau of Prisons (Apr. 17,2001) (on file with the
author).
195 Recall that prisoners generally must file administrative remedies at the institutional level fIrSt, and then may
appeal the decision to the regional office, and ultimately to the Central Office. See supra notes 23-25 and
accompanying text. However, prisoners may file an administrative remedy with the appropriate regional office first

43

for all litigation actions, the Bureau tracks data on claims filed with or assigned to each of the six regional
offices or to the Central Office, as reported by counsel working in each of these seven offices. 196
Although records are missing from each of these subsets for various quarters, the dataset still provides a
fairly comprehensive picture of grievances and litigation initiated by federal prisoners during the past ten
years.
In addition to the data provided by the Bureau of Prisons, the analysis in this paper is based on
statistics compiled by the Administrative Office, and integrated into a database maintained by the Inter-

l'

university Consortium for Political and Social Research.197 The AO data is collected through standard

;...v

case status forms completed by the clerks of court at the time of filing (1S-S Filing Report) and
termination (1S-6 Termination Report) for all civil cases filed in the federal COUrts. 198 The AO data
includes records for all litigation actions filed by both state and federal prisoners in the federal courts that
were terminated between Fiscal Years 1970 and 2001, or that were still pending at the end of the Fiscal

j

Year 2001.
B. Distinguishing Between the Two Datasets

As the above descriptions should indicate, the two datasets contain overlapping but distinct
universes of legal claims by federal prisoners. In several respects the BOP dataset is more

.]

comprehensive, because it includes statistics on administrative claims filed under the Administrative

]

Remedies Program and the FTCA that do not involve any action in federal court. The BOP dataset also

)

(with appeal to the Central Office) if the claim involves a sensitive issue or the appeal of a decision by a
Disciplinary Hearing Officer. See id.
196 Recall that prisoners must file administrative claims under the Federal Tort Claims Act with one of the six
regional offices or the Central Office, depending on where the alleged injury occurred. See supra notes 23, 28, and
32 and accompanying text. Unlike claims filed under the Administrative Remedies Program, flCA administrative
claims filed with the Central Office are not appeals of claims previously filed with one of the six regional offices.
See supra note 62. A similar system governs the assignment of litigation actions to one of the six regional offices or
to the Central Office.
197 See Federal Judicial Center, Federal Court Cases: Integrated Data Base, 1910-2000 (pts. 38-55, 64-65, 13- 14,
86-88,98, 103-04, 115-11 (civil terminations 1910-2000), 118 (civil pending 2000)) (ICPSR Study No. 8429, last
updated Apr. 25, 2002), at http://www.icpsr.umich.edu:8080IICPSR-STUDY/08429.xml; Federal Judicial Center,
Federal Court Cases: Integrated Data Base, 2001 (pts.2 (civil terminations), 3 (civil pending)) (ICPSR Study No.
3415, last updated June 19,2002), at http:.. www.icpsr.umich.edu:8080IICPSR-STUDY/03415.xml.
198

See id.

44

includes statistics on litigation actions filed under the FTCA, a category that is not tracked separately in

)
the AO data. However as to those litigation actions tracked by both sources--collateral attacks, habeas
corpus petitions, and civil rights actions-the AO dataset appears to be much more comprehensive,
including statistics on approximately ten times as many claims overall and twice as many civil rights
actions than the BOP dataset. l99
One explanation for the gap between the two data sources is that many litigation actions initiated
by federal prisoners are dismissed before a complaint ever is served on the Bureau or its employees. The
data on litigation actions compiled by the Bureau does not include statistics on any actions that are
dismissed prior to service, because the Bureau never receives notice of such claims.2°O However, the AO

J

data should include a record of every litigation claim that is filed in federal court, including those that are
dismissed prior to service. The Rules Governing § 2255 Proceedings201 and the provisions of the Prison
Litigation Refonn Act (PLRA) both provide mechanisms for summary dismissal of prisoner complaints
prior to service.2°2 Statistics from the AO dataset indicate that the vast majority of actions filed by
prisoners are dismissed prior to trial or are resolved through a non-judgment disposition,203 and these
categories may include many summary dismissals prior to service.

.J

)

199 A complication arises in comparing the two sets of statistics as to litigation claims, because the subject matter
categories that are tracked by each source do not match perfectly. For purposes of this paper, I am assuming that the
AO data on civil rights actions filed by federal prisoners roughly corresponds to the data on Bivens actions tracked
by the Bureau of Prisons. For additional infonnation on the classification of claims in each dataset, see infra Data
Appendix, Part I.
200 See Pybas Interview, supra note IS (noting that the Bureau has no way of tracking claims that are dismissed
prior to service, for example under the special provisions of the PLRA).
201 A federal judge may summarily dismiss a § 2255 motion "[i]f it plainly appears from the face of the motion and
any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief." See RULE 4(b)
of the RULES GOVERNING § 2255 PROCEEDINGS. Indeed, the clerk of the court may return a § 2255 motion to the
petitioner if the motion "does not substantially comply" with the various requirements as to appropriate fonn and
content. See RULE 2(d) of id While the Rule requires the clerk to consult with the judge before returning the
motion to the petitioner, see id., in practice the clerks in some district courts may continue to return motions sua
sponte. See HERTZ & LIEBMAN, supra note 129, § 15.1.
202 See supra note 160 and accompanying text.
203 See infra Data Appendix, Part II., Table 24.

45

,

·

I

c.

Limitations in the Two Datasets

1) Limitations in the Bureau ofPrisons Data
The BOP dataset, while providing a unique and rich source of information on legal claims
initiated by federal prisoners, is limited in several critical respects. First, the Bureau only tracks a subset
of all lawsuits filed by federal prisoners, namely those complaints that survive initial review by the courts
and are served on the Bureau or its employees. 204 Second, the BOP dataset is limited in all categories by
gaps in coverage for various quarters throughout the covered ten-year period, making it difficult to assess
trends over time.

20S

Finally, the information that can be gleaned from the BOP data in all categories is

limited by the way that the statistics are collected and reported. For example, because the data is
associated with quarterly totals rather than individual case files, the statistics cannot be disaggregated into
subsets of claims. While it is possible to report the total number of prisoner victories or settlement
amounts received over time under the Administrative Remedies Program or in all litigation actions, it is

.')

not possible to examine differences across different categories of administrative remedies or litigation
actions. In this respect the statistics reported by the AO-which follow individual case files-allow for
much finer distinctions in the data analysis.

2) Limitations in the Administrative Office Data
The AO dataset is the most comprehensive data source available on claims initiated by prisoners

J

in federal court, but it is not without limitations. The following review of the existing literature on the
AO data is not intended to be comprehensive, but simply to provide some recent and illustrative examples

]

of the problems with the available data. For the purposes of this paper, the three most important
limitations are potential errors in the classification of suits, the recording ofjudgments, and the recording
of the total amounts for awards received by successful litigants.

J.

-I

However, there is no reason to believe that the reported data on administrative claims filed directly with the
Bureau under the Administrative Remedies Program or pursuant to the FTCA are similarly limited.
205 For additional information on the gaps in the BOP da~ see infra Data Appendix, Part LA.
204

)

46

\

(a) Limits in the Classification ofFilings

I

The clerks of court face substantial challenges in attempting to classify prisoner complaints by the
basis for the suit-the definitions of the various prisoner litigation categories are not always clear, and
many prisoner complaints will present claims that appear to fit into multiple categories. Several authors
have found minor problems of classification in the AO data that apparently stem from these types of
errors, both in prisoner filings and in other civil cases?06 However, studies comparing actual case dockets
with the AO data generally have found the classification of cases to be highly reliable. 207

1

A recent study of prisoner litigation in federal courts by Margo Schlanger identifies several
recurring errors that are particular to the classification of prisoner cases under the AO data system.208

]

First, the AO data system provides two categories for classifying prisoner civil rights cases, "Prisoner:
Civil Rights" or "Prison Conditions," but it is unclear how these two categories are distinct.209 The
"Prison Conditions" category was created in 1997, and was intended to track cases that fall under the
PLRA. 210 Problems arise because the vast majority of these cases formerly would have been classified as
"Prisoner: Civil Rights," and it is not clear how the clerks of court are supposed to distinguish between

]
]

)

206 See Kimberly A. Moore, Judges, Juries, and Patent Cases-An Empirical Peek Inside the Black Box, 99 MICH.
L. REv. 365, 381 (2000) (finding minor errors in the AO data based on a comparison of actual court records with the
AO data for a sample of cases, where cases were classified as "patent" trial cases but all patent claims were
dismissed before trial); Eisenberg & Schwab, supra note 3, at 669 & n. 127 (noting minor errors in the AO data in
not classifying cases as civil right actions, based on a comparison of actual court records with the AO data for a
sample of cases); Eisenberg, supra note 3, at 535 n.237 (same as to the classification of civil rights actions as
prisoner or nonprisoner cases); Turner, supra note 3, at 625 n. 85 (noting some errors in the AO data in the
classification of prisoner cases as habeas corpus or civil rights, based on a comparison of actual case records with
the AO data for a sample of prisoner cases).
207 See, e.g. Eisenberg, supra note 3, at 524,535 n. 237. In Eisenberg's study, a search of actual court records for
prisoner civil rights actions filed in the Central District California during two fiscal years revealed very few cases
that were not listed in the AO data, and also missed a handful of cases that were listed in the AO data. See id This
suggests that the AO data is close to complete, and also may be more accurate than a search of actual court records
would be.
208 See generally Schlanger, supra note 3, at 1699-1702.
209 These are two of the seven categories provided for classifying suits filed by prisoners under the ''Nature of Suit"
variable in the AO data system. For additional information, see infra Data Appendix, Part I.B.
210 See Schlanger, supra note 3, at 1699-1700.

47

)

these two categories.

211

For this reason, in the discussion below I have combined these two categories

into one category as prisoner civil rights actions.
A second critical error occurs in the classification of prisoner cases into those filed by state
prisoners and those filed by federal prisoners. The AD data system classifies civil actions into five
categories, based on the basis for federal court jurisdiction in each case. The jurisdictional basis for most
prisoner claims is either "Federal Question" or "U.S. Defendant." Under the AD instructions for coding
new cases, all cases that involve a federal defendant should be coded as "U.S. Defendant," even if they

..J

also raise a federal question.212 Since federal prisoner claims will be filed against federal officials as

J

defendants, while state prisoner claims will be filed against state or local officials as defendants, it should
follow that only claims filed by federal prisoners will be classified as prisoner suits based on jurisdiction
for a U.S. Defendant, while claims filed by state prisoners will be classified as prisoner suits based on
Federal Questionjurisdiction. 213 Researchers using the AD data have assumed that all claims filed by
~)

federal prisoners can be isolated by selecting out the U.S. Defendant prisoner cases. 214 All other suits that
are classified as involving claims by prisoners are presumed to be suits filed by state prisoners?IS

.

]

Schlanger found that that many prisoner cases that are classified as based on Federal Question
jurisdiction, rather than U.S. Defendant jurisdiction, actually are suits brought by federal prisoners against
federal defendants. 216 The problem appears to stem from the way the suits are styled. If a federal

[]

prisoner files a suit against the "United States," this suit easily is recognized as based on U.S. Defendant
jurisdiction. However, when the suit names an individual federal official as the defendant-such as the
"U.S. Attorney General," or specifically "John Ashcroft"-it appears that in many cases the clerks of

211

See id

212

See ide at 1700-02.

213 Prisoner suits can be separated from nonprisoner suits based on the Nature of Suit variable. See infra Data
Appendix, Part lB.
214 See generally, e.g., SCALIA, supra note 3.

)

21S

See id

216

See Schlanger, supra note 3, at 1700-02.

48

courts fail to classify these cases under U.S. Defendantjurisdiction. 217 The result is that researchers
mistakenly place these cases in the category of claims filed by state prisoners. Schlanger performed a
limited review of individual case captions for cases in the AO data system, and identified thousands of
prisoner actions that had been coded under Federal Question jurisdiction, but that actually involved a U.S.
Defendant and therefore should have been classified as filed by federal prisoners rather than state
prisoners.2lS
The data results presented in this paper are based on a modified version of the AO data, in which
the cases identified through Schlanger's review as erroneously classified have been re-coded as U.S.
Defendant (and therefore federal prisoner) cases. It is important to emphasize that Schlanger's review
was based on conservative assumptions, and therefore probably missed thousands of additional cases that
have been placed in the state prisoner group but are actually suits by federal prisoners.
(b) Limits in the Recording ofJudgments

~\

,

In her review of the AO data, Margo Schlanger also identified some limitations in the recording
ofjudgments for the plaintiff or defendant in prisoner cases. One of the categories tracked in the AO
dataset is "Judgment For," which should be recorded only for cases that are disposed of with the entry of
a fmaljudgment. The options in the AO data system for this variable are (1) plaintiff; (2) defendant; (3)

[J

both; (4) unknown; and (5) not applicable. In a forthcoming study comparing the AO data with actual

o

court records for a samples of prisoner suits filed in federal court, Schlanger and Theodore Eisenberg
found that while the judgment for variable was generally accurate, there were notable errors in several
subcategories of cases. The authors found that cases coded as judgments for "both" nearly always are
cases that should be classified as judgments for the plaintiff.2 19 Schlanger and Eisenberg also identified

217

218

See id
See id

See Theodore Eisenberg & Margo Schlanger, The Reliability ofthe Administrative Office ofthe U.S. Courts
Database: An Empirical Analysis, NOTRE DAME L. REv. (forthcoming 2003). Schlanger and Eisenberg report on
the results of an audit of 126 cases filed by prisoners in federal court that were terminated in 1993, and in which the
recorded award was greater than zero. See id. The authors found that of26 cases classified as "judgment for both,"
all 26 actually were plaintiff victories. See id; see also Schlanger, supra note 3, at 1702. Schlanger also has found
219

)

49

significant errors in the judgment for category for those cases in which the AO data records judgment for

)
the plaintiff but a monetary award of zero. 220
The data results presented in this paper are based on a modified version of the AO data in which
attempts have been made to eliminate these errors. Those cases that were classified as judgments for both
have been re-coded as judgments for the plaintiff. In addition, all cases in which the judgment for
category was reported for the plaintiff but a monetary award of zero was recorded have been excluded
from the dataset for purposes of reporting recorded judgments.
(c) Limits in the Recording ofMonetary Awards

There are several apparent errors that may occur in the recording of total award amounts in the
AO data, based on the design of the data system itself. The AO system requires the clerks of court to
record awards in multiples of $1,000, for example recording an award of $5,000 as $5. Ifa clerk
mistakenly records the actual amount of an award, then the data record will significantly overstate the
actual amount. Further, all recorded awards must be rounded to nearest $1,000, and rounding errors may

)

occur. Several authors have found evidence of rounding errors in the recording of award amounts in the
AO data. 221 The AO data system also limits the clerks to recording four digits, so that the maximum
amount that can be recorded is $9,999 for an award of$9,999,000. For awards over this amount, the data
record will understate the actual amount. Many authors have noted this particular limitation in the AO

f]

award data. 222 Authors have noted several other potential errors in the recording of award amounts under

)

that the two categories of "unknown" and "not applicable" are better classified as judgments for the defendant. See
Schlanger, supra note 3, at 1702.
220 See Eisenberg & Schlanger, supra note 219. Schlanger and Eisenberg report on the results of an audit of 41
cases filed by prisoners that were terminated in 1993, and in which the recorded award was zero. See id The
authors found 25 cases that were recorded as judgments for plaintiff, but that were actually defendant victories. See
id In addition, nine cases were recorded as judgments for both but were actually defendant victories; the remaining
two cases that were recorded as judgment for both were actually plaintiff victories. See id
221 See Stewart J. Schwab, Studying Labor Law and Human Resources in Rhode Island, 7 ROOER WILLIAMS U.L.
REv. 384,395-96 (2002) (reporting that in two of twelve cases the award amount recorded in the AO data was 100
times the actual award amount, apparently because of digit errors).
222 See, e.g., Schwab, supra note 221, at 394; Moore, supra note 206, at 381; Theodore Eisenberg, John Goerdt,
Brian Ostrom, & David Rottman, Litigation Outcomes in State and Federal Courts: A Statistical Portrait, 19
SEATTLE U.L. REv. 433,439 (1996). Eisenberg, et al. found some evidence of this problem when comparing federal
and state jury award levels. See id

50

the AO data system-(l) some monetary awards are never properly recorded in the AO data;223 (2) the
clerks of court occasionally may use the coding of "9999" to designate an unusual award, rather than an
actual award amount;224 and (3) different jurisdictions may apply slightly different rules in calculating the
total award amount. 225
In a forthcoming study comparing the AO data with actual court records for samples of tort and
prisoner suits filed in federal court, Theodore Eisenberg and Margo Schlanger identify significant errors
in the AO awards data. Eisenberg and Schlanger found evidence of two different types of errors, which

iJ

they denote as rounding errors, based on simple arithmetic mistakes, and "digit" errors, where an award is
incorrect because of the AO requirement that amounts be entered in the thousands of dollars?26 The error

0
J.','

rates appear to be particularly high in two subcategories of cases-where the AO records a plaintiff

-I

victory but an award of zero, and where the AO records an award of ''9999.,,227 Nonetheless, the authors

!If

found that the median award amount based on the AO data was fairly close to the actual median award

-')
.~

~- -1

-]

)

.I

223 See Eisenberg & Schwab, supra note 3, at 686-87. Eisenberg and Schwab compared the AO data with actual
court records for civil rights cases filed in the Central District of California, and found a number of cases with
monetary awards that had not been recorded in the AO data. See id
224 See Schwab, supra note 221, at 395.
In the process of verifying twelve award amounts in a sample of cases,
Schwab discovered two cases in which the clerks had recorded "9999" but the docket sheets indicated modest
awards that were later dismissed under settlement agreements. See id. Schwab posits that clerks may occasionally
use the coding of"9999" to designate an unusual award. See id; see also Eisenberg & Schlanger, supra note 219
(noting that a number of other fields in the AO data system use repeated 9s to indicate missing data or other special
codes).
225 See Moore, supra, note 206, at 381 & n.71. Moore started with a list of patent cases that had proceeded to trial
between the years 1983 and 1999, based on the AO data, and then sought to verify the AO information by
researching each case's court records. See id at 380-83. Moore discovered that local practices varied, for example,
on questions of whether to include pre- and post-judgment interests and attorneys' fees. See also Schwab, supra
note 221, at 395 (noting that in one case the recorded award amount apparently included the compensatory but not
the liquidated damages). The codebook for the AO dataset states that the recorded award should reflect the
monetary judgment awarded, excluding costs. See infra, Data Appendix, Part I.B.
226 See Eisenberg & Schlanger, supra note 219. In a sample of291 tort cases filed in 2000 with recorded awards,
rounding errors occurred in 34 percent of cases and digit errors occurred in 3 percent of cases. See id. By
comparison, in a sample of 122 prisoner civil rights cases terminated in 1993 with recorded awards, rounding errors
occurred in 17 percent of cases, while digit errors occurred in 51 percent of cases. See id These two samples
indicate that while both rounding and digit errors are common, their prevalence may vary across different cases
categories. See id
227 In both samples of cases, the error rate for awards recorded as "9999" was 100 percent. See id Further, the
authors found that the error rate in each sample could be reduced by excluding these cases from the samples, or by
replacing the data in these cases with the actual award amounts. See id

51

amount based on court records.228 They conclude that the AO awards data may provide a reasonable
estimate for median awards for some research purposes. 229
For the data. results on awards presented in this paper, I have excluded all cases with reported
awards of zero or "9999." This should lower the error rates, but these results still should be viewed
skeptically.

"I

~]

tJ
.I
~

)

J

)

228
229

See id
See id

52

)

IV.

DATA RESULTS & ANALYSIS - LEGAL CLAIMS INITIATED By FEDERAL PRISONERS

The data results and analysis presented in this part of the paper are organized around the three
main objectives described in the Introduction-to construct a descriptive narrative of the overall
grievance system available to federal prisoners seeking to challenge the conditions of their confinement,
to understand the relative significance of these different legal remedies for prisoners seeking relief, and to
touch on the effects of the Prison Litigation Reform Act (PLRA) on legal activity by federal prisoners.
The results presented below are based on raw data provided by the Bureau of Prisons (BOP) and the

~..J

Administrative Office of the U.S. Courts (AD), described in greater detail in Part III. and in the Data

:]

Appendix that follows. The fIrst section presents the data results for each of three major types of legal
remedies that are available to federal prisoners seeking to challenge the conditions of their confinement-

-"I

claims under the Bureau's Administrative Remedies Program, administrative claims and litigation actions

~
"1

under the Federal Tort Claims Act (FTCA), and Bivens suits. The second section briefly compares the

--)

litigation of civil rights actions in federal court by state and federal prisoners, demonstrating that while
civil rights litigation in federal court by both sets of prisoners generally looks the same, there are some
notable differences. The final section presents some concluding observations and analysis, again seeking

j

to integrate the data results with the three main objectives of the paper.

A. Administrative Claims and Litigation Actions Filed by Federal Prisoners

J

1) The Bureau of Prisons' Administrative Remedies Program

1

Piecing together the statistics compiled by the Bureau of Prisons, it is possible to sketch out a
broad description of the Bureau's Administrative Remedies Program. The data presented here focuses on
four related sets of issues (1) filing rates per prisoner population and total filings over time, overall and at
each level within the internal system, (2) a breakdown of the filings by the subject matter underlying the
complaints, (3) total grants and denials of complaints, overall and at each level within the system, and the
reasons for denials, and (4) estimated rates of appeals of adverse decisions to the next highest level in the

)

system. From these statistics, we can learn how frequently federal prisoners rely on the Administrative

53

Remedies Program, whether or not they are persistent in appealing denied claims to the highest levels,
and how often these prisoners are granted some form of relief. A clearer picture emerges of the types of
complaints that may feature prominently in daily life in the federal prison system. Putting aU of these
pieces of data together, we can gain some sense of the role that the Administrative Remedies Program
plays in institutional management for the federal Bureau of Prisons.

(a) Filing Rates and Total Filings/or Administrative Remedies
The filing rates for federal prisoners bringing claims under the Administrative Remedies
Program-overaH and at each level within the system-have remained relatively steady in recent years,
while the total numbers of filings have increased. Based on averages for the period of Fiscal Years 1993
through 1998, federal prisoners filed approximately 258 administrative remedies per 1,000 prisoners per
fiscal year-140 remedies at the institutional level, 84 appeals to the regional offices, and 34 appeals to
the Central Office. 230 These figures suggest that up to 15 to 20 percent of the federal prisoner population

Chart 4.1. Administrative Remedies Program - Quarterly Filing Rates by
Level. FY 1993-1998
40

j

8

C!.

]

25

.sO

20

Il~
Q

.........

~

30

-:l!

• CD
Q.c

-]

35

15

:§

10

ii:

5

.. --

-

..A..

........

-

~

- -- --

-

...A..

JI.

./'---- .... ~ --.--II

...... -

......

+--+

--

.....

....... ......-

....

....

....

.........

-......

•

~Central

Office
___ Regional
Offices
......-.Instltutions

-<IIIro.

o
,,0~ n;,oo.,n;, ,,0cI'-

rPcI'-

"oo.,(,;} n;,00;)(,;} ,,0~

rP~

,,0~ n;,0~ ,,0~

rPO;)'b

Quarter

.1
I

.J

)

For the raw data presented in the text in this discussion, and in Chart 4.1 and Table 4.1, see infra Data Appendix
Part II, Tables 1,3,5, 7, and 8.

230

54

uses the Program every year.

