THE PRISON
10.1177/0032885504268177
Belbot
/ REPORT
JOURNAL
ON THE/ September
PLRA
2004

REPORT ON THE PRISON LITIGATION
REFORM ACT: WHAT HAVE
THE COURTS DECIDED SO FAR?
BARBARA BELBOT
University of Houston–Downtown

The Prison Litigation Reform Act was passed by Congress in 1996. It had a two-fold
purpose: reduce the amount of prisoner litigation and curtail the involvement of the
federal courts in the operations of state prison systems. Since its passage, the U.S.
Supreme Court and numerous lower federal courts have had the opportunity to interpret several of its complicated and controversial provisions. This article looks at what
the courts have decided thus far and predicts future court opinions.

Keywords:

prisoner litigation; prisoners’ legal rights; Prison Litigation
Reform Act (PLRA)

The Prison Litigation Reform Act (PLRA) was enacted in 1996. Members
of Congress who opposed the legislation raised constitutional issues during
debate on the bill (Butler, 1999). After its passage, many opponents continued to predict that some PLRA provisions would be held invalid (Decker,
1997; Herman, 1998). Nearly 6 years later, four U.S. Supreme Court cases
have upheld the constitutionality of several of the PLRA’s provisions and
struck down none. Dozens of district and circuit court cases have defended
various provisions against constitutional challenge, whereas very few courts
have ruled against the act (Bennett & Del Carmen 1997; Branham, 2001a,
2001b). Much has been written about the phenomenal growth in inmate litigation since Cooper v. Pate abandoned the hands-off policy and opened the
floodgates to the federal courts in 1964. There has been extensive criticism of
the activist role many federal judges adopted as prison reform lawsuits made
their way through the court system. The PLRA responded to two of Congress’s concerns: (a) inmates who were perceived as clogging up the courts
and costing taxpayers large amounts of money with frequently frivolous litigation and (b) federal judges who intervened in the operation of state prison
systems; ordered extensive, detailed, and costly reforms; and monitored
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DOI: 10.1177/0032885504268177
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compliance with court orders for often more than a decade. How much these
related but distinct concerns merged in the legislators’ minds when they considered the PLRA is not clear. It is clear that the PLRA has imposed significant restrictions on both prisoner litigants and federal judges. Six years later,
it is also clear that courts will not take the PLRA to task.
This article reviews court cases that have considered the most important
PLRA provisions. It is divided, like the act itself, into two sections. The first
part looks at cases that have interpreted those parts of the statute aimed at
reducing the amount of prisoner litigation. Three of the four Supreme Court
decisions about the PLRA address the statute’s inmate lawsuit reduction provisions. The second part of the article examines court cases that have interpreted the PLRA’s attempts to curtail federal court intervention in state prisons. One Supreme Court case has been decided in this area. Federal courts of
appeal cases are discussed throughout. Legal commentary is sprinkled where
appropriate and most helpful. The Supreme Court has not resolved all the
constitutional questions about the PLRA. It has, however, settled several key
issues, and through the four cases it has decided, the Court has indicated its
general stance toward the statute. There is little or no reason for opponents of
the PLRA to anticipate that the courts will act to reduce the serious
limitations the act imposes.
PART I. REDUCING INMATE LITIGATION
The PLRA includes several provisions that attempt to reduce the number
of inmate lawsuits that impose financial and other restrictions on prisonerplaintiffs thereby making it more difficult for them to file lawsuits under
§1983. Congress passed these provisions in response to what it perceived to
be a crisis in the federal courts created in part by the large number of inmate
lawsuits, many of which are deemed frivolous and which also impose a
severe burden on the state agencies that must defend them. According to
Herman (1998), the legislative history of the PLRA indicates that concern
about frivolous lawsuits dominated Congress’s consideration of the statute.
Stories about frivolous legal claims like the one filed by an inmate demanding chunky peanut butter abound. Although there was serious opposition to
the bill, the PLRA was passed without a great deal of debate and in a hasty
fashion as a rider to an appropriations bill and without a Judiciary Committee
Report (Butler, 1999; Herman, 1998; Levy, 2000).
This part of the article reviews the most current case law interpreting the
PLRA provisions that impose new restrictions on litigant prisoners including
(a) the exhaustion of administrative remedies requirement, (b) the prohibition on recovery for claims of emotional injury only, (c) changes in the avail-

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ability of in forma pauperis (IFP) status, (d) limits on prisoners who have
filed frivolous lawsuits in the past, and (e) reducing the compensation for
attorneys who represent inmates in civil rights cases. The Supreme Court has
not spoken to all of these issues, but it has recently clarified the law in some
areas.
EXHAUSTION OF ADMINISTRATIVE REMEDIES

One of the most important provisions of the PLRA requires prisoners to
exhaust any remedies available through their inmate grievance systems
before they can file a lawsuit. The requirement to exhaust administrative
remedies is not unique to the PLRA. It is a common doctrine found in many
areas of administrative law and holds that a matter is not ripe for judicial
review until a grievant first avails himself of all the remedies available
through his administrative agency. Only after exhausting those remedies and
failing to get relief can the grievant file a lawsuit. When a grievant files a lawsuit without first exhausting administrative remedies, the court must dismiss
the suit or delay considering it until after the requirement has been met.
Requiring exhaustion is designed to serve several goals. First, and probably foremost, it seeks to reduce lawsuits thereby lightening the caseloads of
overcrowded court dockets. Reducing lawsuits not only benefits the court
system. Defending a lawsuit is much more expensive than resolving a complaint through an internal administrative dispute-resolution process. Reducing the numbers and types of lawsuits that an agency has to defend in court
also benefits that agency. And because lawsuits generally take years to crawl
through the judicial system, administrative remedies can offer grievants a
much quicker and less cumbersome vehicle by which to get relief. Second,
the exhaustion requirement permits the administrative agency to use its
authority without court interference and manage its own affairs based on its
expertise. The agency should be in a better position than a court to focus on
the issues raised by the complaint and evaluate its merits (Branham, 2001a;
Burton, 2001).
The exhaustion requirement was first introduced to the arena of prisoner
litigation in 1980 in the Civil Rights of Institutionalized Persons Act
(CRIPA). CRIPA authorized the U.S. attorney general to sue state and local
officials whose institutions are operated in such a way that there is a pattern
or practice of violating the residents’ constitutional rights. This provision
was very controversial, and, among other reasons, the exhaustion requirement was inserted into CRIPA in an attempt to address the opposition of the
National Association of Attorneys General who considered it to be federal

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encroachment on the states’ authority to operate their prison systems. By
requiring inmates to exhaust administrative remedies, state officials would
have the opportunity to address problems in their institutions and avoid
federal intervention (Branham, 2001a).
CRIPA also included a provision in §1997e(a) that specifically required
prisoners to exhaust their grievance systems prior to filing a civil rights lawsuit under 42 U.S.C. §1983 when “plain, speedy, and effective” administrative remedies are available. For a prison grievance system to qualify as plain,
speedy, and effective, the statute specified that correctional officials would
have to apply to the Department of Justice for certification by demonstrating
that their grievance system met certain minimal standards. Those standards
included (a) an advisory role for employees and inmates in the formation,
implementation, and operation of the grievance system; (b) the setting of
specific maximum time limits for providing written replies to grievances to
include reasons explaining the resolution to be provided by each decision
level within the grievance system; (c) priority processing of emergency
grievances including matters in which a delay could subject the grievant to
substantial risk of personal injury or other damage; (d) safeguards to avoid
reprisals against any grievant or participant in the resolution of a grievance;
and (e) independent review of a grievance’s disposition by a person or entity
not under the direct supervision or control of the institution where the grievance arose or where the prisoner was housed (Branham, 2001a; Mueller,
1995). Even if the state’s grievance system met certification standards, the
court could order exhaustion only if, in the particular case, the requirement
was deemed “appropriate and in the interests of justice” (CRIPA, 1980,
§1997e[a], [b]). CRIPA also gave the federal courts the discretion to stay a
prisoner’s lawsuit up to 180 days while the prisoner pursued administrative
remedies, as opposed to dismissing the lawsuit.
CRIPA encouraged state prison systems to implement effective grievance
systems so that prisoners would have to exhaust their administrative options
before going to court. The CRIPA certification standards, however, were
very high, and many correctional officials considered them too burdensome.
The certification process itself was complicated, and many of the states that
sought certification experienced extensive delays because of ineffective
administration of the program by the Department of Justice (Harvard Law
Review Association, 1991). Mueller (1995) reported that only 21 states had
their grievance systems certified, 2 of which allowed their certifications to
lapse.
In 1996, Congress amended 42 U.S.C. §1997e(a) via the PLRA. Section
1997e(a) now reads,

