LITIGATION AND ADMINISTRATIVE PRACTICE SERIES
Criminal Law and Urban Problems
Course Handbook Series
Number C-224

Prison Law 2010

Chair

Alexander A. Reinert

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BARRIERS TO RECOVERY

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THE PRISON LITIGATION REFORM ACT:
CONSIDERATIONS IN INDIVIDUAL
LITIGATION

John Boston
New York City Legal Aid Society, Prisoners’
Rights Project

If you find this article helpful, you can learn more about the subject by going
to www.pli.edu to view the on demand program or segment for which it
was written.

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BIOGRAPHICAL SUMMARY
John Boston is Director of the Prisoners’ Rights Project of the New York
City Legal Aid Society, where he has worked for many years, and is
co-author of the Prisoners’ Self-Help Litigation Manual.

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BIOGRAPHICAL INFORMATION
This outline is intended to highlight PLRA issues of particular
importance in representing individual prisoners, focusing on those that
should be considered at the threshold, both in determining whether a case
is viable legally and economically, and in deciding how and when to file
and frame the complaint to enhance the likelihood of success.

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Table of Contents
I.

CASES “BROUGHT BY A PRISONER”—BY SOMEONE LOCKED
UP AT TIME OF FILING— ........................................................................... 9

A.
B.
C.
II.

Are Subject to Certain PLRA Provisions .......................................9
So you don’t Want your Case to be “Brought by a Prisoner” ........9
Know what a “Prisoner” is and what your Client’s Status is ........10

DO STATE LAW OR STATE COURT GET YOU AWAY FROM
THE PLRA? IT DEPENDS. ....................................................................... 12

A.
B.
C.
D.

State PLRA Analogues................................................................12
Exhaustion Requirement .............................................................13
Physical Injury Requirement........................................................14
Attorneys’ Fees Limits .................................................................15
III. ADMINISTRATIVE EXHAUSTION............................................................. 15
A. Must be Completed before Suit is Filed ......................................15
B. Applies to Challenges to “Prison Conditions” ..............................15
C. You’re Probably Doing Post Hoc Damage Control .....................16
D. Exhaustion is an Affirmative Defense, need not be Pled. ...........17
E. “Available” Remedies ..................................................................17
F. “Proper” Exhaustion.....................................................................21
G. Curing Non-Exhaustion ...............................................................24
H. When all else Fails: Excusing Non-Exhaustion ...........................25
IV. THE PHYSICAL INJURY REQUIREMENT................................................ 27
A. Limit on Damages, not “Actions” .................................................27
B. Intangible Constitutional Rights...................................................27
C. Conditions of Confinement ..........................................................28
D. Plead it.........................................................................................29
E. Physical Injury .............................................................................30
V. ATTORNEYS’ FEES RESTRICTIONS....................................................... 32
A. Rates ...........................................................................................32
B. Applicability..................................................................................33
C. Fees’ Relation to Merits and Results...........................................33
D. Fees’ Relation to Damages .........................................................34
F. Fee Agreements ..........................................................................35
VI. FILING FEES ............................................................................................. 35
A. Prisoners must Pay even under the in Forma Pauperis
Provisions ....................................................................................35
B. Fees and Joinder in Multi-Plaintiff Cases ....................................35

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I.

CASES “BROUGHT BY A PRISONER”—BY SOMEONE
LOCKED UP AT TIME OF FILING—

A. Are Subject to Certain PLRA Provisions

1. Administrative exhaustion requirement, 42 U.S.C. § 1997e(a);
see Norton v. The City Of Marietta, OK, 432 F.3d 1145, 1150
(10th Cir. 2005); Greig v. Goord, 169 F.3d 165, 167 (2d Cir.
1999).
2. Physical injury requirement, 42 U.S.C. § 1997e(e); see Kerr v.
Puckett, 138 F.3d 321, 322 (7th Cir. 1998)
3. Attorneys’ fees limits, 42 U.S.C. § 1997e(d); see Janes v.
Hernandez, 215 F.3d 541, 543 (5th Cir. 2000).
4. Filing fees and “three strikes” provisions, 28 U.S.C. § 1915(b),
(g); see Harris v. City of New York, ___ F.3d ___, 2010 WL
2179151 (2d Cir. 2010) (§ 1915(g)); McGann v. Commissioner,
96 F.3d 28 (2d Cir. 1996) (holding § 1915(b) cannot apply to
non-prisoners because the payment provisions are keyed to
plaintiffs’ institutional accounts).
B. So you don’t Want your Case to be “Brought by a
Prisoner”

1. If your client is in, and you can wait for release and have time to
file and take discovery and identify defendants within the
limitations period, do so.
2. If your client is out, FILE NOW! Former prisoners have a
regrettable habit of becoming current prisoners again, which may
be as damaging to their litigation positions as to their personal
circumstances.
3. If your client is out but the case was filed while he or she was in,
consider taking a voluntary dismissal and refiling the case while
the client is out. See Dixon v. Page, 291 F.3d 485, 488 n.1 (7th
Cir. 2002); Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir.
2002); Ladd v. Dietz, 2007 WL 160762 at *1 (D.Neb., Jan. 17,
2007) (holding or stating in dictum that doing so is permissible);
see Harris v. City of New York, ___ F.3d ___, 2010 WL
2179151, *5 (2d Cir. 2010) (holding prisoner with three strikes
disqualified from in forma pauperis status can refile and reapply
for IFP status after dismissal like any other litigant).
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C. Know what a “Prisoner” is and what your Client’s Status
is