231

As Chart 4.1 (based on quarterly filing rates) and Table 4.1 (providing

estimated annual filing rates) illustrate, the filing rates at each level fluctuated moderately during the
period between Fiscal Years 1993 and 1998. There were noticeable short-term increases in the filing
rates (and total numbers of filings) across the board during Fiscal Year 1996.
Table 4.1. Administrative Remedies Program - Estimated Filing Rates
Per 1.000 Prisoners & Total Remedies Filed. FY 1993-1998
Fiscal Year

FY 1993
FY 1994
FY 1995
FY1996
FY 1997
FY 1998

Institutional Level

Regional Offices

Central Office

Rate Per
1,000
Prisoners
145

12,486

-

-

-

-

-

-

134
144
141
139

13,071
14,804
15,371
16,244

74
91
84
87

7.265
9.320
9,104
10,205

29
37
34
34

2,884
3,834
3.683
4,043

Total
Filings

Rate Per
1,000
Prisoners
81

Total
Filings

6,950

Rate Per
1,000
Prisoners
32

Total
Filings

2,758

Although the filing rates have remained relatively steady, the total numbers of filings have continued to
rise during this same period as the overall federal prisoner population has increased.
The sheer volume of complaints that are processed through the Administrative Remedies Program
on an annual basis demonstrates the significance of this internal grievance system for institutional
management. By Fiscal Year 1998, federal prisoners were filing almost 29,000 administrative remedies

'J

per fiscal year-more than 16,000 complaints at the institutional level, 8,000 appeals to the regional
office, and 4,000 appeals to the Central Office.232 As the data results presented below will make clear,
these total numbers far outweigh the total numbers of administrative claims or litigation actions filed
under the FTCA or other legal channels that are available to federal prisoners. From the perspective of
federal prisoners, the Administrative Remedies Program appears to be a critical mechanism for presenting

)

231 It is impossible to estimate this figure accurately without knowing how many claims are submitted by repeat
filers; these high-end estimates assume that each claim is filed by a different prisoner. Because at least half of the
filings submitted to the regional offices actually are original filings rather than appeals, see infra Table 4.2 and note
240 and accompanying text, a rough estimate would be that federal prisoners submit 180+ original filings plus
additional appeals per 1,000 prisoners per fiscal year, suggesting an overall usage rate of up to 15 to 20 percent.
232 See infra Data Appendix, Part II., Tables 1,3,5, and 8.

55

complaints regarding the conditions of their confinement. On the other hand, the success of the program
appears to impose a significant administrative burden on legal counsel and other staff within the Bureau
of Prisons, who probably spend hours reviewing, investigating, and responding to these complaints.
Given the recent efforts under the PLRA to impose more stringent requirements of administrative
exhaustion on prisoner litigants and generally to discourage malicious or frivolous complaints, it might
seem surprising that filing rates under the Program have not changed in recent years. 233 If most prisoner
civil rights actions had been proceeding to federal court without administrative exhaustion prior to the
PLRA, then we might expect the new exhaustion requirements to have resulted in increased
administrative filings. On the other hand, if many of the prisoner civil rights actions that were being filed
before the PLRA's enactment were frivolous or without merit, then we might expect the new restrictions
on litigation to have pushed these claims out of the legal system entirely, causing decreases in both
litigation and administrative filings.
Nonetheless, there are a number of explanations for why the PLRA would not have affected filing

)

rates under the Program. Federal prisoners may have been utilizing the Administrative Remedies
Program to the fullest extent possible, even before the PLRA, particularly since administrative exhaustion
was required for some complaints by federal prisoners under the Civil Rights of Institutionalized Persons
Act. 234 If federal prisoners already were complying with administrative exhaustion, then the impact of the
newer requirements under the PLRA would be minimal. Even if the PLRA has resulted in requiring
exhaustion in some cases where it was not previously required, the numbers may be too small to have any
substantial impact on overall filing rates under the Program. Finally, prisoners who are deterred from
filing litigation actions under the PLRA, for whatever reason, still will have strong incentives to seek
relief under the Administrative Remedies Program. All of these forces may have combined to produce no
net impact on the filing rates under the Program.
The moderate increases in the filing rates for administrative remedies during Fiscal Year 1996 might have been a
short-term reaction to the new requirements of the PLRA, which became effective on April 26, 1996, but this
increase in filings was not sustained in subsequent fiscal years.
234 See generally 42 U.S.C.A. § 1997e (West Supp. 1994) (since amended). The federal Bureau of Prisons'
grievance system was approved under the CRIPA certification procedures. See Pybas Interview, supra note 15.
233

)

S6

(b) Administrative Remedies Filings by Subject Matter

)
The figures on the subject matters underlying complaints filed through the Administrative
Remedies Program indicate that the majority of claims involve one of a handful of recurring issues that
epitomize the daily challenges of prison life. Examining claims filed at all levels within the system
between Fiscal Years 1993 and 1998, the most common issues raised were Disciplinmy Hearing Officer
(DHO) decisions (21 % of all filings at all levels), staff complaints (17%), Unit Disciplinmy Committee
(UDC) decisions (14%), medical care (11%), and classification decisions (l0%).23S Less common issues

~J

that were raised include transfers, credit for jail time, legal remedies, work assignments, and community

o

programs.
Table 4.2. Administrative Remedies Program - Top Ten
Issues Raised. by Level of Filing. FY 1993-1998

J
]

Overall

Institutions

Regional OffIces

Central OffIce

DHO
(21%)

Staff
(19%)

DHO
(47%)

DHO
(39%)

Staff
(17%)

UDC
(17%)

Staff
114%)

Jail Time
(15%)

UDC
(14%)

Medical
(12%)

UDC
(100/0)

Staff
(14%)

Medical
(11%)

Classification
(9%)

Classification
(9%)

Classification
(12%)

Classification
(10%)

Transfer
(6%)

Medical
(8%)

Medical
(11%)

Transfers
(7%)

Work Assignments
(6%)

Jail Time
(7%)

(10%J

Jail Time
17%1

Legal Remedies
(6%)

Transfer
(7%)

Transfer
(8%)

Legal Remedies
(6%)

Special Housing Unit
(6%)

Legal Remedies
(5%)

Legal Remedies
(7%)

Work Assignments

Community Programs
(5%)

Community Programs
(5%)

Community Programs
(5%)

Jail Time
(5%)

Special Housing Unit
(4%)

Work Assignments
(4°.4)

150/01
Community Programs
(5%)

)

UDC

For the raw data presented in the text in this discussion and in Table 4.2, see infra Data Appendix, Part II.,
Tables 2, 4, and 6.

235

57

The breakdown by subject matter varies somewhat by the level of filing. Because appeals of DHO

)

·

. .

II

I 236 I .

decisions must be filed initially at the regional office level, rather t han the mstltutlona eve,

calms

involving DHO decisions predominate administrative remedies filed with the regional offices (4 7% of all
claims) and the Central Office (39% of all claims). Complaints involving staff and UDC decisions were
more prevalent at the institutional level, and less common at the regional office and Central Office levels.

(c) Grants and Denials ofAdministrative Remedies
While the Bureau of Prisons denies the majority of grievances that are filed under the

J

Administrative Remedies Program, the rates of denial vary significantly by the level of filing. Examining
claims at all levels, the Bureau granted only 24 percent of administrative remedies that were disposed of

J

between Fiscal Years 1993 and 1998.237 However, the denial rate varies significantly among the levels of

I

filing. The Bureau granted 37 percent of claims submitted at the institutional level, 16 percent of claims
filed with the regional offices, and only three percent of appeals filed with the Central Office.
A closer look at the reasons for denial suggests that focusing solely on the total numbers of

)

denials may be somewhat misleading, because a substantial percentage of claims are denied for reasons
that-if the applicable error(s) is corrected-would allow a prisoner to resubmit the claim for a final
decision. Overall, one-third of all remedies are denied with instructions allowing the prisoner to correct

J

and resubmit the claim. The percentage of claims denied with instructions to resubmit increases at each

]

successive level of filing, so that appeals are more likely than initial filings to be denied for reasons that
will allow the prisoner to resubmit the claim. Another one-third of all remedies are denied for various
reasons that potentially are correctable, if the applicable filing deadline has not passed-I 8 percent are
denied for failure to attempt informal resolution, 11 percent for submitting the claim to the wrong level,
and eight percent for failing to provide the required attachments.238 The reasons for denial also differ

236

See supra note 25.

For the raw data presented in the text in this discussion and in Table 4.3, see infra, Data Appendix, Part II.,
Tables 2, 4, and 6.
238 The key difference is that when claims are denied with instructions to resubmit, the prisoner also is granted an
extension of the original filing deadline. See supra note 34.
237

)

58

slightly by the level offiling. Appeals to the Central Office are more likely to be denied as untimely,

)
while filings at the institutional level are more likely to be denied for failure to attempt informal
resolution of the complaint.
Table 4.3. Administrative Remedies Program - Top Five
Reasons for Denial. by Level of Filing. FY 1993-1998
Overall

Institutions

Regional Offices

Central Office

Resubmit

No informal
resolution

Resubmit

Resubmit

(33%)

(47%)

Resubmit

Wrong level

Untimely

(26%)

(12%)

(28%)

Untimely

Untimely

Untimely

Attachments

(16%)

(13%)

(12%)

118%)

Wrong level

Wrong level

Attachments

Wrong level

(11%)

(6%)

(10%)

(16%)

(33%)

(38%)

No informal
resolution
(18%)

Attachments

No informal
resolution

(8%)

(8%)

This breakdown in the reasons for denial also suggests that a small but not insignificant number
of the administrative remedies that are reflected in the statistics may be duplicate submissions. Given the

J
]

"]

high rates of appeal by prisoners under the Administrative Remedies Program, discussed below, it seems
likely that many of the prisoners who are allowed to resubmit a denied claim will do so. If this is true,
then as many as ten percent of all new filings may be resubmitted claims.
Finally, because many claims are denied for reasons that can be characterized as procedural,
focusing solely on the total number of annual filings may exaggerate the administrative costs of the
Program. About half of all claims that are denied-comparable to one-fifth of all claims filed-are
disposed of based on procedural flaws such as timeliness, submission to the wrong level, problems with
attachments, or failure to attempt informal resolution. In most cases, disposing of claims on these
grounds should require little more than a cursory examination of the prisoner's submission. Only those

59

claims that are granted or are denied on the merits should require significant time and resources for

)
investigation and processing.
(d) Appeals ofAdverse Decisions Under the Administrative Remedies Program

The rate at which prisoners appeal adverse decisions within the Administrative Remedies
Program provides a measure of the persistence of prisoners in pursuing their claims, and also indicates the
general role that the appeals process plays within the overall Program. If prisoners are selective in
pursuing appeals then this self-selection might lead to a higher caliber of claims among the appeals filed,
and we might expect the Bureau to investigate seriously and grant a significant number of appeals. On
the other hand, if prisoners routinely appeal any adverse decision, then we would expect that many of
these appeals will be dismissed, often on procedural grounds. Some evidence already has been presented
to suggest that the quality of appeals differs little from initial filings under the Program. The rate of
denial of claims increases at each successive level within the system, so that appeals to the regional

-)

offices and to the Central Office are much more likely to be denied compared to initial filings. In
addition, appeals to the regional offices and to the Central Office frequently are denied for procedural
reasons such as untimeliness, submission to the wrong level, or problems with attachments.
Comparing the total number of denials at each level to the total number of filings at the next level
of decision suggests that prisoners file appeals to the vast majority of denials under the Program. If the
rate of appeal is high, we would expect the number of appeals filed at each successive level during a
particular time period to be roughly equal to the number of claims denied at the previous level within the
system during the same time period. In the dataset provided by the Bureau for Fiscal Years 1993 through
1998, there were 15,174 claims that were denied at the regional office level, and 14,091 appeals filed with
the Central Office, suggesting a close to 100 percent appeal rate.239 Similarly, there were 14,693
administrative remedies that were denied at the institutional level during this time period, and close to that

)
239

For the raw data presented in the text in this discussion, see infra Data Appendix, Part II., Tables 2, 4, and 6.

60

.J

number of appeals filed with the regional offices. 240 These figures are subject to a number of caveatsfor example, overall denials at one level cannot be compared exactly with appeals filed at the next level,
because many denials include instructions to resubmit the claim to the initial level of filing. Nonetheless,
these figures do provide a rough measure of the rate of appeal, and they suggest that prisoners file appeals
in response to most adverse decisions under the Program.
2) Fede,aI Ton Claims Act Administrative Claims and Litigation Actions
The statistics compiled by the Bureau of Prisons provide a limited account of the administrative
claims and litigation actions involving the Bureau's employees that have been filed under the Federal Tort
Claims Act (FTCA) in recent years. The data presented in this paper focuses on four related sets of issues
(1) filing rates per prisoner population and total filings over time, for FTCA administrative claims, (2)
filing rates per prisoner population and total filings over time, for FTCA litigation claims, (3) total
settlements and denials of FTCA administrative claims, and (4) the relationship between the
administrative claims system and subsequent litigation actions under the FTCA. From the statistics

)

compiled by the Bureau, we can learn how frequently federal prisoners rely on the FTCA to seek
damages, how often these prisoners are granted some fonn of relief, and how many administrative claims
that are denied end up in federal court as litigation actions. The data presented here provide a general

J

view of the role that the FTCA plays in providing relief for injuries allegedly suffered by federal prisoners

]

at the hands of federal employees.
(a) Filing Rates and Total Filings for FTCA Administrative Claims
The filing rate for federal prisoners bringing administrative claims under the FTCA has decreased
....,

significantly in recent years,

\ ~J'. ..,.,,\.'". ~
\

,

white .the t~tal number of filings has remained relatively steady.

Based on

averages for the period from Fiscal Years 1992 through 1998, federal prisoners filed approximately 43

)
J

240 Since challenges to Disciplinary Hearing Officer (OHO) decisions and filings involving sensitive issues are filed
with the regional offices in the first instance, see supra notes 23-25 and accompanying text, it is difficult to
differentiate between these initial filings and appeals at the regional office level. Excluding appeals of DHO
decisions, there were 18,590 filings with the regional offices, a figure roughly comparable to the number of denials
at the institutional level. See infra Data Appendix, Part II., Table 4.

61

Chart 4.2 FTCA Administrative Claims - Quarterly Filing Rates.
FY 1992-1998

)
(:)
(:)

...C!,.. i!
•

CD

c
S~

Q.

~~
Q

:E

u:

16.00
14.00
12.00
10.00
8.00
6.00
4.00
2.00
0.00

+------~------~-~~----~

-~-

+-----------~.~--------------.---__l

~J

Quarter

J

FTCA administrative claims per 1,000 prisoners per rtsel';ar.241 This suggests that, at most, only four

····1

percent of federal prisoner use the FTCA administrative process every year. 242 As Chart 4.2 (based on

~

quarterly filing rates) and Table 4.4 (providing estimated annual filing rates) illustrate, the filing rate
,,- 0../)
>,' \'
("
~ \I\.t/~J( (1 I
fluctuated a fair amount between Fiscal Ycars 1992 and 1998, but generally decreased.
.

.~

r.

1 )

]

)

~

Table 4.4. FTCA Administrative Claims - Estimated
Filing Rates & Total Filings. FY 1993-1998
Fiscal Year

Filing Rate Per 1,000
Prisoners

Total Claims Filed

FY 1992
FY 1993
FY 1994
FY 1995
FY 1996
FY 1997
FY 1998

44
50

3,296
4,316

44
49
40
34

4,311
5,016
4,305
3,952

241 For the raw data presented in the text in this discussion, and in Chart 4.2 and Table 4.4, see infra Data Appendix,
Part II., Tables 10 and 11.
242 Again, it is impossible to estimate this figure accurately without knowing how many claims are submitted by
repeat filers; these high-end estimates assume that each claim is filed by a different prisoner.

62

)

These general trends are confirmed by more recent, partial data from the six regional offices, which show
that the total number of filings has remained steady, while the filing rate has continued to decline.243 As
was true under the Administrative Remedies Program, there is a moderate but noticeable short-term
increase in the filing rate (and total number of filings) during Fiscal Year 1996.
While the total number of administrative claims filed has remained relatively steady in recent
years, the decreasing filing rate has had a significant impact in restraining the growth of total filings. If
the filing rate had remained around 45 to 50 claims per 1,000 prisoners during Fiscal Year 1998, the

~J

Bureau would have seen between 5,300 and 5,900 filings that year, compared to the actual figure of less
than 4,000 claims filed.

0

The volume of complaints that are processed through the Bureau's administrative process under

-1

the FTCA suggests that this is another important component in the overall grievance system for prisoners
seeking to challenge the conditions of their confmement. In recent years, federal prisoners consistently

8
"I

-)

have filed between 4,000 and 5,000 FTCA administrative claims per fiscal year.244 While federal
prisoners file about four times as many claims annually under the Administrative Remedies Program, the
total number of FTCA administrative claims remains significant and undoubtedly imposes significant
administrative costs on the Bureau. As the data results presented below will make clear, these total
numbers still far outweigh the total numbers of litigation actions filed by federal prisoners. Moreover, the

J

FTCA administrative system is unique because it is offers the possibility of monetary relief, which is not
available under the Administrative Remedies Program. This may be critical because approximately threefourths of the administrative claims filed with the Bureau under the FTCA are for personal property
damage.24s

)

243 For Fiscal Years 1999 through the First Quarter 2002, data is available on the total number of FTCA
administrative claims filed with the six regional offices; claims filed with the Central Office are not included. See
id., Table 12. These partial figures indicate that total FTCA administrative claim filings have remained around
4,000 per fiscal year, while the filing rate has declined further to around 30 claims per 1,000 prisoners per fiscal
year. See ide
244 See id., Table 10 and 11.
245 See id., Table 10.

63

Although the recent decline in the filing rate for FTCA administrative claims could be related to
legislative changes enacted under the PLRA, this explanation seems incomplete. The provisions of the
PLRA directly affect only litigation actions brought in federal court by prisoners, not administrative
claims. Nonetheless, filing an FTCA administrative claim is the first required step in a process that
ultimately may lead a prisoner to bring an FTCA lawsuit in federal court. Prisoners could be discouraged
from seeking relief through the FTCA administrative process in the wake of the PLRA, because they
know that they will face stricter limitations if their administrative claims are denied and they wish to
-!

pursue litigation in federal court.

.- !

:-,

Yet this explanation seems incomplete. Why wouldn't prisoners instead conclude that they

..J!

should try their best to win an FTCA administrative settlement, knowing that their chances of succeeding
in an FTCA litigation suit are even lower? The PLRA explanation also is inconsistent with the fact that
both the total number of filings and the filing rate increased significantly during Fiscal Year 1996, the
first year that the PLRA became effective. Another explanation for the recent decline in the filing rate for

)

FTCA administrative claims can be found in recent increases in the rate of denials for these claims, noted
below. The increased rate of denials for administrative claims and the tighter restrictions on litigation
actions may be working in tandem to discourage federal prisoners from seeking relief under the FTCA.

1

(b) Filing Rates and Total Filings for FTCA Litigation Actions

J

The filing rate for federal prisoners bringing FTCA litigation actions has declined in recent years,
while the total number of filings has remained relatively steady, following a similar pattern as the figures
for FTCA administrative claims. Based on averages for the period from Fiscal Years 1992 through 1998,
federal prisoners filed approximately 1.5 FTCA litigation actions per 1,000 prisoners per fiscal year.246
As Chart 4.3 (based on quarterly filing rates) and Table 4.5 (providing estimated annual filing rates)
illustrate, the filing rate fluctuated a fair amount between Fiscal Years 1992 and 1998, but generally
decreased. As a result the total number of filings has remained relatively steady in recent years, despite

)

For the raw data presented in the text in this discussion, and in Chart 4.3 and Table 4.5, see infra Data Appendix,
Part D., Tables 13 and 14.

246

64

significant increases in the federal prisoner population. If the filing rate for FTCA litigation claims had

)
remained at 1.7 actions per 1,000 prisoners during ] 998, then the Bureau would have seen approximately
200 new FTCA litigation actions that year, rather than the 117 actually filed.
Table 4.5. FTCA Administrative Claims - Estimated
Filing Rates & Total Filings. FY 1993-1998

LJ

1
~

Fiscal Year

Filing Rate Per 1,000
Prisoners

Total Claims Filed

FY 1992
FY 1993
FY 1994
FY 1995
FY 1996
FY 1997
FY 1998

1.7
1.7

129
138

1.7
1.3
1.5
1.0

167
131
164
117

""1
Chart 4.3 FTCA Litigation Actions - Quarte rly Filing Rates. FY

!

1992-1998

)

0.60 - - - - - - - - - 0.50 + - - - - - - - - - - - -___----------4~-----___I
0.40

-I-'L-~----30~----__4Ik__----I__-__\:__---+-__4Ir_----___I

0.30

-f-----------------------3~---~~~-___i

0.20 - I - - - - - - - - - - - - - - - - - - - - - - - - - " ' = = = . ;
0.10 + - - - - - - - - - - - - - - - - - - - - - - - - - - - 1
O. 00

+-~.__r___r__,.._.___t"'"_.___.__,_""T'"""""_.__.._,....._,~_.___t"'"~_,.._.....,....._r_~_.__~~r---1

Q)tl,. Q)tl,. Q)~ "Q)~ o~ ,,~ oQ)~ "Q)f,;) c§l c§l o~ ,,~ ooj:> 0-rI'
,,0 ~o ,,0 ~" ~
~"~
~""o ~o ~
~"~
~

]

Quarter

The tiny volume of FTCA litigation actions filed by federal prisoners suggests that these lawsuits
playa relatively minor role in the overall grievance system for challenging the conditions of their
confinement. While federal prisoners file thousands of administrative claims every year under the
Administrative Remedies Program or the FTCA administrative system, between the Fiscal Years 1992
and 1998 they filed an average of only 140 FTCA litigation actions annually. The Bureau of Prisons'

)

perspective on the significance of these figures may be slightly different, because litigation is bound to be
65

more costly on a case-by-case basis than administrative adjustment. Nonetheless, the burden of defending
against 140 litigation cases cannot compare to the costs of processing thousands of administrative claims.
The recent decline in the filing rate for FTCA litigation actions is exactly the result that would be
expected in the wake of the legislative changes enacted under the PLRA. Federal prisoners now face
additional costs if they pursue an FTCA litigation action in federal court, including the required payment
of filing fees and more serious penalties for filing frivolous or non-meritorious lawsuits. We would
expect to see the filing rate declining beginning in Fiscal Year 1996, and this is exactly what the Bureau
1

of Prisons' statistics indicate. According to these figures, the filing rate for FTCA litigation actions by

I

L

i

federal prisoners has declined by approximately 40 percent since the PLRA's enactment in 1996. These

D

figures illustrate the fallacy of focusing solely on the total number of filings to assess time trends-the
significant decline in the filing rate indicates that the modest decline in total filings is more significant
than it appears.
(c) Settlements and Denials ofFTCA Administrative Claims

While the Bureau of Prisons denies the vast majority of administrative claims that are filed under
the FTCA, the claims that are settled result in a fair amount of monetary relief for successful claimants.
Based on averages for the period of Fiscal Years 1992 through 1998, the Bureau settled only 15 percent
of ail FTCA administrative claims.247 This a slightly lower success rate compared to claims filed under

~l

the Administrative Remedies Program, where the Bureau grants 24 percent of all claims filed. The yearto-year estimates in Table 4.6 indicate that the percentage of FTCA administrative claims that are settled

1

has declined significantly in recent years, particularly in 1998, the last year for which complete data is
available. As noted above, the declining success rate may be discouraging some claimants from filing,
providing one explanation for the declining filing rate in recent years. As the figures in Table 4.6
indicate, the total amounts paid out by the Bureau to settle FTCA administrative claims are significant,
averaging over $150,00 annually for the Fiscal Years 1992 through 1998. These settlements result in a

)
247

For the raw data presented in the text in this discussion and in Table 4.6, see id, Table 10.