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

Congress eliminated the requirement that exhaustion is necessary only if
plain, speedy, and effective administrative remedies are available. Prisoners
are now required to exhaust “such administrative remedies as are available,”
and failure to exhaust remedies must result in the dismissal of the suit. The
PLRA amendment to §1997e is a significant change, and the provision raised
numerous troublesome issues for the courts. The U.S. Supreme Court
recently decided two cases that elaborate on the scope of the exhaustion
requirement, one dealing with a request for monetary relief and the other with
allegations of excessive use of force.
Money Damages

The new requirement quickly raised legal arguments concerning the definition of administrative remedies as are available. Federal appellate courts
split over whether inmates who are seeking money damages as part of their
claim must first exhaust the grievance system before filing a lawsuit. Money
damages are not generally available to prisoners who are successful in a
prison administrative grievance process. In those states where they are available, the damages are restricted to certain types of losses. No state prison
grievance system allows inmates to recover money damages for an official’s
excessive use of force or unconstitutional conditions of confinement
(Branham, 2001a). Before the PLRA amended §1997e, the U.S. Supreme
Court decided in McCarthy v. Madigan (1992) that exhaustion of administrative remedies is not required when an inmate seeks only monetary relief and
the grievance process offered none. Under the PLRA-amended §1997e, the
Fifth, Ninth, and Tenth Circuits continued to interpret the exhaustion
requirement to contain an exception when money damages were not available administratively. Prisoners incarcerated in prisons located in states governed by those circuits were able to initiate lawsuits for money damages
without first filing a grievance through their correctional agency’s administrative process (Branham, 2001a; Taylor, 2000). In contrast, the Third, Sixth,
Seventh, and Eleventh Federal Courts of Appeal ruled that there was no
exception under the new exhaustion requirements. Prisoners living in institutions located in those circuits were required to exhaust administrative
remedies (Branham, 2001a; Taylor, 2000).
The split centered on the meaning of the words remedies and available. In
2001, the U.S. Supreme Court addressed the issue in Booth v. Churner.

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Booth, an inmate in the Pennsylvania prison system, filed a §1983 lawsuit
alleging that officials violated his Eighth Amendment rights when they used
excessive force against him and denied him medical attention for the injuries
suffered as a result of the force. Booth had not sought administrative review.
The Third Circuit rejected his argument that exhaustion was not required,
because the grievance process could not award damages. A unanimous
Supreme Court agreed but acknowledged that the plain meaning of the words
could lead to different interpretations. The Court, however, concluded that
the broader statutory context in which the words are used suggests that a prisoner must exhaust processes, not forms of relief. Statutory history also convinced the Court that Congress intended to require administrative exhaustion
regardless of the type of relief the prisoner requests. Congress specifically
eliminated the condition that exhaustion is required only when a grievance
process is plain, speedy, and effective. Significantly, Congress removed the
term effective, which had been emphasized in the Court’s 1992 decision in
McCarthy v. Madigan. In the PLRA, Congress mandated exhaustion regardless of the type of relief offered through administrative procedures. Branham
(2001a) noted that, as a result of the Supreme Court’s decision in Booth v.
Churner, unless prison officials develop a means for inmates to recover
money damages through the internal grievance systems, in most states after
they go through the administrative process, inmates will continue to file
lawsuits to recoup monetary compensation.
Allegations of Excessive Use of Force

A year after the Supreme Court decided Booth v. Churner (2001), it rendered an opinion in Porter v. Nussle (2002). Nussle was an inmate in a Connecticut prison who alleged that officials subjected him to a prolonged and
sustained pattern of harassment and intimidation. In 1999, he filed a §1983
lawsuit without first seeking administrative relief. The Second Circuit Court
of Appeals reversed the trial court’s decision to dismiss Nussle’s case
because he failed to exhaust administrative procedures. The Second Circuit
concluded that §1997e(a), amended by the PLRA, only requires exhaustion
with respect to prison conditions that affect everyone in the area and not single or momentary matters directed at particular persons. This put the Second
Circuit in conflict with several other circuit courts. The issue again revolved
around defining certain words or phrases in the statute. Specifically, what did
Congress mean when it legislated that “no action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law” (PLRA, 1996, §1997[a])? Do prison conditions include isolated,
single-episode incidents directed toward specific persons or only ongoing

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conditions of confinement that affect larger numbers of persons? A unanimous Supreme Court reversed and remanded the case to the appeals court by
concluding that the exhaustion requirement applies to all inmate lawsuits
whether they address general conditions or particular incidents, excessive
force, or some other wrong. The justices were persuaded that Congress
clearly intended to require a firm exhaustion requirement for all inmate
lawsuits involving §1983 or other federal laws.
The Supreme Court has made clear that the PLRA’s exhaustion requirement is comprehensive and to be strictly enforced. Congress intended for
prisoners to use their grievance systems before going to court, and the PLRA
created no exceptions to that rule, even in those situations where a grievance
system can not respond to a prisoner’s request for relief. Despite evidence
that inmates do not consider internal grievance systems responsive and have
little confidence that they can correct the types of constitutional violations
they experience, they must first exhaust that process or risk having their lawsuits dismissed (Alderstein, 2001).
TYPE OF INJURY

The PLRA also amended the CRIPA to include a provision in §1997e(e)
that “no federal civil action may be brought by prisoners confined in a jail,
prison, or other correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.” This means a
prisoner cannot claim compensatory damages for emotional injury that
resulted from the unconstitutional conduct of correctional officials unless he
or she can also show that they suffered a physical injury. This new provision
has the potential to bar inmates from recovering monetary damages for such
violations as the denial of mental health care, racial discrimination, denial of
religious freedoms, psychological torture, and retaliation for filing grievances, to name a few (Boston, 1998; Pepe, 1999).
There is disagreement between the federal courts about how to interpret
the physical-damage-only provision. In Zehner v. Trigg (1997) and Jones v.
Greninger (1999), the courts of appeal decided that §1997e(e) clearly prohibited the recovery of damages for emotional injuries that did not involve
physical injury. In contrast, Canell v. Lightner (1998) rejected the argument
that §1997e(e) barred Canell’s action, because he was alleging a deprivation
of his First Amendment rights, which had not resulted in physical injury. The
court concluded that a violation of a prisoner’s First Amendment rights entitles him or her to judicial relief wholly aside from any physical, emotional, or
mental injury that may have occurred. In Mason v. Schriro (1999), the district
court ruled that §1997e(e) was inapplicable to a prisoner’s equal protection

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claim based on allegations that the state prison considered race when making
housing assignments.
The Third Circuit ruled that a prisoner’s First Amendment claim for compensatory damages was barred by §1997e(e), because the prisoner did not
allege nor could he show that he suffered physical harm as a result of the violation in Allah v. Al-Hafeez (2000). The Tenth Circuit Court of Appeals ruled
similarly in Searles v. Bebber (2001). Interestingly, however, both the Third and
Tenth Circuits found a way to circumvent the statute’s restrictions and ruled
that, although §1997e(e) bars compensatory damages for First Amendment
violations, it does not bar an award of nominal damages for a constitutional
violation when there is no showing of physical injury. In addition, both appellate courts concluded that §1997e(e) does not bar an award of punitive damages based solely on alleged constitutional violations and not on any mental
or emotional injury that was caused by the violation. They reasoned that the
language of the statute does not prohibit nominal and punitive damages and
that in several previous decisions the Supreme Court has ruled that nominal
damages are available to vindicate a constitutional right absent any proof of
injury (Carey v. Piphus, 1978; Memphis School District v. Stachura, 1986).
Prisoner advocates are concerned that the amendment to CRIPA goes
beyond denying compensatory relief for constitutional violations that did not
include physical injury. Once officials’ unconstitutional conduct has ceased,
a prisoner has no grounds for injunctive relief and, now under the PLRA
amendment to CRIPA, he or she has no grounds for compensatory damages
if they cannot show physical injury (Zehner v. Trigg, 1997). Some prisoners
will not be able to sue in state court seeking compensation for emotional
injury, because many states deny recovery for intentional torts that involved
only emotional injury. It is likely that §1997e(e) will result in circumstances
where a prisoner has no remedy for an obvious constitutional violation
(Pepe, 1999). Opponents of the PLRA’s restrictions on prisoners attempting
to recover damages for emotional injury argue that the restrictions also violate the Fifth Amendment’s Equal Protection Clause. The restriction burdens
prisoners’ fundamental right of access to courts and takes away their right to
a remedy for a constitutional violation. To pass muster, such a restriction,
which discriminates against prisoners, must be rationally related to a legitimate government objective. Opponents argue that §1997e(e) does not serve
legitimate penological interests (Pepe, 1999).
IFP

