Tag Archives: prison litigation reform act

7th Circuit Limits Court’s Dive Into Prisoner’s Pockets – Update for October 17, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HOW MUCH IS TOO MUCH FOR IFP?

The right of access to the courts is not forfeited by indigent people (including prisoners), a constitutional imperative for the past 75 years or so. The Prison Litigation Reform Act tried the limit that right by hobbling would-be litigants, due to what politicians perceived to be abuses of the federal courts by prisoners with grievances,

broke191011One provision requires prisoners to pay filing fees upfront unless they can prove poverty. If they are successful, prisoners may proceed in forma pauperis (IFP), but the courts extract the filing fees from their prison commissary accounts at a set rate.  An indigent who is not a prisoner is not subject to this limitation.

To gain IFP status, and thus to avoid prepaying a $405 U.S. District Court filing fee, prisoners must – among other things – file an affidavit including a printout of their inmate trust accounts (commissary account) showing how much they collected and spent for the past 6 months.

But how much can you have in the account before you’re too rich to be poor? Jordan Whitaker, an Illinois prisoner, found that out last week. He wanted to appeal the loss of a federal suit against his state prison. His IFP filing showed his commissary account had $575, more than enough to cover the $505 filing fee, on the day his notice of appeal was filed, so the district court denied his request and told him to pay.

Last week, a 7th Circuit judge reversed the district court, holding that “the district court did not adequately consider the balance the Prison Litigation Reform Act (PLRA) struck between the need to collect fees and a prisoner’s discretionary use of his funds.”

IFP status is an exception to the normal rule in federal court that parties must prepay fees when filing litigation. But if a prisoner shows he or she is indigent, the PLRA requires the court to collect 20% of the prisoner’s average monthly deposits or balances in the past six months (whichever is higher) and then collect the remainder of the fees in installments based on 20% of the prisoner’s monthly income until the full debt is paid.

pooremptypockets231017Here, the 7th said, “drawing the line for in forma pauperis eligibility at the mere ability to pay the full filing fee fails to respect Congress’s compromise. Worse, it can lead to odd results that Congress likely did not intend. For example, such a rule creates a sharp welfare cliff: a prisoner with a consistent monthly income of $504 that he spent in full would need to pay only $100.80, but a prisoner like Whitaker with a balance of a few dollars more would need to pay almost everything he has, regardless of his income… A court may well have discretion to find a prisoner ineligible short of the point where the outcome of the statutory formula exceeds the full fee, but Whitaker’s income and assets are nowhere close to that limit…Whitaker should be permitted to prepay the prescribed portion of the fee with the rest to be collected from his future income, as Congress envisioned.”

Whitaker v. Dempsey, Case No 23-1086, 2023 U.S. App. LEXIS 26851 (7th Cir. Oct 10, 2023)

– Thomas L. Root

11th Circuit Calls One for the Batter – Update for February 10, 2023

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SUMMARY JUDGMENT LOSS NOT A ‘STRIKE’

A prisoner unable to pay court fees may proceed in forma pauperis, that is, without prepaying fees. The Prison Litigation Reform Act, however, bars a prisoner from proceeding in forma pauperis if he or she has brought three or more actions or appeals in a federal court that were dismissed as frivolous, malicious, or for failing to state a claim upon which relief may be granted. This is called the “three-strikes rule.”

Jeremy Wells had filed three prior actions against state prison officials. One was dismissed for failing to state a claim.  A second was dismissed for failure to exhaust remedies, and the third was denied on summary judgment for the same reason. When he filed a new case, he was denied in forma pauperis status under the “three strikes rule.”

strikethree2302310Last week, the 11th Circuit allowed Jeremy to proceed in forma pauperis. “Summary judgment based on evidence outside the face of the complaint or on something other than the allegations in the complaint is not a dismissal for failure to state a claim,” the Circuit ruled. “A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. Summary judgment, on the other hand, asks whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Wells v. Brown, Case No 21-10550, 2023 U.S. App. LEXIS 2582 (11th Cir., February 1, 2023)