66

reasonable amount of monetary relief for the successful claimants. On average the Bureau pays out
almost $275 per settled claim, not an insubstantial amount of money for a prisoner in custody.
Table 4.6. FTCA Administrative Claims - Estimated Total Settlements.
Percentage of Claims Settled. and Total Amounts Paid. FY 1992-1998
Fiscal Year
FY 1992
FY 1993
FY 1994
FY 1995
FY 1996
FY 1997
FY 1998

~]
t-')

Total Settlements

Percentage of
Claims Settled

503

22%

676

31%

Total Amounts
Paid
$139,826
$92.336

668

140/0

$87,100

668
573

14%
15%

$117,285
$185,319

350

9%

$248,235

~}

(d) The Relationship Between the FTCA Administrative System and Subsequent Litigation
Actions

)

The statistics provided by the Bureau of Prisons suggest that relatively few FTCA administrative

~
l

-)

claims ittat are denied by the Bureau subsequently are appealed through the litigation process in federal
court. Based on averages for the period of Fiscal Years 1992 through 1998, only twenty-eight percent of
claimants whose administrative claims were denied by the Bureau decided to pursue their case by filing
an FTCA litigation action in federal COurt.248 This low rate of appeal contrasts sharply with the nearly one

J
]

1

hundred percent rate of appeal observed under the Administrative Remedies Program. These figures
suggest that the costs and difficulties of pursuing litigation in federal court-perhaps including the new
restrictions under the PLRA-create a substantial barrier for federal prisoners.
3) Litigation Actions by Federal Prisoners

The Bureau of Prisons' (BOP) data and the Administrative Office (AO) data converge to provide
a comprehensive description of litigation actions filed by federal prisoners in federal courts. The data
presented in this paper focuses on six related sets of issues (1) filing rates per prisoner popUlation and
total filings over time, for all actions and specifically for civil rights actions, (2) a breakdown of all filings

248

For the raw data presented in the text in this discussion, see id, Tables 10, 11, and 13.

67

by the basis for the action, (3) the pro se status of the litigants in civil rights actions, (4) the disposition of
civil rights actions, and the judgments entered, (5) the frequency of trials and trial outcomes for civil
rights actions, and (6) awards and settlements in civil rights actions. While some references wi)) be made
to lawsuits under the FTCA, collateral attacks on sentences, and habeas corpus petitions, the focus of this
section of the paper is on civil rights actions brought by federal prisoners under Bivens. The statistics
compiled by the Bureau and by the Administrative Office provide valuable information about how
frequently federal prisoners turn to litigation in federal courts, the types of suits that they file, the links
between prisoners' pro se status and the outcomes of their suits, how often prisoner litigants are granted
some form of relief, and the amount of monetary relief that they receive. The data presented here provide
a general view of the significance of civil rights litigation actions in federal court for federal prisoners
0\

seeking to challenge the conditions of their confinement.
(aJ Filing Rates and Total Filings/or Civil Rights Actions

The filing rate for civil rights litigation actions by federal prisoners has declined significantly in
recent years, beginning in the wake of the Prison Litigation Reform Act in 1996. Chart 4.4 (based on
quarterly filing rates) and Table 4.7 (providing estimated annual filing rates) provide the results from the
BOP dataset, which show a small spike in the filing rate and the total number of filings in Fiscal Year

.J
Chart 4.4. Bivens Utigation Actions (BOP Dataset) - Quarterlv
Filing Rates. FY 1992-1998

J

2.00 - - - - - - - - - - - - - - - - - - - - - - - - - - ,
1.50

-I--~~~~~I-----~----;---I--+----------1

1.00 - 1 - - - - - - - - - - - - - - - - - - - - - = = - = - - - - - 1
0.50

-I-------------------------=-=~

O. 00

+-..--r--"'T'--r--..,.---r---r-...,--.,--r--T--r-,.--.--....,...-...,--..--r---T----,----r---r---;---r-.---,--,~

(bt),

~

(bt),

~

(btS:> r'\(btS:>

~

0/

r'\~ r'\~ r'\(b~ r'\(b':> r'\cfJ r'\(bf'o r'\~ r'\~ (b'b (b'b
~ 0/ ~ 0/ ~ 0/ ~ 0/ ~ ~
Quarter

)
68

1996, followed by marked declines in 1997 and 1998.249 The impact of the declining filing rate in
restraining the total number of filings has been significant. If the filing rate had remained around five to
six Bivens actions per 1,000 prisoners during Fiscal Year 1998, the Bureau would have seen between 600
and 700 new Bivens actions that year, rather than the actual total of fewer than 300.
Table 4.7. Bivens Litigation Actions ISOP Dataset) - Estimated
Filing Rates & Total Filings. FY 1992-1998

." 1

I
~.j

J
"l
~

Fiscal Year

Filing Rate Per 1,000
Prisoners

Total Actions Filed

FY 1992
FY 1993
FY 1994
FY 1995
FY 1996
FY 1997
FY 1998

5.58
6.35

419
532

4.71
5.80
3.68
2.43

539
597
399
286

The results from the AO dataset, presented in Table 4.8, also show a decline in the filing rate for civil

"J

rights actions by federal prisoners since 1996, but unlike the BOP data the AO figures indicate a slight
increase in the total number of filings in recent years. The AD dataset also includes three more recent
years, showing that the filing rate for civil rights actions by federal prisoners has continued to fall.
Table 4.8 Civil Rights Actions by Federal Prisoners lAO Dataset) Filing Rates & Total Filings. FY 1992-2001

..J

J
l

J
)

Fiscal Year

Filing Rate Per 1,000
Prisoners

Total Actions Filed

FY 1992
FY 1993
FY 1994
FY 1995
FY 1996
FY 1997
FY 1998
FY 1999
FY2000
FY2001

10.25
9.54
11.02
10.42
10.95
8.61
9.43
8.42
8.16
7.85

823
855
1,047
1,045
1,156
973
1,160
1,139
1,186
1,233

For the raw data presented in the text in this discussion, and in Chart 4.4 and Tables 4.7 and 4.8, see id, Tables
13 and 14.

249

69

The BOP and AO datasets provide slightly different views of the significance of civil rights
actions for federal prisoners seeking to challenge the conditions of their confinement, but both sources
suggest that the volume of cases is small but significant. The BOP statistics track an average of 459

Bivens actions annually between Fiscal Years 1992 and 1998, while the AO statistics show an average of
1,062 civil rights actions filed by federal prisoners annually for the Fiscal Years 1992 through 2001.250 In
either case, the number of civil rights litigation actions pale in comparison to the number of
· )

administrative claims that are submitted via the Administrative Remedies Program or under the FTCA.

; i
L,

On the other hand, federal prisoners file approximately three to eight times more civil rights litigation

actions than suits under the FTCA. Further, the burden of litigating hundreds of civil rights actions per
year in federal court likely imposes considerable costs on the Bureau of Prisons, which may begin to
approach the costs of the various administrative claims systems. At least as measured in terms of case
volume, Bivens actions continue to playa significant role in the overall grievance system available to
federal prisoners seeking to challenge the conditions of their confmement.
The observed declines in the filing rates for civil rights actions by federal prisoners suggests that
the PLRA has succeeded, at least in part, by discouraging prisoners from resorting to litigation in the

J

federal courts to challenge the conditions of their confmement. Both the BOP and the AO datasets show

J

a short-term increase followed by a significant decline in the filing rate for civil rights actions by federal
prisoners. Furthermore, it is possible that the more marked decline in the total number of filings and the
filing rate in the BOP dataset mean that fewer prisoner complaints are surviving summary dismissal under
the PLRA, thus widening the gap between the two datasets.251 Other researchers have discussed the
impact of the PLRA on the number of civil rights actions by federal prisoners. John Scalia has used an
ARIMA model analysis to demonstrate that the PLRA has had a statistically significant impact on the

See id, Table 18.
251 Recall that the most significant difference between the two datasets is that the AO statistics include all
complaints filed in federal court, while the BOP statistics include only those complaints that survive summary
dismissal and are served on the defendants. See supra Part Ill.B.

250

)

70

number of civil rights actions filed by federal prisoners. 252 According to Scalia's calculations, federal
prisoners filed 1,700 fewer civil rights actions between April 1996 and September 2000 as a result of the
PLRA.

253

The figures from both the BOP and AO datasets support these findings.
(b) Litigation Actions by Type ofAction

Although civil rights litigation actions filed by federal prisoners have declined since the PLRA, the
possibility remains that prisoners are still filing litigation actions in federal court at the same rate, but
under different labels. As discussed above in Part II.E., the considerable overlap among Bivens actions,

iJ

FTCA suits, and habeas corpus petitions under 28 U.S.C. § 2241 254 creates the potential for prisoners to
restyle their Bivens complaints in order to avoid the limitations imposed under the PLRA. If the decline

J

in civil rights actions by federal prisoners has been coupled with an increase in other litigation actions,

-- J

!
'l
J

then the PLRA may not have achieved one of its key goals-reducing the overall caseload of prisoner
suits in federal court. This possibility is supported by the data presented in Table 4.9, showing that the
overall filing rate for all litigation actions tiled in federal court by federal prisoners has not decreased

)

since the passage of the PLRA, and that the total number of filings actually has increased as the total
federal prisoner population has grown.255 Recent declines in the filing rate for FTCA litigation actions,
particularly since 1996, suggest that claims are not migrating from Bivens to FTCA litigation actions.256

J

J
1

See SCALIA (2002), supra note 3, at 6-7.
253 See id
2S4 The potential for overlap between Bivens actions and collateral attacks under 28 U .S.C. § 2255 is not discussed
here, but likely is minimal. As discussed in Part II.E.2, supra, the Supreme Court's decisions in Heck v. Humphrey
and other cases has clarified and limited the potential overlap between Bivens actions and motions under § 2255.
25S For the raw data presented in Table 4.9, see infra Data Appendix, Part II., Table 16. Of course, focusing on the
entire federal prisoner docket is misleading, because there is little possibility that Bivens claims have migrated to
motions to vacate sentence under § 2255 or other forms of collateral attack filed by federal prisoners. In addition,
there are many other reasons why collateral attacks by federal prisoners may have increased since the passage of the
PLRA because of, inter alia, the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995) and the
application of AEDPA's new one-year statute of limitations to cases concluded prior to the law's passage as of April
1997. However, as the data presented in Table 4.10 below demonstrate, much of the recent growth in the federal
prisoner docket has been in the category of habeas corpus petitions under § 2241, which may include challenges to a
prisoner's conditions of confinement that previously would have filed as Bivens actions. Because the growth in this
category of filings by federal prisoners far exceeds the recent decline in civil rights actions filed by federal prisoners,
it is impossible to dismiss the possibility of the migration of Bivens actions into this category of habeas corpus
claims without further analysis.
256 See supra Part IV .A.2(b).
252

71

This leaves the possibility that prisoner claims have been migrating from Bivens actions to habeas corpus
petitions under § 2241.
Table 4.9 Litigation Actions by Federal Prisoners fAO Dataset) Filing Rates & Total Filings. FY 1992-2001

=J

fJ
Ii'

--1

!

Fiscal Year

Filing Rate Per 1,000
Prisoners

Total Actions Flied

FY 1992
FY 1993
FY 1994
FY 1995
FY 1996
FY 1997
FY 1998
FY1999
FY 2000
FY2001

82.72
89.96
77.09
85.37
119.67
129.09
82.53
83.49
85.08
95.47

6,639
8,059
7,326
8,558
12,630
14,584
10,155
11,292
12,372
14,988

Although habeas corpus petitions by federal prisoners under § 2241 have increased significantly
'\

J

)

111 the wake of the PLRA, it is impossible to determine if this is a result of claims migrating from Bivens

)

actions. Table 4.10 shows a significant and sustained increase in habeas corpus petitions filed by federal
prisoners under § 2241 since 1996.257
Table 4.10 Litigation Actions by Federal Prisoners fAO Dataset) Filing Rates & Total Filings by Type of Suit. FY 1992-2001

J

Fiscal Year

']

§ 2241 Petitions
Rate Per

1,000

§ 2255 Motions
Rate Per

Total
Filings

1,000

Prisoners

-'1
FY 1992
FY 1993
FY 1994
FY 1995
FY 1996
FY 1997
FY 1998
FY 1999
FY 2000
FY 2001
257

17.31
15.37
14.23
12.49
15.15
16.68
21.30
30.10
29.94
30.12

Total
Filings

47.97
57.50
47.07
57.78
89.59
100.26
48.69
40.39
42.39
53.78

Rate Per

1,000

3,850
5,151
4,473
5,792
9,456
11,327
5,991
5,462
6,164
8,443

10.25
9.54
11.02
10.42
10.95
8.61
9.43
8.42
8.16
7.85

For the raw data presented in Table 4.10, see infra Data Appendix, Part II., Table 18.

72

Total
Filings

Prisoners

Prisoners

1,389
1,377
1,352
1,252
1,599
1,884
2,621
4,071
4,354
4,729

Civil Rights Actions

823
855
1,047
1,045
1,156
973
1,160
1,139
1,186
1,233

It is possible that the recent increase in § 2241 petitions represents a shift of claims that formerly
would have been filed as Bivens actions, but there are several other equally plausible explanations. Many
of the new restrictions enacted in 1996 under AEDPA apply to motions to vacate sentence under § 2255,
but do not apply to habeas corpus petitions under § 2241,258 creating incentives for federal prisoners to
restyle their collateral attacks as petitions for habeas corpus relief. The data in Table 4.10 show that the
filing rate for motions to vacate sentences also has declined since 1996, so it possible that at least part of
the increase in the filing rate for petitions under § 2241 can be attributed to a migration of collateral
attacks from § 2255 to § 2241. In addition, the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (llRIRA) 259 limits review of deportation orders for certain resident aliens to a habeas corpus

]

petition under § 2241,260 another factor that may have increased filings in this category since 1996. While
there is anecdotal evidence that at least some of the growth in § 2241 petitions has been due to migration
of claims that previously would have filed as Bivens actions,26J and this explanation seems plausible, it
remains impossible to verify or quantify.262
A more general point to be made from the statistics in Table 4.10 is the overwhelming
predominance of habeas corpus petitions and collateral attacks in the caseload of suits filed by federal
prisoners. While federal prisoners filed an average of 1,062 civil rights actions annually during the period

J
]

258

See supra Part D.E.l.

Pub. L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996) (codified at 8 U.S.C. §§ 1225a, 1229, 1229a to 1229c,
1231, 1324d, 1363a, 1365a, 1366 to 1375, 1623, 1624, 18 U.S.C. §§ 116,611, 758).
260 See I.N.S. v. St. Cyr, 533 U.S. 289, 314 (2001).
261 See Pybas Interview, supra note 15. Michael Pybas, Senior Counsel in the Bureau of Prisons' Office of the
General Counsel, reports that the Bureau has seen a shift in actions by federal prisoners challenging the conditions
of their confinement from Bivens suits to § 2241 petitions since the passage of the PLRA. See id Pybas theorizes
that prisoners are trying to avoid the PLRA requirement that they pay the full $125 filing fee by filing habeas corpus
petitions, which carry a filing fee of only $5. See id However, counsel with the Bureau also have theorized that
prisoners are filing petitions under § 2241 that should be brought as motions to vacate sentences under § 2255, in
order to avoid the new requirements under AEDPA. See id The official position of the Department of the Justice is
that any action challenging a prisoner's conditions of confinement should be treated as Bivens claim, and thus
subject to the requirements under the PLRA. See id However, Pybas notes that staff within the Bureau may prefer
for prisoners to file habeas corpus petitions rather than Bivens suits, because the latter carry the risk of personal
liability, and tend to involve more fonnal, legally-complex proceedings. See id
262 See Schlanger, supra note 3, at 1637-41 (noting the probability that some civil rights actions by prisoners are
being filed as § 2241 petitions, but concluding that this effect is impossible to quantify, given confounding factors
such as the simultaneous passage of AEDPA and IIRIRA).
259

)

73

of Fiscal Years 1992 through 2001, they filed an average of9,599 collateral attacks and habeas corpus
petitions annually during the same period. 263 Moreover, the AO data shows that the majority of the
actions in the second category are motions to vacate sentence (averaging 6,611 annually), not habeas
corpus petitions under § 2241 that may be challenges to a prisoner's conditions of confinement (averaging
2,463 annually). The BOP statistics similarly show that collateral attacks and habeas corpus petitions
constitute approximately three-fourths of all litigation actions filed by federal prisoners. These statistics
suggest that much of the litigation "explosion" attributed to federal prisoners appears to stem from quasi-

~-1

criminal suits challenging their sentences or convictions, rather than from civil actions challenging the
conditions of their confinement.

J

(c) Pro Se Status ofLitigants in Civil Rights Actions

-1

The treatment of prisoner litigants in federal court, the disposition of their claims, and their ability
to win judgments and lor monetary relief all may be colored by the fact that the majority of these suits

~
-,

involve pro se prisoner plaintiffs facing represented defendants. Beginning in the Fiscal Year 1997, the

\

J

.

)

AO data for all civil cases filed in the federal courts includes statistics for each case on whether the
plaintiff, the defendant, neither, or both appeared pro se. 264 The results presented in Table 4.11 confirm
that over 90 percent of civil rights actions filed by federal prisoners in federal court involve pro se

J

plaintiffs facing off against represented defendants?6S

J
'J

The category of collateral attacks and habeas corpus petitions includes motions to vacate sentence under § 2255,
habeas corpus petitions under § 2241, habeas corpus petitions by death row inmates, and mandamus and other
prisoner actions. For additional information on these categories, see infra Data Appendix, Part LB.
264 Even this data is limited because the pro se status variable was not recorded on a consistent basis during Fiscal
Years 1997 or 1998. Examining cases filed by federal prisoners during these years, the pro se status variable is
missing in 78 percent of civil rights actions filed during Fiscal Year 1997 and in 59 percent of such cases filed
during Fiscal Year 1998. See id, Table 21. The percentage results presented in Table 4.11 exclude cases for which
the variable is coded as missing.
265 For the raw data presented in the text in this discussion and in Table 4.11, see infra Data Appendix, Part II.,
Tables 21-25.
263

)

74

Table 4.11 Civil Rights Actions by Federal Prisoners tAO Dataset) Pro Se Status of the Litigants, FY 1997-2001

)
I?

J

Fiscal Year

ProSe
Plaintiffs, No
ProSe
Defendants

ProSe
Defendants, No
Pro Se Plaintiffs

Both Parties
ProSe

9.91%
7.64%
5.56%
4.97%
4.38%
5. 39°A,

89.19°A,
91.72%
92.14%
94.27%
94.97%
93.47%

0.90°A,
0.42%
1.24%
0.34%
0.24%
0.580/0

0.00%
0.21%
1.06%
0.42%
0.41%
0.56%

t1

~~f
~ "
~

~

Neither Party
ProSe

FY1997
FY1998
FY1999
FY2000
FY 2001
Total

"1
Statistics on the outcomes in civil rights actions filed by federal prisoners that were terminated

J

since 1997 provide some empirical support for the intuitive notion that represented plaintiffs are likely to
fare better than pro se plaintiffs.266 Judgment was entered for the plaintiff in only two percent of those

1

suits in which the plaintiff only was appearing pro se, compared to 16 percent of cases in which both

~

1

parties were represented by counsel. When pro se plaintiffs faced represented defendants, 67 percent of
~)

the suits were dismissed before trial, compared to a pretrial dismissal rate of 51 percent in cases in which
both parties were represented. Although settlements or trials are not common in any of these suits, a
disposition ending with a settlement or trial was more likely in cases in which both parties were

J

represented by counsel compared to those cases in which only the plaintiff was pro se, and represented
plaintiffs were more likely to win in trials than unrepresented plaintiffs.267

J

(d) Dispositions, Trials, and Judgments in Civil Rights Actions

1

Federal prisoners filing civil rights actions in federal court have a remarkably low success rate.
Examining civil rights actions filed by federal prisoners that were terminated between Fiscal Years 1992

)

266 Because the number of cases labeled as "pro se defendants, no pro se plaintiffs" or "both parties pro se" are too
small to provide a good sample size, in this discussion I have focused only on cases whether neither party was pro se
or where plaintiffs only were pro se.
267 Trials occurred in 1.65% of cases in which both parties were represented, compared to 0.31 % of cases in which
only the plaintiff was appearing pro se. See id, Table 25. Settlements occurred in 6.17% of cases in which both
parties were represented, compared to 1.83% of cases in which only the plaintiffwas appearing pro se. See id,
Table 22. Plaintiffs won in 25% of trials in which both parties were represented, compared to 15% of trials in which
the plaintiff only appeared pro se. See id, Table 26. For similar results for all prisoner civil rights actions
terminated in fiscal year 2000, see Schlanger, supra note 3, at 1609-11.

75

and 2001, the vast majority of these cases (85 percent) were dismissed prior to trial in favor of the
defendant.

268

Plaintiffs voluntarily dismissed 4.7 percent of the cases prior to trial, 2.6 percent were

settled, 0.8 percent resulted in a pretrial victory for the plaintiffs, and another 0.6 percent proceeded to
trial. Although only a handful of civil rights actions filed by federal prisoners proceeded to trial, plaintiffs
won in 13 percent of these cases?69 By contrast, plaintiffs won ajudgment in only 0.7 percent of cases in
which a fmal judgment was entered. Even under the most liberal assumptions, plaintiffs achieved a
"success" in only 8.2 percent of all civil rights actions filed by federal prisoners that were tenninated
between Fiscal Years 1992 and 200 1.270 If cases that were voluntarily dismissed prior to trial are assumed

·J

to be victories for the defendants, the plaintiff success rate falls to only 3.5 percent of all cases. Monetary

J

relief for plaintiffs is even less common. For civil rights actions by federal prisoners that were tenninated

J

between Fiscal Years 1992 and 2001,0.3 percent resulted in a monetary award and 0.6 resulted in an
award of costs and/or attorneys' fees.

~

Although the BOP only reports figures for all litigation actions by federal prisoners-including
01

)

collateral attacks, habeas corpus petitions, and FTCA suits, as well as Bivens actions-their data generally
confirm low success rates for prisoner plaintiffs. For all litigation actions filed by federal prisoners that
were closed between Fiscal Year 1992 and Fiscal Year 1998, the Bureau reported settlements in 3 percent

J

of cases, and monetary awards in 0.4 percent of cases. These figures should be treated with some caution,
however, because they include only those cases resulting in a monetary settlement or award for the
plaintiff?71 Many litigation actions by federal prisoners, particularly collateral attacks and habeas corpus

OJ

. J

0)
0

268 For the raw data presented in the text in this discussion and in Table 4.12, see infra Data Appendix, Part II.,
Tables 27A-31.
269 However, these figures should be treated with caution because the sample size is so small. There were only 15
reported trials in civil rights actions filed by federal prisoners that were terminated between Fiscal Years 1992 and
2001, and plaintiffs won in two of these cases. See id, Tables 28-29.
270 This figure includes all settlements and voluntary dismissals prior to trial as plaintiff victories, in addition to
cases that resulted in pretrial victories for the plaintiff, and trial and directed verdicts for the plaintiff. It is
impossible to know how many of the settlements and voluntary dismissals represent true "successes" for the
plaintiffs. While all settlements will result in some relief for the plaintiff, the terms of some settlements may favor
the defendant. A similar point can be made about voluntary dismissals-they may include out-of-court settlements,
as well as cases that represent plaintiff failures. See Schlanger, supra note 3, at 1592-93 and n. 104.
271 For additional information on the Bureau's recording of settlements and awards, see Data Appendix, Part I.A.

1

J

76

petitions, may result in a non-monetary success for the plaintiff, and these cases are not included in the
BOP figures.
A final question is whether the PLRA has had any noticeable impact on case dispositions or
plaintiffs' success rates for civil rights actions filed by federal prisoners. If the PLRA has succeeded in
reducing the number of frivolous civil rights actions by federal prisoners while preserving the docket for
meritorious claims, we might expect to see some small impacts on case outcomes. The AO data
presented in Table 4.12 show the outcomes for civil right actions filed by federal prisoners that were
terminated between Fiscal Year 1992 and 2001, grouped by fiscaljiling year. The data show no apparent

J

improvements in case outcomes for case filed after Fiscal Year 1996 compared to those filed before
then.272 Indeed, the overall plaintiff success rate has fallen for cases filed since 1996.
Table 4.12 Civil Rights Actions by Federal Prisoners (AO Dataset)Outcomes by Fiscal Year. FY 1992-2001
Pretrial
dismissal
for
defendant
FY 1992
FY1993
FY1994
FY 1995
FY 1996
FY1997
FY1998
FY 1999
FY2000
FY 2001

~J

,]

85.92%
85.32%
84.19%
88.17%
89.93%
82.45%
84.93%
86.31%
85.17%
80.00%

Pretrial
victory
for
plaintiff
0.00%
0.00%
0.00%
0.00%
0.69%
0.00%
0.37%
0.00%
0.00%
0.00%

, Settlement

Voluntary
Dismissal

Plaintiff
Success
Rate

3.88%
3.67010
4.70%
1.15%
1.39%
3.27%
1.84%
1.24%
1.14%
3.33%

3.88%
4.59%
5.56%
5.73%
3.47%
7.35%
3.31%
4.15%
4.56%
1.67%

3.88%
3.67%
5.13%
1.15%
2.08%
3.27%
2.21%
1.24%
1.14%
3.33%

Plaintiff
Success
Rate (with
Voluntary
Dismissals)
7.n%
8.26%
10.68%
6.87%
5.56%
10.61%
5.51%
5.39%
5'.70%
5.00%

Likewise, the BOP data do not show any improvements since 1996 in the overall success rates for federal
prisoners filing civil rights actions. 273

,J

The data for Fiscal Year 2001 are slightly offbut this is probably because only a small percentage of prisoner
suits filed in Fiscal Year 2001 had been terminated by the end of Fiscal Year 2001, when this dataset was ended.
273 See id, Part II., Table 13. For a similar analysis showing declining success rates for prisoner civil rights actions
filed since 1996, see Schlanger, supra note 3, at 1658-64.