Before the passage of the PLRA, 28 U.S.C. §1915(a) authorized federal
courts to allow prisoners to file lawsuits IFP if they filed an affidavit stating

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they were unable to pay costs or give security for them and describing the
type of lawsuit they wanted to file. About half of the federal district courts
had local rules that required individuals seeking IFP status to pay some portion of the filing fee, and the statute permitted but did not require a court to
dismiss a case if it discovered a prisoner’s assertion of poverty was not true
(Bennett & Del Carmen, 1997; Federal Judicial Center, 1996). The vast
majority of prisoner civil rights lawsuits are filed IFP (Mueller, 1995).
Section 1915 was significantly rewritten by the PLRA. A prisoner must
state in his or her affidavit seeking IFP status all of the assets they possess and
must file a certified copy of their trust fund account statement for the 6month period immediately preceding the filing of the lawsuit. Section
1915(b)(1) requires federal courts to collect some or the entire filing fee from
IFP prisoners. In a somewhat complicated formula, the revised law provides
that a court assess an initial partial filing fee consisting of 20% of the greater
of the average monthly deposits to a prisoner’s account or the average
monthly balance in the prisoner’s account for a 6-month period immediately
preceding the filing of the lawsuit. After the initial filing fee is paid, the prisoner is required to make monthly payments of 20% of the preceding month’s
income credited to the prisoner’s account until the full fee is paid. The correctional institution is responsible for forwarding those payments to the court
each time the prisoner’s trust account has more than $10. The new provisions
were designed to force an inmate to engage in a cost-benefit analysis before
filing a lawsuit. The provisions provide economic disincentives to sue on the
theory that prisoners file lawsuits, in no small part, because they are a diversion from the boredom of prison life and a way of hassling prison officials
(Kuzinski, 1998).
The courts of appeal are in consensus that the PLRA’s extensive revisions
to 28 U.S.C. §1915 are constitutional and that the filing fee requirements do
not deprive prisoners of adequate, effective, and meaningful access to the
courts (Lucien v. DeTella, 1998; Norton v. Dimazana, 1997; Shabazz v. Parsons, 1997; Tucker v. Branker, 1998). They have also concluded that the
requirements do not violate the Equal Protection Clause or the First Amendment (Hampton v. Hobbs, 1997; Mitchell v. Farcass, 1997; Nicholas v.
Tucker, 1997). The courts agree that the new IFP provisions are aimed at
inmate lawsuits challenging prison conditions and therefore do not apply to
habeas corpus petitions (Bennett & Del Carmen, 1997).
Several appellate courts have considered what should happen to a civil
rights lawsuit in the event a prisoner with IFP status fails to pay the initial filing fee assessed by the district court. In Taylor v. Delatoore (2002), the court
interpreted §1915(b)(4), which creates a safety valve for prisoners who cannot afford to pay the partial filing fee. According to that provision, a prisoner

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cannot be prohibited from bringing a civil lawsuit, because he or she has no
means by which to pay the initial filing fee. Inmate Taylor was granted permission to file his complaint IFP and assessed an initial filing fee of $6.62 to
be paid within 30 days with the requisite monthly installments toward the full
filing fee. When Taylor failed to pay the $6.62, his case was dismissed without prejudice. Before the dismissal, Taylor submitted a copy of his inmate
trust fund account that showed his account balance was $0, and it had been at
$0 for more than 2 months before he filed his lawsuit. Although the Ninth
Circuit upheld the $6.62 assessment as proper, the court concluded that
§1915(b)(4) prohibits a district court from dismissing an IFP prisoner’s case
based on his failure to pay the initial filing fee because he lacks the funds
when payment is ordered. The safety-valve provision is intended to protect
prisoners without money where there is no evidence that they depleted their
accounts to avoid paying the assessment. The Tenth Circuit reached the same
conclusion in Bell v. Whethel (1997).
Perhaps an even more important burden on prisoners who litigate in federal court is found in 28 U.S.C. §1915(f), which governs the taxation and collection of costs against litigants. It provides that a court has the discretion to
require a prisoner to pay the full costs associated with a lawsuit under the
same payment scheme provided for paying filing fees (20% of the prisoner’s
weekly earnings). In Whitfield v. Scully (2001), Whitfield was taxed $595.96
in the district court for deposition costs and $711.40 in the court of appeals
for printing costs. Although he lost his lawsuit against officials of the New
York Department of Correctional Services, his case was not ruled malicious
or frivolous. Whitfield had a weekly income of $7.75. He was assessed a
$3.10 a week payment to the court to cover both the deposition and printing
costs, which represented 20% for each expense because each was treated as a
separate judgment. The Second Circuit upheld the constitutionality of
assessing court costs against prisoners who do not prevail in their lawsuits.
The Sixth Circuit agreed in Singleton v. Smith (2001).
The Whitfield (2001) case, however, raised another important issue for
IFP litigant prisoners: whether multiple assessments on a prisoner’s trust
fund account should be collected sequentially or simultaneously. The court
ruled in Inmate Whitfield’s favor, concerned that the simultaneous collection
of multiple assessments could potentially expose 100% of a prisoner’s
income to recoupment and cause an undue burden to be placed on a prisoner’s right of access to courts. The Second Circuit held that §1915(b)(2)
generally requires the recoupment of multiple assessments sequentially at a
constant rate of 20% of the monthly receipts to a prisoner’s account. The
Whitfield decision is contrary to the decisions of other federal courts of
appeal. In Atchison v. Collins (2002), the Fifth Circuit concluded that

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§1915(b)(2) requires a per-case interpretation of the assessment requirement
thereby resulting in an assessment of 60% of Atchison’s monthly income to
pay for three filing fees on which he owed money. The Seventh Circuit also
adopted the per-case approach in Newlin v. Helman (1997).
Obviously, interpreting 28 U.S.C. §1915 to require the simultaneous collection of fees could have a significant impact on a prisoner’s decision to file
a lawsuit. If he or she is already paying a monthly assessment toward a filing
fee or costs taxed at the conclusion of unsuccessful litigation, they may not
be able to afford filing additional lawsuits. Although this result supports the
PLRA’s goal to reduce prisoner litigation, it can easily chill a prisoner’s right
to access the court system. Although it may be true that a small group of
inmates file a large percentage of prisoner civil rights lawsuits (Collins &
Grant, 1998; Vandenbraak, 1998), sometimes that group is composed of the
persons best prepared and capable of articulating grievances and constitutional violations that affect many prisoners (Herman, 1998). Some of those
repeat litigators are the voices for a significant segment of the population that
cannot or are afraid of speaking for themselves (Roots, 2002).
The appellate courts have supported Congress’s intent to make it more
difficult for prisoners to claim IFP status. They have consistently found that
requiring inmates to pay filing fees and court costs does not violate the Constitution as long as a safety-valve provision is in place. The burden of keeping
track of the money owed and collecting the fees falls on the federal courts and
correctional officials. Branham (1997) surveyed federal judges and court
personnel involved in administering the filing fee provisions. Many
expressed concern that the benefit to the courts in discouraging prisoner lawsuits might be outweighed by the administrative costs involved in collecting
the partial installments.
FRIVOLOUS LAWSUITS