1. A prisoner is anybody presently subject to any form of criminal
confinement. 42 U.S.C. § 1997e(h). But see Khatib v. County of
Orange, 603 F.3d 713, 715-16 (9th Cir. 2010) (courthouse
holding cell is not a correctional or detention facility under the
PLRA).
2. So far, dead people, their families and estates seem not to be
prisoners. As to dead persons, see Torres Rios v. Pereira Castillo,
545 F.Supp.2d 204, 206 (D.P.R., Aug. 28, 2007); Rivera
Quinones v. Rivera Gonzalez, 397 F.Supp.2d 334, 340 (D.P.R.,
Oct. 28, 2005); Simmons ex rel. Estate of Simmons v. Johnson,
2005 WL 2671537 at *2 (W.D.Va., Oct. 20, 2005); Greer v.
Tran, 2003 WL 21467558 at *2 (E.D.La., June 23, 2003); Treesh
v. Taft, 122 F.Supp.2d 887, 890 (S.D.Ohio. 2000) As to families
and estates, see Torres Rios v. Pereira Castillo, 545 F.Supp.2d
204, 206 (D.P.R., Aug. 28, 2007) (noting that an estate cannot be
imprisoned or accused, convicted, or sentenced for a criminal
violation, and it therefore not a prisoner); Netters v. Tennessee
Dept. of Correction, 2005 WL 2113587 at *3 n.3 (W.D.Tenn.,
Aug. 30, 2005); Rivera Rodriguez v. Pereira Castillo, 2005 WL
290160 at *5-6 (D.P.R., Jan. 31, 2005) (holding that a prisoner’s
guardian is not a prisoner); Greer v. Tran, 2003 WL 21467558
at *2 (E.D.La., June 23, 2003); see also Lister v. Prison Health
Services, Inc., 2006 WL 1733999 at *1-2 (M.D.Fla., June 22,
2006) (holding that a female prisoner suing over the death of her
child was barred for non-exhaustion, but the estate of the child
might have a claim if it was born alive). Not to be ghoulish, but if
your client is on death’s door and an injunction won’t help . . .
wait.
3. Parolees are generally not prisoners, Kerr v. Puckett, 138 F.3d 321,
322 (7th Cir. 1998) (“The statutory language does not leave wriggle
room; a convict out on parole is not a ‘person incarcerated or
detained in any facility who is . . . adjudicated delinquent for,
violations of . . . the terms and conditions of parole.”); Bisgeier v.
Michael [sic] Dept. of Corrections, 2008 WL 227858 at *4
(E.D.Mich., Jan. 25, 2008) (“While there may be certain conditions
imposed upon Plaintiff as a parolee, there can be no doubt that he
is neither ‘confined,’ ‘incarcerated,’ nor ‘detained in’ any jail,
prison, or other correctional facility.”)—that is, unless they are
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paroled to an institution in which they are “confined.” Jackson v.
Johnson, 475 F.3d 261, 265-67 (5th Cir. 2007).
4. People civilly committed are generally not prisoners, including
•

immigration detainees, Agyeman v. I.N.S., 296 F.3d 871,
885-86 (9th Cir. 2002); LaFontant v. INS, 135 F.3d 158
(D.C.Cir. 1998);

•

sex offenders committed after their prison sentences,
Merryfield v. Jordan, 584 F.3d 923, 927 (8th Cir. 2009);
Michau v. Charleston County, S.C., 434 F.3d 725, 727-28
(4th Cir. 2006); Troville v. Venz, 303 F.3d 1256, 1260 (11th
Cir. 2002); Page v. Torrey, 201 F.3d 1136, 1139-40 (9th
Cir. 2000);

•

persons committed psychiatrically, Perkins v. Hedricks, 340
F.3d 582, 583 (8th Cir. 2003), including those found not
guilty by reason of insanity. See Koloctronis v. Morgan,
247 F.3d 726, 728 (8th Cir. 2001); Mullen v. Surtshin, 590
F.Supp.2d 1233, 1240 (N.D.Cal. 2008), leave to file
for reconsideration denied, 2009 WL 734673 (N.D.Cal.,
Mar. 18, 2009); Phelps v. Winn, 2007 WL 2872465 at *1
(D.Mass., Sept. 27, 2007) (so holding, notwithstanding that
the plaintiff is held by the Bureau of Prisons).

—but be careful and be sure you understand the legal nature of
the confinement. If their criminal charges or sentences remain in
the picture they may still be prisoners, e.g.
•

sex offenders in programs that divert them from the criminal
process while leaving their charges pending. See Kalinowski
v. Bond, 358 F.3d 978, 979 (7th Cir. 2004) (holding that
persons held under the Illinois Sexually Dangerous Persons
Act are prisoners for PLRA purposes);

•

persons found incompetent to stand trial. See Ruston v.
Church of Jesus Christ of Latter-Day Saints, 2007 WL
2332393 at *1 (D.Utah, Aug. 13, 2007); In re Rosenbalm,
2007 WL 1593207 at *2 (N.D.Cal., June 1, 2007); Gibson v.
Commissioner of Mental Health, 2006 WL 1234971 at *6
(S.D.N.Y., May 8, 2006), relief from judgment denied, 2006
WL 2192865 (S.D.N.Y., Aug. 2, 2006);

•

persons found guilty but insane. Magnuson v. Arizona State
Hosp., 2010 WL 283128, *1 n.5, *2 (D.Ariz., Jan. 20, 2010);
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persons psychiatrically committed from prison while serving
their sentences, as in Vitek v. Jones, 445 U.S. 480 (1980).
(I’m not aware of direct authority on the PLRA status of such
persons, but I think the answer is clear.)

5. The status of litigation where both prisoners and non-prisoners
are plaintiffs (e.g., prisoner and spouse) is not settled, though
most decisions hold the non-prisoners’ claims are not governed
by the PLRA. See Arsberry v. Illinois, 244 F.3d 558 (7th Cir.
2001) (holding that prisoner plaintiffs were barred for nonexhaustion but non-prisoners’ claims could be decided on the
merits); Carter v. Jones, 2006 WL 2320807 at *6 (W.D.Okla.,
Aug. 9, 2006) (holding prisoner’s mother’s claim not governed
by exhaustion requirement); Apanovich v. Taft, 2006 WL
2077040 at *4 (S.D.Ohio, July 21, 2006) (dismissing prisoner’s
claim about execution procedures for non-exhaustion, allowing
claims of newspaper and non-profit organization to go forward);
Turner v. Wilkinson, 92 F.Supp.2d 697, 704 (S.D.Ohio 1999)
(holding that a case filed by a prisoner husband and his nonprisoner wife was not “brought by a prisoner” and therefore
PLRA fees limits did not apply). But see Johnson v. Martin, 2006
WL 1361771 at *5 n.6 (W.D.Mich., May 15, 2006) (applying
PLRA attorneys’ fees limitations where only two plaintiffs–a
religious organization and its president–were non-prisoners,
where the “primary benefits” went to prisoners, and there was no
“intelligent way” to differentiate between hours spent on prisoner
and non-prisoner claims). It is prudent to bring separate
complaints. DO NOT file on behalf of a prisoner and then have a
non-prisoner intervene or join in an amended or supplemental
complaint, since that case is literally “brought by a prisoner” and
the non-prisoner may be stuck with PLRA rules. See Montcalm
Pub. Corp. v. Com. of Va., 199 F.3d 168, 171-72 (4th Cir. 1999)
(publisher who intervened in a prisoner’s challenge to prison
censorship was bound by the PLRA attorneys’ fees provisions).
II.

DO STATE LAW OR STATE COURT GET YOU AWAY FROM
THE PLRA? IT DEPENDS

A. State PLRA Analogues:

Many states have them. E.g.:

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“No inmate may maintain a civil action for monetary damages
in any state court for mental or emotional injury without a
prior showing of physical injury.” Kentucky Revised Statutes
§ 454.405(5).

•

“No prisoner suit may assert a claim under state law for mental or
emotional injury suffered while in custody without a prior
showing of physical injury.” LSA-R.S. 15:1184(E) (Louisiana).