272

77

(e) Awards and SeUlements in Civil Rights Actions

)
The figures recorded by the Bureau indicate that while few litigation actions result in a monetary
award or settlement, the level of recovery in these few cases can be substantial. Based on averages for the
Fiscal Years 1992 to 1998, the Bureau pays out $1,850,409 in settlements and $294,786 in court-ordered
awards every fiscal year for litigation actions filed by federal prisoners. On average, federal prisoners
win $58,784 per settlement and $62,779 per award-although the figures obviously vary a great deal
from case to case. The award and settlement figures reported by the Bureau should be fairly accurate-if

~]

anything, they miss some cases that result in monetary relief. The Bureau's figures do not disaggregate

n
lJ

these settlements and awards by case type, but it is likely that the majority of these monetary payouts are
in Bivens suits.274

-J

Recalling that the AO data on monetary awards are notoriously inaccurate, the one figure from
the AO statistics that may be a close estimate is the median level of awards. The AO reports that the

!

median award for civil rights actions by federal prisoners that were terminated between Fiscal Years 1992

'l

)

and 2001 is $1,000. This suggests that the majority of awards in civil rights actions by federal prisoners
are $1,499 or less.27s

'J

B. Comparisons of Civil Rights Actions in Federal Court by State and Federal Prisoners

.J

The focus of this paper on administrative and legal claims initiated by federal prisoners begs the

J

question of whether state prisoners have similar experiences when they seek to challenge the conditions
of their confmement, or whether the federal prison system is somehow unique. Although a

1

comprehensive comparison of the administrative and legal remedies available to state prisoners is beyond
the scope of this paper, the AO data provides a simple means for comparing civil rights actions in federal
court by state and federal prisoners.

J

)

274 Very few FTCA claims are filed, and relief in habeas corpus actions generally should be limited to non-monetary
relief.
275 Because $1,000 is the smallest amount that can be recorded in the AO data system, and because the clerks must
round to the nearest $1,000, see supra Part III.C.2(c), an award of$I,OOO should be recorded for any case with a
monetary award of between $1 and $1,499.

78

At the outset it should be noted that this comparison necessarily is somewhat crude, because
litigations actions in federal court serve different purposes for state and federal prisoners. State prisoners
always have the option of pursuing civil rights actions or other civil relief in the state courts, while federal
prisoners have no other choice of a judicial forum for pursuing their claims. Nonetheless, because state
prisoners are not required to exhaust state judicial remedies before filing a civil rights action in federal
COurt,276

they have the same ability (and presumably similar incentives) as federal prisoners to bring such

suits in federal court. The discussion below touches on the same basic research questions as the

C]

discussion above describing litigation actions by federal prisoners, and demonstrates that while civil
rights litigation in federal court by both sets of prisoners is fairly similar, there are several notable

J

differences.
1) Total Filings and Filing RatesJor Civil Rights Actions

State prisoners file civil rights actions in federal court at a higher rate than federal prisoners, but
the filing rate for state prisoners has fallen significantly since the implementation of the PLRA. Between
Fiscal Years 1992 and 2001, state prisoners filed an average of27 civil rights actions per 1,000 prisoners
per year in federal court, compared to 9 civil rights actions per 1,000 prisoners annually for federal
prisoners.277 However, this gap in the filing rates has narrowed in recent years, following the passage of

.J

the PLRA. The recent decreases in the filing rates for civil rights actions is more pronounced for state

J

prisoners (falling by 51percent between Fiscal Years 1996 and 2001) than for federal prisoners (falling by
28 percent during the same period), suggesting that the PLRA may have had a greater impact of state
prisoners.
Because of the significantly higher prisoner population in state facilities compared to federal facilities (as
well as the higher filing rate for state prisoners), over 95 percent of prisoner civil rights actions in federal

)

276 See Monroe v. Pape, 365 U.S. at 183 (noting that civil rights actions against state officials under § 1983 are a
supplementary remedy to any state judicial remedies that are available, and that state judicial remedies need not be
exhausted prior to bringing a § 1983 action in federal court). However, both state and federal prisoners are subject
to the statutory requirements of administrative exhaustion, revised under the PLRA. See 42 U.S.C. § 1997e(a).
277 For the raw data presented in the text in this discussion and in Table 4.13, see infra Data Appendix, Part II.,
Tables 16 and 17.

79

court are filed by state prisoners. One result is that the recent decline in the filing rate for state prisoners
has had a profound impact on the overall federal docket of prisoner civil rights actions, causing a 42
percent decrease in the total number of new prisoner civil rights actions between Fiscal Years 1996 and
200] .278
Table 4.13 Civil Rights Actions by Federal & State Prisoners (AO Dataset)Filing Rates. FY 1992-2001
Fiscal Year

,J

FY 1992
FY 1993
FY 1994
FY 1995
FY 1996
FY 1997
FY 1998
FY 1999
FY2000
FY 2001

J
.

Filing Rate Per 1,000 Filing Rate Per 1,000
Prisoners for Federal Prisoners for State
Prisoners
Prisoners

~J

~

)

10.25
9.54
11.02
10.42
10.95
8.61
9.43
8.42
8.16
7.85

34.54
35.04
37.00
37.01
34.44
22.31
19.71
18.37
17.99
16.79

There are many possible explanations for the higher filing rate of civil rights actions by state
prisoners. The AO data presented below reveal at least one possibility-state prisoners enjoy a higher

J

success rate in these suits than federal prisoners.
2) Pro Se StIltus ofLitigants in Civil Rights Actions

]

State prisoners are slightly less likely to be represented by counsel in civil rights action filed in
federal court than federal prisoners, but the differences are minimal. For civil rights actions filed between
Fiscal Years 1997 and 2001 for which pro se status information is available, state prisoners were
represented in 3.4 percent of cases (compared to 5.4 percent of cases for federal prisoners) and pro so

The decline in the absolute number of cases is entirely attributable to decreased filings by state prisoners. While
total filings by state prisoners fell 43% between Fiscal Years 1996 and 200 I, total filings by federal prisoners
actually rose by 7% during the same period, see id, Tables 16 and 17, due to a continuing rising in the federal
prisoner population and a less dramatic decline in the filing rate for federal prisoners.

278

)

80

)

state prisoners faced represented defendants in 95 percent of cases (compared to 93 percent of cases for
federal prisoners). 279
3) Dispositions, Trials, and Judgments in Civil Rights Actions

Overall, state prisoners filing civil rights actions in federal court have been more successful in
recent years than federal prisoners. State prisoners were less likely to have their suits dismissed prior to
trial in favor of the defendant.280 On the other hand, state prisoners were more likely to settle or
voluntarily dismiss their claims, and were more likely to proceed to trial. The result is that state prisoners
enjoyed a higher success rate in civil rights actions than federal prisoners, winning successes of some
kind in 12.8 percent of dispositions if voluntary dismissals are included (compared to 8.2 percent for

J

federal prisoners), or in 6.5 percent of dispositions ifvoluntary dismissals are not counted (compared to
3.5 percent for federal prisoners).
~

Table 4.14 Civil Rights Actions by Federal & State Prisoners lAO Dataset) Outcomes. FY 1992-2001

J

Pretrial dismissal In favor
of defendant
Pretrial victory for plaintiff
Settlement
Voluntary dismissal
Proceedi~a to trial
Trial victories for plaintiff
Success rate for plaintiffs with volun~1'f dismissals
Success rate for plaintiffs without voluntary
dismissals

~J

;J

Civil Rights Actions by
Federal Prisoners
(% of dispositionsl

Civil Rights Actions by
State Prisoners
(% of dis~itlonsl

84%

79%

0.80/0

0.6%

2.6%

5.5%

4.7%

6.3%

0.6%

2.8%

13%

11%

82%

12.8%

3.5%

6.5%

)
,J

279

)

See id, Table 33.

280 For the raw data presented in the text in this discussion and in Table 4.14, see ;d, Tables 27A, 28-29, 34, and
37-38.

81

4) Awards in Civil Rights Actions
State prisoners also were slightly more likely than federal prisoners to recover monetary relief in
civil rights actions in federal court, and may win slightly higher monetary awards. For civil rights actions
that were tenninated in Fiscal Years 1992 through 2001, state prisoners received monetary awards in 0.4
percent of all dispositions (compared to 0.3 percent of all dispositions for federal prisoners), and costs
and/or attorneys' fees were awarded in 1.5 percent of all dispositions for state prisoners (compared to 0.6
percent of all dispositions for federal prisoners).281 The AO reports that the median award for civil rights
actions by state prisoners that were tenninated between Fiscal Years 1992 and 2001 is $3,500, compared
to only $1,000 for similar actions by federal prisoners. Although the AO data on the median monetary
award appears to be more accurate than other measures, this comparison should be treated with caution,
especially given the relatively small gap in the two figures.
5) Conclusions
The AO data show that the overall profile for civil rights actions filed by state prisoners in federal
court is fairly similar to comparable actions filed by federal prisoners, with several important caveats.
The filing rates for civil rights actions in federal court have fallen for both groups of prisoners in recent

J

years, perhaps in response to new restrictions under the PLRA. The vast majority ofboth state and
federal prisoners appear pro se in these actions, and both groups enjoy successes in a remarkably lower

J

percentage of case dispositions. Behind these general similarities lie several significant differences. State

-,

prisoners file civil rights actions in federal court at two to three times the rate of federal prisoners,
although the gap has narrowed in recent years. Perhaps because of their higher exposure, state prisoners

.1

appear to have been affected more than federal prisoners by the PLRA, with their filing rate dropping by
f

51 percent between Fiscal Years 1996 and 2001 (compared to a 28 percent decline for federal prisoners

during the same period). However, state prisoners continue to enjoy higher success rates than federal

.J

_i

)

281 For the raw data presented in the text in this discussion, see id, Tables 32 and 39.
82

prisoners in civil right actions in federal court, including more pretrial victories and settlements and
(possibly) higher monetary awards.
C. Analysis and Conclusions

The Administrative Remedies Program, administrative claims and litigation actions under the
FTCA, and civil rights actions under Bivens each comprise one part of an overall grievance system
available to federal prisoners seeking to challenge the conditions of their confinement. With the data
results presented above I have attempted to meet the objectives put forward in the Introduction-to

'--J

describe these three remedies, to understand their relative significance, and to touch on the effects of the

.. ~

PLRA. The discussion below reviews some of the lessons learned about each of the three major types of

J

remedies for federal prisoners seeking to challenge the conditions of their confinement, makes some

"J

general observations about the strengths and weaknesses of each, and discusses some of the possible

~

effects of the PLRA on legal claims initiated by federal prisoners.
1) Conclusions About Legal Remedies Available to Federal Prisoners

'.~)

}

(a) The Administrative Remedies Program
The Bureau of Prisons' Administrative Remedies Program is designed to provide an informal,
fast, and readily available means for federal prisoners to vent their complaints and, where appropriate, to

-]

obtain corrective action. Prisoners can submit claims related to any aspect of their confinement, and the

J

actual data on submissions show that prisoners use the Program to raise a range of issues that are part and

--I

parcel of daily prison Iife---disciplinary decisions, staff complaints, medical treatment, and so forth. The
Program is less formal and more collaborative than other legal regimes, requiring prisoners to resort to

J

infonnal resolution and complaints at the institutional level before seeking outside intervention, and
limiting recovery to corrective action. Short deadlines for both prisoners and responding administrators
mean that all claims should be finally resolved within a period of months. In general, the governing rules

.I

are flexible and protective of prisoners-exceptions are built in to every procedural rule, and sensitive and
emergency issues receive special attention. The Program is cost-free for prisoners, and the rules and

)

filing requirements are relatively straightforward, providing several advantages over other legal remedies.
83

The data on filing rates under the Program can be viewed in a positive or negative light,
depending on the appropriate baseline for judging usage and accessibility. The relatively high filing
rates-approximately 250 administrative remedies filed per 1,000 prisoners per year-and the apparently
high rate of appeals within the Program suggest that prisoners feel comfortable using this system. The
significance of this Program, for both prisoners and administrators, is demonstrated by the fact that
federal prisoners currently submit upwards of 30,000 administrative remedies annually. While these
.)

figures may seem impressive to some, to others they may seem too low. If the Program truly is accessible

D

and cost-free, it is surprising that at most only twenty percent of the federal prisoner population uses the
Program in any given year.

D
.

The data on the granting aDd denial of claims also raise questions about whether the

-.,

Administrative Remedies Program is living up to its promises. Although the overall success rate for
prisoners is higher under this Program than under any of the other legal regimes, the Bureau still denies

"t
J

'

')

three-fourths of submitted claims. More troubling is the fact that many claims are denied for what appear
to be procedural reasons-e.g, submission to the wrong level, timeliness, incorrect attachments, or failure
to attempt informal resolution. While some denied claims may be corrected and re-submitted, these
figures nonetheless suggest that most of the prisoners' complaints are never fully reviewed or

~J

investigated. The Bureau may need to do a better job educating federal prisoners about how to use the

~-J

Administrative Remedies Program, to ensure that complaints are submitted properly and can be

"

considered on the merits.
(b) The Federal Tort Claims Act

Claims under the FTCA occupy a kind of halfway point between the Administrative Remedies
Program and Bivens suits, providing a limited but meaningful remedy to those prisoners who can
overcome the statutory limits on liability. Like the Administrative Remedies Program, claims under the

.1

FTCA begin with an administrative claims system that appears designed to provide relatively fast and
simple relief. The filing requirements for an FTCA administrative claim are even more minimal than
)

those under the Administrative Remedies Program, and the Bureau must respond to claims within six
84

months. On the other hand, there are no provisions for administrative appeal-the only option for a
prisoner whose administrative claim is denied is to file a litigation action in federal court, subject to the
limitations of the PLRA. Experience suggests that the discretionary function exception and ordinary tort
doctrines are formidable barriers to recovery by federal prisoners, at least once claims reach the litigation
stage.
Despite these limits on recovery, the FTCA administrative process provides a small number of
federal prisoners with a unique and meaningful remedy. The FTCA is the only mechanism for a federal

J

prisoner to seek monetary damages through an administrative process. Data on submissions show that
approximately three-fourths of prisoners' administrative claims are for personal property damage, claims
that could not be addressed through the Administrative Remedies Program. The average amount of
settlement of almost $275 for successful administrative claims is small but not insignificant from the
perspective of a federal prisoner in custody.
On the other hand, the data demonstrate that only a small percentage of federal prisoners bring
)

claims under the flCA, and even fewer are successful. While a significant number of flCA
administrative claims are filed by federal prisoners-between 4,000 and 5,000 annually-the filing rates
are low, with no more than four percent of prisoners using the system ever year. The filing rates for

..1

litigation actions under the FTCA are even more sobering, amounting to approximately one litigation
action for every 1,000 prisoners per year. Only 15 percent of administrative claims are granted, a lower
success rate than under the Administrative Remedies Program, and only 28 percent of prisoners whose
claims are denied seek to appeal this decision through a litigation action in federal court. This low appeal
rate contrasts sharply with the high rate of appeal under the Administrative Remedies Program, and
suggests that federal prisoners face significant barriers to filing suit in federal court, particularly under the
FTCA. These figures demonstrate that the FTCA provides only a narrow remedy for federal prisoners,
albeit one that is unique and meaningful for the few whose claims are successful.

85

(c) Civil Rights Actions Pursuant to Bivens
Bivens actions in federal court represent the most challenging, legally comple~ expensive, and
ultimately unsuccessful means for a federal prisoner to challenge the conditions of his confinement. The
substantive requirements for establishing a constitutional violation can be daunting, and most defendants
will be protected by qualified immunity, which itself involves complex and technical legal doctrines. The
majority of federal prisoners will be forced to bring a Bivens suit pro se, and will be required under the
PLRA to pay a sizable filing fee of $150. Other provisions of the PLRA encourage summaJ)' of dismissal
of prisoners' Bivens suits and sanction prisoners whose claims are dismissed, particularly frequent filers.
About 85 percent offederal prisoners' Bivens suits are dismissed prior to trial, and plaintiffs achieve

nL~
.1

partial successes in only three to eight percent of all suits. Trial victories or court judgments are
exceedingly rare-the best a plaintiff can hope for is a settlement.
Given all of these barriers to recovery, it may be surprising that federal prisoners continue to file
as many Bivens actions as they do. The AO data show that federal prisoners file about 1,000 Bivens

)

actions per year in federal court. While these figures are high enough to be of concern for prison
administrators, they translate into fewer than one percent of federal prisoners filing suit in any given year.
The real significance of Bivens suits from the perspective of prison administrators (and perhaps prisoners
themselves) may be that a small number of suits can result in a fairly large amount of monetary liability.

[J

In recent years the Bureau has paid out upwards of $2 million annually in settlements and awards for
litigation actions, much of which probably can be attributed to Bivens suits. As long as Bivens suits hold
out the promise of significant monetaJ)' recovery for litigants, and continue to impose significant

-1

administrative and liability costs on the Bureau, they will remain a mainstay for federal prisoners seeking
to challenge the conditions of their confinement.
2) Comparisons Among the Administrative Remedies Program, the FTCA, and Bivens

.J

The data presented in this paper demonstrate that administrative claims playa dominant role in
the overall grievance system available to federal prisoners seeking to challenge the conditions of their

)

confinement. Based on figures for the past ten years, federal prisoners file approximately 35,000

86

administrative claims per year under the Administrative Remedies Program and the FTCA, compared to
only 1,000 litigation actions annually under the FTCA and Bivens. Viewed from this macro level, it
appears that federal authorities have created a system of legal remedies that encourages administrative
adjustment over litigation, at least as to civil claims concerning a prisoner's conditions of confmement.
These figures also suggest that assertions about the litigiousness of federal prisoners are far more complex
than they might appear.
Although the filing of administrative claims typically is a prerequisite for federal prisoners who

J

want to pursue litigation in federal court, this fact should not obscure the strategic reasons that federal
prisoners might prefer administrative adjustment of their claims. Administrative claims are essentially
cost-free for prisoners, which cannot be said of civil litigation claims in federal court in the wake of the
PLRA. Prisoners also may feel more comfortable pursing their claims under administrative systems that

,

are informal and governed by relatively straightfolWard rules, especially since the majority of prisoners
are proceeding without the assistance of counsel. Both the Administrative Remedies Program and the

)

FTCA administrative system guarantee fast resolution of all claims, and together they cover a broad range
of issues related to a prisoner's confinement and allow for both monetary and non-monetary relief.
Perhaps most important, the overall success rate is significantly higher when federal prisoners

:J

resort to administrative claims rather than litigation actions. Federal prisoners achieve at least partial
successes in about 2S percent of administrative remedies, 15 percent of FTC A administrative claims, and
less than 10 percent of all litigation actions. Viewed from this perspective, an administrative claim may
be the best means available to a federal prisoner for securing relief.
3) The Effects ofthe PLRA on Legal Activity by Federal Prisoners

The data presented in this paper suggest that the PLRA has had mixed effects on legal activity by
federal prisoners. Filing rates under the Administrative Remedies Program have remained steady since
1993, with the exception of a moderate but short-term increase in filings in Fiscal Year 1996. Filing rates
for administrative claims under the FTCA also showed a moderated increase in Fiscal Year 1996, but

)
)

appear to have fallen fairly significantly since then. The filing rates for litigation actions under the FTCA

,I

87

and for Bivens actions both have fallen substantially since Fiscal Year 1996. In addition, the widening

)
gap between the filing rates recorded by the BOP and the AO suggest that an increasing number of
complaints are being dismissed summarily, prior to service on the Bureau or its officials. However, a
sharp increase in the filing rate for habeas corpus petitions under 28 U.S.C. § 2241 raises the possibility
that civil rights claims are being restyled as habeas petitions in order to avoid the restrictions under the
PLRA. While this migration effect is impossible to quantify, it does raises questions about the
effectiveness of the PLRA in decreasing the overall prisoner litigation docket.

[]

Viewed solely in terms of its impact on litigation claims, it is difficult to say whether the PLRA
has been effective, at least as applied to claims by federal prisoners. The law certainly has had an impact

~J

L

on the filing rate for civil rights actions by federal prisoners, and apparently for litigation actions under

'.1

the FTCA by federal prisoners as well. However, even this achievement fades when compared to recent
decreases in the filing rates for civil rights actions by state prisoners, where the impact has been nearly

I

twice as strong. Furthermore, the effect on the overall litigation docket by federal prisoners is less clear

)

and difficult to untangle, because of the complicated overlaps with habeas corpus petitions.
Viewed in terms of its impact on overall legal activity by federal prisoners, the effects of the
PLRA appear more substantial. Filing rates under the Administrative Remedies Program remain strong,

[J

but filing rates in all other areas have fallen. To fully appreciate the impact of these recent declines in the

[J

filing rates, it is necessary to consider what the picture would have been if filing rates had remained at
their pre-1996 levels. During Fiscal Year 1998, federal prison administrators would have seen
approximately 2,000 additional administrative claims under the FTCA, 80 more litigation actions under
the FTCA, and 400 more Bivens suits. Whether these change are attributed to the PLRA, AEDPA, or
some other complex offactors, the relief for th~ Federal Bureau of Prisons has been substantial.

.)
)

88

v.

CONCLUSION

Much of the debate about legal claims initiated by prisoners has focused on the explosive growth
of litigation actions filed by state and federal prisoners in federal court. The Prison Litigation Reform Act
and the Anti-Terrorism and Effective Death Penalty Act are but two examples of recent response to this
perceived crisis. Whatever the merits of these legislative reforms, the data results presented in this paper
demonstrate that litigation actions are only one component in a complex and multi-layered system of legal
remedies that are available to federal prisoners seeking to challenge the conditions of their confinement.
This paper has explored the legal framework governing the components of this system and their actual
operation within the Federal Bureau of Prisons, drawing on previously unexplored data sources that have
been overlooked by previous studies. The results provide a more complete (and more complex) picture of
the overall grievance system available to federal prisoners seeking to challenge the conditions of their
confinement.

·J

J

J

)
89

J
. J

DATA ApPENDIX

I. DESCRIYI'ION OF mE DATA SOURCES ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• DA-2
A. The Federal Bureau of Prisons Dataset ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• DA-l

1) COnsll'ucting the Dataset ••••••••••••••••••••••••••••••••.••.•••••••••••.••.•••••••.••.•••••••••••••••••••••••••••••••.••••.••••• DA-3
2) Additional Notes on Litigation Actions••••••••..•.••...••.•.••••••••••••••••••••••••••••••••••••••••.••••••••••••••••••• DA-3
B. The Administrative Office of the United States Courts Dataset ............................................ DA-3
C. Prisoner Population Figures ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• DA-6

D. RA.WDATA ...................................................................................................................................... DA-B
Index to Tables orRaw Data ........................................................................................................... DA-8
-

Raw Data •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• DA-IO

}

n
..... J

--1

~
')

]

)
DA-l

L DESCRIPTION OF TIlE DATA SOURCES
A. The Federal Bureau of Prisons Dataset

1) Constructing the Dataset

The Bureau of Prisons dataset was constructed from raw data contained in documents produced
by the Bureau in response to a request submitted by Margo Schlanyer, Assistant Professor of Law at
Harvard Law School, pursuant to the Freedom of Information Act The documents produced by the
Bureau cover various periods between the Fiscal Years 1992 and 2000.
The document productions primarily consist of quarterly reports generated by counsel in the
Bureau of Prisons' six regional offices, which contain statistics and narrative descriptions for pending
legal claims within the jurisdiction of that regional office. The Central Office aggregates the data
provided by each of the regional offices to produce system-wide quarterly reports, which also include
infonnation on legal claims submitted to the Central Office. The six regional offices also submit monthly
reports to the Central Office, which cover the same basic categories of data but generally are less
comprehensive.

