Know Your Rights: The Prison Litigation Reform Act (PLRA)
August 2011

The Prison Litigation Reform Act (PLRA) makes it harder for prisoners to file
lawsuits in federal court. This fact sheet outlines the information you need to
know before filing a lawsuit.
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.[1] In addition, every claim
you raise in your lawsuit must be exhausted.[2] 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.[3]
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.[4] If the prisoner does not receive a response at the final
appeal level, and the time for response has passed, the prisoner has
exhausted.[5]

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.[6]
Courts have differed widely on when failure to exhaust might be
excused.[7] But the safest course is always:
with respect to each claim you want to raise, and each defendant [8]
you want to name, in your eventual lawsuit, you should file a
grievance and appeal that grievance through all available levels of
appeal.
Ultimately, proper exhaustion depends upon the policy requirements of your
particular jail or prison. You should 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?
The Supreme Court held that failure to exhaust is an affirmative defense
that must be raised by the defendants.[9] Then, if the court finds that the
prisoner has not exhausted, the case is dismissed without prejudice,[10]
meaning that the lawsuit may be filed again once the prisoner has
exhausted, as long as the statute of limitations has not run. If you have
exhausted some of your claims, but not all, the court will dismiss only the
unexhausted claims. [11]
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.[12]
Finally, the statute of limitations is tolled while a prisoner is in the
process of exhausting.[13]
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.[14]
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.[15]
The exhaustion requirement does not apply to detainees in INS
facilities.[16] Also, the exhaustion requirement does not apply to cases filed
before the effective date of PLRA, which is April 26, 1996.[17]
II.

FILING FEES (28 U.S.C. § 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.[18]
III.

THREE STRIKES PROVISION (28 U.S.C. § 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.[19] Even dismissals that occurred prior to the effective date of PLRA
count as strikes.[20]
An exception to the “three strikes” rule may be invoked if a prisoner is in
imminent danger of serious physical injury.[21] 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.[22]
IV.

PHYSICAL INJURY REQUIREMENT (42 U.S.C. § 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.[23] Some
courts have suggested the possible availability of nominal and punitive
damages even when compensatory damages are barred by the requirement
of physical injury.[24] 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).[25] Not surprisingly, the courts differ in their evaluation of what
constitutes sufficient harm to qualify as a physical injury.[26]
Last updated 8/11.

Notes
[1] White v. McGinnis, 131 F.3d 593 (6th Cir. 1997); see also Sapp v. Kimbrell, 623 F.3d
813 (9th Cir. 2010) (prison’s improper screening out of administrative appeals may render
administrative remedy “unavailable” for purposes of PLRA).
[2] 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).
[3] Miller v. Norris, 247 F.3d 736 (8th Cir. 2001).
[4] White v. McGinnis, 131 F.3d 593 (6th Cir. 1997).
[5] 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).
[6] 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).
[7] 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 satisfied
exhaustion requirement); but see Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999)
(investigations by use of force committee and state police are not exhaustion).
[8] But see Jones v. Bock, 549 U.S. 199 (2007) (rejecting 6th circuit’s requirement that a
prisoner name every prospective defendant in a prison grievance in order to later bring suit
against that defendant in federal court even where a prison’s internal grievance system did
not require a prisoner to name specific individuals in a grievance).
[9] Jones v. Bock, 549 U.S. 199 (2007) (exhaustion requirement under the PLRA is not a
pleading requirement that a prisoner must plead and prove before filing suit, rather it is an
affirmative defense a defendant must plead or prove).
[10] Perez v. Wisconsin Dept. of Correction, 182 F.3d 532 (7th Cir. 1999); Wendell v. Asher,
162 F.3d 887 (5th Cir. 1998); Wright v. Morris, 111 F.3d 414 (6th Cir. 1997).
[11] Jones v. Bock, 549 U.S. 199 (2007) (rejecting 6th Circuit’s requirement under the PLRA
that a prisoner properly exhaust every claim in a lawsuit or face dismissal of the entire suit).
[12] Harper v. Jenkins, 179 F.3d 1311 (11th Cir. 1999) (holding that prisoner who filed an
untimely grievance was obliged to seek a waiver of the time limits in the grievance
system); see also Days v. Johnson, 322 F.3d 863 (5th Cir. 2003) (when prisoner’s grievance
was untimely because he had a broken hand and could not write, dismissal for failure to
exhaust was improper); Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002) (prisoner who
missed deadline on one of the levels of appeals of the grievance system barred from filing
lawsuit).
[13] Johnson v. Rivera, 272 F.3d 519 (7th Cir. 2001); Brown v. Morgan, 209 F.3d 595 (6th
Cir. 2000); Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999).
[14] Booth v. Churner, 121 S. Ct. 1819 (2001).
[15] Jackson v. District of Columbia, 254 F.3d 262 (D.C. Cir. 2001). But see Nickens v.
District of Columbia, 694 F. Supp. 2d 10 (D.D.C. 2010) (finding failure to exhaust where
prisoner did not file emergency grievance and procedures for emergency grievances
existed).

