People going to federal prison should understand the PLRA, also known as the Prison Litigation Reform Act. This Act requires people to follow specific procedures in self-advocacy. Succeeding in prison requires people to be respectful of rules, the people who oversee the rules, and the system’s mechanisms.
Prison Litigation Reform Act
Although people may want to put judicial proceedings behind them after the sentencing hearing, problems sometimes surface in prison. If a person cannot resolve the problem, he may want to litigate. As a result of the Prison Litigation Reform Act, however, a person must first exhaust the administrative remedy process. We’ve provided guidance on the Administrative Remedy process in a separate article:
We’ve also published a related article that shows people how to solicit support from members of Congress.
If a person seeks assistance from a federal judge, the person should first comply with the Prison Litigation Reform Act. When people do not comply with the PLRA, the prosecutor will cite the failure to comply as a reason for the judge to dismiss the case.
History of the Prison Litigation Reform Act (PLRA):
When I began serving my sentence, back in 1987, the PLRA did not exist. If people perceived that prison administrators violated their rights, they could file a motion in federal court. Judges got frustrated because they received many frivolous lawsuits. They objected to ruling on complaints about how the prison operated, saying their job did not require them to make rulings on how administrators should operate a prison.
Members of Congress responded by passing the Prison Litigation Reform Act. This act made it more difficult for people in prison to file lawsuits in federal court. The American Civil Liberties Union published a “Fact Sheet” to help people understand the PLRA. The information below comes from that Fact Sheet.
THE PRISON LITIGATION REFORM ACT (PLRA)
If you are thinking about filing a lawsuit, then you should know about a 1996 law called the Prison Litigation Reform Act (PLRA), which makes it harder for prisoners to file lawsuits in federal court. There are many parts to the PLRA, but the following parts are the most important for you to understand.
I. EXHAUSTION OF ADMINISTRATIVE REMEDIES (42 U.S.C. § 1997e(a))
The First key to remember about the PLRA is that before you file a lawsuit, you must try to resolve your complaint through the prison’s grievance procedure. This usually requires that you give a written description of your complaint (often called a “grievance”) to a prison official. If the prison provides a second or third step (like letting you appeal to the warden), then you must also take those steps. If you file a lawsuit in federal court before taking your complaints through every step of your prison’s grievance procedure, it will almost certainly be dismissed.
A. What is exhaustion?
Exhausting your remedies for the PLRA requires filing a grievance and pursuing all available administrative appeals. In addition, every claim you raise in your lawsuit must be exhausted. However, if a prisoner does not file a grievance because he is unable to obtain grievance forms, no administrative remedy is “available” and the prisoner may file in court. In a multi-step grievance system, if staff fail to respond within the time limits established in the grievance system’s rules, the prisoner must appeal to the next stage. If the prisoner does not receive a response at the final appeal level, and the time for response has passed, the prisoner has exhausted the administrative remedy procedure.
An exception to the requirement that all appeals be taken occurs if the prisoner cannot appeal without a decision from the lower level of the grievance system, and the lower level did not respond to the grievance.
Courts have differed widely on when failure to exhaust might be excused. But the safest course is always to go through every level of the administrative-remedy process. In the federal system, that means:
- Start with a request for informal resolution,
- Continue by requesting a BP-9 from the counselor,
- If the warden doesn’t resolve the matter in your favor, and you believe you’re entitled to relief, file a BP-10 with the region,
- If the region doesn’t resolve the matter in your favor, and you believe you’re entitled to relief, file a BP-11 with the Central Office in Washington, DC.
Get a copy of your prison or jail’s grievance policy and follow it as closely as you can.
B. What happens if you don’t exhaust the grievance process?
Most courts have held that failure to exhaust is an affirmative defense that must be raised by the defendants. Then, if the court finds that the prisoner has not exhausted, the case is dismissed without prejudice, meaning that the lawsuit may be filed again once the prisoner has exhausted, as long as the statute of limitations has not run.
There is not a great deal of case law yet addressing whether a prisoner who misses a deadline in the grievance process (many grievance systems have very short deadlines) forever loses his/her constitutional or statutory claim. If you are in this situation, you should appeal through all the levels of the grievance system and explain in the grievance the reasons for the failure to file on time.