J

For all categories of statistics, the primary sources used to construct the dataset were the quarterly
reports generated by the Central Office. When data from the Central Office were not available, the next
sources used were the regional quarterly reports, and if these were not available then the monthly reports
submitted by the regional offices were used.

)

}

The Bureau of Prisons reports track legal claims in a number of categories: (1) litigation actions
filed against the Bureau and / or its employees in federal court, typically collateral attacks under § 2255
and habeas corpus petitions under § 2241, suits under the Federal Tort Claims Act, or Bivens actions; (2)
administrative claims filed with the Bureau pursuant to the Federal Tort Claims Act; (3) administrative
claims filed by prisoners pursuant to the Bureau's Administrative Remedies Program; (4) requests filed
with the Bureau pursuant to the federal Freedom oflnfonnation Act and Privacy Act; and (5) criminal
investigations and prosecutions initiated against federal prisoners currently under the custody of the
Bureau. This paper focuses on the first three categories of legal claims. While the vast majority of these
claims are initiated by federal prisoners, it should be noted that some litigation actions and administrative
claims under the Federal Tort Claims Act may involve non-prisoners, including employees, visitors, and
other third parties who have contact with the Bureau and its employees.
For the Administrative Remedies Program, complete data is available for 16 of the 24 quarters
between the First Quarter 1993 through the Fourth Quarter 1998 (October 1, 1993 through September 30,
1998). For those quarters, statistics are available on filings at the institution level, appeals to the six
regional office~ and appeals to the Central Office. The Bureau also provided more limited data on
administrative remedies for the First Quarter 1999 through the First Quarter 2002, covering 12 of the 13
quarters during this time period. This dataset is limited to the total number of appeals filed with the six
regional offices for each quarter.
For administrative claims filed pursuant to the FTCA, complete data is available for 21 of the 28
quarters between the First Quarter 1992 through the Fourth Quarter 1998 (October 1, 1992 through
September 30, 1998). For these quarters, statistics are available for filings with the six regional offices
and with the Central Office. The Bureau also provided more limited data on FTCA administrative claims
for the First Quarter 1999 through the First Quarter 2002, covering 12 of the 13 quarters during this time
period. This dataset is limited to the total number of administrative claims filed with the six regional
offices for each quarter.

i

./

)

I Letter from Margo Schlanger, Assistant Professor of Law, Harvard Law School, to Freedom of Information Act /
Privacy Act Section, Office of General Counsel, Federal Bureau of Prisons (Apr. 17,2001) (on file with the author).

DA-2

For all litigation actions, complete data is available for 23 of the 28 quarters between the First
Quarter .1992 through the Fourth Quarter 1998 (October 1, 1992 through September 30, 1998). For these
quarters, statistics are available for litigation actions assigned to the six regional offices and the Central
Office. The Bureau also provided more limited data on litigation actions filed during the First Quarter
. 1999 through the Second Quarter 2000, covering six of the six quarters for this time period This dataset
is limited to litigation actions assigned to the six regional offices for each quarter.
2) Additional Notes on Litigation Actions
For the number of awards, the number of settlements, and the amount of settlements and awards,

all reported figures were checked against the narrative descriptions provided in the quarterly (and when
necessmy, the monthly) reports. When there were discrepancies between the Central Office reports and
the regional reports, or between either of these reports and the narrative descriptions, frrst an attempt was
made to resolve any arithmetic errors, and then I defaulted first to the narrative description (where
available), and second to the figures in the regional reports. Through this process of review, I also
separated the statistics on the amount of settlements and awards into two separate categories.

--I

In this review of the reported statistics on awards and settlements compared to the narrative
descriptions in the same reports, I discovered that the recording of non-monetaJy settlements and awards
is inconsistent and generally lacking. In most cases, the number of settlements and settlements reported
by the regional offices and the Central Office do not appear to include various non-monetary outcomes in
favor of prisoners that are recounted in the narrative descriptions. For this reason, I excluded any nonmonetaJy outcomes when they were included in the statistics. The reported number of awards and
settlements in the final dataset only reflects settlements or awards resulting in monetary relief.

J
--1

\

~

B. The Administrative Office of the United States Courts Dataset

')

The Administrative Office of the United States Courts (AO) dataset was constructed from raw
data that is collected by the Administrative Office of the United States and the Federal Judicial Center,
and is maintained in a publicly-accessible database through the Inter-university Consortium for Political
and Social Research.2 The AO dataset includes statistics on all cases tenninated in the federal courts
since the Fiscal Year 1970, as well as cases that were pend~g as of the end of Fiscal Year 2001.

The following chart provides a summary for some of the variables tracked in the AO dataset,
which are relied on in this paper:

.1

Label
Jurisdiction

J

Description

• The basis of jurisdiction for filing the case
in federal court.

1
Nature of SUit

)

• The nature of the action filed.

Codlna ODtions
• 1 - U.S·. Plaintiff
• 2 - U.S. ·Defendant
• 3 - Federal Question
• 4 - Diversity of Citizenship
• 5 - Local Question (territorial districts
only)
• -8 - Missina or out-of-range
• 510 - Vacate sentence (2255)
• 520 - Parole Soard Review
• 530 - Habeas Corpus
• 535'- Habeas Corpus - Death Penalty
• 540 - Mandamus and Other

2 See Federal Judicial Center, ·Federal Com Cases: Integrated' Data Base, 1970-2000 {pts. 38-55, 64-65, 73- 74, 8688, 98, 103-04, 11 5-17 (civil tenninations 1970-2000), 118 (civil pending 2000» (lCPSR Study No. 8429, last
updated Apr. 25, 200~), at http:" www.icpsr.umich.edu:8080IICPSR-STUDY/08429.xml; Federal Judicial Center,
Federal Court Cases: Integrated Data Base, 2001 (pts. 2 (civil tenninations), 3 (civil pending» (lCPSR Study No.
3415, last updated June 19,2002), at http://www.icpsr.umich.edu:8080IICPSR-STUDY/03415.xml

DA-3

Label'

Judgment For
(1979 -)

Nature of
Judgment (1979 - )

-I
-,
~,

~J

Amount Received

-I

f»ro Se (1998 .. )

!
)

Description

Coding Options

• 550 - Prisoner - Civil Rights
• 555 - Prison Conditions
"
• .,;a Missing. or QUt-of-ranae
• Identifies the party favored by the
• 1 - Plaintiff
judgment of the court for adions
• 2 - Defendant
disposed of by the entry of a final
• 3- Both
judgment
• 4 - Untmown (or not applicable)
• -8 - Out..of-range
• -9 - Data not collected (SY70 - SY78)
• The nature of the judgment for those
• 0 - No monetafy award
actions disposed of by the entry of a final , • 1 - Monetary award only
judgment.
• 2 .. Monetary award and other
• 3 - Injunction
• 4 - Other, forfeiture, fOreclosure,
condemnation, remand, etc.
• 5 - Costs only
• 6 - Costs and attorney fees
• -8 - Missing or out-of-range
• -9 - Oata not conected (SY72 - SY78)
• The monetary judgment amount awarded
• 9999 - Coded for amounts greater than
(excfuding cOsts) in thousands of dottars.
$9,999,000
• -0 - Missing (blank)
• -8 - Out-of-range (contains alphas)
• The pro se status of1he plaintftfs and
• -9 - Data not collected this. year
defendants.
• -8 - Missing
• 0 - No pro se plaintiffs or defendants
• 1 - Pro se plaintiffs, no pro se
defendantS
• 2 - Pro se defendants, no pro se
plaintiffs
• 3 - Both pro se plaintiffs and defendants

The ·results in this paper are based on a revised dataset, in which the raw data provided by the AO
has been altered in several respects by Professor Margo Schlanger.3 The chart below provides a summary
for some of the new variables created by Schlanger, which are relied on in this paper.

.J

Schlanger identified and recoded cases that had been coded by the AO data system as not
involving federal parties, but that were found to involve a U.S. defendant4 The "Federal plaintiff()r
defendant - all" categOl)' under the new U.S. Party Status Total variable includes these newly re-coded
cases. All analyses in this paper rely on this new coding.
The AO data system creates a new data file every time a case is reopened in the district courts,
resulting in the double-counting of a number of cases. In order to exclude duplicates in the dataset,
Schlanger created a new variable to track whether a particular data file was the first appearance, last
appearance, or 'only appearance 'of that 'case in the district courts. The results presented in this paper
regarding case filings and pro se status are limited to those cases that Schlanger coded as rust or only
appearances, and the results regarding case dispositions are limited to those cases that Schlanger coded as
last or only appearances.

For additional information on the construction of the revised dataset, see Margo Schlanger, Inmate Litigation, .t']'6
HARv. L. REv. 1557, 1698-1706.
4 See supra Part m.C.2(b).

3

)

DA-4

Finally, Schlanger recoded the filing and tennination years to make these fields consistent over
time, and she combined the data from several fields into summary variables.
Label (Years)
Rscal Year of

Coding Options

Fiscal Year of
Tennination

•

Initial
Appearance?
Final Appearance?

•

The year of filing. based on the federal
fiscal year of Odober 1 through
September 30.
The year of tennination, based on the
federal fiscal year of October 1 through
September 30.
New variable.

•

New variable.

Nature of Suit

•

Filing

Summary

"I

Description

•

Combines the AO Nature of Suit
variable into two categories.
Habeas, etc. includes 510 - Motion to
Vacate Sentence (2255) • 520 - Parole
Board Review. 530 - Habeas Corpus,
535 Habeas Corpus - Death Penalty.
and 540 - Mandamus and other.
• Inmate civil rights includes 550 Pri&oRer - Civil Rights and 555 - Prison
Conditions.
• Combines the AO jurisdlct10n variable
into two categories.
• Federal defendant or plaintiff includes
1 - U.S. Plaintiff and 2 - U.S.
Defendant
• Non-federal parties includes aU other
categories. 3 - Federal Question. 4 Diversity of Citizenship. and 5 - Local
Question (territorial distrids only).
• Combines AO data from the
Disposition variable to create a new
variable.

•

]

U.S. party Status
Total

Outcome Summary

(1979 -)

.I
.1

)

Judgment For
Summary (1979 -)

•
•

Combines the AO Judgment For
variable into four categories.
PJaintiff or both includes 1 - Plaintiff

DA-S

•

Fiscal Year 1970 -"2001

•

Fiscal Year 1970 - 2001

• o- Inffial appearance or unknown
• 1 Subsequent a
• 0- Nonfinal appearance
• 1 - Only or final appearance
• o- Habeas, etc. - 500s
• 1" - Inmate civil rights - 550 or 555

• o- Non-federal parties -

•

•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

aD
1 - Federal defendant or plaintiff - aU

-8 - Data not reliably collected this
year
-1- Missing
0- Non-judgment disposition
1 - Pretrial dismissal (defense victory)
2 - Pretrial plaintiffs victory
3 - Arbitration appeal. plaintiffs vidory
4 - Arbitration appeal. defense vidory
5 - Pretrial resolution, unknown vidor
6 - Voluntary dismissal
7 -Settled
8 - Jury verdict for defendant
9 - Jury verdict for plaintiff
10 - Jury verdict for unknown party
11 - Direded verdict for plaintiff
12 - Directed verdid for unknown
party
13 - Directed verdict for defendant
14 - Bench verdict for defendant
15 - Bench verdict for plaintiff
16 - Bench verdict for unknown party
17 - Sti11 pencl1na
1 - Plaintiff or both
2 - Defendant
"4 - Unknown (or not applicable)

Label (Years)

)
Nature of
Judgment
Summary (1979 -)

Nature of Trial
Summary
Trial Outcomes

Plaintiff Win But
Award =0

J
c.

)

J

Description
and 3-80th.
• Combines the AO Nature of Judgment
variable into six categories.
Money award includes 1 - Monetary
award only and 2 - Monetary award
and other.
• Costs wI and w/out aHy fees includes 5
- Costs only and 6 - Costs and attorney
fees.
• Combines AO data from the
Disposition variable to create a new
variable.
• Combines AO data from the Outcome
variable to create a new variable.

•

• New variable created to identify cases in
which a judgment has been recorded for
the plaintiff. but an award of zero is
reported.

•
•
•
•
•
•
•

Coding OptIons
-9 - Data not collected (SY70 - SY78)
0- No award coded
1 - Money award
3 - Injunction
4 - FoJfeiture, etc.
5 - Costs wI and w/out aUy fees
-9 - Data not coHected (SY72 - SY78)

•
•

O-No trial
1 - Jury trial
2 - Bench trial
• -9 - Unknown victory
• 1 - Defendant victory
• 2 - Plaintiff vidory
.O-No
• 1- Yes

•

Prisoner Population Figures

Calculation of the filing rates required population figures for state and federal prisoners. The
Bureau of Justice Statistics surveys depamnents of corrections in each of the fifty states, the District of
Columbia, and the federal Bureau of Prisons to obtain yearend and midyear counts of prisoners. The
counts used in this paper include prisoners under the jurisdiction of the state or federal authorities,
meaning that the state or the federal government has legal authority over the prisoner. Prisoners under a
state's jurisdiction may be in the custody of a local jail, another state's prison, or another correctional
facility. Similarly, the Bureau of Prisons reports that prisoners under its jurisdiction include inmates
confined in privately-operated prisons, detention centers, community corrections centers, and juvenile
facilities, and correctional facilities and detention centers operated by state and local governments. It is
important to note that these figures do not include persons on probation, parole, or similar fonns of noncustodial supervision.
.In order to calculate filing rates for the Bureau of Prisons dataset, it was necessary to estimate the
federal prisoner population figures on a quarterly basis for the entire period of 1992 through 2001. For
the years 1995 through 2001, population figures were available for three of the four quarters of the fiscal
year-reported as of June 30, September 30, and December 31. For all other years, only yearend
population figures were available, reported as of December 31. To fill in the missing quarters I used a
method of linear interpolation, based on the quarterly figures that were available for each period. This
method of interpolation-which assumes linear growth from quarter to quarter-was tested on the years
for which population data was nearly complete, and was found to be more accurate than a similar method
of interpolation based on assumptions of fixed percentage growth from quarter to quarter.

All filing rates in this paper are reported for the Fiscal Years 1977 through 2001, because
consistent population figures from the following sources were only available for these years.
Yearend population figures are based on data from the Bureau of Justice Statistics:
•

)

Paige M. Harrison, Ph.D. & Allen J. Beck, Ph.D., Bureau of Justice Statistics, Prisoners in 2001
(2002); Allen J. Beck, Ph.D., & Paige M. Harrison, Ph.D., Bureau of Justice Statistics, Prisoners
in 2000 (2001); Allen J. Beck, Ph.D., Bureau of Justice Statistics, Prisoners in 1999 (2000); Allen
J. Beck, Ph.D., & Christopher J. Mumola, Prisoners in 1998 (1999); Darrell K. Gilliard & Allen J.
Beck, Ph.D., Prisoners in 1997 (1998); Christopher J. Mumola & Allen J. Beck, Ph.D., Prisoners

DA-6

.I

in 1996 (1997); Darrell K. Gilliard & Allen J. Beck, Ph.D., Prison and Jail Inmates, 1995 (1996);
.Allen J. Beck, PhD., & Darrell K. Gilliard, Prisoners in 1994 (1995).
•

I

George Hill & Paige Harrison, Bureau of Justice Statistics, Prisoners Under State or Federal
Jurisdiction, 1998 -1977 (2000)

Midyear population figures are based on data from the Bureau of Justice Statistics:
•

Allen J. Beck, Ph.D., Jennifer C. Karberg, & Paige M. Harrison, Prison and Jail Inmates at
Midyear 2001 (2002); Allen J. Beck, Ph.D., & Jennifer C. Karberg, Prison and Jail Inmates at
Midyear 2000 (2001); Allen J. Beck, Ph.D., Prison and Jail Inmates at Midyear 1999 (2000);
Darrell K. Gilliard, Prison and Jail Inmates at Midyear t 998 (1999); Darrell K. Gilliard, & Allen
J. Beck, Ph.D., Prison and Jail Inmates at Midyear 1997 (1998); Darrell K. Gillianl, & AllenJ.
Beck, Ph.D., Prison and Jail Inmates at Midyear 1996 (1997).

Population figures as of September 30 (the end of the federal fiscal year) are based on data from the
Bureau of Prison's annual reports, State of the Bureau, 2001 to 1995.

-]

J
-1
~
)

I

J

J
']

)

DA-7

I
\

INDEX TO TABLES OF RAw DATA

~!

I
J

l

I

J

J

) Index to Tables of Raw Data...................................................................................................................................... 8
Table 1. Administrative Remedies Program - Central Office Appeals, FY 1993-1998 ......................................... ]0
Table 2. Administrative Remedies Program - Central Office Appeals, FY 1993-1998 ......................................... 11
Table 3. Administrative Remedies Program - Regional Office Appeals, FY 1993-1998 ...................................... 12
Table 4. Administrative Remedies Program - Regional Office Appeals, FY 1993-1998 ...................................... 13
Table 5. Administrative Remedies Program - Institutional Filings, FY 1993-1998 .............................................. 14
Table 6. Administrative Remedies Program - Institutional Filings, FY 1993-1998 .............................................. 15
Table.
7 Adm'1nt·strat·lve Remed'les Program - F·I·
I mg Rates, FY 1993-1998 .......................................................... 16
Table 8. Administrative Remedies Program - Estimated Total Filings and Filing Rates per Fiscal Year, FY 19931998 ......................................................................................................................................................... 16
Table 9. Administrative Remedies Program - Regional Office Appeals, FY 1993-2002 ...................................... 17
Table 10. Federal Tort Claims Act Administrative Claims, FY 1992-1998 ........................................................... 18
Table 11. Federal Tort Claims Act Administrative Claims - Estimated Figures per Fiscal Year, FY 1992-1998.19
Table 12. Federal Tort Claims Act Administrative Claims - Total Filings with the Six Regional Offices and
Filing Rates, FY 1992-2002..................................................................................................................... 20
Table 13. Litigation Actions by Federal Prisoners (BOP Dataset), FY 1992-1998 ................................................ 22
Table 14. Litigation Actions by Federal Prisoners (BOP Dataset) - Percentage Weight & Filing Rates, FY 19921998 ......................................................................................................................................................... 24
Table 15. Litigation Actions by Federal Prisoners (BOP Dataset) - Actions Filed with the Six Regional Offices,
FY 1992-2000 .......................................................................................................................................... 26
') Table 16. Litigation Actions by Federal & State Prisoners (AO Dataset) - Total Filings & Filing Rates, FY 1992,
200 1 ......................................................................................................................................................... 28
Table 17. Civil Rights Actions by State & Federal Prisoners (AO Dataset) - Total Filings, Percent State &
Federal, and Annual Percent Change, FY 1992-2001 ............................................................................. 28
Table 18. Litigation Actions by Federal Prisoners (AO Dataset) - Total Filings & Filing Rates by Type of Action,
FY 1992-2001 .................................................................................................................•........................ 29
Table 19. Litigation Actions by Federal Prisoners (AO Dataset) - Collateral Attacks and Habeas Corpus Petitions
by Type of Action, FY 1992-200 I ........................................................................................................... 30
Table 20. Litigation Actions by State Prisoners (AO Dataset) - Total Filings & Filing Rates by Type of Action,
FY 1992-200 1....................................................................................................•..................................... 31
Table 21 Civil Rights Actions by Federal Prisoners (AO Dataset) - Pro Se Status of Litigants, FY 1997-2001.... 32
Table 22. Civil Rights Actions by Federal Prisoners (AO Dataset) - Correlation Between Pro Se Status and
Outcomes, FY 1997-2001 ........................................................................................................................ 32
Table 23. Civil Rights Actions by Federal Prisoners (AO Dataset) - Correlation Between Pro Se Status and
Judgment For, FY 1997-2001 .................................................................................................................. 33
Table 24. Civil Rights Actions by Federal Prisoners (AO Dataset) - Correlation Between Pro Se Status and
Nature of Judgrnent, FY 1997-2001 ........................................................................................................ 33
Table 25. Civil Rights Actions by Federal Prisoners (AO Dataset) - Correlation Between Pro Se Status and
Nature of Trials, FY 1997-2001 .............................................................................................................. 34
Table 26. Civil Rights Actions by Federal Prisoners (AO Dataset) - Correlation Between Pro Se Status and Trial
Outcomes, FY 1997-2001 ........................................................................................................................ 34
Table 27A. Civil Rights Actions by Federal Prisoners (AO Dataset) - Outcomes by Fiscal Year of Termination,
FY 1992-200 1.......................................................................................................................................... 35
)

DA-8

Table 27B. Civil Rights Actions by Federal Prisoners (AO Dataset) - Outcomes by Fiscal Year of Filing,
FY 1992-200 1.......................................................................................................................................... 36
') Table 28. Civil Rights Actions by Federal Prisoners (AO Dataset) - Nature of Trial, FY 1992-2001 .................. 37
Table 29. Civil Rights Actions by Federal Prisoners (AO Dataset) - Trial Outcomes, FY 1992-2001 ................. 37
Table 30. Civil Rights Actions by Federal Prisoners (AO Dataset) - Judgments For, FY 1992-2001 ................... 38
Table 31. Civil Rights Actions by FederaJ Prisoners (AO Dataset) - Nature of Judgments, FY 1992-200 I ......... 38
Table 32. Civil Rights Actions by Federal Prisoners (AO Dataset) - Awards (in Thousands of Dollars), FY 19922001 ......................................................................................................................................................... 39
Table 33. Civil Rights Actions by State Prisoners (AO Dataset) - Pro Se Status of Litigants, FY 1997-2001...... 40
Table 34. Civil Rights Actions by State Prisoners (AO Dataset) - Outcomes, FY 1992-2001 .............................. 41
Table 35. Civil Rights Actions by State Prisoners (AO Dataset) - Judgments For, FY 1992-2001 ....................... 42
Table 36. Civil Rights Actions by State PrisonerS (AO Dataset) - Nature of Judgments, FY 1992-2001 ............ 42
Table 37. Civil Rights Actions by State Prisoners (AO Dataset) - Nature of Trial, FY 1992-2001 ...................... 43
Table 38. Civil Rights Actions by State Prisoners (AO Dataset) - Trial Outcomes, FY 1992-2001 ..................... 43
Table 39. Civil Rights Actions by Federal Prisoners (AO Dataset) - Awards (in Thousands of Dollars), FY 1992200 1 ......................................................................................................................................................... 44
Table 40. Prisoner Population Figures - Federal & State, FY 1977-2001 .............................................................. 45
Table 41. Federal Prisoner Population Figures by the Quarter (Estimated), FY 1992-2001 .................................. 46

I
--I

J
--I

!
_.