New York does not have such provisions.
B. Exhaustion Requirement, 42 U.S.C. § 1997e(a)

A case “brought under” §1983 or any other federal law is subject
to it.
1. State law claims in state court or federal court are not subject to
PLRA exhaustion, Artis-Bey v. District of Columbia, 884 A.2d
626, 631 (D.C. 2005); Hagopian v. Smith, 2008 WL 3539256
at *3 (E.D.Mich., Aug. 12, 2008); Shaheed Muhammad v.
Dipaolo, 393 F.Supp.2d 80, 92 n.5 (D.Mass. 2005); Torres v.
Corrections Corp. of America, 372 F.Supp.2d 1258, 1262
(N.D.Okla. 2005), though they will have to have satisfied any
applicable state law exhaustion requirements. Hendon v. Baroya,
2006 WL 1791349 at *2 (E.D.Cal., June 27, 2006), report and
recommendation adopted, 2008 WL 482868 (E.D.Cal., Feb. 20,
2008), aff’d, 320 Fed.Appx. 717 (9th Cir. 2009).
2. § 1983 claims or other federal statutory causes of action are
subject to the PLRA exhaustion requirement even if filed in
state court. See Johnson v. State of La. ex rel. Dep’t of Public
Safety & Corr., 468 F.3d 278, 280 (5th Cir. 2006) (“The PLRA’s
exhaustion requirement applies to all Section 1983 claims
regardless of whether the inmate files his claim in state or federal
court.”); Blakely v. Ozmint, 2006 WL 2850545 at *2 (D.S.C.
Sep 29, 2006); Hodge v. Louisville/Jefferson County Metro Jail,
2006 WL 1984723 at *4 (W.D.Ky., July 12, 2006); Alexander v.
Walker, 2003 WL 297536 at *2 (N.D.Cal., Feb. 10, 2003).
3. Is a case asserting federal claims, but brought in state court under
that court’s general jurisdiction or other state law jurisdictional
authorization, “brought under” federal law? Does “brought
under” refer to the substantive basis of the claim, or only to the
law that gets it into a particular court? Beats me; this may be
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worth trying if you must have a federal claim and the PLRA
exhaustion requirement prevents you from litigating it.
C. Physical Injury Requirement

1. “No Federal civil action may be brought” by a prisoner for
mental or emotional injury without physical injury, 42 U.S.C.
§ 1997e(e)—but “Federal civil action” is not defined.
2. Arguably, a case brought in state court is not a “Federal civil
action” even if it asserts federal rights, especially since the
exhaustion requirement does state its scope in terms of the rights
asserted. 42 U.S.C. § 1997e(a) (referring to “action . . . under
section 1983 of this title, or any other Federal law”). So this
argument may be worth pursuing before a judge who actually
pays attention to statutory terms. But see Jackson v. Verdini,
19 Mass.L.Rptr. 539, 2005 WL 1457748 at *6-7 (Mass.Super.
2005) (assuming without analysis that § 1997e(e) applies to
federal claims in state court); Thomas v. Ripper, 2002 WL
31627996 at *1-2 (Tex.App.-Beaumont 2002) (same); see also
Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309,
1315 (11th Cir. 2002) (hinting but not holding explicitly that
removed federal claims are subject to § 1997e(e)).
3. If a case filed in state court is not a Federal civil action, then
removing it to federal court doesn’t bring the case within the
scope of this provision, because “No Federal civil action [was]
brought” by a prisoner—rather, the prisoner plaintiff filed a
“State civil action” and the defendant—not a prisoner,
presumably—brought it into federal court. (A removed case is
considered by be “institut[ed]” by removal, and the removing
party—the defendant—must pay the filing fee. 28 U.S.C.
§ 1914(a) (“The clerk of each district court shall require the
parties instituting any civil action, suit or proceeding in such
court, whether by original process, removal or otherwise, to pay a
filing fee of $350. . . .”).) The physical injury requirement would
not apply.
4. But at least one court has applied § 1997e(e) to state law claims
filed in federal court under the court’s supplemental jurisdiction.
See Hines v. Oklahoma, 2007 WL 3046458 at *6 (W.D.Okla.,
Oct. 17, 2007).

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D. Attorneys’ Fees Limits

1. Apply to cases where fees are sought under 42 U.S.C. § 1988
2. So a state court suit in which you must rely on § 1988 for fees
will be subject to the limits, while a claim with another basis for
recovery of fees will not.
III.

ADMINISTRATIVE EXHAUSTION, 42 U.S.C. § 1997E(A)

A. Must be Completed before Suit is Filed

. . . meaning that the time for reply from the final stage of the
administrative process has passed before suit is filed. Johnson v.
Jones, 340 F.3d 624, 627-28 (8th Cir. 2003) (citing cases); Neal v.
Goord, 267 F.3d 116, 122 (2d Cir. 2001).
B. Applies to Challenges to “Prison Conditions”

If it happened in prison to a prisoner, it’s probably a prison
condition, and arguments to the contrary are not likely to prevail. See
Porter v. Nussle, 534 U.S. 516, 532 (2002) (§ 1997e(a) applies “to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong”; rejecting distinction between
conditions and single incidents). Since Porter, courts have held
“prison conditions” to encompass, inter alia:
•

intrusions on attorney-client correspondence and telephone
conversations are prison conditions, notwithstanding argument
that attorney-client relationship “transcends the conditions of
time and place.” Krilich v. Federal Bureau of Prisons, 346 F.3d
157, 159 (6th Cir. 2003);

•

statutorily required collection of DNA. U.S. v. Carmichael, 343
F.3d 756, 761 (5th Cir. 2003);

•

an order by prison officials that the plaintiff cease all attempts to
contact his son. Pryor v. Harper, 2006 WL 2583302 at *2
(S.D.Ohio, Sept. 7, 2006);

•

alleged antitrust violations affecting telephone service charges.
Ray v. Evercom Systems, Inc., 2006 WL 2475264 at *5 (D.S.C.,
Aug. 25, 2006);

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challenge to execution procedures; it involves “the effects of
actions by government officials on the lives of persons confined
in prison.” Dennis v. Taft, 2004 WL 4506891 at *4 (S.D.Ohio,
Sept. 24, 2004);

•

inability to obtain an application for an absentee ballot in a timely
manner. Johnson v. Luttrell, 2005 WL 1972579 at *3 (W.D.Tenn.,
Aug. 11, 2005).