Related to the new requirements for establishing IFP status are the
PLRA’s amendments to 28 U.S.C. §1915 that preclude a prisoner from proceeding IFP if he or she, while incarcerated or detained, has on three or more
occasions brought an action or appeal that was dismissed on the grounds that
it was frivolous, malicious, or failed to state a claim upon which relief could
be granted. The only exception to what has become known as the threestrikes restriction is if prisoners can show they are under imminent danger of
serious physical injury. Interestingly, the statute makes a distinction between
rich prisoners who file frivolous lawsuits and indigent prisoners who also
frequently litigate frivolous claims. Section 1915(g) precludes prisoners
who have filed three previous frivolous actions from filing with IFP status;

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however, if they are able to prepay the filing fee and do not seek leave to file
IFP, they are not restricted from filing a new lawsuit or appeal.
The three-strikes provision is obviously designed to reduce the large number of prisoner civil rights lawsuits that allege frivolous claims. There is little
disagreement between practitioners and scholars in the area of inmate litigation that a significant number of prisoner civil rights lawsuits are legally frivolous (Jeffrey, 2001; Newman, 1996). The disagreement focuses on what
Chief Judge of the U.S. Court of Appeals, Second Circuit, the Honorable Jon
O. Newman (1996) described as the appropriate way to approach the “task of
looking through the ‘haystacks’ of prisoner lawsuits for the ‘needles’ of
meritorious prisoner claims” (p. 25).
To date, seven courts of appeal have considered constitutional objections
to §1915(g) based on the due process right of access to courts, the Equal Protection Clause, and the First Amendment’s right to petition for redress of
grievances. All seven courts have found the three-strikes provision constitutional (Abdul-Akbar v. McKelvie, 2001; Carson v. Johnson, 1997; Higgens v.
Carpenter, 2001; Rivera v. Allin, 1998; Rodriguez v. Cook, 1999; White v.
Colorado, 1998; Wilson v. Yaklich, 1998). Other appellate courts have
emphasized the authority of Congress to limit the pursuit of civil lawsuits,
because proceeding IFP in civil actions is a privilege, not a right (Jeffrey,
2001).
In Lewis v. Sullivan (2002), the appeals court for the Seventh Circuit considered a case where the federal district court excused prepayment of the filing fee for an inmate with a long history of frivolous litigation because the
judge concluded that §1915(g) is unconstitutional unless it is interpreted to
allow judges to dispense with prepayment whenever, in their discretion, they
believe the prisoner’s claim is substantial. The court of appeals reversed the
district judge’s decision by ruling that judges do not have discretion to excuse
prepayment when they think a prisoner is alleging a substantial claim. The
only exception to the three-strikes provision is provided in the statute itself,
and that involves an inmate who is in imminent danger of physical injury.
The Seventh Circuit opinion listed several options for a prisoner who finds
himself or herself stuck out under §1915(g), including pay the filing fee or
save up in advance to pay the fee, refrain from frivolous litigation, borrow the
filing fee, or sue in state court, which must entertain federal civil rights
claims and where §1915(g) does not apply. Finally, the inmate with a track
record of frivolous litigation can file IFP if the inmate can show he or she is in
danger of serious physical harm.
The PLRA did not establish a mechanism for identifying prisoners who
have had more than three dismissals. It also did not define malicious or frivolous. Pre-PLRA case law suggests that maliciousness is typically found only

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after the court concludes that an inmate has filed several identical or closely
similar lawsuits and the issues have already been decided (Federal Judicial
Center, 1996). A number of cases have defined frivolous. Courts consider a
lawsuit frivolous if it lacks an arguable basis either in law, meaning the
alleged facts do not amount to a legally cognizable claim, or in fact, meaning
that the facts are essentially fanciful or delusional. Failure to state a claim
means that it appears beyond a reasonable doubt the plaintiff cannot prove
the facts to support his claim and entitle him to relief. Tushnet and Yackle
(1997) proposed that judges who have to define what constitutes a frivolous
claim under §1915(g) should consider the law that has developed pursuant to
Federal Rule of Civil Procedure 11, which authorizes courts to sanction
attorneys who file pleadings that are not based on either existing law or
nonfrivolous arguments in favor of modifying or reversing existing law.
Courts have been reluctant to establish hard and fast criteria under Rule 11
for evaluating which arguments are frivolous, not wanting to impede the evolution of new legal theories and doctrines. Instead, courts have asked whether
the attorneys did the necessary research and presented a cogent argument.
Judges may want to take a similar approach to pro se inmates who litigate
under less-than-ideal circumstances. The vast majority of prisoner civil
rights lawsuits are filed pro se (Alderstein, 2001; Mueller, 1995; Roots,
2002). Tushnet and Yackle encouraged judges to evaluate carefully the
benefit of imposing sanctions on a prisoner who presents a nonfrivolous but
not legally cognizable claim.
Only a few cases have addressed at what point in time a prisoner must
experience imminent danger for purposes of avoiding the three-strikes
restriction. The Third Circuit Court of Appeals decided in Gibbs v. Roman
(1997) that the imminent danger must occur at the time of the alleged incident. In that case, Inmate Gibbs waited 6 months after he alleged he was
attacked by other prisoners to file a complaint. The district court decided he
could not file IFP because he had three previous lawsuits dismissed as frivolous; however, the appellate court allowed him to proceed by ruling the
inmate must have been in danger at the time of the alleged incident. In contrast, three other appeals courts have ruled that to avoid dismissal because of
previous frivolous lawsuits, an inmate must allege that he or she is in imminent danger at the time they file their lawsuit (Ashley v. Dilworth, 1998;
Banos v. O’Guin, 1998; Medberry v. Butler, 1999).
Finally, the PLRA added 28 U.S.C. §1932 as an additional sanction for
inmates in the federal penitentiary system who file frivolous claims. The statute provides that a federal prisoner who files a claim for a malicious purpose,
to harass another party, or who knowingly presents false evidence to the

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court may have any earned release credits, or good time, revoked that has not
yet vested. Revocation can occur upon the motion of the court or any party.
The three-strikes provision supports the overall IFP restrictions by making it almost impossible for an IFP prisoner to file a lawsuit if he or she has on
three or more occasions brought an action or appeal that was dismissed as
frivolous, malicious, or failed to state a claim upon which relief could be
granted. Congress has persuaded the courts of appeal that the availability of
IFP status encourages inmates to file frivolous lawsuits, and a three-strikes
provision is necessary to combat the large number of those suits that have no
basis in fact or law. Critics of the PLRA’s three-strikes provision have not
convinced the courts that the statute violates the right of indigent prisoners to
access the courts in a manner equal to both nonindigent prisoners and indigent nonprisoners. Nor have they convinced the courts that it violates the
Equal Protection Clause because it treats indigent prisoners differently than
those two groups (Jeffrey, 2001).
ATTORNEY’S FEES

Enacted in 1976, 42 U.S.C §1988 authorizes a court, in its discretion, to
award reasonable attorney’s fees to the prevailing party in a lawsuit initiated
under 42 U.S.C §1983. Section 1988 is designed to encourage individuals
whose rights have been violated to seek relief and to encourage attorneys to
take on the representation of civil rights cases. Civil rights claims often
require attorneys to spend a substantial amount of time preparing a case for
what is often a small monetary judgment. Without §1988, many attorneys
could not afford to represent a client whose civil rights had been violated. In
Hensley v. Eckerhart (1983), the Supreme Court held that courts should generally award attorney’s fees to the prevailing plaintiff, absent special circumstances that would make such an award unjust. Prevailing defendants are seldom awarded fees. The statute provides that the court can order a plaintiff to
pay the defendant’s fees only if the plaintiff’s case was frivolous or unreasonable. To determine what is a reasonable fee award, the court calculates a lodestar figure by multiplying the number of hours reasonably expended by the
attorneys who represented the prevailing party times a reasonable hourly fee.
If the parties do not agree to this figure, the party seeking the award must
prove that the number of hours spent on the case and the hourly rate are reasonable. After the lodestar figure is determined, the court considers additional factors that may cause the fee to be adjusted upward or downward
(Branham, 2001b).