! )
(

.J
]
-I

I

i

DA-9

Table 1. Administrative Remedies Program - Central OffIce Appeals. FY 1993-1998
Central
OffIce
Appeals

iQ93
2Q93
3Q93
4Q93
iQ94
2Q94
3Q94
4Q94
.iQ95
2Q95
3Q95
4Q95
1Q96
2Q98
3Q96
4Q96
1Q97
2Q97
3Q97
4Q97
iQ98
2Q98
3Q98
4Q98
Total
Percent of
Total
Average Per
Quarter
Average per

Total Filed

Total Denied

Total
Granted

Ratio of
Claims
Denied to
Claims
Granted

Denied Untimely

Denied-No
Denied Denied Infonnal Attachments Wrong Level
Resolution

Denied Resubmit

Total
Pending

Total
Overdue

717
662

27
18

408
390

15.11
21.67

129
128

1
0

54

n

46
49

1
184

461
299

38
24

703
6n

21
15

361
409

17.19
27.27

127
145

0
0

57
59

54
49

141
171

253
220

10
15

783
958
912
917
1,047
882
899
940
962
1,033
772

10
14
16
12
10
9
7
13
13
6
80

410
425
597
657
582
545
520
517
569
605
433

41.00
30.36
37.31
54.75
58.20
60.56
74.29
39.n
43.n
100.83
5.41

92
103
181
180
156
159
171
123
141
158
123

0
0
3
4
1
1
2
10
2
1
1

90
88
99
84
112
79
90
85
116
119
75

69
n
89
144
100
79
87
113
84
90
76

183
213
293
310
314
285
233
245
311
311
212

289
313
407
377
357
278
304
391
356
252
320

8
10
12
21
8
15
25
38
16
7
13

1,227
14,091

13
284

677
8,105

52.08
28.54

128.00
2.244
27.69%

10
36
0.44%

171
1,455
17.95%

111
1.317
16.25%

399
3.806
46.96%

496
5.373

8
268

880.69

17.75

508.56

140.25

2.25

90.94

82.31

237.88

335.81

16.75

3,522.75

71.00

2.026.25

561.00

9.00

363.75

329.25

951.50

1.343.25

67.00

FY

DA-IO

r

-

;

-'

"_.of

Table 2. Administrative Remedies Program - Central Office Appeals. FY 1993-1998
Central
OffIce
Appeals

1Q93
2Q93
3Q93
4Q93
1Q94
2Q94
3Q94
4Q94
1Q95
2Q95
3Q95
4Q95
1Q96
2Q96
3Q96
4Q96
1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98
4Q98
Total
Percent of
Total
Average
Per
Quarter
Average
perFY

Total Flied
-

DHO

UDC

Special
Housing
Unit

Staff

Medical

Mental
Health

Classlflcation

Transfer

Work
Assignment

Cmty
Jail TIme
Legal
Food
Programs
Remedies Remedies

662

269
221

58
63

17
34

93
74

64
69

5
2

118
141

47
64

52
31

46

70
59

52

703
6n

280
298

72
76

13
19

92

84

84

78

4
1

83
71

51
63

33
33

35
33

66
70

51

783
958
912
917
1.047
882
899
940
962
1.033
772

252
295
490
571

85
75
82
86
97
80
87
87
110
108
87

22
26
49

85
119
94
104
137
134
121
141
142
178
119

99
75
81
80

2
2
5

87
87
93
72
116
129
128
104
115
125
91

53
51
67
72
97
81
68
79
71
99

51
35
37
29
45
36
37
29
42
45
32

50
49
35
35
39

82
269
189
134
158
149
141
185
131
140

717

1.227
14.091

404

347
347
328
354
350

2n

89
369
5,452 1.342
38.69% 9.52%

880.69 340.75 83.88
3,522.75 1.363.00 335.50

56
58

32
25
41
36
27
25

98

102
91
114
109
124
100

186
166
37
517 1.903 1.534
3.67% 13.51% 10.89%

2

7
3
2
5
4
4
1
7

58

51

36

42
48
55
34
26

66

48

71

9
7

32
27

90

78
81
61

8
3
8
11
19
7
8
14
19
13
12

95
985
6.99%

17
214
1.52%

43

43
67
74
46
66

43

0.40%

136
1.696
12.04%

1.117
7.93%

58
625
4.44%

4.66%

205
2.138
15.17%

95.88

3.50

106.00

69.81

39.06

41.00

133.63

61.56

13.38

129.25 475.75 383.50

14.00

424.00

279.25

156.25

164.00

534.50

246.25

53.50

32.31

118.94

66

DA-ll

96

42
656

t_,

'~

Table 3. Administrative Remedies Program - Regional Office Appeals. FY 1993-1998
Regional
Office
Appeals
1Q93
2Q93
3Q93
4Q93
1Q94
2Q94
3Q94
4Q94
1Q95
2Q95
3Q95
4Q95
1Q96
2Q98
3Q98
4Q98
1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98
4Q98
Total
Percent of
Total
Average per
Quarter
Average per

Total Filed

Total
Granted

Total Denied

Ratio of
Claims
Denied to
Claims
Granted

Denied Untimely

Denied - No
Denied Denied Infonnal Attachments Wrong Level
Resolution

Denied Resubmit

Total
Pending

Total
Overdue

1,764
1,711

156
146

639
691

4.10
4.73

76
61

5
16

157
168

114
79

1
160

446
541

0
3

1,759
1,731

188
196

673
598

3.58
3.05

124
106

11

22

69
68

90
74

169
110

530
547

1
3

1,959
2,452
2,262
2,214
2,392
2,246
2,182
2.448
2,228
2,289
2,473

180
217
202
201
199
135
132
197
227
204
198

888
1,103
1,077
1,177
980
1,037
1,062
955
920
1,022
1,096

4.93
5.08
5.33
5.86
4.92
7.68
8.05
4.85
4.05
5.01
5.54

181
168
136
155
97
122
102
91
92
76
104

5
23
71
172
129
123
147
87
81
62

64

99
146
97
187
194
139
151
104
59
93
111

186
276
373
396
341
390
398

56

84
112
82
101
74
61
65
87
73
119

391
434
457

680
854
858
934
835
663
835
862
740
725
960

2
5
76
38
30
2
13
15
4
21
12

2,892
35,002

201
2,979

1,256
15,174

6.25
5.09

123
1,814
11.95%

155
1,165
7.68%

102
1,486
9.79%

81
1,818
11.98%

491
4,921
32.43%

1,118
12,128

63
288

2,187.63

186.19

948.38

113.38

72.81

92.88

113.63

307.56

758.00

18.00

8,750.50

744.75

3,793.50

453.50

291.25

371.50

454.50

1,230.25

3,032.00

72.00

FY

DA-12

348

U

-

i_

-'

Table 4. Administrative Remedies Program - Regional Office Appeals. FY 1993-1998
Regional Total Flied
Office
Appeals
1Q93
2Q93
3Q93
4Q93
1Q94
2Q94
3Q94
4Q94
1Q95
2Q95
3Q95
4Q95
1Q96
2Q96
3Q96
4Q96
1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98
4Q98
Total
Percent of
Total
Average
per
Quarter
Average
perFY

DHO

UDC

Special
Housing
Unit

Staff

Medical

Mental
Health

Classlftcation

Transfer

Work
Assignment

Cmty
Jail Time
Legal
Food
Programs
Remedies Remedies

1,764
1,711

6n

161
138

50
56

225
182

127
140

2
5

228
241

132
144

77
73

135
134

83
101

102
85

23
14

1,759
1,731

883
805

191
178

53
36

190
191

143
132

5
4

142
166

107
119

78
75

112
74

96
80

80
83

45
52

1,959
2,452
2,262
2,214
2,392
2,246
2,182
2,448
2,228
2,289
2,473

904
1.452
1,304
1,197
1,070
1,048
1.006
1,080
958
1,034
1,013

214
230
215
223
256
236
256
284
252
254
258

54
86
138
140
117
89
85
110
64
69
96

241
284
311
339
361
232
349
383
380
406
378

171
165
143
164
195
194
175
198
200

209
206
175
164
207
229
216
207
193
227
214

117
138
168
148
158
160
175
140
159
168
168

81
75
68
80
74
79
81
76
84
85
102

85
109
69
113
123
135
104
119
94
79
98

132
262
147
162
176
158
199
161
151
133
196

94
83

240

8
10
5
7
9
6
7
10
6
6
10

133
101
123
86
99
107
117
140

13
11
32
25
25
28
26
37
23
28
28

474
97
1,340
4,926
3.83% 14.070111

299
2,908
8.31%

13
113
0.32%

239
3,263
9.32%

187
2,388
6.82%

102
1,290
3.69%

116
1,699
4.85%

200
2,437
6.96%

181
1,712
4.89%

456
1.30%

307.88

181.75

7.06

203.94

149.25

80.63

106.19

152.31

107.00

28.50

335.00 1,231.50

727.00

28.25

815.75

597.00

322.50

424.75

609.25

428.00

114.00

2,892
35,002

704

1,277
264
3,610
16,412
46.89% 10.31%

2187.63 1025.75

225.63

8,750.50 4,103.00

902.50

83.75

222

DA-13

98

46

Table 5. Administrative Remedies Program -Institutional Filings. FY 1993-1998
Institution
Level
Filings
1Q93
2Q93
3Q93
4Q93
1Q"
2Q94
3Q94
4Q94
1Q95
2Q95
3Q95
4Q95
1Q96
2Q98
3Q96
4Q96
1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98
4Q98
Total
Percent of
Total
Average per
Quarter
Average per
FY

Total Flied

Total
Granted

Total Denied

Ratio of
Claims
Denied to
Claims
Granted

Denied Untimely

Denied - No
Denied Denied Infonnal
Attachment Wrong Level
Resolution

Denied Resubmit

Total
Pending

Total
Overdue

3,153
3,090

496
494

643
559

1.30
1.13

70
67

211
220

0
0

32
23

7
44

763
814

187
162

3,214
3,038

472
465

736
700

1.56
1.51

103
127

289
265

58
33

50
65

744
794

106
124

3,551
3,682
3,603
3,817
3,702
3,891
3,753
3,873
·3,854
3,873
4,035

556
589
542
596
485
553
533
516
572
573
555

759
802
958
1,208
1,035
1,003
986
912
994
1,071
1,075

1.37
1.36
1.77
2.03
2.13
1.81
1.85
1.77
1.74
1.87
1.94

122
135
135
158
116
129
124
113
111
138
126

330
298
372
463
383
364

°°
°

50
64
58

908
931
1,111
1,133
1,245
1,074
1,313
1,249
1,245
1,145
1,315

171
235
231
249
287
318
358
301
319
320

4,275
58,404

542
8,539

1,252
14,693

2.31
1.72

3,650.25

533.69

14,601.00

2,134.75

326
413
401
339

1
0
0
0
0
0
0
0
0
0

64
65
51
63
65
46
76

142
142
196
309
342
337
302
298
361
372
397

107
1,881
12.80%

508
5,528
37.62%

0
1
0.01%

95
906
6.17%

453
3,817
25.98%

1,336
17,120

358
4,066

918.31

117.56

345.50

0.06

56.63

238.56

1,070.00

254.13

3,673.25

470.25

1,382.00

0.25

226.50

954.25

4,280.00

1,016.50

DA-14

346

63

340

LJ

Table 6. Administrative Remedies Program - Institutional Filings. FY 1993-1998
Instlt.
Level
Filings

1Q93
2Q93
3Q93
4Q93
1Q94
2Q94
3Q94
4Q94
1Q95
2Q95
3Q95
4Q95
1Q9S
2Q9S
3Q9S
4Q96

1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98
4Q98

Total
Flied

UDC

DHO

Special
Housing
Unit

Staff

Medical

Mental
Health

Classiflcation

Transfer

Work
Cmty
Jail Time
Legal
Food
Asslgn- Programs
Remedies Remedies
ment

3,153
3,090

55
34

349
342

131
120

560
520

342
356

12
9

367
365

224
277

212
213

213
206

128
120

185
146

56

3,214
3,038

72
49

520
502

163
114

547
538

432
349

15
18

253
307

176
173

215
244

209
195

103
103

211
160

75
65

3,551
3,682
3,603
3,817
3,702
3,891
3,753
3,873
3,854
3,873
4,035

77
87
79

129
241
285
294
255
244
176
267
183
207
248

604
601
694
686
697
696
738
737
810
792
754

393
396
371
460
399
426
476
531
489

23
16
18
26
20
15
20
18
16
22
24

358
337
313
342
392
382
339
322
324
341
343

184
192
223
233
240
232
221
216
262
251
188

223
190
190
214
186
237
202
241
214
228
218

200
181
148
197
214
226
182
189
171
146
175

178
226
209
195
206
188
256
194
219
165
223

180
214
196
258
181
224
211
210
206
270
217

48

101
82
61
75
65
58
94

538
669
601
688
704
738
659
726
729
755
809

85
74
81
83
79
83
104
71
84
76

944

99

448
443

70

Total
Percent
of Total

58,404

116
1,204
2.06%

686
10,015
17.15%

212
3,289
5.60%

10,918
18.89%

598
8,909
11.83%

28
300
0.51%

390
5,475
9.37%

252
3,544
6.07%

248
3,475
5.95%

167
3,019
5.17%

216
2,929
5.02%

283
3,352
5.74%

103
1,237
2.12%

Average
per
Quarter

3,650.25

75.25

625.94

204.31

682.38

431.81

18.75

342.19

221.50

217.19

188.69

183.06

209.50

77.31

Average
perFY

14,601.00

75.00 1,368.75

886.00

868.75

754.75

732.25

838.00

309.25

4,275

301.00 2,503.75

817.25 2,729.50 1,727.25

DA-15

Table 7. Administrative Remedies Program - Filing Rates, FY 1993-1998

)

I

.,.\

J
-1

~

)

_.1

Quarter

Central
Office
Appeals

1Q93
2Q93
3Q93
4Q93
1QN
2Q94
3Q94
4Q94
1Q95
2Q95
3Q95
4Q95
1Q96
2Q96
3Q98
4Q98
1Q87
2Q97
3Q97
4Q97
1Q98
2Q98
3Q88
4Q88
Average per
Quarter
Average per

Regional
Office
Appeals

Institutional Prisoner
Central
Regional Institutional
Level Filings Population OffIce Filing Office Filing Level Filing
Rate Per
Rate Per
Rate Per
1,000
1,000
1,000
Prisoners
Prisoners
Prisoners

717
662

1.764
1.711

3.153
3,090

703
677

1,759
1,731

3,214
3,038

783
958
912
917
1,047
882
899
940
962
1,033
772

1.959
2.452
2,262
2,214
2,392
2,246
2,182
2,448
2,228
2,289
2,473

3,551
3,682
3,603
3,817
3,702
3,891
3,753
3,873
3,873
4,035

1,227

2,892

4,275

3~854

80.259
82.591
84.923
87,255
89.587
90,949
92.311
93.672
95,034
97,250
99,466
100,958
100,250
101,986
103,722
105,432
105,544
107,852
110,160
112,289
112,973
115,941
118,908
122,316

8.44
7.59

20.77
19.61

37.13
35.41

7.40
6.96

18.51
17.80

33.82
31.24

7.76
9.56
8.94
8.84
9.93
8.36
8.34
8.53
8.57
9.14
6.66

19.40
24.46
22.18
21.35
22.69
21.28
20.23
22.22
19.84
20.26
21.33

35.17
36.73
35.33
36.80
35.11
36.87
34.80
35.16
34.32
34.28
34.80

10.03
8.44

23.64
20.97

34.95
35.12

33.76

83.89

140.48

FY

Table 8. Administrative Remedies Program - Estimated Total Filings and Filing Rates per Fiscal
Year. FY 1993-1998

J

Fiscal Year Central
Office
Appeals

FY1993
FY 1994
FY1995
FY1996
FY1997
FY1998

Regional
OffIce
Appeals

Fiscal Year Central
Filing Rate
per 1,000
prisoners

Institutional
Level Filings

2,758

6,950

12,486

2,884
3,834
3,683
4,043

7,265
9,320
9,104
10,205

13,071
14,804
15,371
16,244

FY 1993
FY 1994
FY 1995
FY 1996
FY 1997
FY 1998

)

DA-16

Regional
Office Filing
Rate per
1,000
prisoners

Institutional
Level Filing
Rate per
1,000
prisoners

32.06

80.76

145.08

29.49
37.27
33.79
34.45

74.28
90.67
83.58
86.98

133.64
143.97
141.14
138.71

Table 9. Administrative Remedies Program - Regional Office Appeals. FY 1993-2002
Total Filings for
Six Regions

I
:'J

D
;~

1_

1

~
.1

'\

)

:.J

"-,J
L

1

. I

)

1Q93
2Q93
3Q93
4Q93
1Q94
2Q94
3Q94
4Q94
1Q95
2Q95
3Q95
4Q95
1QB8
2Q96
3QB8
4Q96
1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98
4Q98
1Q99
2Q99
3Q99
4Q99
1QOO
2QOO
3QOO
4QOO
1Q01
2Q01
3Q01
4Q01
1Q02
Total
Average per
Quarter
Average per FY
Average for New
Quarters
FY88
FY87
FY88
FY99
FYOO
FY01

1,764
1,711

1,759
1,731
1,959
2,452
2,262
2.214
2.392
2.246
2.182
2,448
2,228
2.289
2.473
2,892
3,170
3,186
3,270
3.118
2.914
3,189
3,374
3,061
3,055
3,168
3,150
3,393
73,050
2,608.93

Prisoner
Population

80,259
82,591
84,923
87,255
89,587
90,949
92.311
93,672
95,034
97,250
99,466
100,958
100,250
101,986
103,722
105.432
105,544
107.852
110,160
112,289
112,973
115,941
118,908
122,316
123,041
126,710
130,378
133.689
135,246
138,888
142.530
145,125
145,416
149,102
152,788
156,572

Claims Flied Per
1,000 Prisoners

20.77
19.61

18.51
17.80
19.40
24.46
22.18
21.35
22.69
21.28
20.23
22.22
19.84
20.26
21.33
23.64
25.76
25.14
25.08
23.32
21.55
22.96
23.67
21.05
20.49
20.73
20.12

21.68

10,435.71
3,170.67

86.73
22.72

9.320
9,104

90.67
83.58

12.744

99.31

12.434

82.39

DA-17

I,
~--

•

:....-..A

I

'~

,--",'

Table 10. Federal Tort Claims Act Administrative Claims. FY 1992-1998
Total
Claims
Filed

1Q92
2Q92
3Q92
4Q92
1Q93
2Q93
3Q93
4Q93
1Q94
2Q94
3Q94

Total
Personal
Property

Total
Personal
Injury

956
782
701
857

Claims

Amount Paid

Settled

Claims

Denied

Ratio of
Claims
Denied to
Claims

71
136
144
152

$17,174
$58,121
$33,828
$30,703

437
518
408
432

Settled
6.15
3.81
2.83
2.84

Claims
Pending

Other
Decisions

Claims
Overdue

Total
Percent of
Total

1,000

1,011
1,147

761
857

227
290

152
186

$24,n4
$21.394

290
465

1.91
2.50

1,485
1,601

0
0

182
151

1,104
1,066

879
833

223
230

171
172

$10,n6
$20,755

715
663

4.18
3.85

1,225
1,132

353
378

154
124

1,063
1,211
1,376
1,300
1,129
1,187
991
1,050
1,On
1,010
1,067
930
945
21,960

787
949
1,119
1,012
861
928
748
807
784
787
796
713
661
14,282
76.73%

276
262
257
288
267
264
222
240
293
220
275
216
281
4,331
23.27%

158
138
211
in
142
163
128
109
173
92
95
82
81
2,933

$33,794
$34,390
$25,131
$31,747
$26,017
$38,538
$24,163
$92,377
$30,241
$41,817
$29,946
$12,008
$164,464
$802,158

766
531
717
798
742
486
576
486
622
511
5n
540
495
11,n3

4.85
3.85
3.40
4.50
5.23
2.98
4.50
4.46
3.60
5.55
6.07
6.59
6.11

1,098
1,342
1,336
1,293
1,293
1,293
1,585
1,585
1,368
1,375
1,300
1,225
1,072
22,608

269
301
307
342
318
222
266
307
337
409
294
294
321
4,718

149

DA-18

Claims
Flied Per
Prisoners

4Q94

1Q95
2Q95
3Q95
4Q95
1Q98
2Q98
3Q98
4Q98
1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98
4Q98

Prisoner
Population

84

298
226
226
236
543
543
319
314
155
76
62
3,842

71,608
73,771
75,934
78,096
80,259
82,591
84,923
87,255
89,587
90,949
92,311
93,672
95,034
97,250
99,466
100,958
100,250
101,986
103,722
105,432
105,544
107,852
110,160
112,289
112,973
115,941
118,908
122,316

13.35
10.60
9.23
10.97

11.90
13.15

11.62
10.96
10.53
12.08
13.49
12.53
10.71
11.25
9.19
9.53
9.59
8.94
9.20
7.82
7.73

~.

Total
Claims
Flied

Total
Personal
Injury

Total
Personal
Property

Claims
Settled

Claims
Denied

Amount Paid

Average
per Quarter

1,045.71

680.10

206.24

139.67

$38,198

Average
perFY

4,182.86

2,720.38

824.95

558.67

$152,792

Ratio of
Claims
Denied to
Claims
Settled
560.62
4.01

2,242.48

Claims
Pending

16.08

Other
Decisions

Claims
Overdue

Prisoner
Population

1,076.57

224.67

182.95

10.68

4,306.29

898.67

731.81

42.74

Table 11. Federal Tort Claims Act Administrative Claims - Estimated Figures per Fiscal Year. FY 1992-1998
Fiscal Year

FY 1992
FY 1993
FY1994
FY 1995
FY 1998
FY 1997
FY1998

Total Filings

Filing Rate

Total
Settlements

Total Denials Other

Percent
Settled

DecIsions

Total
Settlements

3,296
4,316

44.16
50.10

503
676

1,795
1,510

0
0

22%
31%

$139,826
$92,336

4,311
5,016
4,305
3,952

44.14
48.81
39.56
33.69

668
668
573
350

2,859
2,786
2,170
2,123

1,333
1,268
1,132
1,318

14%
14%
15%
9%

$87,100
$117,285
$185,319
$248,235

DA-19

Claims
Flied Per
1,000
Prisoners

Table 12. Federal Tort Claims Act Administrative Claims - Total Filings with the Six
Regional Offices and Filing Rates. FY 1992-2002

)
Total Claims Flied
for $Ix Regions

. }

_J

J

,
.J

J

')

I

;J
fl
. .1

)

1Q92
2Q92
3Q92
4Q82
1Q93
2Q93
3Q93
4Q93
1 QM
2Q84
3QM
4Q94
1QB5
2QB5
3Q95
4Q95
1Q96
2Q96
3Q96
4Q96
1Q97
2Q97
3QB7
4Q97
1Q98
2QB8
3Q98
4Q98
1Q99
2Q99
3Q99
4Q99
1QOO
2QOO
3QOO
4QOO
1Q01
2Q01
3Q01
4Q01
1Q02
Total
Average per
Quarter
Average per FY
Average for New
Quarters

934
753
678
841

969
1.086

1,040
1,013
1,059
1,006
1,154
1,318
1,222
1,076
1,144
945
982
1,010
929
1,014
929
941
1,064
1,009
1,026
1,100
1,009
934
1,053
993
963
1,000
1.084
1,004
34,282
1.008.29
4.033.18
1,019.92

DA-20

Prisoner
Population

71,608
73.771
75.934
78.096
80,259
82,591
84.923
87.255
89.587
90,949
92,311
93,672

95,034
97,250
99,466
100,958
100,250
101,986
103,722
105,432
105,544
107,852
110,160
112,289
112,973
115,941
118,908
122,316
123,041
126,710
130,378
133,689
135,246
138,888
142,530
145,125
145,416
149,102
152,788
156,572

Claims Flied Per
1,000 Prisoners

13.04
10.21
8.93
10.77

11.41
12.45

10.94
10.42
10.65
9.96
11.51
12.92
11.78
10.21
10.84
8.76
8.91
8.99
8.22
8.75
7.81
7.69
8.65
7.96
7.87
8.23
7.46
6.72
7.39
6.83
6.46
6.55
6.92

9.28

37.12
7.37

Total Claims Flied
for Six Regions

\
I

FY82
FY95
FY86
FY97
FY88
FY89
FY01

Prisoner
Population

Claims Flied Per
1,000 Prisoners

3,206

42.95

4,118
4,770
4,081
3,813
4,199
4,040

41.97
46.42
37.51
32.48
32.71
26.76

.1
l;'J

)

)

DA-21

. ...J

Table 13. Litigation Actions by Federal Prisoners (BOP Dataset), FY 1992-1998
Total
Actions
Flied