C. You’re Probably doing Post Hoc Damage Control

1. Grievance time limits are so short it is a rare case where counsel
will be retained early enough to shape exhaustion from the first.
See Woodford v. Ngo, 548 U.S. 81, 95-96 (2006) (noting that
deadlines “are typically 14 to 30 days according to the United
States and even shorter according to the plaintiff”). Most
grievance systems make no provision for counsel or other
representative to pursue the grievance anyway.
2. If your claim is a continuing violation such that the grievance is
still arguably timely, you will want to explore to what extent you
can exhaust for, or at least advise, your client. Most courts have
held that a grievance about an ongoing condition cannot be
untimely. Ellis v. Vadlamudi, 568 F.Supp.2d 778, 784
(E.D.Mich. 2008); accord, Parisi v. Arpaio, 2009 WL 4051077,
*3 (D.Ariz., Nov. 20, 2009) (“. . . [T]he Court finds that no
specific date would be required if Plaintiff is complaining about a
policy that would affect him on a daily basis; therefore, the Court
rejects Defendant’s argument that the grievance was outside
the time frame.”); Hudson v. Radtke, 2009 WL 1597259,
*4 (W.D.Wis., June 5, 2009) (holding grievance about confiscated books was timely where the books were still being withheld
at the time of the grievance); Jones v. Caruso, 2008 WL 4534085
at *7 (W.D.Mich., Sept. 2, 2008) (claim of ongoing exposure to
second-hand smoke was not limited by “date of incident” on
grievance; citing Ellis), report and recommendation adopted in
part, rejected in part on other grounds, 2008 WL 4534081
(W.D.Mich., Sept. 29, 2008); Rollins v. Magnusson, 2007 WL
2302141 at *5 (D.Me., Aug. 9, 2007) (declining to credit
dismissal as untimely, since the plaintiff was “clearly grieving
the continued confiscation of his legal material”) (emphasis
supplied); Holloway v. Correctional Medical Services, 2007 WL
1445701 at *5 (E.D.Mo., May 11, 2007) (holding grievance
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timely since plaintiff was grieving “the continual denial of
information and treatment” that “continued to occur” when he
filed his grievance and afterward); Abuhoran v. Morrison, 2005
WL 2140537 at *6 (E.D.Pa., Sept. 1, 2005) (noting that finding
of procedural default did not prevent plaintiffs from filing a new
grievance challenging ongoing policy “at any time”); see also
Richardson v. Raemisch, 2008 WL 5377872 at *4 (W.D.Wis.,
Dec. 23, 2008) (where prisoner’s previous grievances were
procedurally inadequate, those complaints did not necessarily bar
a new grievance about an ongoing problem); Wilkerson v.
Beitzel, 2005 WL 5280675 at *3 n.4 (D.Md., Nov. 10, 2005)
(holding plaintiff had exhausted, notwithstanding dismissal under
rule that any complaint concerning a prison policy must be raised
within 30 days of arrival at the prison, regardless of whether
complaint is ongoing; court says policy “borders on sophistry”),
aff’d, 184 Fed.Appx. 316 (4th Cir. 2006). Contra, Andrade v.
Maloney, 2006 WL 2381429 at *6 (D.Mass., Aug. 16, 2006).
D. Exhaustion is an Affirmative Defense, need not be Pled

Jones v. Bock, 549 U.S. 199, 212-16 (2007). If you can plead
that all available administrative remedies have been exhausted, doing
so may simplify the response to a motion to dismiss. If it’s not that
simple, leave it out of the complaint.
E. “Available” Remedies

The PLRA requires exhaustion of “available” administrative
remedies. Booth v. Churner, 532 U.S. 731, 736 (2001) (emphasis
supplied) (a remedy is presumptively available unless it “lacks
authority to provide any relief or to take any action whatsoever in
response to a complaint”; holding unavailability of damages did not
make remedy unavailable); Snider v. Melindez, 199 F.3d 108, 133
n.2 (2d Cir. 1999) (stating “the provision clearly does not require a
prisoner to exhaust administrative remedies that do not address the
subject matter of his complaint.”) That means you must find out up
front what those remedies are for your client’s claim.
1. Sometimes grievance systems exclude certain issues from
coverage and makes them “non-grievable.” See, e.g., Owens v.
Keeling, 461 F.3d 763, 769-70 (6th Cir. 2006) (noting
classification matters excluded from Tennessee grievance
system); Mojias v. Johnson, 351 F.3d 606, 608-10 (2d Cir. 2003)
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(reversing dismissal of assault claim for non-exhaustion in a
system that does not hear assault claims); Figel v. Bochard,
89 Fed.Appx. 970, 971, 2004 WL 326231 at *1 (6th Cir. 2004)
(unpublished) (noting that Michigan system makes non-grievable
issues that “involve a significant number of prisoners”).
2. Sometimes informal practices have the same effect as formal
exclusion. See, e.g., Wigfall v. Duval, 2006 WL 2381285 at *8
(D.Mass., Aug. 15, 2006) (citing evidence that use of force
claims were not treated as grievances); Scott v. Gardner, 287
F.Supp.2d 477, 491 (S.D.N.Y.2003) (holding that allegations that
grievance staff refused to process and file grievances about
occurrences at other prisons, claiming they were not grievable,
sufficiently alleged lack of an available remedy), on
reconsideration, 344 F.Supp.2d 421 (S.D.N.Y. 2004) and 2005
WL 984117 (S.D.N.Y., Apr. 28, 2005); Casanova v. Dubois,
2002 WL 1613715 at *6 (D.Mass., July 22, 2002) (finding that,
contrary to written policy, practice was “to treat complaints of
alleged civil rights abuses by staff as ‘not grievable’”), remanded
on other grounds, 304 F.3d 75 (1st Cir. 2002); Livingston v.
Piskor, 215 F.R.D. 84, 86-87 (W.D.N.Y. 2003) (holding that
evidence that grievance personnel refused to process grievances
where a disciplinary report had been filed covering the same
events created a factual issue precluding summary judgment); see
Marr v. Fields, 2008 WL 828788 at *6 (W.D.Mich., Mar. 27,
2008) (evidence that hearing officers interpreted grievance policy
broadly to exclude all grievances with any relationship to a
disciplinary charges could excuse failure to exhaust).
3. Sometimes there are multiple remedies with different coverage,
and the prisoner must use the correct one. See, e.g., Owens v.
Keeling, 461 F.3d 763, 769 (6th Cir. 2006) (holding prisoner who
filed classification appeal exhausted, notwithstanding failure to
complete inapplicable grievance procedure); Richardson v.
Spurlock, 260 F.3d 495, 499 (5th Cir. 2001) (holding that filing
an “administrative” appeal rather than the required “disciplinary”
appeal did not exhaust).
•

