The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

ACCESS

Volume 1, Issue 1

October 1999

The Prison Litigation Reform Act:
A New Chapter in Prison Law
Inside this issue:
/

The Prison LitigaJion
Reform Ac.1:A New
Chapter ill Prison Law

1

Robbins v. Freeman A new way to look at
old sentences

1

Message from the Editor

2

The Habitual Felon Law
and Structured Sentencing

6

An NCPLS Success Story

6

The Prison Litigation
Reform Act
("PLRA"), Pub.L.
No. 104-134, Stat.
1321 §§ 801-810
(April 24, 1996),
amended, Pub. L.
No. 105-119, III
Stat. 240
(November 26,
1997) has dramatically
changed the legal landscape of prisoner litigation. The changes ushered in by the passage
of this law have and

will continue to affect
inmates.
Two major provisions of this act
affect the plaintiffpetitioner's burden
in a class action
challenge to
prison conditions
[18 U.S.c. ~ 3626] and
the ability of prisoners
to make individual
claims arising out of
their confinement.
The first of these new

provisions limits the
ability of federal courts
to order remedies such
as population reductions
in state prison condition
cases.
PLRA states that remedies (called "prospective relief') "shall
extend no further than
necessary to correct the
violation of the Federal
right of a particular
plaintiff or plaintiffs."
Continued on page 3

Robbins v. Freeman: A New Way to Look at Old Sentences
The way that parole eligibility
dates were calculated under Fair
Sentencing and pre-Fair
Sentencing has changed as a
result of the decision in Robbins
v. Freeman, 127 N.C. App. 162,
287 S.E.2d 771 (1996), afj'd,
347 N.C. 664,496 S.E.2d 375
(1998).
As a result of this decision and the
resulting publicity, there have been
several misconceptions about the
affect this case will have.

First, this decision does not
impact those sentenced under the
Structured Sentencing Act at all.
It only applies to those whose
crimes occurred prior to October
1, 1994.
Second, this decision does not
mean an end to consecutive sentences. And it does not mean that
sentences that were to be served
consecutively will now be served
concurrently. This decision only
affects the way that parole eligibility is calculated.

The basic holding in Robbins
abolishes the former practice of
"paper parole." Under this
method of calculating parole eligibility, mandatory sentences
with parole eligibility dates were
considered for "paper parole" to
another consecutive sentence.
This meant that the North
Carolina Parole Commission
would evaluate these sentences
and decide whether or not an
inmate would be paroled to his
next sentence.
Contil/ued 01/ page 4

PAGE 2

NCPLS ACCESS

VOLUME 1, ISSUE 1

Message From the Editor
Welcome to the first edition of
For some time, NCPLS
has considered publishing a
report or newsletter for our
clients. We are pleased that we
are now able to provide information on the work of our program and developments in the
area of prison law.

the area of prison law.

ACCESS.

The mission of NCPLS is to
provide legal advice and assistance' for those incarcerated in
North Carolina. We have a contractual commitment to provide
such services for people in custody of the Department of
Correction which arises out of
the State's constitutional duty to
provide inmates with access to
the courts.
In this inaugural edition, we
examine The Prison Litigation
Reform Act (PLRA). This new
federal statute has dramatically
altered the legal landscape in

In addition, several regular features will appear in this edition.
Each quarter, we will highlight
a court case that impacts our
area of law in the "Court
Spotlight" section. In this edition, we examine the North
Carolina Court of Appeals decision in Robbins v. Freeman, 127
N.C. App. 162, 487 S.E.2d 771
(1996), aff'd, 347 N.C. 664, 496
S.E.2d. 375 (1998), and how
that decision impacted parole
eligibility calculations for thousands of North Carolina
inmates.

tion issue in each edition. This
edition looks at the Habitual
Felon Act, and how it has been
impacted by The Structured
Sentencing Act.
We hope that NCPLS ACCESS
will be a source of information
as well as a resource to those
involved in the different aspects
of prison related issues. We welcome your comments and suggestions on how we can improve
the newsletter. Thank you for
the opportunity to share with
you the work of our program.
Billy Sanders, Editor

In future editions, we also hope
to feature a writer from outside
of our office on an issue of current interest in our "View from
the Outside" column.
NCPLS ACCESS will also offer
an explanation of a post-convic-

Theodis Beck Named Secretary of NCDOC
On April 19, 1999 North
Carolina Governor James Hunt
named Theodis Beck as the
Secretary of the Department of
Correction.
Beck started working for the
Department in 1975 as a probation and parole officer. He piloted the intensive supervision
program and was one of the

original eight officers in the
division.
It is gratifying to see so dedicat-

ed a public servant rise to head
the agency to which he has
devoted his professional career.
NCPLS congratulates Secretary
Beck and wishes him every success as he undertakes his new
duties.