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The PLRA amended 42 U.S.C. §1997e(d) to impose substantial restrictions on the attorney fees awarded under 42 U.S.C. §1988 to prevailing plaintiffs in prisoner civil rights cases. The PLRA allows the court to award fees
only when they were “directly and reasonably incurred in proving an actual
violation” of a prisoner’s rights and the fee amount is “proportionately
related to the court ordered relief for the violation” or the fee was “directly
and reasonably incurred in enforcing the relief ordered” to correct a violation
(PLRA, 1996, §1997e[d]). In addition, whenever a monetary judgment is
awarded to a plaintiff, a portion of that judgment, not to exceed 25%, must be
applied toward the amount of the attorney’s fees awarded against the defendant. If the attorney fee award is not greater than 150% of the judgment, the
defendant must pay the excess. No attorney fee award can be based on an
hourly rate greater than 150% of the hourly rate established by the Criminal
Justice Act, the statute that governs compensation for attorneys appointed by
the court to represent indigent criminal defendants in federal court.
Under the PLRA, attorney’s fees must now be proportionate to the
amount of relief ordered by the court regardless of the fact that an actual
money judgment might be quite modest. The amount of the fee award is
capped at 150% of the hourly rate set by the Judicial Conference for courtappointed criminal attorneys. That fee is currently not more than $75 an hour
for both in-court and out-of-court work; however, because of funding constraints, the $75 fee is not available in many federal districts where attorneys
are paid $55 an hour for out-of-court time. At this time, the maximum that
attorneys for prisoners can be awarded is $112.50 an hour with many of them
receiving only $82.50 an hour for out-of-court work (Branham, 2001b).
Finally, unlike nonprisoner civil rights cases brought under §1983, if a plaintiff prisoner is awarded a money judgment, up to 25% of that judgment has to
be applied to the attorney fee award.
In Martin v. Hadix (1999), the Supreme Court considered whether the
PLRA’s cap on attorney’s fees awards applied to cases that were pending
when the statute was enacted. In that case, the Michigan prison system had
been under federal court orders stemming from two lawsuits, filed in 1977
and 1980, by prisoners challenging the conditions of their confinement. In
both cases, the federal district court ruled that the prisoners were the prevailing parties entitled to attorney’s fees under 42 U.S.C. §1988 for
postjudgment monitoring of the defendant prison system’s compliance with
remedial orders. The fees were awarded on a semiannual basis, and a specific
market rate had been set at $150 an hour. When the PLRA went into effect in
1996, the State of Michigan requested the court to cap the attorney fee award
to $112.50 an hour both for services that were rendered before the act went
into effect but had not yet been compensated and for services performed after

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the act was effective. The Supreme Court held that the PLRA limits attorney’s fees for postjudgment monitoring services performed after the statute’s
effective date but does not limit fees for monitoring performed before that
date. Several courts of appeal have applied the same reasoning used in Martin v. Hadix to cases involving awards of attorney’s fees in civil rights cases
for legal work performed prior to the PLRA’s enactment but had not yet been
awarded, deciding that the PLRA’s limit on attorney’s fees does not apply to
services performed prior to the act’s effective date (Altizer v. Deeds, 1999;
Chatin v. Coombe, 1999; Madrid v. Gomez, 1999).
The Supreme Court has not considered the constitutionality of the
PLRA’s cap on attorney’s fees. Several courts of appeal, however, have ruled
that the cap does not violate the Equal Protection Clause and passes constitutional muster. These courts have determined that calculating attorney’s fees
under §1988 for prisoner plaintiffs differently than the way they are calculated for nonprisoner plaintiffs under the same statute does not trigger equal
protection concerns. Under the rational basis test for analyzing equal protection arguments, the caps imposed in prisoner cases further a rational and
legitimate governmental interest, that is, curtailing the filing of frivolous
inmate lawsuits (Boivin v. Black, 2000; Collins v. Montgomery County Board
of Prison Inspectors, 1999; Volk v. Gonzalez, 2001; Walker v. Bain, 2001).
Interestingly, the Sixth Circuit Court of Appeals expressed dismay in
reaching the conclusion that the PLRA’s cap on attorney’s fees does not violate the Constitution. The court wrote in Walker v. Bain (2001) at 667:
We are aware that §1997e(d)(2) will have a strong chilling effect upon counsel’s willingness to represent prisoners who have meritorious claims. We are
mindful that the “marginal or trivial” claims that result in a judgment for a prisoner, such as Walker, do in fact arise out of an actual, proven civil rights violation. We admit to being troubled by a federal statute that seeks to reduce the
number of meritorious civil rights claims and protect the public fisc at the
expense of denying a politically unpopular group their ability to vindicate
actual, albeit “technical,” civil rights violations. However, we are aware that
we are not authorized to act as a “superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect
fundamental rights nor proceed along suspect lines.” Heller v. Doe, 509 U.S.
312, 125 L.Ed.2d 257, 113 S.Ct. 2637 (1993; quoting New Orleans v. Dukes,
427 U.S. 297, 303, 49 L.Ed.2d 511, 96 S.Ct. 2513 (1976; per curiam). Moreover, our role is not “to judge the wisdom, fairness, or logic of legislative
choices.” Id. (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313,
124 L.Ed.2d 211, 113 S.Ct. 2096; 1993). Accordingly, we must conclude that
§1997e(d)(2) survives rational review.

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PLRA’S AFFECT ON THE VOLUME OF INMATE LAWSUITS

Congress intended and expected to reduce the amount of prisoner litigation when it enacted the exhaustion requirement, restrictions on types of injuries, changes in the availability of IFP, limits on inmates who have filed frivolous lawsuits, and reduced attorneys fees in civil rights cases. Cheesman,
Hanson, and Ostrom (2000) explored whether those hopes and expectations
have yet to be achieved. They noted that, between 1972 and 1996, state prisoner §1983 lawsuits filed in U.S. district courts increased by 1,153%,
whereas the state prisoner population increased 517%. They tracked the rise
in inmate population against the rise in prisoner litigation and concluded that
the number of prisoner lawsuits during that time period was most closely
associated with the number of inmates in state prisons. Specifically, between
1972 and 1998, every increase in the state prisoner population of 10,000
inmates is associated with an increase in 269 lawsuits. The data show that
immediately after the PLRA was enacted, §1983 lawsuits dropped. Since
about the end of March 1997, however, the drop stabilized and the number of
lawsuits has fluctuated between 2,000 and 2,500 per month. Unless the
PLRA provisions have broken the link between the number of lawsuits and
the size of the state prisoner population, there will be more lawsuits, although
a smaller proportion of prisoners will be filing them because fewer inmates
are eligible or able to file. Cheesman et al. used three different growth scenarios—rapid, moderate, and slow growth—of prisoner populations from 1999
to 2008 and assumed that a lower number of §1983 lawsuits per 10,000 prisoners is likely post-PLRA. The researchers then forecasted that, although the
statute may have reduced the proportion of prisoners who file civil rights
cases, the driving force of a growing population will eventually reverse the
downward trend. Under each of the growth scenarios, the number of suits
filed in 2008 will be fewer than the number filed in 1996, but the upward
trend in filings will continue.
PART II. REDUCING FEDERAL COURT
INVOLVEMENT IN INSTITUTIONAL REFORM
THE HEYDAY OF INSTITUTIONAL REFORM

The other important area in prisoners’rights litigation the PLRA sought to
address is what many in Congress consider to be the federal courts’ overreaching micromanagement of state prison operations. Based on the
Supreme Court’s interpretation of the Eighth Amendment’s prohibition