The remedies the PLRA requires are generally prison
grievance systems or other internal complaint or appeal
systems (e.g., disciplinary or classification appeal), see
Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998)
(“available” remedies under the PLRA refers to prison
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administrative remedy programs)—not state tort claim
notices, see Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999);
the U.S. Department of Justice disability complaint system,
see O’Guinn v. Lovelock Correctional Center, 502 F.3d
1056, 1062-63 (9th Cir. 2007); Veloz v. State of N.Y., 339
F.Supp.2d 505, 519 (S.D.N.Y., Sept. 30, 2004), aff’d, 178
Fed.Appx. 39 (2d Cir. 2006); contra, Burgess v. Garvin,
2003 WL 21983006 at *3 (S.D.N.Y., Aug. 19, 2003), on
reconsideration, 2004 WL 527053 (S.D.N.Y., March 16,
2004); impartial hearing requirement of the Individuals with
Disabilities in Education Act, see Handberry v. Thompson,
2003 WL 194205 at *11 (S.D.N.Y., Jan. 28, 2003) (“In
Porter [v. Nussle], the Court noted that Congress wished to
afford corrections officials the opportunity to address
complaints internally. . . . This observation is inconsistent
with a rule requiring exhaustion of a remedy which is outside
of the prison and which does not involve prison
authorities.”), aff’d in part, vacated in part, and remanded on
other grounds, 446 F.3d 335 (2d Cir. 2006); a state statutory
procedure for seeking a declaratory judgment from a state
agency, Aiello v. Litscher, 104 F.Supp.2d 1068, 1074
(W.D.Wis. 2000); or state medical malpractice administrative
procedures. McGraw v. Hornaday, 2007 WL 2694634 at *2
(S.D.Ind., Sept. 10, 2007).
•

Internal law enforcement-type remedies such as internal
affairs bureaus are generally not accepted as satisfying the
exhaustion requirement, see Panaro v. City of North Las
Vegas, 423 F.3d 949, 953 (9th Cir. 2005) (holding that
participation in an internal affairs investigation did not
exhaust because it did not provide a remedy for the prisoner,
even though the officer was disciplined); Freeman v. Francis,
196 F.3d 641, 644 (6th Cir. 1999) (holding that investigations
by prison Use of Force Committee and Ohio State Highway
Patrol did not substitute for grievance exhaustion even
though criminal charges were brought against the officer)—
unless prison officials instruct prisoners to use them, see
Ray v. Jones, 2007 WL 397084 at *2 (W.D.Okla., Feb. 1,
2007) (declining to dismiss for failing to grieve where
plaintiff was repeatedly advised that an internal affairs
investigation would substitute for the grievance process), and
sometimes not even then. See Amador v. Superintendents of
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Dep’t of Correctional Services, 2007 WL 4326747 at *7-8
(S.D.N.Y., Dec. 4, 2007) (dismissing sexual abuse claims of
prisoners who complained to Inspector General, as official
instructions said they could, rather than filing grievances),
appeal docketed, No. 08-2079-pr (argued June 15, 2009).
•

Exhaustion by informal means is probably a dead letter.
Compare Marvin v. Goord, 255 F.3d 40, 43 (2d Cir. 2001)
(holding a prisoner who succeeded in resolving his complaint
informally had exhausted, since the grievance policy says
that the formal process was intended to supplement, not
replace, informal methods) with Braham v. Clancy, 425 F.3d
177 (2d Cir. 2005) (holding prisoner who had obtained relief
he sought through required informal complaint should have
gone on to file a formal grievance because that process could
have effected policy changes, staff discipline, etc.); Ruggiero
v. County of Orange, 467 F.3d 170, 177 (2d Cir. 2006)
(prisoner who obtained transfer by complaining to
investigator did not exhaust; Marvin v. Goord “does not
imply that a prisoner has exhausted his administrative
remedies every time he receives his desired relief through
informal channels.”); see also Macias v. Zenk, 495 F.3d 37,
43-44 (2d Cir. 2007) (“after Woodford, notice alone is
insufficient” without compliance with “critical procedural
rules”). Most decisions hold that simply writing a letter to the
warden or other free-form complaint does not exhaust, see,
e.g., Yousef v. Reno, 254 F.3d 1214, 1221-22 (10th Cir.
2001) (holding that a letter to the Attorney General was
insufficient to exhaust as to actions that had been authorized
by the Attorney General, despite the government’s lack of
clarity as to what authority the administrative remedy
procedure might have over the Attorney General’s decisions);
Withrow v. Taylor, 2007 WL 3274858 at *6-7 (N.D.N.Y.,
Nov. 5, 2007) (letters are not grievances and do not exhaust).
Authority to the contrary, see, e.g., Camp v. Brennan, 219
F.3d 279 (3rd Cir. 2000) (holding that use of force allegation
that was investigated and rejected by Secretary of
Correction’s office need not be further exhausted), is
probably not reliable after Woodford v. Ngo, discussed
below. If anything survives of informal exhaustion, it is
probably outside the Second Circuit in cases where the
informal procedure is prescribed in the grievance policy. See,
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e.g., Barrett v. Maricopa County Sheriff’s Office, 2010 WL
46786, *4-5 (D.Ariz., Jan. 4, 2010) (prisoner who got his
medication, which was all he sought, through the pregrievance informal process had exhausted).
4. Remedies may be unavailable to a particular plaintiff because of
that plaintiff’s limited capacities, temporary or permanent. Days
v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003) (noting that “one’s
personal ability to access the grievance system could render the
system unavailable”; plaintiff could not write a grievance
because his hand was broken); Williams v. Hayman, 657
F.Supp.2d 488, 495-97 (D.N.J. 2008) (evidence of the deaf
plaintiff’s inability to communicate in writing or with his
counselor raised a factual issue concerning availability to him of
the grievance remedy); Johnson-Ester v. Elyea, 2009 WL
632250, *6-8 (N.D.Ill., Mar. 9, 2009) (where prisoner could not
write, ambulate, or make himself understood, and may have been
irrational or delusional at times, he was not capable of pursuing a
grievance; letters from his mother and lawyer about his condition
put officials on sufficient notice they should have assisted him in
filing a grievance; grievance system made no provision for
outside persons to use it); Whitington v. Sokol, 491 F.Supp.2d
1012, 1019 (D.Colo. 2007) (refusing to dismiss for nonexhaustion where plaintiff alleged he had no remedies because he
was mentally incapacitated and was transferred to a mental
institution shortly after the incident he sued about).
Counsel representing a plaintiff who has not exhausted for
such a reason should consider adding a claim under the
Americans with Disabilities Act and the Rehabilitation Act for
failure to accommodate the client’s disability, e.g., by refusing to
allow counsel to exhaust for the client out of time.
F.

“Proper” Exhaustion

1. Prisoners have to follow the rules of the grievance system. If they
didn’t use the right remedy, or if their grievances are rejected
for procedural noncompliance, including missing time limits,
their claims are procedurally defaulted. Woodford v. Ngo, 548
U.S. 81, 90-91 (2006) (holding the PLRA “demands compliance
with an agency’s deadlines and other critical procedural
rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its
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proceedings.”). The extent to which there can be exceptions to
this “proper exhaustion” rule is addressed in § H, below.
2. If prisoners’ grievances are addressed on the merits
notwithstanding procedural errors (including missing time
deadlines), then prison officials have waived the procedural
errors. Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir.
2010); Gates v. Cook, 376 F.3d 323, 331 n.6 (5th Cir. 2004);
Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004); Spruill v.
Gillis, 372 F.3d 218, 234 (3rd Cir. 2004); Ross v. County of
Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004); Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
3. YOU MUST FIND OUT ASAP what your client did to exhaust,
and what the result was. If your client did not exhaust, and do so
properly, you must either cure the deficiency before filing suit, or
have an argument for why the exhaustion requirement should not
be enforced.
4. Find out what the grievance or other relevant rules were, and just
as importantly, the information the client had about the operation
of the grievance system. Inmate handbooks, orientation presentations, or instructions by prison staff may not be consistent with
the formal regulation or policy directive.
5. There are several recurring situations in which prisoners have not
been held to a “proper exhaustion” standard, e.g.:
•

Prisoners’ claims cannot be dismissed for failure to comply
with rules that are not made available to them. See Jackson v.
Ivens, 2007 WL 2261552 at *4 (3d Cir. 2007) (unpublished)
(“We will not condition exhaustion on unwritten or ‘implied’
requirements.”); Goebert v. Lee County, 510 F.3d 1312 (11th
Cir. 2007) (refusing to dismiss for non-exhaustion where the
prisoner had failed to use an appeal procedure not disclosed
in any document available to prisoners).