PAGE 3

NCPLS ACCESS

VOLUME 1, ISSUE 1

PLRA
Continued from page 1

Under PLRA courts can order
relief that "extend[s] no further
than necessary to correct the
federal right of a particular
plaintiff or plaintiffs ...."
In addition, such orders "shall
not be granted or approved . .
.unless the court finds that such
relief is narrowly drawn,
extends no further than necessary Jo correct the violation of
the Federal right, and is the least
intrusive means necessary to
correct the violation of the
Federal right." 18 U.S.c. §
3626(a)(1)(A).
Even when prospective relief
has been granted, there are new
provisions that limit the duration
of the order. The order will be
terminated on the motion of any
party two years after entry. 18
U.S.c. § 3626(b)(1 )(A)(i). Or,
it may be terminated by motion
of any party one year after the
denial of a prior termination
motion. 18 US.c. §
3626(b)(1 )(A)(ii).
Finally, prospective relief can be
terminated by motion of any
party immediately if it was
entered without findings that it
"is narrowly drawn, extends no
further than necessary to correct
the violation of the Federal
right, and is the least intrusive
means necessary to correct the
violation of the Federal right."
18 US.c. § 3626(b)(2). See
lYler v. Murphy, 135 F.3d 594,
597 (8th Cir. 1998)
The North Carolina Department
of Correction, as a result of litigation in Smith v. Bounds, 657

F. Supp. 1327 (1986); affd,
Smith v. Bounds, 813 F.2d 1299
(4th Cir.1987); cert.denied, was
ordered to contract with NCPLS
to provide access to the courts
for inmates within the North
Carolina prison system. After
PRLA was enacted, the North
Carolina Department of
Correction moved that this order
be terminated, consistent with
the provisions of the act.
The above termination provision
has already been applied in a
maj or case affecting inmates in
North Carolina. In 1986, The
North Carolina Department of
Correction was ordered to contract with NCPLS to provide
legal assistance to inmates within the North Carolina prison system. Smith v. Bounds, 657 F.
Supp. 1327 (1986); affd, Smith
v. Bounds, 813 F.2d 1299 (4th
Cir.1987); cert. denied, 488 US.
869 (1988). After PLRA was
enacted, the Department of
Correction moved that the order
be terminated, consistently with
the provisions of the Act.
After briefs and a hearing, the
United States District Court for
North Carolina, Eastern
Division, ruled that the order
should be terminated because
the court was unable to conclude
that "prospective relief remains
necessary to correct a current
and ongoing violation of the
Federal right." Smith v.
Freeman, (5:72-CV-3052-F) slip
opinion at p.6 (U.S.D.Ct.,
E.D.N.C.,19 June 1998), citing
18 US.c. § 3626(b)(3).
Although no longer compelled

to do so, the Department of
Correction continues to contract
with NCPLS in order to fulfill
its ongoing constitutional obligation to provide access to the
courts for inmates.

Physical Injury
Maj or changes caused by the
PLRA affect the ability of an
individual plaintiff to file an
action in federal court. For
example, according to the Act,
"no Federal civil action may be
brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while
in custody without a prior showing of physical injury." 42
U.S.c. § 1997e(e). This provision appears to conflict with the
well established right to seek
redress for constitutional violations, including, for example,
intrusions upon liberty. A person deprived of liberty without
due process may suffer no
"physical injury" in the sense of
bodily harm.
Cases decided under PRLA
illustrate how important the
answer will be. In several cases,
cases about threats of violence
or exposure to a risk of violence
from others have been dismissed
because no actual violence had
actually occurred. For example,
Tapia v. Sheahan, 1998 WL
919709 at *5 (N.D.TIL, Dec. 30,
1998); Flannery v. Wagner,
1998 WL 709762 at *1 (D.Kan.,
Aug. 10, 1998)(dismissing
claim that prison officials spread
rumors that subjected the plaintiff to a risk of assault, which
did not

