This is the fourth post in a series on The Modest Effect of Minneci v. Pollard on Inmate Litigants, a recent paper of mine that appeared in the Akron Law Review. It was the keynote article in a symposium called Inside America’s Criminal Justice System: The Supreme Court on the Rights of the Accused and the Incarcerated.

In Monday’s post, I introduced the recent Minneci v. Pollard (2012) case, where the Supreme Court limited the civil-rights actions called Bivens actions — for prisoners in federal private prisons. Federal public prisoners can still sue under Bivens, and state prisoners (whether public or private) can sue under § 1983, which is more generous than Bivens. Why do federal private prisoners alone get ill-treated by the Supreme Court in this way? I argue, though, that because of the availability of alternate remedies, Minneci is likely to be less harmful than one might fear.

In Tuesday’s post, I discussed the roadblocks to suing your prison on a tort theory if you’re in a public prison. In Wednesday’s post, I discussed how many of these roadblocks fall away if you’re in a private prison. Today, I’ll talk about whether the federal and state Prison Litigation Reform Acts alter this conclusion in any way.

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The Federal PLRA

I still haven’t mentioned one aspect of prison litigation—the Prison Litigation Reform Act, which adds even more procedural restrictions on prisoner litigation and has been responsible for a massive decrease in federal prisoner litigation since its adoption in 1996. Here are its main provisions:

  • Prospective relief in litigation over prison conditions must be narrowly tailored to the violation identified. Essentially, the PLRA took a standard that had always applied to prospective relief stemming from a final judgment and applied it to consent decrees as well. Parties are still free to enter into “private settlement agreements” that are enforceable as contracts in state court, though it remains to be seen how effective such agreements will be. Similarly, consent decrees are now easier to terminate. This was Congress’s attempt to cut down on “population caps and other inappropriate regulatory orders imposed on prisons and jails by prisoners’-rights crusader [judges] who had seized control of state and local systems.”
  • Where once the requirement that prisoners must exhaust their administrative remedies was a matter of court discretion and depended on the adequacy of the administrative procedures, now the exhaustion requirement is mandatory, even if the administrative procedure can’t grant the remedy sought. (This aspect of the statute, which attracted little notice at first, has since been identified as one of the statute’s most powerful provisions for cutting down on inmate litigation.)
  • Indigent inmates have to “pay filing fees in nonhabeas civil actions if they have any money in their prison accounts.” Similarly, if costs are awarded against a defendant, courts no longer have the discretion to give indigent inmate plaintiffs a break.
  • There’s a “frequent filer” penalty: “Inmates who have had three prior actions or appeals dismissed as frivolous or malicious, or for failing to state a claim upon which relief may be granted . . . may not proceed in forma pauperis at all unless they face ‘imminent danger of serious physical harm.’”
  • Complaints are screened by district courts before docketing, and can be dismissed “without motion, notice to the plaintiff, or opportunity to respond.”
  • Defendants can fail to respond without their failure being deemed an admission, and courts can’t order a response unless “the plaintiff has a reasonable opportunity to prevail on the merits.”
  • Inmates can’t recover for mental or emotional injury without a prior showing of physical injury.
  • Any amounts recovered have to be diverted “directly to satisfy any outstanding restitution orders pending against the [inmate].”
  • And the PLRA limits attorneys’ contingent rates to 25%, limits the total fees that inmates’ attorneys can recover to 150% of the judgment, and limits hourly fees to 150% of court-appointed counsel rates.

The PLRA was part of a broad movement to restrict prisoner litigation. Around the same time, Congress also required federal legal services providers to stop representing inmates and (in the Antiterrorism and Effective Death Penalty Act) restricted the availability of habeas relief, and the Supreme Court adopted a more restrictive view of inmates’ constitutional right of access to a law library.

But none of these sections distinguish between prisoners in public and private prisons. For example, with respect to several of the provisions listed above, “prisoner” is defined as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” This definition is quite broad and, in particular, makes no mention of the identity of the prison manager. For the section on injunctive relief and settlements, the definition of “prisoner” refers to “any facility,” and “prison” means “any Federal, State, or local facility that incarcerates or details juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law”—again not distinguishing between public and private.

So while the PLRA has had a huge effect on inmate litigation as a whole, it seems to have little obvious comparative effect on the attractiveness of federal-law litigation by inmates in the public or private sector. (This federal-law litigation would certainly include Bivens and § 1983 litigation, and, I suppose, also tort litigation against federal public prisons, which proceeds under the FTCA.) State-law litigation against federal private prisons, especially in state courts, emerges from the PLRA relatively untouched, which is again an advantage of litigation against private prisons.

State PLRAs

Inmates have to deal not only with the federal PLRA but also with parallel state PLRAs.

The following are a few examples. The Louisiana PLRA, like the federal version, has a requirement of narrowly tailored remedies, an exhaustion requirement, a ban on emotional recovery without physical injury, limitations on attorney fees, restrictions on in forma pauperis filings, and frequent filer penalties. The Pennsylvania PLRA has restrictions on in forma pauperis filings, frequent filer penalties, and a requirement of narrowly tailored remedies. The Michigan PLRA has an exhaustion requirement, restrictions on in forma pauperis filings, frequent filer penalties, a ban on emotional recovery without physical injury, and a requirement of narrowly tailored remedies.

And these aren’t flukes: around the time the federal PLRA was passed,

state attorneys general and departments of corrections expected to see some movement from federal to state court. Indeed, the National Association of Attorneys General pushed hard for state PLRAs . . . . Largely as a result of this push, all but a few states now have some kind of system that specially regulates inmate access to state court.

State PLRAs generally seem to apply very broadly: to public as well as private prisons, state as well as federal prisons, tort as well as state and federal constitutional claims, and even in federal court to the extent the claims are based on state law. I’m aware of one court, the Maryland Supreme Court, that has held that its own statute, the Prison Litigation Act (PLA), doesn’t apply to—or at least doesn’t require exhaustion of administrative remedies for—inmates at private prisons, on grounds that seem somewhat dubious. But the Maryland Court’s reasoning is probably idiosyncratic. Chances are that any prison litigation, regarding any prison, on any theory, in any court, will be severely limited by some PLRA, whether state or federal.

And this, indeed, is why I’ve left the discussion of the PLRAs to fairly late in this Article. At worst, a PLRA will limit any prison litigation, so that the existence of PLRAs won’t alter the relative attractiveness of private-prison vs. public-prison litigation. At best, an inmate may find himself in some PLRA gap—for instance, because his state has no state PLRA or because he’s in a state like Maryland—in which case litigation against private prisons may be somewhat more attractive.