•

Prisoners’ claims cannot be dismissed for non-exhaustion
where officials have failed to make clear which remedy is
applicable to their problem. Westefer v. Snyder, 422 F.3d
570, 580 (7th Cir. 2005) (refusing to dismiss for nonexhaustion where prison policies did not “clearly identif[y]”
the proper remedy and there was no “clear route” for
prisoners to challenge certain decisions); Giano v. Goord,
380 F.3d 670, 678-79 (2d Cir. 2004) (holding failure to
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exhaust properly was justified where distinction between
grievance and disciplinary appeal was not made clear).
•

Where the actual practice in grievance system diverges from
written rules, a prisoner who complies with the actual
practice exhausts. Curtis v. Timberlake, 436 F.3d 709, 712
(7th Cir. 2005).

•

Prisoners cannot be held responsible for anomalous situations
in which the prison rules give no direction how to proceed.
See Turner v. Burnside, 541 F.3d 1077, 1083-84 (11th Cir.
2008) (holding a prisoner whose grievance was torn up by
the warden was not required to file another one or grieve the
warden’s action; “[n]othing in [the rules] requires an inmate
to grieve a breakdown in the grievance process”); Dole v.
Chandler, 438 F.3d 804, 811-12 (7th Cir. 2006) (holding a
prisoner had exhausted when he did everything necessary to
exhaust but his grievance simply disappeared, and he
received no instructions as to what if anything to do about it);
Miller v. Berkebile, 2008 WL 635552, *7-9 (N.D.Tex.,
Mar. 10, 2008) (where official refused to process grievances
contrary to policy, prisoners were not required to take steps
not prescribed in the policy to get around him).

•

Prisoners’ claims cannot be dismissed where they have
reasonably relied on officials’ representations about how to
exhaust or whether an issue is grievable or appealable. See,
e.g., Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)
(where appeal was screened out with a form stating the
decision was not appealable, prisoner was not required to
appeal further); Brownell v. Krom, 446 F.3d 305, 312 (2d
Cir. 2006) (citing erroneous advice to abandon property loss
claim and file a grievance in finding special circumstances
excusing failure to exhaust correctly); Pavey v. Conley, 170
Fed.Appx. 4, 8-9, 2006 WL 509447 at *4-5 (7th Cir., Mar. 3,
2006) (unpublished) (stating that “inmates may rely on the
assurances of prison officials when they are led to believe
that satisfactory steps have been taken to exhaust
administrative remedies. . . . [P]rison officials will be bound
by their oral representations to inmates concerning compliance
with the grievance process”; plaintiff, who could not write,
could reasonably rely on assurances that his oral complaint
would be investigated); Brown v. Croak, 312 F.3d 109,
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112-13 (3d Cir. 2002) (holding that if security officials told
the plaintiff to wait for completion of an investigation before
grieving, and then never informed him of its completion, the
grievance system was unavailable to him); Miller v. Tanner,
196 F.3d 1190 (11th Cir. 1999) (holding that grievance
decision that stated it was non-appealable need not have been
appealed); Johnson v. Van Boening, 2008 WL 4162901 at *4
(W.D.Wash., Sept. 3, 2008) (plaintiff exhausted despite
failure to appeal to third and final level where decisions at
first two levels said complaint was non-grievable); Smith v.
Westchester County Dept. of Corrections, 2008 WL 361130
at *3 (S.D.N.Y., Feb. 7, 2008) (plaintiff reasonably believed
his claim was not grievable where a Sergeant told him so).
This rule will generally be restricted to cases of explicit staff
representations about the grievance system. See, e.g., Lyon v.
Vande Krol, 305 F.3d 806, 809 (8th Cir. 2002) (holding that
warden’s statement that a decision about religious matters
rested in the hands of “Jewish experts” did not excuse nonexhaustion, but was at most a prediction that the plaintiff
would lose; courts will not consider inmates’ subjective
beliefs in determining whether procedures are “available”);
Jackson v. District of Columbia, 254 F.3d 262, 269-70
(D.C.Cir. 2001) (holding that a plaintiff who complained to
three prison officials and was told by the warden to “file it in
the court” had not exhausted).
G. Curing Non-Exhaustion

1. This is not a high-percentage move but you should try it anyway
under some circumstances. Many prison grievance systems have
provisions for filing late grievances for good cause, mitigating
circumstances, etc. If your client’s grievance was dismissed for
untimeliness or for other procedural error, or if the client did not
grieve at all, and if the client has a plausible excuse, it may be
advantageous to advise your client to file a new grievance,
invoking the exception for good cause or mitigating circumstances and explaining what they were. Prisoners seem to have
great difficulty in understanding this notion and you should
probably help them formulate their argument. If the rules allow a
representative to file the grievance, do it for them. The grievance
will probably be rejected, but the more your client has done, the
better position you will be in to argue for some flexibility in
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application of the statute. In addition, it may help avoid a
Catch-22 in the law: some courts have held that a prisoner who
did not file a timely grievance, even for good reason, is obliged
to file an untimely one, even if it would seem that doing so would
be a nullity. Bryant v. Rich, 2007 WL 1558718 at *2 (11th Cir.,
May 31, 2007) (unpublished) (holding prisoner who said he
didn’t grieve for fear of assault should have exhausted after
transfer), superseded on other grounds, 530 F.3d 1368 (11th Cir.
2008), cert. denied, 129 S.Ct. 733 (2008); Mayhew v. Gardner,
2008 WL 4093130 at *4-5 (M.D.Tenn., Aug. 22, 2008); In re
Bayside Prison Litigation, 2008 WL 2387324 at *5 (D.N.J.,
May 19, 2008); Chavez v. Thorton, 2008 WL 2020319 at *4-5
(D.Colo., May 9, 2008).
2. Another approach to curing non-exhaustion, on the proper facts,
could be a state court challenge to the procedural rejection of a
grievance, whether it is a grievance already filed and completed
by the prisoner, or a new grievance filed and pursued at the
instance and with the assistance of counsel. Suppose a prisoner
missed the grievance deadline because he was out of the jail at a
hospital with no access to the grievance process; he did not file a
grievance on return because he understood (maybe from reading
Woodford v. Ngo) that it will be ineffective to exhaust. If counsel
instructs the prisoner to file a late grievance, explaining the
circumstances and the fact that his lawyer has advised him that
late exhaustion is appropriate under them, and the late grievance
is denied, can counsel then seek judicial review of the grievance
denial on state administrative law grounds? If a state court orders
that the grievance be heard, presumably the exhaustion
requirement will be satisfied. I am not aware of any instance in
which this has been tried.
H. When All else Fails: Excusing Non-Exhaustion