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against cruel and unusual punishment, prisoners have filed lawsuits, many of
them class actions, challenging not just specific institutional rules or procedures but the everyday conditions under which they live. A large percentage
of these lawsuits have resulted in court-approved, detailed consent decrees
that the parties drafted addressing, among other issues, the minimum living
space per prisoner, staffing requirements and staff training, exercise opportunities for inmates, renovating facilities to provide working toilets and sufficient heat, and providing nutritious, clean food and adequate medical care.
Many prison administrators elected to enter into consent decrees rather than
litigate the alleged constitutional violations and agreed to wide-ranging
changes that exceeded the constitutional minimum. In this way, they avoided
expensive and time-consuming litigation and the possibility of losing the
lawsuit. In some circumstances, especially in the earliest institutional reform
lawsuits, prison officials realized there were constitutional violations and the
decrees would force the state to appropriate the funds needed to address the
problems (Herman, 1998). Other times, administrators entered into consent
decrees after a court found a constitutional violation. The decree addressed
how the violation should be remedied, and it gave the state the opportunity to
participate in fashioning an appropriate and practical relief. The courts that
approved the decrees were bound to enforce them and remained active in the
remedial phase of the litigation by monitoring the prison systems’implementation of the various provisions. Judges used different approaches to help
them monitor a state’s compliance. Federal District Court Judge Frank Johnson appointed a citizen’s committee charged with overseeing the Alabama
prison system’s compliance. Other judges appointed special masters or compliance monitors to make certain the reforms were implemented. Some
judges met regularly with the attorneys for the state and the prisoners through
the entire implementation process (Smith, 2000). At the time the PLRA was
enacted, many state prison systems had been under consent decrees monitored by the federal courts for 20 years or longer. Georgia, Texas, Puerto
Rico, and Rhode Island are just of few of the jurisdictions whose prisons had
been functioning under long-term court intervention as a result of lawsuits
that challenged the constitutionality of the living conditions in those states’
institutions. Unfortunately, in the history of prison reform litigation, there
are also many examples of prison officials who did not diligently move their
agencies into compliance with consent decree provisions and others that
openly obstructed compliance and disobeyed court orders (Crouch &
Marquart, 1989; Yackle, 1989).
During the 1980s, Republican governors railed against the consent
decrees because they put severe restrictions on how prison superintendents

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could manage the states’ institutions (Tushnet & Yackle, 1997). The decrees
usually required significant expenditures of funds. Prohibitions on overcrowding forced new expenditures for prison construction and the renovation of already-existing facilities, additional staff had to be hired, and more
money spent on health care. Other decree provisions established standards
for disciplining inmates and using force against them (Smith, 2000). Not
only were the decrees that resulted from these lawsuits costly, the lawsuits
were very expensive to defend. In addition to the taxpayers’money needed to
pay the salaries of the states’ attorneys, the states were often ordered to compensate the prisoners’ attorneys and special masters to the tune of millions of
dollars. The governors were supported in their displeasure by members of
the Reagan administration who had philosophical problems with what they
believed was the unconstitutional judicial activism of many federal judges
(Tushnet & Yackle, 1997).
The attack on the courts’ remedial role in institutional reform prison litigation was joined by more conservative federal judges in a series of decisions
beginning in the 1980s that questioned the significant role some district
judges were playing in the remedial phase of dozens of lawsuits filed against
prison and jail systems. In more recent cases such as Sandin v. Conner (1995)
and Lewis v. Casey (1996), the Supreme Court made it increasingly more difficult for inmates to establish a violation of a constitutional right (Harvard
Law Review Association, 2002; Herman, 1998; Smith, 2000). In 1992, the
Supreme Court decided Rufo v. Inmates of the Suffolk County Jail (1992) by
considering the standard a court should apply when deciding requests for
modifying consent decrees in an institutional prison reform case. In Rufo, a
consent decree required a county to build a new jail that would hold one prisoner per cell. Construction of the jail was delayed, and the jail population
grew more than projected. The county sought to modify the decree to allow
two prisoners to be housed per cell. The Court recognized there had been an
upsurge in institutional reform litigation and that decrees resulting from such
suits remain in place for long periods of time. The Court rejected the prisoners’ argument and the circuit court’s ruling that officials must show a grievous wrong to modify a decree. Instead, the High Court ruled that, once a
defendant shows a significant change in the facts that led to the consent
decree and modification is warranted, the district court should tailor a new
remedy to the changed circumstances. A court considering modification
should focus on whether the proposed changes resolve the problems and
must keep the public interest in mind. Several years before the PLRA was
even before Congress, Rufo had made it considerably easier for officials to
seek modification of consent decrees in prison reform lawsuits.

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APPROPRIATE REMEDIES WITH
RESPECT TO PRISON CONDITIONS

Despite arguments of many legal commentators that by the mid-1990s
courts had already significantly deaccelerated the judiciary’s intervention in
state prisons (Herman, 1998; Smith, 2000; Tushnet & Yackle, 1997), Congress included severe restrictions in the PLRA on federal court involvement in institutional reform cases. First, the PLRA amended 18 U.S.C.
§3626(a)(1)(A) to provide that a federal court shall not grant or approve any
prospective relief in a prison conditions lawsuit unless the court makes written findings that such relief is narrowly drawn, extends no further than is necessary to correct the violation of the federal right, and is the least intrusive
means necessary to correct the violation. Prospective relief is defined as any
relief other than compensatory or money damages that may be granted or
approved by the court including consent decrees—but not private settlements. The court must give substantial weight to any adverse impact the
relief might have on public safety or the operation of the criminal justice system. The PLRA prohibits prospective relief, whether ordered by the court or
provided in a court-approved consent decree that does not comply with the
statute’s provisions. No longer can federal courts sanction consent decrees in
which the parties agree to remedies beyond the constitutional minimum. The
Ninth Circuit characterized the PLRA’s restrictions on consent decrees as
evidence of Congress’s intent to revive the hands-off doctrine (Gilmore v.
State of California, 2000).
In the past, prison administrators often found it is in the state’s best interest to enter into consent decrees in which they specifically stated they were
not admitting to violating prisoners’ constitutional rights. In this way, the
decrees could not be used as evidence against the state in other litigation.
Under the PLRA, state officials must agree that the relief addresses a violation of a federal right. Elizabeth Alexander (1998) argued that consent
decrees are still possible post-PLRA. Parties who enter into them may indicate in the decree that the findings of a constitutional violation cannot be used
against them in any lawsuits seeking damages that involve the same conditions or conduct. In addition, they can still enter into private settlement agreements, because PLRA provisions do not preclude private agreements that are
not subject to federal court enforcement. If prison officials fail to comply
with the terms of a private settlement, the plaintiffs must reinstate the litigation or, if possible under state law, they can seek to enforce the agreement,
which is a contract, in a state court.
The second restriction imposed by the PLRA on federal court intervention is found in 18 U.S.C. §3626(b)(1), which controls how long prospective

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relief can remain in effect including in its ambit the many court orders that
were already in force at the time the PLRA was enacted. Under this section,
prospective relief should be terminated upon the motion of any party or intervener (a) 2 years after the date the court granted or approved the relief, (b) 1
year after the court entered an order denying termination of the relief under
the statute, or (c) in the case of an order issued before the enactment of the
PLRA, 2 years after the date of enactment. The PLRA provisions are in sharp
contrast to what has occurred in the past with district court judges who found
it necessary to remain actively involved in the remedial phase of institutional
prison reform litigation. This provision places significant temporal restraints
on courts’ abilities to make certain that state officials abide by consent
decrees and court orders—an issue that has proved very troublesome in previous lawsuits and the reason why courts continued their intervention.
Clearly, Congress does not want the federal judiciary to engage in extended
intervention in prison conditions lawsuits.
The third significant change imposed by the PLRA is in §3626(b)(2),
which provides that in any prison conditions’ lawsuit a defendant or intervener is entitled to immediate termination of any prospective relief if it had
been granted or approved without a finding by the court that the relief was
narrowly drawn, extends no further than is necessary to correct the violation
of law, and is the least intrusive means necessary to correct the violation. Prospective relief should not be terminated if the court makes written findings
that the relief is still necessary to correct a current and ongoing violation of a
federal right, extends no further than is necessary to correct that right, and is
narrowly drawn and the least intrusive means necessary. Few if any of the
court orders and consent decrees that were granted or approved prior to the
PLRA have the requisite findings required by §3626(b)(2), because at the
time, there was no legal requirement for such recitations (Collins & Grant,
1998). Many prison systems operating under pre-PLRA orders and consent
decrees have gone to federal court seeking termination, and many
terminations have been granted (Roots, 2002).
A fourth important PLRA provision is 18 U.S.C. §3626(e), which provides that if a party or intervener files a motion for termination, the court
must issue an automatic stay of any prospective relief that begins 30 days
after the filing of the motion and ending on the day the court issues a final
order. In a 1997 amendment to the PLRA, Congress permitted courts to delay
entering an automatic stay for not more than 60 days for good cause, which
cannot include a congested court docket.
Finally, the PLRA places extremely tight restrictions on prisoner release
orders that are population caps designed to reduce unconstitutional overcrowding. A court cannot enter a prisoner release order unless it or another