– Thomas L. Root

7th Circuit Says Exhaustion of Remedies No ‘Scavenger Hunt’ – Update for February 4, 2022

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SCAVENGER HUNT FOR BP-9 UNNECESSARY

Eric Gooch filed a Bivens action in December 2019 against two correctional officers, claiming an 8th Amendment violation after they allegedly convinced another inmate to attack him. Under the Prison Litigation Reform Act, an inmate has to exhaust all available administrative remedies before he or she can sue.

snitch160802Eric did not, claiming that when he asked his counselor for a remedy form, the counselor refused to give him one, saying “I’m not giving you a form to file on that and you better watch out snitching on staff.”

The District Court dismissed his lawsuit, holding that Eric could have mailed his request “directly to the Regional Office, as the regulations and program statement provide.” Thus, the administrative remedy process was still “available” to Eric, so he had to exhaust all of its steps before filing a complaint in federal court.

Last week, the 7th Circuit reversed the dismissal. The Circuit held that exhaustion of administrative remedies is not required when the prison officials responsible for providing grievance forms refuse to give a prisoner the forms necessary to file an administrative grievance. Evidence of the appropriate official’s refusal to give a prisoner an available form is sufficient to permit a finding that the administrative remedies are not available.

scavenger220204The 7th said that under the plain language of the BOP’s administrative-remedy process rules, in order to submit a grievance to the Warden or Regional Director, a prisoner must use the appropriate BP-9 form. The BOP argued that Eric had time remaining to file a timely BP-9, so he should have tried harder to procure the BP-9 form — for instance, by asking other staff — before “rushing to court.” The Circuit rejected this as “unworkable,” holding that the PLRA does require “prisoners to go on scavenger hunts just to take the first step toward filing a grievance.”

Gooch v. Young, Case No. 21-1702, 2022 U.S. App. LEXIS 2042 (7th Cir., January 24, 2022)

– Thomas L. Root

7th Circuit Gets Metaphysical (Inadvertently) – Update for August 23, 2019

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FRAUD OR FORGETFULNESS?

In classical Greek. the word “αλήθεια” (we American-speakers would say “aletheia”) means truth.  In Greek mythology, the waters of Lethe (“λήθη” for you purists) induced one into a state of forgetfulness. Literally, aletheia is defined as the opposite of the state of forgetfulness.

dontforget190823Heavy stuff, huh? Not for a number of district courts that require inmate filers of civil cases to list every case they have ever been involved in. The information is collected to determine inmate compliance with the “three strikes” rule of 28 USC § 1915(g), which prohibits a prisoner from bringing a civil case if he or she has had three prior civil actions or appeals dismissed as “frivolous, malicious, or fail[ing] to state a claim upon which relief may be granted…” The rule was adopted as part of the Prison Litigation Reform Act in 1996, a measure intended to reduce the amount of prisoner litigation clogging federal courts.

In the district courts demanding the disclosure, a prisoner who fails to list all of his or her prior cases, or provides incorrect information when listing them) is subject to having the suit dismissed because of “fraud on the court.”

The problem is that over years, inmates can forget details, lose legal papers, and just plain overlook cases. Last week, the 7th Circuit told district courts that fraud is not necessarily the opposite of truth. Sometimes, as the Greeks observed, the opposite of truth may just be forgetfulness.

forgetfulness190823The Circuit said that district judges must decide whether a prisoner’s omissions are intentional and material before throwing out inmate lawsuits. “In the PLRA context as elsewhere, it is essential to distinguish between a negligent, reckless, or even willful act, on the one hand, and a fraudulent act on the other. A finding of fraud opens a litigant to additional and heightened penalties and thus requires a showing of fraudulent intent.”