1Q92
2Q92
3Q92
4Q92
1Q93
2Q93
3Q93
4Q93
1Q94
2Q94
3Q94
4Q94
1Q95
2Q95
3Q95
4Q95
1Q96
2Q96
3Q96
4Q96
1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98
4Q98

Total
Habeas
Corpus

Total
FTCA

Total
Bivens

Total

Other

Number
Total
Total
Total
Number
Total
Number
of
Actions Actions Hearings of Settle- Amount of
of
Litigation Pending Closed or Trials menta Settlements Awards
Reports
Flied

123
117
132
121
150
129

46
62
73
48
35
27
50
30

119
148
194
186
364
230
204
199

1438
1304
1825
1411
1750
1899
1944
1661

30
48

114
155

85
79

326
279

47
34
35
35
27
53
42
36
33
38
28
26
25

135
142
129
193
133
135
102
95
67
76
59
67
84

33
20
34
35
29
57
49
33
197
46
42
34
52

178
245
313

265
274
371
352
354
330
382
334

103
116
143
150
149
142
143
141

30
34
31
34
30
34
40
34

348
413

119
131

358
340
385
416
365
496
423
377
384
360
301
268
315

143
131
178
141
171
244
228
203
220
199
170
146
142

89
90

349

207
198
259
208
217
245
217
154
145

Total
Amount of
Awards

Total
Amount of
Awards &
Settlements

489
305
195
286

31
23
68
17
13
25
37
17

4
12
8
6
8
6
6
3

$92,897
$1.374,671
$183,467
$3,602
$142,750
$138,290
$118.216
$390.000

0
1
1
1
1
3
2
1

$$750
$258,460
$13
$156.000
$35,214
$627
$10,000

$92,897
$1,375,421
$441,927
$3,615
$298.750
$173,504
$118,842
$400,000

1785
1807

227
229

11
17

2
5

$5,150
$194,550

0
1

$$-

2995
2037
2135
2132
1506
2153
2588
2713
2926
3064
1944
2402
2655

311
340
241
202
146
250
292
233
243
174
476
305
359

24
12
15
35
18
28
23
39
45
27
24
37
26

13
7
7
11
8
7
12
11
10
4
10
11
10

$951,062
$992,620
$91,380
$571,471
$533,825
$228,600
$339,267
$1,579,983
$102,111
$69,895
$1,029,835
$714,150
$792,063

1
2
0
2
2
1
2
0
0
3
0
1
2

$13
$140,000
$$153,466
$86,450
$173
$6,258
$$$10,799
$$45,000
$791,800

$5,150
$194,550
$$951,074
$1,132,620
$91,380
$724,937
$620,275
$228,773
$345,525
$1,579,983
$102,111
$80,694
$1,029,835
$759,150
$1,583,863

DA-22

229
191
184
205

i

-

1

~

Total
Actions
Filed

Total
Habeas
Corpus

Total
FTCA

Total
Bivens

Total
Other

Number
Total
Total
Total
Number
Total
Number
of
Actions Actions Hearings of Settle- Amount of
of
Litigation Pending Closed orTrials menta Settlements Awards
Reports
Flied

5,182

6,112

612

225.30 2,090.17

265.74

26.61

7.87

$462,602

1.17

$73,697

$536,299

901.22 8,360.70 1,062.96

106.43

31.48

$1,850,409

4.70

$294,786

$2,145,196

809
1,275
1,023

139
92
69

30
23
27

$1,654,637
$789,256
$1,534,349

3
7
3

$259,223
$201,841
$17

$1,913,860
$991,096
$1.534.366

929
1,018
1,314

80
135
114

33
40
35

$2,189,296
$2,249,961
$2,605,943

6
3
6

$379,916
$6,430
$847,599

$2,569,212
$2,256,391
$3,453,542

3,653

804

2,637

1.196

Average
per
Quarter

357.00

158.83

34.96

114.65

52.00

Average
DerFY
FY 1992
FY 1993
FY 1995
(Eatlmat
ed)
FY 1998
FY 1997
FY 1998

1,428.00

635.30

139.83

458.61

208.00

1,262
1,400
1,492

512
575
524

129
138
167

419
532
539

229
142
263

645
997
1,044

5,978
7,254
8,783

1,506
1,680
1,244

621
895
657

131
164
117

597
399
286

118

1,114
882
761

7,810
10,380
10,065

336

174

Total
Amount of
Awards &
Settlements

48,074

8,211

Total

Total
Amount of
Awards

DA-23

181 $10,639,854

27

$1,695,022 $12.334,876

I'

,

',---

Table 14. Litigation Actions by Federal Prisoners (BOP Dataset) - Percentage Weight & Filing Rates. FY 1992-1998
Habeas as FTCAas% Bivens as Other as % Prisoner Total Claims
of Total
% of Total
of Total Population Flied Per
% of Total
1,000
Prisoners

1Q92
2Q92
3Q92
4Q92
1Q93
2Q93
3Q93
4Q93
1Q94
2Q94
3Q94
4Q94
1Q95
2Q95
3Q95
4Q95
1Q96
2Q96
3Q96
4Q98
1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98
4Q98

Total

38.87%
42.34%
38.54%
42.61%
42.09%
43.03%
37.43%
42.22°A,

11.32%
12.41%
8.36%
9.66%
8.47%
10.300/0
10.47%
10.18%

33.58%
32.85%
33.15%
33.24%
37.29%
36.67%
39.27%
38.62%

34.200/0
31.72%

8.62%
11.62%

32.76%
37.53°A,

39.94%
38.53%
46.23%
33.89%
46.85%
49.19%
53.90%
53.85%
57.29%
55.28%
56.48%
54.48%
45.08%
44.49°A,

13.13%
10.00%
9.09%
8.41%
7.40%
10.69%
9.93%
9.55%
8.59%
10.56%
9.30%
9.70%
7.94%
9.79%

37.71%
41.76%
33.51%
46.39%
36.44%
27.22%
24.11%
25.20%
17.45%
21.11%
19.60%
25.00%
26.67%
32.12%

17.36%
22.63%
19.68%
13.64%
9.89%
8.18%
13.09%
8.98%

71,608
73,771
75,934
78,096
80,259
82,591
84,923
87,255
89,587
90,949
92,311
93,672
24.43%
95,034
19.13%
97,250
99,466
9.22%
100,958
5.88%
100,250
8.83%
101,986
103,722
8.41%
7.95%
105,432
11.49%
105,544
11.58%
107,852
8.75%
110,160
112,289
51.30%
112,973
12.78%
13.95%
115,941
12.69%
118,908
122,316
16.51%
14.57% Average per
Quarter

DA-24

3.70
3.71
4.89
4.51
4.41
4.00
4.50
3.83

Habeas
Claims
Flied Per

FTCA
Claims
Flied Per

Bivens
Claims
Flied Per

Other
Claims
Flied Per

1,000

1,000

1,000

1,000

Prisoners Prisoners Prisoners Prisoners
1.44
0.42
1.24
0.64
0.46
1.57
1.22
0.84
1.88
0.41
1.62
0.96
1.92
0.44
1.50
0.61
1.86
0.37
1.64
0.44
1.72
0.41
1.47
0.33
1.68
0.47
1.77
0.59
1.62
0.39
1.48
0.34

3.66
4.25

1.25
1.35

0.32
0.49

1.20
1.59

0.89
0.81

3.55
3.39
3.78
4.01
3.46
4.70
3.92
3.42
3.42
3.19
2.60
2.25
2.58
3.73

1.42
1.31
1.75
1.36
1.62
2.31
2.11
1.84
1.96
1.76
1.47
1.23
1.16
1.63

0.47
0.34
0.34
0.34
0.26
0.50
0.39
0.33
0.29
0.34
0.24
0.22
0.20
0.37

1.34
1.42
1.26
1.86
1.26
1.28
0.95
0.86
0.60
0.67
0.51
0.56
0.69
1.22

0.33
0.20
0.33
0.34
0.28
0.54
0.45
0.30
1.75
0.41
0.36
0.29
0.43
0.54

Habeas as FTCAas% Bivens as Other as % Prisoner Total Claims Habeas
FTCA
Bivens
Other
Claims
% of Total of Total % of Total of Total Population Flied Per
Claims
Clafms
Claims
1,000
Flied Per Flied Per Filed Per Flied Per
Prisoners
1,000
1,000
1,000
1,000
Prisoners Prisoners Prisoners Prisoners
Average per
14.91
6.54
1.47
4.87
2.17
FY
FY 1992

40.57%

10.22%

33.20%

18.15% FY 1992

16.81

6.81

1.72

5.58

3.06

FY 1993
FY 1995
(Estimated)
FY 1996
FY 1997
FY 1998

41.07%
35.12%

9.86%
11.17%

38.000Al
36.10%

10.14% FY 1993
17.61% FY 1995

16.73
12.32

6.88
5.02

1.65
1.27

6.35
4.71

1.70
1.26

41.24%
53.27%
52.81%

8.70%
9.76%
9.41%

39.64%
23.75%
22.99%

7.84% FY 1996
20.00% FY 1997
13.99% FY 1998

14.64
15.46
10.61

6.03
8.23
5.62

1.28
1.51
1.00

5.80
3.68
2.43

1.15
3.05
1.48

ICEstimated)

DA-25

0",--"

Table 15. Litiaatlon Actions by Federal Prisoners (BOP Dataset) - Actions Flied with the Six Reaional OffIces. FY 1992-2000
Totals
Total
for Six Actions
Regions
Flied

1Q92
2Q92
3Q92
4Q92
1Q93
2Q93
3Q93
4Q93
1Q94

246
264
355
339
343
320
371
322

Total
Habeas
Corpus

101
111
137
146
144
139
139
137

Total
FTCA

28
33
28
33
30
34
40
32

Total
Bivens

81
87
117
111
127
116
147
127

Total
Other

39
61
72
46
35
25
45
26

Number
Total
Total
Total
Number
Total
Number
Total
Total Amount
of
Actions Actions Hearings
of
Amount of
of
Amount of of Awards &
L1t1gatlo Pending Closed or Trla.s Settieme Settlements Awards
Awards
Settlements
n
nts
Reports
Flied

111
129
181
167
346

223
196
195

1,341
1,221
1,745
1,351
1,719
1,791
1,844
1,551

221
173
176
195
473
283
183
283

26
21
68
16
13
25
37
16

4
11
8
6
8
6
6
3

$92,897
$1,374,671
$183,467
$3,602
$142,750
$138,290
$118,216
$390,000

0
1
1
1
1
3
2
1

$$750
$258,460
$13
$156,000
$35,214
$627
$10,000

$92,897
$1,375,421
$441,927
$3,615
$298,750
$173,504
$118,842
$400,000
$

-

2Q94

$

3Q94

$

4Q94

$

-

1Q95

333

118

29

105

81

296

1,645

210

10

2

$5,150

0

$

2Q95

393

129

46

148

70

253

1,667

209

15

5

$194,550

1

$

3Q95
4Q95
1Q9&
2Q9&
3Q96
4Q98
1Q97
2Q97
3Q97
4Q97
1Q98
2Q98
3Q98

347
332
376
403
352
477
406
351
356
317
256
248

141
129
178
141
170
244
228
202
214
189
158
141

47
34
35
35
27
52
41
32
33
30
22
25

132
142
126
191
127
123
93
89
63
70
51
60

27
20
28
24
24
51
42
33
195
27
23
27

305
340
233
196
133
244
285
225
232
169
472
300

20
12
13
33
17
28
22
32
37
27
21
29

12
6
7
11
8
7
12
11
10
4
10
11

$251,062
$375,620
$91,380
$571,471
$533,825
$228,600
$339,267
$1,579,983
$102,111
$69,895
$1,029,835
$714.150

1
2

$13
$140,000
$$153,466
$86,450
$173
$6,258
$$$10,799
$$45,000

171
245
305
340
194
183
243
190
202
213
188
141

2,803
2,037
2,112
2,104
1,477
2,111
2,538
2,521
2,754
2,854
1.704
2,147

DA-26

°
2
2
1
2

°
°3
0
1

-

-

$
5,150
$
194,550
$$251,074
$515,620
$91,380
$724,937
$620,275
$228,773
$345,525
$1,579,983
$102,111
$80,694
$1,029,835
$759,150

~

'-',,-,.

I

Total
Totals
for Six Actions
Regions
Flied

4Q98
1Q99
2Q99
3Q99
4Q99
1QOO
2QOO
Totals
Average
per
Quarter
Average
perFY
FY92
FY93
FY96
FY97
FY98
FY99

Total
Habeas
Corpus

Total
FTeA

Total
Bivens

Total
Other

46
40
30

290
327
400
386
361
313
297
9.881
340.72

136
172
255
243
217
176
171
4,806
165.72

22
33
35
32
29
31
24
952
32.83

78
75
68
82
63
2,961
102.10

47
24
28
1,271
43.83

1,362.90

662.90

131.31

408.41

175.31

1,204
1,356
1,463
1,590
1,111
1,474

495
559
618
888
624
887

122
136
131
158

218
131

99

396
517
586
368
255

129

309

74
88

35

96

321
123
152

Number
Total
Total
Total
Number
Total
Number
Total
Total Amount
of
Actions Actions Hearings
of
Amount of
of
Amount of of Awards &
Lltlgatlo Pending Closed or Trials Settleme Settlements Awards
Awards
Settlements
n
nts
Reports
Filed

2,385
131
2,385
185
2,194
204
287
2,029
262
1.605
1,608
226
1,674
280
6,287
56.915
216.79 1,962.59

349
261
244
469
713
220
228
8,024
276.69

15
29
28
39
28
21
19
717
24.72

867.17 7,850.34 1,106.76

98.90

30.90

$1,627,678

4.28

$527,154

$2,154,832

131
91
75
119
92
124

29
23
32
40
35
29

$1,654,637
$789,256
$1,572,296
$2,249,961
$2,605,943
$1,3n,611

3
7
6
3
6
3

$259,223
$201,841
$379,916
$6,430
$847,599
$326,846

$1,913,860
$991,096
$1,952,212
$2,256,391
$3,453,542
$1,704,457

588
960
1,084
818
673
938

5,658
6,905
7,730
9,922
9,090
8,213

DA-27

765
1,222
902
986
1,290
1,687

$792,063
10
7
$52,690
12
$997,450
$24,471
4
6
$303.000
9
$446,500
$653,700
8
224 $11,800,665
7.72
$406,919

2
$791,800
1 $316,000
1
$346
1
$10,500
0
$0
$1 $1,800,000
31 $3,821,868
1.07 $131,789

$1,583,863
$368,690
$997,796
$34,971
$303,000
$446,500
$2,453,700
$15,622,533
$538,708

Table 16. Litigation Actions by Federal & State Prisoners lAO Dataset) - Total Filings &
Filing Rates. FY 1992-2001
US party
status total
(AO and
new)
Fiscal year

nonfederal
parties all (0)

federal
Total
defendant
or plaintiff
-all (1)

1992

38,504

1993
1994
1995
1996
1997
1998
1999
2000
2001

41 ,733
46,772
50,786
50,816
43,641
40,223
40,906
41,656
39,446
434,483
43,448.30

State
prisoner
population
-12131

Federal
prisoner
population
-12131

45,143

802,241

80,259

48.00

82.72

8,059
49,792
7,326
54,098
8,558
59,344
12,630
63,446
14,584
58,225
10,155
50,378
11,292
52,198
12,372
54,028
14,988
54,434
106,603
541,086
10,660.30 54,108.60

879,714
959,668
1,025,624
1,076,375
1,127,686
1,176,055
1,228,455
1,245,845
1,249,038

89,587
95,034
100,250
105,544
112,973
123,041
135,246
145,416
156,993

47.44
48.74
49.52
47.21
38.70
34.20
33.30
33.44
31 .58

89.96
77.09
85.37
119.67
129.09
82.53
83.49
85.08
95.47

41.21

93.05

6,639

State
filings per
1,000
prisoners

Federal
filings per
1,000
prisoners

of filing
(Oct 1 to
Sept 30)

_I

Total
Average
per fiscal
year

)
Table 17. Civil Rights Actions by State & Federal Prisoners lAO Dataset) Total Filings. Percent
State & Federal. and Annual Percent Change. FY 1992-2001
Inmate civil
rights by
fed
prisoners

1

Inmate Civil Total
rights by
state
prisoners

% State

overall civil
rights
docket
from
previous
year

J
Fiscal year
of filing
(Oct 1 to
Sept 30)

)
Total

1992

823

27,707

28,530

97%

1993
1994
1995
1996
1997
1998
1999
2000
2001

855
1,047
1,045
1,156
973
1,160
1,139
1,186
1,233
10,617

30,824
35,504
37,963
37,067
25,159
23,185
22,566
22,412
20,976
283,363

31,679
36,551
39,008
38,223
26,132
24,345
23,705
23,598
22,209
293,980

97%
97%
97%
97%
96%
95%
95%
95%
94%
96%

DA-28

Percent

change in

11%
15%
7%
-2%
-32%
-7%
-3%
0%
-6%

Table 18. Litigation Actions by Federal Prisoners lAO Dataset) - Total Filings & Filina
Rates by Type of Action. FY 1992-2001
Nature of Habeas
suit
etesummary 50Gs (0)

Fiscal
year of
filing (Oct
1 to Sept
30)

I

.J
=J
-]

!
)

Total
Average
perflscal
year

Inmate
civil
rights 500 or
555 (1)

Total

Fed
Habeas
prisoner filings
pop -12131 per 1,000
prisoners
per year

Civil
rights
fliings
per 1,000
prisoners

Total
actions
per 1,000
prisoners

1992

5,816

823

6,639

80,259

72.47

10.25

82.72

1993
1994
1995
1996
1997
1998
1999
2000
2001

7,204
6,279
7,513
11,474
13,611
8,995
10,153
11,186
13,755
95,986
9,598.60

855
1,047
1,045
1,156
973
1,160
1,139
1,186
1,233
10,617
1,061.70

8,059
7,326
8,558
12,630
14,584
10,155
11,292
12,372
14,988
106,603
10,660.30

89,587
95,034
100,250
105,544
112,973
123,041
135,246
145,416
156,993

80.41
66.07
74.94
108.71
120.48
73.11
75.07
76.92
87.62

9.54
11.02
10.42
10.95
8.61
9.43
8.42
8.16
7.85

89.96
77.09
85.37
119.67
129.09
82.53
83.49
85.08
95.47

83.58

9.47

93.05

I

.]

)

DA-29

Percent
change In
civil
rights
docket
from
previous
Iyear

4%
22%
0%
11%
-16%
19%
-2%
4%
4%

--1

_f_1

Table 19. Litigation Actions by Federal Prisoners lAO Dataset) - Collateral Attacks and Habeas Corpus Petitions by Type of
Action. FY 1992·2001
Nature Of
Suit

Fiscal year
of filing
(Oct 1 to
Sept 30)

Total
Average per
fiscal year

Vacate
Sentence
(510)

Habeas
Habeas
Corpus (530) CorpusDeath
Penalty (535)

Mandamus
and Other:
Prisoner
(540)

Federal
prisoner
population 12131

Filings per
1,000
prisoners Vacate
Sentence
(510)

Filings per
1,000
prisoners Habeas
Corpus
(530)

Filings per Filings per
1,000
1,000
prisoners - prisoners Habeas
Mandamus
Corpusand Other:
Death
Prisoner
Penalty
(540)
1(535)

1992

3,850

1,389

4

573

80,259

47.97

17.31

0.05

7.14

1993
1994
1995
1996
1997
1998
1999
2000
2001

5,151
4,473
5,792
9,456
11,327
5,991
5,462
6,164
8,443
66,109
6,610.90

1,377
1,352
1,252
1,599
1,884
2,621
4,071
4,354
4,729
24,628
2,462.80

4
4
4
9
5
13
16
16
10
85
8.50

672
450
465
410
395
370
604
652
573
5,164
516.40

89,587
95,034
100,250
105,544
112,973
123,041
135,246
145,416
156,993

57.50
47.07
57.78
89.59
100.26
48.69
40.39
42.39
53.78

15.37
14.23
12.49
15.15
16.68
21.30
30.10
29.94
30.12

0.04
0.04
0.04
0.09
0.04
0.11
0.12
0.11
0.06

7.50
4.74
4.64
3.88
3.50
3.01
4.47
4.48
3.65

58.54

20.27

0.07

4.70

DA-30

Table 20. Litigation Actions by State Prisoners fAO Dataset) - Total Filings & Filing Rates
by Type of Action, FY 1992-2001
Nature of Habeas
suit
etcsummary 5008 (0)

Fiscal
year of
filing (Oct
1 to Sept
30)

1992

1993
1994
1995
1996
1997
1998
1999
2000
2001

_I

)

Total
Average
perflscal
year

10,797

Inmate
civil
rights 500 or
655 (1)

27,707

Total

State
prisoner
pop12131

Civil
rights
filings
per 1,000
prisoners

Total
filings
per 1,000
prisoners

38,504

802,241

13.46

34.54

48.00

10,909
30,824
41,733
35,504
46,772
11,268
12,823
50,786
37,963
13,749
37,067
50,816
18,482
25,159
43,641
17,038
23,185
40,223
18,340
22,566
40,906
19,244
22,412
41,656
18,470
20,976
39,446
151,120 283,363 434,483
15,112.00 28,336.30 43,448.30

879,714
959,668
1,025,624
1,076,375
1,127,686
1,176,055
1,228,455
1,245,845
1,249,038

12.40
11.74
12.50
12.77
16.39
14.49
14.93
15.45
14.79
13.89
13.89

35.04
37.00
37.01
34.44
22.31
19.71
18.37
17.99
16.79
27.32
27.32

47.44
48.74
49.52
47.21
38.70
34.20
33.30
33.44
31.58
41.21
41.21

_I

I
.1

Habeas
filings
per 1,000
prisoners

)

DA-31

Percent
change in
civil
rights
docket
from
previous
Iyear

11%
15%
7%
-2%
-32%
-8%
-3%
-1%
-6%

Table 21 Civil Rights Actions by Federal Prisoners lAO Dataset) - Pro Se Status of
Litigants. FY 1997·2001

)

ProSe

Fisca.
y&arot
filing
(Oct 1
to Sept
30)
NEW

Missing No pro
se
plaintiff
sor
defenda
nts

Prose
plaintiff
8,no
prose
defenda
nts

Prose
defenda
nta, no
prose
plaintiff
s

Both
Total
prose
plaintiff
sand
defenda
nts

1997

398

11

99

1

0

509

-1998
1999
2000
2001

689
6
0
0
1.093

36
63
59
54
223

432
1,044
1,118
1,171
3.864

2
14
4
3
24

1
12
5
5
23

1,160
1,139
1,186
1.233
5,227

Total

Prose
pis, no
prose
dalsexcludl
ng
missing
9.91% 89.19%

Prose
defa, no
prose
pis excludl
n9
missing
0.90%

Both
prose
pis and
defa excludl
ng
mlss'nll
0.00%

91.72%
92.14%
94.27%
94.97%
93.47%

0.42%
1.24%
0.34%
0.24%
0.58%

0.21%
1.06%
0.42%
0.41%
0.56%

No pro
sepls
ordefa •
excludJ
ng
missing

7.64%
5.56%
4.97%
4.38%
5.39%

Table 22. Civil Rights Actions by Federal Prisoners lAO Dataset) - Correlation Between Pro Se
Status and Outcomes. FY 1997-2001

~

Nonjud Pretrial Volunt Settled Trial (4) Total NonJud Pretrial Volunt Settled Trial (4)
(3)
gment dlsmis ary
(3)
ament dismls ary
dlsposl sal (1) d.smls
disposl sal (1) dlsmis
sal (2)
tlon (0)
tlon (0)
sal (2)
ProSe Missing
119
51
19
3 1,149 10.36% 82.33% 4.44% 1.65% 0.26%
946
4
243 29.22% 51.03% 8.23% 6.17% 1.65%
Neither
71
124
20
15
Pis only
1,079 2,777
166
13 4,145 26.03% 67.00% 4.00% 1.83% 0.31%
76
0
25 8.00% 76.00% 4.00% 4.00% 0.00%
Oefs
2
19
1
1
only
Both
0
25 40.00% 36.00% 12.00% 8.00% 0.00%
10
9
3
2
Total
113
20 5,587 22.93% 69.36% 4.31% 2.02% 0.36%
241
1.281 3.875
Outco
me
summa
ry2

"\

')

DA-32

Table 23. Civil Riahts Actions by Federal Prisoners lAO Dataset) - Correlation Between Pro
Se Status and Judgment For, FY 1997-2001
Judgment- Plaintiff or Defendant Unknown Total
for
both (1)
(2)
(or not
summary
applicable)
(1979- )
(4)
ProSe

Missing
Neither
Pis only
Defs only
Both

6
10
16
1
1
34

Total

309

1,149
243
4,145
25
25
5,587

834
179
3,272
10
17
4,312

54

857
14
7
1,241

Plaintiff or Defendant
both (1)
(2)

1.90%
15.63%
1.83%
6.67%
12.50%
2.67%

98.10%
84.38%
98.17%
93.33%
87.50%
97.33%

Table 24. Civil Rights Actions by Federal Prisoners lAO Dataset) - Correlation Between Pro Se
Status and Nature of Judgment. FY 1997-2001
:" ..