There is a large body of law about the circumstances under which
prisoners who have not exhausted may or may not be excused. There
are several ways of characterizing such excuses:
1. A nominally available remedy may not be available in fact
because of such circumstances as
•

threats and intimidation, see Turner v. Burnside, 541 F.3d
1077, 1084 (11th Cir. 2008) (“Remedies that rational inmates
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cannot be expected to use are not capable of accomplishing
their purposes, and so are not available”); Kaba v. Stepp, 458
F.3d 678, 684-86 (7th Cir. 2006); Hemphill v. New York, 380
F.3d 680, 688 (2d Cir. 2004);
•

prison rules that obstruct using the grievance system, see
Iseley v. Beard, 2009 WL 1675731, *6 (M.D.Pa., June 15,
2009) (remedy was unavailable where copies of documents
were required to appeal but there was no copier access in
Restricted Housing Unit; grievance authorities said this is
“not our problem”); Marr v. Jones, 2009 WL 160787 at 5-8
(W.D.Mich., Jan. 22, 2009) (placed in “modified grievance
status” and barred from filing grievance); Cordova v. Frank,
2007 WL 2188587 at *6 (W.D.Wis., July 26, 2007) (denial of
postage to indigent to mail a grievance appeal); Daker v.
Ferrero, 2004 WL 5459957 at *2-3 (N.D.Ga., Nov. 24, 2004)
(exclusion of prisoner in “sleeper” status, who remained
officially assigned to another prison, from use of grievance
system);

•

denial of necessary forms, Dale v. Lappin, 376 F.3d 652,
654-56 (7th Cir. 2004) (per curiam); Mitchell v. Horn, 318
F.3d 523, 529 (3d Cir. 2003); and

•

prisoners’ reliance on the representations of prison officials
as to the operation of the grievance system. Brown v. Croak,
312 F.3d 109, 112-13 (3d Cir. 2002); Miller v. Tanner, 196
F.3d 1190 (11th Cir. 1999).

2. There may be “special circumstances” under which it would be
unfair to dismiss a prisoner’s claim for failure to exhaust or to
exhaust properly. Brownell v. Krom, 446 F.3d 305, 311-13 (2d
Cir. 2006) (reliance on misinformation received from grievance
personnel); Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004)
(lack of clarity in rules leading prisoner to select the wrong
remedy). But see Dillon v. Rogers, 596 F.3d 260,270 (5th Cir.
2010) (rejecting special circumstances exception, holding disruption in a grievance system should be addressed as a matter of
availability of remedies).
3. Prison personnel may be estopped from raising the exhaustion
defense by their conduct, see Hemphill v. New York, 380 F.3d
680, 689 (2d Cir. 2004); Ziemba v. Wezner, 366 F.3d 161, 163-64
(2d Cir. 2003); or that of grievance personnel. See Cabrera v.
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LeVierge, 2008 WL 215720 at *6 (D.N.H., Jan. 24, 2008)
(“Defendants’ reliance upon undisclosed rules to reject plaintiff’s
grievance form necessarily estops them from relying upon
plaintiff’s failure to exhaust those remedies as a defense.”);
Warren v. Purcell, 2004 WL 1970642 at *6 (S.D.N.Y. Sept. 3,
2004) (holding “baffling” grievance response that left prisoner
with no clue what to do next estopped defendants from claiming
the defense). But see Dillon v. Rogers, 596 F.3d 260, 270 (5th
Cir. 2010) (holding estoppel can only arise from misconduct of
named defendants).
4. You need to find out why your client did not exhaust or did not
exhaust correctly in order to know whether this law is helpful or
whether there are facts you can prove that will make it helpful.
IV.

THE PHYSICAL INJURY REQUIREMENT

“No Federal civil action may be brought by a prisoner 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.”
42 U.S.C. § 1997e(e).
A. Limit on Damages, not “Actions”

Most circuits hold that this provision bars compensatory
damages, leaving nominal and punitive damages intact. Hutchins v.
McDaniels, 512 F.3d 193, 196-98 (5th Cir. 2007); Royal v. Kautzky,
375 F.3d 720, 723 (8th Cir. 2004); Oliver v. Keller, 289 F.3d 623,
629 (9th Cir. 2002);Thompson v. Carter, 284 F.3d 411, 418 (2d Cir.
2002) (citing cases). Two hold that punitives are also barred. Smith v.
Allen, 502 F.3d 1255, 1271-72 (11th Cir. 2007); Davis v. District of
Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998).
B. Intangible Constitutional Rights

1. Most courts assume that violation of intangible civil liberties is a
mental or emotional injury. Fegans v. Norris, 537 F.3d 897, 908
(8th Cir. 2008) (applying § 1997e(e) to deprivation of religious
diet); Mayfield v. Texas Dept. of Criminal Justice, 529 F.3d 599,
605-06 (5th Cir. 2008) (applying § 1997e(e) to claims of
restricted religious exercise); Geiger v. Jowers, 404 F.3d 371,
374 (5th Cir. 2005) (per curiam) (“To the extent Geiger seeks
compensation for injuries alleged to have resulted from a First
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Amendment violation [i.e., deprivation of magazines], the district
court properly determined that his claim is barred by the physical
injury requirement of § 1997e(e).”); Allah v. Al-Hafeez, 226 F.3d
247 (3d Cir. 2000) (assuming complaint about deprivation of
religious services must be mental or emotional). The contrary
argument, that liberty is not in one’s head, is little understood or
accepted. See Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir.
1999) (“A prisoner is entitled to judicial relief for a violation of
his First Amendment rights aside from any physical, mental, or
emotional injury he may have sustained.”); Shaheed-Muhammad
v. Dipaolo, 393 F.Supp.2d 80, 108 (D.Mass. 2005) (“the
violation of a constitutional right is an independent injury that is
immediately cognizable and outside the purview of § 1997e(e)”).
2. Some courts have said (with no basis in the statute) that First
Amendment claims are an exception. Canell v. Lightner, 143
F.3d 1210, 1213 (9th Cir.1998); Porter v. Caruso, 2008 WL
3978972 at *9 (W.D.Mich., Aug. 22, 2008); Eng v. Blood, 2008
WL 2788894 at *4 (N.D.N.Y., July 17, 2008).
3. Claims of this nature often result in awards of nominal damages
anyway—but they don’t have to, especially if you get them to a
jury. See, e.g., Sallier v. Brooks, 343 F.3d 868, 880 (6th Cir.
2003) (affirming jury award of $750 in compensatory damages
for each instance of unlawful opening of legal mail); Goff v.
Burton, 91 F.3d 1188, 1192 (8th Cir. 1996) (affirming $2250
award at $10 a day for lost privileges resulting from a retaliatory
transfer to a higher security prison); Lowrance v. Coughlin, 862
F.Supp. 1090, 1120 (S.D.N.Y. 1994) (awarding significant
damages for repeated retaliatory prison transfers, segregation,
cell searches).
C. Conditions of Confinement