Greyer v. Illinois Dept. of Corrections, Case No. 18-1459 (7th Cir. Aug. 13, 2019)

– Thomas L. Root

Too Exhausted to Exhaust? – Update for September 5, 2018

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PLRA EXHAUSTION REQUIREMENT EXCUSED IF INMATE UNABLE TO COMPLY

exhaustedThe Prison Litigation Reform Act was adopted in the 1990s to make it more procedurally complex for inmates to file civil actions. One provision of the PLRA requires a prisoner to exhaust all available administrative remedies before filing a federal lawsuit. Not meeting this exhaustion requirement usually gets an inmate civil action tossed out.

Rodolph Lanaghan is a very ill Wisconsin state prison inmate. Wisconsin prison regs require an inmate to file a grievance within 14 days of the occurrence giving rise to the complaint. Rodolph, who suffers from a severe degenerative muscle disease, filed a federal suit under 42 USC 1983, alleging state authorities were deliberately indifferent to his medical needs, and this violated his 8th Amendment rights.

The problem is that he did not file a state prison grievance first. After Rodolph was released from the hospital back into general population, a fellow inmate tried to sit with him in the day room to prepare a grievance on the prescribed form. But all the rec tables were occupied, and Rodolph needed a flat surface to write on. The day room study tables were available, but a corrections officer (CO) denied him use of a study table because prison regulations stated that those were reserved for studying only.

plra180906Unable to secure a table, Rodolph – who lacked any stamina because of the disease – went back to his cell with the help of the other inmate. Rodolph “spent the next week trapped inside his own body, believing he was going to die,” before being sent back to the hospital for two months.

He got out of the hospital in March, but by then he was months past the deadline for filing a grievance. Therefore, he did not bother to try. Instead, he filed his lawsuit against the prison a few months later, in July. When Rodolph learned that the PLRA required he file a grievance before suing in order to exhaust his remedies, as the legal jargon puts it, he immediately did so, but the grievance was rejected as untimely.

At a hearing on whether Rodolph’s lawsuit complied with the PLRA, the Wisconsin institutional complaint examiner testified that Rodolph’s physical condition would have been good cause to extend the time for filing until March, had Rodolph only asked for a waiver to do so. Nothing, however, but nothing supported a delay from March until July, which was months after Rodolph’s return from the hospital.

The district court held Rodolph had failed to exhaust his administrative remedies with the prison, and his lawsuit should be tossed for violating the PLRA. Last week, however, the 7th Circuit reversed.

A prisoner does not have to follow the PLRA exhaustion requirements when the grievance procedure is not available to him or her. The appeals court noted that the proper focus is not whether the prison officials engaged in any misconduct that kept Rodolph from filing, but instead whether Rodolph was not able to file the grievance within the time period through no fault of his own. The availability of a grievance procedure is not an “either‐or” proposition, the Court said. “Sometimes grievances are clearly available; sometimes they are not; and sometimes there is a middle ground where, for example, a prisoner may only be able to file grievances on certain topics.” For that reason, the availability of a remedy is therefore a fact‐specific inquiry.

If the prison had a procedure under which grievance forms were provided to all inmates and they were required to fill them out without any assistance from others, the Court said, “that procedure might render the grievance remedy available for the majority of inmates, but the same procedure could render it unavailable for a subset of inmates such as those who are illiterate or blind, for whom either assistance or a form in braille would be necessary to allow them to file a grievance.”

plrachart180906Here, even though most inmates could have returned when a rec table was available, the Court said, and even though the COs were only following the rules in denying Rodolph a table, Rodolph’s particular circumstances (the disease) in conjunction with the CO’s decision made the prison grievance remedy unavailable to him.

What’s more, the Court said, Rodolph could not be held responsible for not filing after he got back from hospital months later. While nothing prevented him from filing the grievance immediately after he returned, a time when it might have been considered because his physical incapacity could have constituted good cause for the delay, nothing in the inmate handbook made him aware of such a procedure. The Court said that “a secret grievance procedure is no procedure at all, at least absent some evidence that the inmate was aware of that procedure.”

Lanaghan v. Koch, Case No. 17-1399 (7th Cir., Aug. 29, 2018)

– Thomas L. Root

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