[16] Edwards v. Johnson, 209 F.3d 772 (5th Cir. 2000).
[17] See, e.g., Salahuddin v. Mead, 174 F.3d 271 (2d Cir. 1999); Bishop v. Lewis, 155 F.3d
1094 (9th Cir. 1998); Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1996).
[18] Hall v. Stone, 170 F.3d 706 (7th Cir. 1999) (holding warden in contempt for failure to
forward fees from the prisoner’s account).
[19] Jennings v. Natrona Co. Detention Center, 175 F.3d 775 (10th Cir. 1999); Patton v.
Jefferson Correctional Center, 136 F.3d 458 (5th Cir. 1998).
[20] See e.g., Ibrahim v. District of Columbia, 208 F.3d 1032 (D.C. Cir. 2000); Welch v.
Galie, 207 F.3d 130 (2d Cir. 2000).
[21] See Gibbs v. Cross, 160 F.3d 962 (3d Cir. 1998) (plaintiff alleged an imminent danger
of serious physical injury where dust, lint and shower odor came from his cell vent, causing
him to suffer “severe headaches, changes in voice, mucus that is full of dust and lint, and
watery eyes.”). See also Ciarpaglini v. Saini, 352 F.3d 328 (7th Cir. 2003) (allegations of
continuing harm as result of being denied medications for bipolar disorder, Attention Deficit
Hyperactive Disorder, and panic disorder were sufficient to meet imminent danger
exception); Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998) (allegations that staff placed
plaintiff in proximity to known enemies satisfied imminent danger requirement).
[22] Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001)(en banc).
[23] See Harper v. Showers, 174 F.3d 716 (5th Cir. 1999); Perkins v. Kansas Dept. of
Corrections, 165 F.3d 803 (10th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342
(D.C. Cir. 1998).
[24] See Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. 2007) (PLRA does not bar punitive
or nominal damages for a constitutional violation); Searles v. Van Bebber, 251 F.3d 869
(10th Cir. 2001) (PLRA does not bar punitive and nominal damages for violation of prisoner’s
rights); Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000) (claims for nominal and punitive
damages can go forward); Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998)
(noting possibility that nominal damages would survive). But see Al-Amin v. Smith, 637
F.3d 1192 (11th Cir. 2011) (drawing no distinction between compensatory and punitive
damages for purposes of PLRA).
[25] See Rowe v. Shake, 196 F.3d 778 (7th Cir. 1999) (First Amendment claim not barred
by physical injury requirement); Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998) (claim for
violation of First Amendment is not a claim for mental or emotional injury); cases going the
other way include: Thompson v. Carter, 284 F.3d 411 (2d Cir. 2002); Searles v. Van
Bebber, 251 F.3d 869 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000)
(First Amendment claims involve mental or emotional injuries); Davis v. District of
Columbia, 158 F.3d 1342 (D.C. 1998) (claim for violation of privacy is claim for mental or
emotional injuries).
[26] See Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999) (allegations of cuts and abrasions
satisfy physical injury requirement); Liner v. Goord, 196 F.3d 132 (2d Cir. 1999) (intrusive
body searches qualify as physical injury); compare to Herman v. Holiday, 238 F.3d 660 (5th
Cir. 2001) (claim of “physical health problems” by prisoner exposed to asbestos does not
specify a physical injury which would permit recovery for emotional or mental damages due
to fear caused by increased risk of developing asbestos-related disease); Harper v.
Showers, 174 F.3d 716 (5th Cir. 1999) (confinement in filthy cell where exposed to mentally
ill patients not physical injury). See also Wilkins v. Gaddy, 130 S.Ct. 1175 (2010) (per
curiam) (question of serious physical injury in excessive force cases is whether force was
applied in good-faith or maliciously or sadistically to cause harm, not just whether harm was
greater than de minimis).