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court has previously entered an order for less-intrusive relief that failed to fix
the problem. Furthermore, release orders can only be issued by a panel of
three judges that must find by clear and convincing evidence that crowding is
the primary cause of the constitutional violation and that no other remedy
will correct it. One of the judges on the panel will be the district judge
assigned to the lawsuit. The chief judge of the circuit court determines which
other two judges will serve on the panel, at least one of which must be on the
court of appeals. The governor and state attorney general are to receive notice
of the proceedings to consider a population cap, and the statute gives standing and the right to intervene to a number of parties to oppose such a cap or
seek termination of it. The parties include any state or local official including
a legislator or unit of government whose jurisdiction or function includes
appropriating funds for constructing, operating, or maintaining prison facilities or prosecuting or holding in custody people who may be released from or
not admitted to prison as a result of a release order. Obviously, the detailed
PLRA requirements make a population cap an unlikely occurrence (Harvard
Law Review Association, 2002).
Like the PLRA provisions that attempt to reduce inmate lawsuits, the provisions targeted at reducing federal court intervention have raised numerous,
but very different, constitutional questions. The primary argument is that the
PLRA’s termination provisions violate the Constitution’s separation-ofpowers’ doctrine, because consent decrees and court orders are final judgments that cannot be reopened by Congress. The statute allows a party to
seek termination of a decree or order that has already been sanctioned by a
court, which, in effect, reopens a final judgment. The same argument has
been extended to the automatic stay provisions, which stay prospective relief
that has been agreed to in a consent decree or ordered by the court for a 30day to 60-day period. Another alleged violation of the separation of powers
doctrine occurs because the PLRA unlawfully prescribes a rule of decision in
pending lawsuits. Through the PLRA, Congress directs a particular decision
in a case without amending or repealing the law that provided the basis for
that decision. The Constitution prohibits Congress from adjudicating particular cases through legislative action. The PLRA requires that prospective
relief should be terminated if it does not contain findings that the relief was
narrowly drawn, extends no further than is necessary, and is the least intrusive means necessary. Without these findings, the substantive court-ordered
relief based on the court’s interpretation of the Constitution is considered
invalid. Another significant challenge to the PLRA argues that the statute
violates prisoners’ due process rights, because inmates have a vested right in
the finality of the judgments entered before 1992 (Bennett & Del Carmen,
1997; Butler, 1999; Decker, 1997; Herman, 1998; Kuzinski, 1998).

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Several circuit courts of appeal have considered these constitutional challenges to the PLRA provisions aimed at federal court intervention, and the
majority of courts have upheld them as valid (Bennett & Del Carmen, 1997;
Butler, 1999). In 2000, the U.S. Supreme Court considered constitutional
challenges to the automatic stay provisions in Miller v. French (2000). In that
case, the state of Indiana filed a motion under §3626(b) to terminate an
injunction issued by a federal district court in 1975 and modified by the court
in 1988 to remedy Eighth Amendment violations at the Pendleton Correctional Facility. The injunction addressed double-celling and overcrowding,
the use of mechanical restraints, staffing, and the quality of food and medical
services. The prisoners responded with a motion to enjoin the operation of
the §3626(e) automatic stay, which went into effect immediately upon the filing of the motion for termination. The Seventh Circuit Court of Appeals
affirmed the district court’s decision to enjoin the stay because it violated the
separation of powers’ doctrine. The Supreme Court disagreed and upheld the
automatic stay provisions against constitutional challenge. According to the
Court, the stay is mandatory under the language of the statute. It does not
reopen a final judgment, nor does it interfere with judicial functions. The
stay, ruled the Court, helps implement the change in the law legislated under
the termination provisions of the PLRA. The only constitutional issue the
Court left unresolved about the stay is whether the 30-day to 60-day stay
period, during which the court considers whether the prospective relief
should be permanently terminated, is too short a period of time and deprives
prisoners of a meaningful opportunity to be heard by violating their due
process rights.
The Supreme Court did not consider the constitutionality of the termination provisions in Miller v. French (2000); however, before Miller, several
courts of appeal had entertained constitutional challenges and ruled that the
statute is valid (Bennett & Del Carmen, 1997; Butler, 1999; Decker, 1997;
Herman, 1998; Kuzinski, 1998). In two decisions rendered after the Supreme
Court’s decision, two additional federal appellate courts have upheld the termination provisions. Noting that the Supreme Court’s decision in Miller
does not control, the Ninth Circuit in Gilmore v. State of California (2000)
and the Fifth Circuit in Ruiz v. Johnson (2001) both concluded that the provisions do not violate the Constitution.
CONCLUSION
It is apparent by now that the restrictions imposed by the PLRA are here to
stay until such time as Congress significantly amends the act or repeals it.

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Perhaps a scandal in a state prison system will surface and convince legislators that certain provisions have contributed to problems, made them difficult
to discover, or impossible to remedy. As unpopular as prisoners are, it is hard
to imagine elected officials revisiting legislation that seems reasonable to a
public that does not want to hear about the terrible injustices that have
occurred and may still be occurring in America’s prisons. Then again, perhaps the explosive growth in the prisoner population will inspire average
moms and dads to consider more thoughtfully how their sons and daughters
should be treated while they are incarcerated.
It is one thing for courts to strictly interpret constitutional provisions so as
to narrow the constitutional protections available to prisoners. It is quite
another for legislation to restrict the ability of prisoners to access courts and
limit severely a judge’s ability to remedy violations of the law. A strict constitutional interpretation is subject to revision and exception as judges distinguish cases with slightly different facts and sets of circumstances. A prisoner
who cannot file a lawsuit does not have the opportunity to be heard. A judge,
who is intimately familiar with the evidence and understands how parties to a
lawsuit relate to each other and the court, cannot fashion a remedy outside the
PLRA’s restrictions.
There is some evidence that over time, the PLRA will not cause a significant drop in prisoner litigation. What remains to be seen is if and how the
PLRA affects conditions’ in our prisons and jails over time. Future research
in this area might concentrate on how the restrictions on federal court
involvement affect conditions lawsuits including how the parties craft their
pleadings, present evidence, and draft consent decrees. The next step would
be to look at what happens in institutions subject to PLRA-restricted orders
and decrees. What happens in institutions where entire pre-PLRA decrees or
parts of decrees have been terminated? Will attorney fee restrictions on prisoner civil rights cases affect the willingness of attorneys to take on these
cases or the quality of their work? Will states seek to improve their inmate
grievance systems, or will the exhaustion requirement increase these caseloads thus making improvements difficult? Will inmates seek money damages in state courts for emotional-only injuries, and, if so, how will those
courts respond? The data are already mounting on some of these research
questions.
REFERENCES
Abdul-Akbar v. McKelvie, 239 F.3d 307 (3rd Cir. 2001)(en banc).
Alderstein, D. M. (2001). In need of correction: The “iron triangle” of the Prison Litigation
Reform Act. Columbia Law Review, 101, 1681-1707.