Continued on page 5

NCPLS ACCESS

PAGE 4

Robbins

VOLUME 1, ISSUE 1

Continued from page 1

Since the decision in Robbins,
the North Carolina Parole
Commission has had to recalculate thousands of parole eligibility dates.
As an example of how the
changes affect parole calculation, consider this hypothetical
example:

An inmate was sentenced to a
ClassA life sentence in 1982,
followed by a consecutive term
of 25 years for a Class C felony.
A conviction for a Class A life
sentence under the Fair
Sentencing Act required the
inmate to serve a mandatory
sentence of 20 years, day-forday, prior to being considered
for parole. (the inmate would
be credited for time served
while 'awaiting trial towards this
20 year requirement).
This inmate would have to
serve until the year 2002 before
he could be considered for
"paper parole" to his sentence
of 25 years. The North Carolina
Parole Commission could, in its
discre~ion, deny "paper parole."
Since.many prison privileges
and cl1anges in custody depended up~:m being within a specified length of time from a
releas~ date, the effect of this
practice could dramatically
extend the term of incarceration.
There was no way to determine
when an inmate would begin a
second sentence until "paper

parole" was granted,
Under the new method of parole
calculation (the "single sentence
rule") the parole eligibility dates
of the two sentences are combined, and the inmate is provided with a single parole eligibility date, when an inmate will be
considered for parole to society,
not to a second sentence.
In the example, the inmate
would have to serve 20 years on
the first sentence. If eligible for
Community Service Parole on
the second sentence, the inmate
would have to serve one-eighth
of 25 years, roughly three years,
to be eligible for parole on that
sentence. Under Robbins, the
two eligibility dates are then
combined, so that in the example the inmate would have to
serve approximately 23 years
before becoming eligible for
parole.

Robbins has affected thousands
of inmates in the Department of
Correction. Information about'
whether your parole eligibility
date has been affected can be
obtained through your parole
case analyst. NCPLS can assist
inmates in calculating parole
eligibility dates, but parole decisions are made by the North
Carolina Parole Commission.
These decisions involve many
factors, and the Parole
Commission has significant discretion in applying those factors
to arrive at a decision on parole.

Prison Rumors: Caution!
Frequently, NCPLS receives
mail from inmates that have
"heard" about far-reaching
changes in the law that will
benefit them in a dramatic
\-vay.
For example, inmates have
written to us saying they
have heard that the "85°'0"
law is going to be modified
to "65%>" retroactively. that
all consecutive sentences are
going to be changed to conCUlTent sentences. and that a
decrease in federal funding
is going to result in a mass
release of those sentenced
plior to the Stmctured
Sentencing Act.
None of the above "changes"
are being considered.
Rumors are as old as dili and
rarely have any validity. To
avoid being disappointed
when these rumors make the
rounds of the prison yard,
take an "I'll believe it when 1
see it" attitude.
Remember the old adage that
if something sounds to good
to be true, it probably is.

PAGES

NCPLS ACCESS

VOLUME 1, ISSUE 1

Prison Litigation Reform Act
Continued from page 3

Types of claims barred by the
"physical injury" language
include claims based on placement or conditions in segregated confinement, Warren v.
McDaniel,
F3d
(unpublished), 1998 WL
823390 (9th Cir., Nov. 19,
1998) (dismissing claim of
being housed with mentally disturbed prisoner); Williams lZ
Scott; 142 F.3d 441, 1998 WL
152969, 1998 US.App. LEXIS
6556 (7th Cir. 1998) (unpublished) (prisoner's claim that
segregation for refusing to take
a TB test on religious grounds
violated the Eighth Amendment
is barred); Valentino v.
Jacobson, 1999 WL 14685 at
*3 (S.D.N.Y, Jan. 15, 1999)
(dismissing claims of psychological injury resulting from
segregated confinement);
Walker v. Hubbard, 1998 WL
205130 (N.D.Cal., Apr. 22,
1998) (dismissing complaint of
. being held in high-security unit
in fear oflife); Evans v. Allen,
981 FSupp. 1102 (N.D.Ill.
1997) (dismissing claim of segregated confinement during
which bodily fluids were
thrown on plaintiff).