Finally, the statute of limitations is tolled while a prisoner is in the process of exhausting.
C. There are very few exceptions to the exhaustion requirement.
Prisoners seeking to bring a damages action must exhaust available administrative remedies even if the administrative remedy in question, like almost all prison grievance systems, does not provide money damages as a possible remedy.
Other means of notifying prison officials of your complaint, such as speaking to staff, putting in a kite, or writing to the warden, do not constitute exhaustion. You must use the grievance system.
In the only decision to address this issue, the District of Columbia Circuit Court of Appeals said that under PLRA, courts may still issue injunctions to prevent irreparable injury pending exhaustion of administrative remedies.
The exhaustion requirement does not apply to detainees in INS
II. Paying Filing Fees (28 U.S.C. Section 1915(b))
The Second key to remember about the PLRA is that all prisoners must pay court filing fees in full. If you do not have the money up front, you can pay the filing fee over time through monthly installments from your prison commissary account, but the filing fee will not be waived.
A complex statutory formula requires the indigent prisoner to pay an initial fee of 20% of the greater of the prisoner’s average balance or the average deposits to the account for the preceding six months. After the initial payment, the prisoner is to pay monthly installments of 20% of the income credited to the account in the previous month until the fee has been paid.
A major complication of this procedure is that it requires the prison or other facility holding the prisoner to cooperate administratively in the process for assessing the court’s statutory fee. The courts can require the prison administration to provide the necessary information.
III. Three Strikes Provision (28 U.S.C Section 1915(g))
The Third key thing to remember about the PLRA is that each lawsuit or appeal you file that is dismissed because a judge decides that it is frivolous, malicious, or does not state a proper claim counts as a “strike.” After you get three strikes, you cannot file another lawsuit in forma pauperis – that is, you cannot file unless you pay the entire court filing fee up-front. The only exception to this rule is if you are at risk of suffering serious physical injury in the immediate future.
An appeal of a dismissed action that is dismissed is a separate strike. Even dismissals that occurred prior to the effective date of PLRA count as
An exception to the “three strikes” rule may be invoked if a prisoner is in imminent danger of serious physical injury. A court will evaluate the “imminent danger” exception at the time the prisoner attempts to file the new lawsuit, not at the time that the incident that gave rise to the lawsuit occurred.
IV. Physical Injury Requirement (42 U.S.C. Section 1997e(e))
The Fourth key to remember about the PLRA is that you cannot file a lawsuit for mental or emotional injury unless you can also show physical injury.
The requirement of physical injury only applies to money damages, it does not apply to claims for injunctive and declaratory relief. Some courts have suggested the possible availability of nominal and punitive damages even when compensatory damages are barred by the requirement of physical injury. The courts are split on whether a claim for violation of constitutional rights is intrinsically a claim for mental or emotional injury in the absence of an allegation of a resulting physical injury (or injury to property). Not surprisingly, the courts differ in their evaluation of what constitutes sufficient harm to qualify as a physical injury.
Last updated 11/02.
- White v. McGinnis, 131 F.3d 593 (6th Cir. 1997).
- See, e.g., Bey v. Pennsylvania Dept. of Corrections, 98 F. Supp. 2d 650 (E.D. Pa. 2000); Cooper v. Garcia, 55 F. Supp. 2d 1090 (S.D. Cal. 1999).
- Miller v. Norris, 247 F.3d 736 (8th Cir. 2001).
- White v. McGinnis, 131 F.3d 593 (6th Cir. 1997).
- Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999). Cf. Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002) (when prison officials do not respond to a prisoner’s initial grievance, administrative remedies are exhausted).
- Taylor v. Barrett, 105 F. Supp. 2d 483 (E.D. Va. 2000); see also Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999) (prisoner had exhausted when told by staff no appeal possible); Pearson v. Vaughn, 102 F. Supp. 2d 282 (E.D. Pa. 2000) (same).
- See, e.g., Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999) (prisoner who failed to sign and date grievance form did not fail to exhaust administrative remedies; inmate did not fail to exhaust remedies by failing to appeal institutional-level denial of his grievance, after being told unequivocally that no such appeal was possible); Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000) (substantial compliance with grievance procedure will satisfy exhaustion requirement); cf. Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (holding that investigation of complaint by Secretary of Corrections rather than regular grievance system