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Alexander, E. (1998). We can work it out: Settlements are still possible after PLRA. Corrections
Today, 60(5), 64-66.
Allah v. Al-Hafeez, 226 F.3d 247 (2000).
Altizer v. Deeds, 191 F.3d 540 (4th Cir. 1999).
Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998).
Atchison v. Collins, 2002 U.S. App. LEXIS 6074 (5th Cir. 2002).
Banos v. O’Guin, 144 F.3d 883 (5th Cir. 1998).
Bell v. Whethel, 1997 U.S. App LEXIS 28553 (10th Cir. 1997).
Bennett, K., & Del Carmen, R. V. (1997). A review and analysis of prison litigation reform court
decisions: Solution or aggravation? Prison Journal, 77(4), 405-455.
Boivin v. Black, 225 F.3d 36 (1st Cir. 2000).
Booth v. Churner, 532 U.S. 731; 121 S.Ct. 1819; 149 L.Ed. 2d 958 (2001).
Boston, J. (1998). PLRA is not the answer. Corrections Today, 60(5), 21.
Branham, L. S. (1997). Limiting the burdens of pro se inmate litigation: A technical-assistance
manual for courts, correctional officials, and attorneys general. Chicago: American Bar
Association.
Branham, L. S. (2001a). The Prison Litigation Reform Act’s enigmatic exhaustion requirement:
What it means and what congress, courts, and correctional officials can learn from it. Cornell
Law Review, 86, 483-547.
Branham, L. S. (2001b). Toothless in truth? The ethereal rational basis test and the Prison Litigation Reform Act’s disparate restrictions on attorney’s fees. California Law Review, 89, 9991053.
Burton, A. W. (2001). Prisoners’ suits for money damages: An exception to the administrative
exhaustion requirement of the Prison Litigation Reform Act. Fordham Law Review, 69,
1359-1397.
Butler, T. J. (1999). The Prison Litigation Reform Act: A separation of powers dilemma. Alabama Law Review, 50, 585-601.
Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998).
Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042; 55 L.Ed. 2d 252 (1978).
Carson v. Johnson, 112 F.3d 818 (5th Cir. 1997).
Chatin v. Coombe, 186 F.3d 82 (2nd Cir. 1999).
Cheesman, F., II, Hanson, R. A., & Ostrom, B. J. (2000). The tale of two laws: The U.S. Congress
confronts habeas corpus petitions and section 1983 lawsuits. Law and Policy, 22(2), 89-113.
Civil Rights of Institutionalized Persons Act, 42 U.S.C. §1997e (1980).
Collins v. Montgomery County Board of Prison Inspectors, 176 F.3d 679 (3rd Cir. 1999)(en
banc).
Collins, W. C., & Grant, D. C. (1998). The Prison Litigation Reform Act. Corrections Today,
60(5), 60-62.
Cooper v. Pate, 378 U.S. 546; 84 S.Ct. 1733; 12 L.Ed.2d 1030 (1964).
Crouch, B. M., & Marquart, J. W. (1989). An appeal to justice: Litigated reform of Texas prisons.
Austin: University of Texas Press.
Decker, D. (1997). Consent decrees and the Prison Litigation Reform Act of 1995: Usurping
judicial power or quelling judicial micromanagement? Wisconsin Law Review, 1997, 12751321.
Federal Judicial Center. (1996). Resource guide for managing prisoners’ civil rights litigation
with special emphasis on the Prison Litigation Reform Act. Washington, DC: Author.
Gibbs v. Roman, 116 F.3d 83 (3rd Cir. 1997).
Gilmore v. State of California, 200 F.3d 987 (9th Cir. 2000).
Hampton v. Hobbs, 106 F.3d 1281 (6th Cir. 1997).

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Harvard Law Review Association. (1991). Resolving prisoners’ grievances out of court: 42
U.S.C. §1997e. Harvard Law Review, 104, 1309-1328.
Harvard Law Review Association. (2002). Developments in the law: The law of prisons II: The
Prison Litigation Reform Act and the antiterrorism and effective death penalty act: Implications for federal district judges. Harvard Law Review, 115, 1846-1868.
Hensley v. Eckerhart, 461 U.S. 429; 103 S.Ct. 1933; 76 L.Ed.2d 40 (1983).
Herman, S. N. (1998). Slashing and burning prisoners’ rights: Congress and the Supreme Court
in dialogue. Oregon Law Review, 77, 1229-1303.
Higgens v. Carpenter, 258 F.3d 797 (8th Cir. 2001).
Jeffrey, R. S. (2001). Restricting prisoners’ equal access to the federal courts: The three strikes
provision of the Prison Litigation Reform Act and substantive equal protection. Buffalo Law
Review, 49, 1099-1161.
Jones v. Greninger, 188 F.3d 322 (5th Cir. 1999).
Kuzinski, E. J. (1998). The end of the prison law firm?: Frivolous inmate litigation, judicial oversight, and the Prison Litigation Reform Act of 1995. Rutgers Law Journal, 29, 361-397.
Levy, S. (2000). Balancing physical abuse by the system against abuse of the system: Defining
“imminent danger” within the Prison Litigation Reform Act of 1995. Iowa Law Review, 86,
361-392.
Lewis v. Casey, 518 U.S. 343; 116 S.Ct. 2174; 135 L.Ed.2d 606 (1996).
Lewis v. Sullivan, 279 F.3d 526 (7th Cir. 2002).
Lucien v. DeTella, 141 F.3d 773 (7th Cir. 1998).
Madrid v. Gomez, 190 F.3d 990 (9th Cir. 1999).
Martin v. Hadix, 527 U.S. 343; 119 S. Ct. 1998; 144 L.Ed. 2d 347 (1999).
Mason v. Schriro, 45 F. Supp. 2d 709 (W.D. Mo. 1999).
McCarthy v. Madigan, 503 U.S. 140; 117 L.Ed 2d 291; 112 S.Ct. 1081 (1992).
Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999).
Memphis School District v. Stachura, 477 U.S. 299; 106 S.Ct. 2537; 91 L.Ed. 2d 249 (1986).
Miller v. French, 530 U.S. 327, 147 L.Ed. 2d 326, 120 S.Ct. 2246 (2000).
Mitchell v. Farcass, 112 F.3d 1483 (11th Cir. 1997).
Mueller, K. (1995). Inmates’ civil rights cases and the federal courts: Insights derived from a
field research project in the eastern district of California. Creighton Law Review, 28, 12551309.
Newlin v. Helman, 123 F.3d 429 (1997).
Newman, J. O. (1996). Pro se litigation: Looking for needles in haystacks. Brooklyn Law Review,
62, 519-527.
Nicholas v. Tucker, 114 F.3d 17 (2nd Cir. 1997).
Norton v. Dimazana, 122 F.3d 286 (5th Cir. 1997).
Pepe, J. E. (1999). Challenging Congress’s latest attempt to confine prisoners’ constitutional
rights: Equal protection and the Prison Litigation Reform Act. Hamline Law Review, 23, 5880.
Porter v. Nussle, 534 U.S. 516; 122 S.Ct. 983; 152 L.Ed 2d 12 (2002).
Prison Litigation Reform Act, H.R. 3019, 104th Cong. (1996).
Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998).
Rodriguez v. Cook, 169 F.3d 1176 (9th Cir. 1999).
Roots, R. (2002). Of prisoners and plaintiffs’ lawyers: A tale of two litigation reform efforts.
Willamette Law Review, 38, 210-232.
Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367 (1992).
Ruiz v. Johnson, 243 F.3d 941 (2001).
Sandin v. Conner, 515 U.S. 472; 115 S.Ct. 2293; 132 L.Ed.2d 418 (1995).

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Searles v. Bebber, 251 F.3d 869 (2001).
Shabazz v. Parsons, 127 F.3d 1246 (10th Cir. 1997).
Singleton v. Smith, 241 F.3d 534 (6th Cir. 2001).
Smith, C. E. (2000). The governance of corrections: Implications of the changing interface of
courts and corrections. Criminal Justice 2000: Boundary Changes in Criminal Justice Organizations, 2, 112-166.
Taylor, K. F. (2000). The Prison Litigation Reform Act’s administrative exhaustion requirement:
Closing the money damages loophole. Washington University Law Quarterly, 78, 955-978.
Taylor v. Delatoore, 281 F.3d 844 (9th Cir. 2002).
Tucker v. Branker, 142 F.3d 1294 (D.C. Cir. 1998).
Tushnet, M., & Yackle, L. (1997). Symbolic statutes and real laws: The pathologies of the
Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act. Duke
Law Journal, 47(1), 1-86.
Vandenbraak, S. B. (1998). PLRA: A step in the right direction. Corrections Today, 60(5), 20.
Volk v. Gonzalez, 262 F.3d 528 (5th Cir. 2001).
Walker v. Bain, 257 F.3d 660, (6th Cir. 2001).
White v. Colorado, 157 F.3d 1226 (10th Cir. 1998).
Whitfield v. Scully, 241 F.3d 264 (2nd Cir. 2001).
Wilson v. Yaklich, 148 F.3d 596 (6th Cir. 1998).
Yackle, L. W. (1989). Reform and regret: The story of federal judicial involvement in the Alabama prison system. New York: Oxford University Press.
Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997).
Barbara Belbot is an associate professor in the Department of Criminal Justice at the
University of Houston—Downtown. The recipient of a J.D. degree from the University of
Houston Law Center and a Ph.D. in criminal justice from San Houston State University,
she formerly worked in the Special Master’s Office that monitored the prison reform lawsuit involving the Texas prison system. Her primary research areas include the rights of
convicted offenders, sentencing, and prison reform.