Filing Fees
A prisoners who wants to file a
civil suit as a poor person (in
forma pauperis) must submit
certified statements of their
prison accounts for the preceding six months and will be

required to pay the entire filing
fee. amounts over a number of
months
The filing fees will be sent by
the prison from the prisoner's
account. (The fees are not dischargeable in bankruptcy. 11
US.c. § 523(a)(l7)).
Cases may be dismissed, even if
a fee has been paid, for a false
allegation of indigency, if the
action is deemed malicious or
frivolous, it fails to state a claim
for which relief can be granted,
or if it seeks monetary relief
against a defendant who is entitied to claim immunity from
suit. 28 US.c. § 1915(a)-(e).
See Leonard v. LaGY, 88 F3d
181, 186 (2d Cir. 1996) (holding
that liability for fees on appeal
includes both $5 filing fee and
$100 docketing fee).
The initial fee is 20% of the
greater of the average monthly
deposits or the average monthly
balance for the preceding six
months, which the court is to
"assess and, when funds exist,
collect." 28 US.c. §
1915(b)(l).
After the initial filing fee,
monthly payments will be
deducted from the prisoner's
trust account at a rate of 20% of
the preceding month's income,
to be forwarded by the prison
"each time the amount in the
account exceeds $10 until the

filing fees are paid." 28 US.c.
§ 1915(b)(2).
However, "in no event shall a
prisoner be prohibited from
bringing a civil action or appealing a civil or criminal judgment
for the reason that the prisoner
has no assets and no means by
which to pay the initial partial
filing fee." 28 US.C. §
1915(b)(2).

Three Strikes Provision
In addition to the filing fee,
another important restriction concerns prisoners who have filed
multiple lawsuits. Prisoners,
under PLRA, may not proceed in
forma pauperis in civil actions or
appeals if, while they were incarcerated or detained, they have
brought three of more prior
actions or appeals in a court of
the United States that were "dismissed as frivolous, malicious, or
for failing to state a claim." 28
US.C. §1915.
The onIy exception to thi s rule
is when the inmate is "under
imminent danger of serious
physical injury." In such a case,
the action may be filed. The
"three strikes" rule has withstood constitutional attack.
Rodriguez v. Cook, 163 F.3d
584, 587-91 (10th Cir. 1998)
(rejecting due process, equal
protection, access to courts, Ex
Post Facto Clause, and separation of powers arguments).
Continued on page 7

PAGE 6

NCPLS ACCESS

VOLUME 1,/SSUE 1

SUCCESS STORY: NCPLS Wins Pardon in
Immigration Case
North Carolina Prisoner Legal
Services (NCPLS) Attorney
Kristin Parks has achieved
remarkable results in her work
for a political refugee from
Liberia who faced deportation
and execution upon his return to
his home country.
~

The execution of immediate
family members of the client
precipitated his flight from
Liberia several years earlier.
After arrival in this country the
client, upon the advice of his
trial counsel, pled guilty to a
non-violent criminal offense
without understanding the
resulting immigration. Initial

efforts to overturn the conviction and the Immigration and
Naturalization (INS) deportation
order were unsuccessful. In conversations with the INS attorney
who was prosecuting the deportati on proceedings, Parks was
told that the only thing that
could prevent the man's return
to Liberia was a pardon.
Demonstrating extraordinary
advocacy, Parks persuaded the
Governor to grant her client a
pardon - reportedly only the
second pardon granted to a prisoner in North Carolina in the
last twenty years.

However, when she advised the
INS attorney that her client had
indeed been granted a pardon,
the INS attorney retracted his
previous statement. Instead, he
informed Parks that the deportation would go forward.
Undaunted, Parks preserved and
succeeded in re-instating her
clients right of appeal with INS
and in securing his release from
pnson.
NCPLS provides representation
in some immigration cases
where the outcome of the immigration matter may adversely
affect our clients interests.