1

"

,

Nature
of
judgmen
t
summar
y
ProSe

)
Total

Missing
Neither
Pis only
Oefs only
Both

No
award
coded

Injunctlo C08tsw Total
n (3)
&w/o
attyfees

Money
award
(1)

(0)

(5)

1,102
191
3,279
22
19
4,613

1
1
3
0
0
5

0
1
0
0
0

1

No
award
coded

Money
award
(1)

InJunctlo C08tsw
&w/o
n (3)
attyfees
(5)

(0)

8
2
27
1
0
38

)

DA-33

1,149 99.19%
243 97.95%
4,145 99.09%
25 95.65%
25 100.00%
5,587 99.06%

0.09%
0.51%
0.09%
0.00%
0.00%
0.11%

0.00%
0.51%
0.000/0
0.00%
0.00%
0.02%

0.72%
1.03%
0.82%
4.35%
0.00%
0.82%

Table 25. Civil Rights Actions by Federal Prisoners fAO Dataset) - Correlation Between Pro
Se Status and Nature of Trials, FY 1997-2001

)

Nature of No trial
trial
(0)
summary
ProSe

Missing
Neither
Pis only
Oefs only
Both

Total

1,146
239
4,132
25
25
5,567

Jury trial Bench
(1)
trial (2)

0
2
10
0
0
12

Total

Jury trial Bench
trial (2'

No trial

(1)

(0'
3
2
3
0
0
8

1,149 99.74%
98.35%
243
4,145 99.69%
25 100.00%
25 100.00%
5,587 99.64%

0.26%
0.82%
0.07%
0.00%
0.00%
0.14%

0.00%
0.82%
0.24%
0.00%
0.00%
0.21%

Table 26. Civil Riahts Actions by Federal Prisoners (AO Dataset) - Correlation Between Pro Se
Status and Trial Outcomes. FY 1997-2001

~.

Defendant Plaintiff
victory (1' victory (2'

Total
Trial
Defendant Plaintiff
outcomes victory (1) victory (2'

I

ProSe

Total

Missing
Neither
Pis only

3
3
11
17

0
1
2
3

)

.',

J

)

DA-34

3
4
13
20

100%
75%
85%
85%

0%
25%
15%
15%

:..--__ .1

Table 27A. Civil Rlahts Actions by Federal Prisoners lAO Dataset) - Outcomes by Fiscal Year of Termination, FY 1992-2001

fiscal
year of
tenninatl
on (Oct 1
-Sept
30)

Total
Percent

directed
~ury
verdict verdict
for
for
plaintiff plaintiff
(9)
(11)

Outcome Nonsummar Judgmen
y (1979-) t
(NEW)
dlsP08It1
on (0)

preb1al
dlsmlssa
I
(defense
victory)
(1)

preb1al
plaintiffs
victory
(2)

1992

14

180

3

15

6

1

0

0

0

1

0

222

4.05% 10.81%

1993
1994
1995
1996
1997
1998
1999
2000
2001

8
6
12
9
9
25
18
21
22
144

185
166
236
240
227
224
234
238
228
2,158

3
3
0
1
4
2
0
3
2
21

10
5
14
13
12
12
15
14
10
120

7
10
7
7
7
5
6
6
6
67

0
1
1
1
0
1
0
2
2
9

0
0
0
0
1
0
0
0
1
2

0
0
0
0
0
0
0
0
0
0

0
0
0
0
0
0
0
0
0

0
0
1
0
1
0
1
0
0
4

0
0
0
0
0
0
0
0
0
0

217
195
273
275
264
271
275
286
273
2,551

5.64%

84.59%

0.82%

4.70%

2.63%

0.35%

0.08%

0.00%

0.00%

0.16%

4.61% 9.22%
6.67% 9.23%
2.56% 7.69%
2.91% 7.640/0
4.55% 9.09%
2.58% 7.01%
2.18% 7.64%
3.15% 8.04%
3.30% 6.96%
3.53% 8.23%
4.05% 10.81%

voluntar Settled
(7)
y
dlsmlssa
1(6)

Jury
verdict
for
defenda
nt(8)

DA-35

directed
verdict
for
defenda
nt (13)

0

bench
verdict
for
defenda
nt (14)

bench
verdict
for
plaintiff
(15)

Total

Plaintiff Plaintiff
success success
rate
rate with
vOluntar
Y
dlsml88a
Is

0.00% 100.00%

Table 27B. Civil Rights Actions bv Federal Prisoners fAO Dataset) -Outcomes by Fiscal Year of Filing. FY 1992-2001
Outcome
summar
y (1979-)
(NEW)

fiscal
year of
termlnatl
on (Oct 1
-Sept
30)

pretrial
dlsml_
I
(defense
victory)
(1)

pretrial
plaintiffs
victory
(2)

voluntar Settled
(7)
y
dlsmissa
1(6)

Jury
verdict
for
defenda
nt(8)

directed
~ury
verdict verdict
for
for
plaintiff plaintiff
(9)
(11)

directed
verdict
for
defenda
nt (13)

bench
verdict
for
defenda
nt (14)

bench
verdict
for
plaintiff
(15)

Total

10
9
9
9
10
13
22
19
23
8
132
5.77%

177
186
197
231
259
202
231
208
224
48
t.963
85.76%

a
0
0
0
2

a
1

a
a
a
3
0.13%

8
10
13
15
10
18
9
10
12
1
106
4.63%

8
8
11
3
4
8
5
3
3
2
55
2.40%

1
0

a

a
a

a
a

1

0

a
a

a
a
a
a
a
a
a

5

1

1

a
1
1
1

0.22%

0.04%

DA-36

a
a
a
a
a

0
0
0

a
a
a
0

a
1

a
a
a
1
0

0

a
a
a
0

2

0.00%

0.00%

0.09%

a
a

a
a
a

Plaintiff Plaintiff
success success
rate
rate with
voluntar

Y

dlsmlsaa
Is

a

1992

1993
1994
1995
1996
1997
1998
1999
2000
2001
Total
Percent

Nonjudgmen
t
dlsposltl
on (0)

a
a
a
a
a
a
a
a
a
a

4.05% 10.81%

206
218
234
262
288
245
272
241
263
60
2,289

0.00% 100.00%

4.61% 9.22%
6.67% 9.23%
2.56% 7.69%
2.91% 7.64%
4.55% 9.09°A,
2.58% 7.01%
2.18% 7.64%
3.150/0 8.04%
3.30% 6.96%
3.53% 8.23%
4.05% 10.81%

Table 28. Civil Riahts Actions by Federal Prisoners tAO Dataset) - Nature of Trial. FY 19922001
Nature of No trial
(0)
trial
summary
(NEW)
fiscal
year of
tennlnatl
on (Oct 1
- Sept 30)
(NEW)

Jury trial Bench
(1)
trial (2)

No trial (0) Jury trial
(1)

Total

Bench trial

(2)

1992

220

1

1

222

99.10%

0.45%

0.45%

1993
1994
1995
1996
1997
1998
1999
2000
2001

217
194
271
274
262
270
274
284
270
2,536

0
1
1
1
1
1
0
2
3
11

0
0
1
0
1
0
1
0
0
4

217
195
273
275
264
271
275
286
273
2,551

100.00%
99.49%
99.27%
99.64%
99.24%
99.63%
99.64%
99.30%
98.90%
99.41%

0.00%
0.51%
0.37%
0.36%
0.38%
0.37%
0.00%
0.70%
1.10%
0.43%

0.00%
0.00%
0.37%
0.00%
0.38%
0.00%
0.36%
0.00%
0.00%
0.16%

Total

Table 29. Civil Riahts Actions by Federal Prisoners tAO Dataset) - Trial Outcomes, FY 19922001

fIScal
year of
tennlnatl
on (Oct 1
- Sept 30)
(NEW)

Trial
Unknown Defendan Plaintiff Total
outcomes victory (- t victory victory
(1)
(2)
9)
1992
0
2
0

1994
1995
1996
1997
1998
1999
2000
2001
Total

0
0
0
0
0
0
0
0
0

1
2
1
1
1
1
2
2
13

DA-37

0
0
0
1
0
0
0
1
2

Defendan Plaintiff
t victory victory
(2)
(1)
0.00%
2 100.00°A,

1
2
1
2
1
1
2
3
15

100.00%
100.00%
100.00%
50.00%
100.00%
100.00%
100.000A,
66.67%
86.67%

O.OO°A,
0.00%
0.00%
50.00%
0.00%
0.00%
0.00%
33.33%
13.33%

Table 30. Civil Rights Actions by Federal Prisoners tAO Dataset) - Judgments For, FY
1992-2001

)

Judgment. Plaintiff or Defendant Unknown Total
for
both (1)
(2)
(or not
summary
applicable)
(1979- )
(4)

fiscal year
of
tenninatio
n (Oct 1 Sept 30)
i

. i

~.1

85

134

219

0.00%

100.00%

1993
1994
1995
1996
1997
1998
1999
2000
2001

1
0
0
0
2
1
1
0
1
6

101
87
109
116
91
77
72
85
65
888

113
105
164
158
168
192
202
198
205
1,639

215
192
273
274
261
270
275
283
271
2,533

0.98%
0.00%
0.00%
0.00%
2.15%
1.28%
1.37%
0.00%
1.52%
0.67%

99.02%
100.00%
100.00%
100.00%
97.85%
98.72%
98.63%
100.00%
98.48%
99.33%

Table 31. Civil Rights Actions by Federal Prisoners (AO Dataset) - Nature of Judgments, FY
1992-2001

fiscal year
of
tennlnatlo
n (Oct 1 Sept 30)
(NEW)

)

-

excluding
unknown
or not
applicable

0

Nature of
Judgment
summary
(NEW)

.1

excluding
unknown
or not
applicable

1992

Total

)

Plaintiff or Defendant

both •

Total
Percent

No award
coded (0)

Injunction Forfeiture C08tsW& Total
(3)
etc (4)
wlo atty
fees (5)

Money
award (1)

1992

218

0

1

0

219

1993
1994
1995
1996
1997
1998
1999
2000
2001

212
192
272
271
254
267
274
280
270
2,510
99.09%

2
0
0
0
2
1
1
0
1
7
0.28%

0
0
0
0
0
0
0
0
0
1
0.04%

1
0
1
3

215
192
273
274
261
270
275
283
271
2,533
100.00%

DA-38

0.00%

5

2
0
3
0
15
0.59%

Table 32. Civil Rights Actions by Federal Prisoners lAO Dataset) - Awards (in Thousands
of Dollars), FY 1992-2001
\

)

fiscal year of Number
tennlnatlon
(Oct 1-Sept
30) (NEW)

i
"

Total

Mean

Median

Minimum

Maximum

Sum

1993

2

$1,562.50

$1.562.50

$25.00

$3,100.00

$3,125.00

1997
1998
1999
2000
2001

3
3
2
1
2
13

$1,000.67
$667.33
$5.50
$1.00
$5.50
$627.08

$1.00
$1.00
$5.50
$1.00
$5.50
$1.00

$1.00
$1.00
$1.00
$1.00
$1.00
$1.00

$3.000.00
$2.000.00
$10.00
$1.00
$10.00
$3,100.00

$3,002.00
$2,002.00
$11.00
$1.00
$11.00
$8.152.00

_.. J

)

DA-39

.j

Table 33. Civil Rights Actions by State Prisoners tAO Dataset) - Pro Se Status of Lltiaants.

FY 1997·2001
ProSe

Fiscal
year of
filing
(Oct 1
to Sept
30)
NEW

Total

.. l

Missing No pro
se
plaintiff
sor
defenda
nts

Prose
plaintiff
s,no
prose
defenda
nts

Prose
defenda
nts, no
prose
plaintiff
s

1997

8,426

236

2,524

5

1998
1999
2000
2001

14,705
242
0
0
23,373

495
732
540
618
2,621

7,848
21,352
21,551
19,985
73,260

22
119
58
10
214

Both
Total
prose
plaintiff
sand
defenda
nts

i

)

DA-40

47

No pro Prose Prose
se pis pis, no defa, no
ordefa • prose prose
excludJ defa- pis ng
excludl excludl
ng
missing ng
missing missing
11,238 8.39% 89.76% 0.18%

Both
prose
pis and
delsexcludl
ng
missing
1.67°A,

0.26%
0.53%
0.26%
0.05%
0.28%

1.36%
0.54%
1.17%
1.73%
1.18%

115 23,185
121 22,566
263 22,412
363 20,976
909 100,377

5.84%
3.28%
2.41%
2.95%
3.40%

92.55%
95.65%
96.16%
95.28%
95.14%

,"
I

,

f

1

'_'f

'

Table 34. Civil Rights Actions by State Prisoners fAO Dataset) - Outcomes. FY 1992-2001

fiscal
year
tenninatl
on (Oct 1
-Sept
30)
(NEw)

0'

1992

1993
1994
1995
1996
1997
1998
1999
2000
2001
Total
Percent

voluntar Settled
(7)
y
dlsmlssa
1(8)

pretrial
dlsmlssa
I
(defense
victory)
(1)

pretrial
plaintiffs
victory
(2)

4,621

59

426

456

55

6

1

11

122

5,358
356
5,628
384
7,105
435
7,795
430
317
6,924
277
5,626
4,822
208
4,238
332
4,181
304
3,378 56,298
4.77% 79.49%

66
76
63
44
41
37
17
23
16
442
0.62%

488
592
565
506
560
434
313
307
257
4,448
6.28%

502
482
582
486
390
321
292
201
203
3,915
5.53%

62
93
64
78
93
94
64
66
58
727
1.030/0

9
10
18
17
10
7
14
11
12
114
0.16%

0
0
0
0
0
0
0
0
0
1
O.Oook

9
10
4
12
3
6
10
12
4
81
0.11%

118
125
110
151
119
77
63
42
51
978
1.38°k

Outcome nonsummar Judgmen
y (1979-) t
(NEW)
disposltl
on (0)

335

Jury
verdict
for
defenda
nt(8)

directed
verdict
for
plaintiff
(11)

Jury
verdict
for
plaintiff
(9)

directed
verdict
for
defenda
nt (13)

bench
verdict
for
defenda
nt (14)

bench
verdict
for
plaintiff
(15)

Total

'-Plaintiff Plaintiff
success success
rate
rate with
voluntar

Y
dismlssa
Is

DA-41

22

6,122

13
6,983
24
7.489
8
9,004
14
9,566
9
8,501
4
6,914
3
5,837
5
5,289
5
5,123
107 70,828
0.150/0 100.00%

8.45% 15.44%

7.90%
7.45%
5.86%
5.29%
5.34°k
5.59%
4.54%
4.61%
6.46%
8.45%

15.81%
13.73%
11.15%
11.88%
11.61%
10.95%
10.34%
9.62%
12.74%
15.44%

)

Table 35. Civil Rights Actions by State Prisoners (AO Dataset) - Judgments For, FY 19922001
Judgment- Plaintiff or Defendant Unknown Total
for
both (1)
(2)
(or not
summary
applicable)
(1979- .
(4)
)(NEW)

Inmate
civil rights
-500 or
555 (1)

fiscal year
of
termination
(Oct 1 Sept 30)

Plaintiff or Defendant

-

bothexcluding
unknown
or not
applicable

excluding
unknown
or not
applicable

1992

42

2320

3707

6,069

1.78%

98.22%

1993
1994
1995
1996
1997
1998
1999
2000
2001

39
52
34
36
20
17
19
21
12
292

2339
2600
2927
3299
2680
1691
1507
1194
1183
21,740

4548
4769
5978
6185
5758
5174
4293
4054
3907
48,373

6,926
7,421
8,939
9,520
8,458
6,882
5,819
5,270
5,102
70,406

1.64%
1.96%
1.15%
1.08%
0.74%
1.00%
1.25%
1.73%
1.00%
1.33%

98.36%
98.04%
98.85%
98.92%
99.26%
99.000Al
98.75%
98.19%
99.00%
98.67%

(NEW)

·1
!

Total

") Table 36. Civil Rights Actions by State Prisoners tAO Dataset) - Nature of Judgments. FY 19922001
Nature of
judgment
summary
(NEW)

. 1

t

!

1 i

fiscal year
of
tennI natlo
n (Oct 1 Sept 30)
(NEW)

:.1

fees (5)

33

6

4

89

6,069

1993
1994
1995
1996
1997
1998

6763
7177
8643
9347
8366
6813
5764
5215
5054
69,079
98.12%

36
55
30
32
18
16
16
20
13
269
0.38%

3
3
5
2
0
1

2
3
5
1
2
0
1
0
0
18
0.03%

122
183
256
138
72
52
38
33
35
1,018
1.45%

6,926
7,421
8,939
9,520
8,458
6,882
5,819
5,270
5,102
70,406
100.00%

2001

.1

Injunction Forfeiture C08tsW& Total
w/oatty
(3)
etc (4)

5937

1999

Total
Percent

Money
award (1)

1992

2000

)

No award
coded (0)

DA-42

a
1
0
21
0.03%

Table 37. Civil Rights Actions by State Prisoners lAO Dataset) - Nature of Trial, FY 19922001
"

)

Nature of No trial
trial
(0)
summary
(NEW)
fiscal
year of
terminatl
on (Oct 1
-Sept 30)
(NEW)

I

_i

J
Total

~

(2)

(1)

1992

5,905

73

144

6,122

96.46%

1.19%

2.35%

1993
1994
1995
1996
1997
1998
1999
2000
2001

6,772
7,227
8,800
9,294
8,267
6,726
5,683
5,153
4,993
68,820

80
113
86
107
106
107
88
89
74
923

131
149
118
165
128
81
66
47

6,983
7,489
9,004
9,566
8,501
6,914
5,837
5,289
5,123
70,828

96.98%
96.50%
97.73%
97.16%
97.25%
97.28%
97.36%
97.43%
97.46%
97.16%

1.15%
1.51%
0.96%
1.12%
1.25%
1.55%
1.51%
1.68%
1.44%
1.30%

1.88%
1.99%
1.31%
1.72%
1.51%
1.17%
1.13%
0.89%
1.09%
1.53%

56

1,085

Trial
Unknown Defendan Plaintiff
outcomes victory (- t victory viCtory
9)
(2)
(1)
fiscal
year of
tennlnati
on (Oct 1
- Sept 30)
(NEW)

.I
"]

.!

Total

Defendan Plaintiff
victory
(1)
(2)

Total

t victory

1992

0

188

29

217

86.64%

13.36%

1993
1994
1995
1996
1997
1998
1999
2000
2001

0
" 0
0
0
0
0
0
0
0
0

189
228
178
241
215
177
137
120
113
1,786

22
34
26
31
19
11
17
16
17
222

211
262
204
272
234
188
154
136
130
2,008

89.57%
87.02%
87.25°A,
88.60%
91.88°A,
94.15%
88.96°A,
88.24%
86.920/0
88. 94°A,

10.43%
12.98%
12.75%
11.400/0
8.12%
5.85%
11.04%
11.76%
13.08%
11.06%

"I
I

Bench trial

No trial (0) Jury trial

Total

Table 38. Civil Rights Actions by State Prisoners lAO Dataset) - Trial Outcomes, FY 1992-2001

)

:

Jury trial Bench
(1)
trial (2)

)

DA-43

Table 39. Civil Rights Actions by Federal Prisoners lAO Dataset) - Awards lin Thousands
of Dollars), FY 1992-2001

)

flscalyearof Number
tennlnatJon

Mean

Median

Minimum

Maximum

Sum

(Oct 1- Sept
30) (NEW)
1992
1993
1994
1995
1998
1997
1998
1999
2000
2001

:")

~. ~I

0

Total

35
34
55
31
33
30
48
23
24
17
330

$542.94
$202.06
$211.24
$78.29
$93.33
$260.37
$1,030.46
$159.22
$ 511.38
$22.71
$353.31

$30.00
$1.50
$1.00
$3.00
$5.00
$1.00
$1,500.00
$2.00
$5.50
$3.00
$3.50

1
J

~
I
I

)

•

",

J

)

DA-44

$1.00
$1.00
$1.00
$1.00
$1.00
$1.00
$1.00
$1.00
$1.00
$1.00
$1.00

$3,000.00 $19,003.00
$6,870.00
$3,000.00
$11,618.00
$3,500.00
$2,427.00
$1,500.00
$3,080.00
$2,000.00
$7,811.00
$5,000.00
$2,000.00 $49,462.00
$3,662.00
$3,000.00
$7,500.00 $12,273.00
$386.00
$125.00
$7,500.00 $116,592.00

Table 40. Prisoner Population Figures - Federal & State. FY 1977-2001

Federal
Population
Figures
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001

J

30-Jun

99,466
103,722
110,160
118,908
130,378
142,530
152,788

30-Sep

100,958
105,432
112,289
122,316
133,689
145,125
156,572

31-Dec

32,088
29,803
26,371
24,363
28,133
29,673
31,926
34,263
40,223
44,408
48,300
49,928
59,171
65,526
71,608
80,259
89,587
95,034
100,250
105,544
112,973
123,041
135,246
145,416
156,993

J
---I
)

J

J

.J

)

DA-45

State
Population
Figures
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001

31-Dec

267,936
277,473
288,086
305,458
341,797
384,133
404,929
427,739
462,284
500,564
536,784
577,672
653,193
708,393
753,951
802,241
879,714
959,668
1,025,624
1,076,375
1,127,686
1,176,055
1,228,455
1,245,845
1,249,038

Table 41. Federal Prisoner Population Figures by the Quarter (Estimated),1 FY 1992-2001
Quarter Estimated
1Q12130/91
2Q3/30/92
3Q6/30192
4Q9/30/92
1Q12130/92
2Q3130/93
3Q6/30/93
4Q9/30/93
1Q12130/93
2Q3130/94
3Q·6130/94
4Q9130/94
1Q12130/94
2Q3/30/95
3Q6130/95
4Q.
9/30195
1Q12130/95
2Q3130/96
3Q8/30/96
4Q9/30/96

)

-r

}

Quarter

Population
71,608

1Q-

Estimated
PODulation
105,544

12130/96
73,771

2Q-

107,852

3/30/97
75,934

3Q-

110,160

6/30/97
78,096

40-

112,289

9/30/97
80,259

1Q -

112,973

12130/97
82,591

20-

115,941

3/30/98
84,923

30-

118,908

6/30/98
87,255

40-

122,316

9/30/98
89,587

10-

123,041

12/30/98
90,949

20-

126,710

3/30/99
92,311

3Q-

130,378

6/30/99
93,672

40-

133,689

9/30/99
95,034

10 -

135,246

12130/99
97,250

20-

138,888

3/30/00
99,466

30-

142,530

6/30/00
100,958

40-

145,125

9/30/00
100,250

10-

145,416

12130/00
101,986

20-

149,102

3130/01
103,722

3Q-

152,788

6/30/01
105,432

40-

156,572

9/30/01

)
1

Shaded yellow boxes were estimated using linear interpolation. See supra, Data Appendix, Part I.C.

DA-46