Habitual Felon Act and Structured Sentencing
The Habitual Felon Act has had
a long and sometimes tortured
history of interpretation. With
the advent of Structured
Sentencing, this recidivist
statute has again been the subject of judicial decisions that
seek to fit the act into a new
sentencing scheme.
The changes brought about by
Structured Sentencing have
forced the courts to consider
how the Habitual Felon Act fits
into that scheme. The first decision that addressed the interaction ofthe two statutes dealt

with whether a felony used to
establish Habitual Felon status
could also be used for Prior
Record Level calculations. In
State v. Truesdale, 123 N.C.
639, 473 S.E.2d 670, 672
(1996), Defendant had previously been convicted of two
felonies on 18 October 1988,
two more felonies on 14 June
1991, and four felonies on 25
June 1992. The State used one
conviction from each of the
three days to prove habitual
felon status. The trial court
then used another conviction
from each day to determine

prior record points. The North
Carolina Supreme Court found
no fault with the trial court's
interpretation of the statute, stating, "The language and plain
meaning ofG.S. 14-7.6 prohibits using the same conviction
to establish both habitual felon
status and prior record level.
The language and plain meaning ofG.S. 15A-I340.14(d) prohibits the use of more than one
conviction obtained during the
same calendar week to increase
the defendant's prior record
level.
Continued on page 7

VOLUME 1, ISSUE 1

NCPLS ACCESS

PAGE 7

PLRA
Continued from page 5

Damage Awards
Another provision concerns
what happens to any award of
damages that a prisoner receives
if he successfully litigates a
claim. Under PLRA, damage
awards against prisons or their

personnel shall be paid directly
to satisfy any outstanding restitution orders, with the remainder
forwarded to the prisoner.

Conclusion
NCPLS will probe the legal

contours of the act, and engage
in litigation consistent with the
interests of our clients.
However, the changes brought
about by PLRA will impact
every litigation decision made
by NCPLS.

Habitual Felon Act and Structured Sentencing
However, we find nothing in
these statutes to prohibit the
court from using one conviction
obtained in a single calendar
week to establish habitual felon
status and using another separate
conviction obtained the same
week to determine prior record
level."
The next case to explore the
relationship between the two
acts came in State v. McCrae,
124 N.C. App. 664, 478 S.E.2d
210 (1996). In that case, the
trial court determined
Defendant's prior record level
pursuant to N.C. Gen.Stat. §
15A-1340.14 (1995) by assigning points for a prior conviction
which was consolidated for
judgment with a conviction
already used to convict
Defendant as an habitual felon.
Again, the reviewing appellate
court found no error with this

practice, stating, " the sentencing court could use one of
defendant's convictions obtained
in a single calendar week to
establish his habitual felon status and could use another separate conviction, obtained during
the same week, [consolidated for
judgment] to determine his prior
record level."
The next development came in
State v. Vaughn, 130 N.C.App.
456, 503 S.E.2d 110 (1998),
affd 350 N.C. 88, 511 S.E.2d
638 (1999). There, the court
treated Defendant's 1984 conviction of breaking and entering, not as a Class H conviction,
but as a Class C conviction for
purposes of determining his
prior record level. The
Defendant's total "points" for
prior offenses thus totaled 16,
and his prior record level was
determined to be Level V.

Continuedfrompaget

The Court of Appeals ruled, " In
this case, when defendant was
convicted of felonious breaking
and entering in 1984, he was
convicted of a Class H felony.
N.C.Gen.Stat. § 14-54(a) (1981).
His contemporaneous conviction
of being an habitual felon did
not reclassify the offense of
breaking and entering as a Class
C felony. Rather, the habitual
felon conviction required that
defendant be 'sentenced as a
Class C felon.' Defendant's
1984 conviction of breaking and
entering was not, therefore, a
'prior felony Class C conviction.'
It was a prior felony Class H
conviction. "
NCPLS will continue to report
on cases that impact sentencing
in future issues ofNCPLS
ACCESS.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.
224 S. Dawson Street
PO Box 25397
Raleigh. NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: bsanders@ncpls.org

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North Carolina Prisoner Legal Services, Inc.
224 South Dawson Street
PO Box 25397
Raleigh, NC 27611