Most courts assume that disgusting or extremely restrictive
conditions of confinement that don’t cause physical injury amount
only to mental or emotional injury. See, e.g., Harden-Bey v. Rutter,
524 F.3d 789, 795 (6th Cir. 2008) (barring damages for three years in
segregation); Harper v. Showers, 174 F.3d 716, 719-20 (5th Cir.
1999) (barring damage claims for placement in filthy cells formerly
occupied by psychiatric patients and exposure to deranged behavior
of those patients). The contrary argument, that the objective
difference between such conditions and constitutionally acceptable
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conditions is compensable independent of mental or emotional injury,
see Mitchell v. Horn, 318 F.3d 523, 534 (3d Cir. 2003) (stating that
requests for damages for loss of “status, custody level and any chance
at commutation” resulting from a disciplinary hearing were
“unrelated to mental injury” and “not affected by § 1997e(e)’s
requirements.”); Fields v. Ruiz, 2007 WL 1821469 at *7 (E.D.Cal.,
June 25, 2007) (holding prisoner alleging he was confined in a cell
with an overflowing toilet for 28 days was not “seeking
compensatory damages for mental or emotional injuries”; for Eighth
Amendment claims, “the issue is the nature of the deprivation, not the
injury”), report and recommendation adopted, 2007 WL 2688453
(E.D.Cal., Sept. 10, 2007), is little understood or accepted. See
Pearson v. Welborn, 471 F.3d 732, 744 45 (7th Cir. 2006) (stating
plaintiff sent to segregation for a year “fails to convincingly explain
how damages to compensate him for the difference in conditions
would be anything but recovery for ‘mental or emotional injury’ now
barred by the PLRA); Royal v. Kautzky, 375 F.3d 720, 724 (8th Cir.
2004) (similar to Pearson).
D. Plead it

If your case involves only intangible rights or non-injurious
conditions of confinement, you may as well tackle the issue head-on.
Do not plead mental anguish. Plead explicitly that you do not seek
compensatory damages for mental or emotional injury; you seek
compensation for loss of liberty or for the objective conditions to
which the plaintiff was subjected, plus punitive and nominal
damages. The court may still ignore the distinction, but you will have
given it your best. Here is what an ad damnum clause might look like
under this approach:
WHEREFORE, plaintiff requests that the court grant the
following relief:
A. Award compensatory damages against Hearing Officer
Smith, by reason of the denials of procedural due process set
out in ¶¶ ___, above, for:
1. The loss of privileges and quality of life attendant upon
plaintiff’s confinement for twelve months in the
restrictive conditions of the Special Housing Unit, and
the exclusion from normal prison activities and
privileges associated with that confinement, in that he
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was confined for 23 hours a day in a cell roughly 60 feet
square, and deprived of most of his personal property as
well as the ability to work, attend educational and
vocational programs, watch television, associate with
other prisoners, attend outdoor recreation in a congregate
setting with the ability to engage in sports and other
congregate recreational activities, attend meals with
other prisoners, and attend religious services.
2. The economic loss resulting from plaintiff’s exclusion
from paid employment in the prison during his Special
Housing Unit confinement.
Consistently with 42 U.S.C. § 1997e(e), the plaintiff
does not seek additional compensatory damages for
mental or emotional injury resulting from the above
described injuries.
B. Award punitive damages against Hearing Officer Smith for
his willful and/or reckless conduct in denying plaintiff the
due process of law at his disciplinary hearing.
C. Award nominal damages against Hearing Officer Smith for
his violation of the plaintiff’s constitutional right to the due
process of law.
E. Physical Injury

1. Physical injury is not defined in the statute, and the closest the
case law comes to a definition is “not de minimis”—which does
not explain what physical injury is. As a result, the line between
harm that satisfies the statute and harm that does not is quite
indefinite in cases that do not involve outright tissue damage.
Compare Munn v. Toney, 433 F.3d 1087, 1089 (8th Cir. 2006)
(holding claim of headaches, cramps, nosebleeds, and dizziness
resulting from deprivation of blood pressure medication “does
not fail . . . for lack of physical injury”); Bond v. Rhodes, 2006
WL 1617892 at *3 (W.D.Pa., June 8, 2006) (holding allegation of
serious diarrhea resulting from food tampering satisfied the
requirement at the pleading stage); Williams v. Humphreys, 2005
WL 4905109 at *7 (S.D.Ga., Sept. 13, 2005) (holding allegation
of 12 pounds weight loss, abdominal pain, and nausea resulting
from denial of pork substitute at meals sufficiently alleged
physical injury); Ziemba v. Armstrong, 2004 WL 78063 at *3
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(D.Conn., Jan. 14, 2004) (holding that allegation of withdrawal,
panic attacks, pain similar to a heart attack, difficulty breathing
and profuse sweating, resulting from withdrawal of psychiatric
medication, met the physical injury requirement) with Johnson v.
Rawers, 2008 WL 752586 at *5 (E.D.Cal., Mar. 19, 2008) (claim
that medications were administered in a crushed form, causing
plaintiff to feel depressed, anxious, nauseous, and paranoid, did
not satisfy the statute), report and recommendation adopted,
2008 WL 2219307 (E.D.Cal., May 27, 2008); Mitchell v. Valdez,
2007 WL 1228061 at *2 (N.D.Tex., Apr. 25, 2007) (holding
chronic headaches causing extreme pain do not meet physical
injury requirement); Watkins v. Trinity Service Group Inc., 2006
WL 3408176 at *4 (M.D.Fla., Nov. 27, 2006) (holding diarrhea,
vomiting, cramps, nausea, and headaches from food poisoning
were de minimis; noting a free person would not have to visit an
emergency room or go to a doctor because of them); Ghashiyah v.
Wisconsin Dept. of Corrections, 2006 WL 2845701 at *11
(E.D.Wis., Sept. 29, 2006) (holding 20-30 pound weight loss was
not a physical injury).
2. It is not even clear whether actions that approach or amount to
torture are compensable under § 1997e(e). As to stress positions,
see Jarriett v. Wilson, 2005 WL 3839415 (6th Cir., July 7, 2005),
in which a prisoner’s complaint that he was forced to stand in a
two-and-a-half-foot square cage for about 13 hours, naked for the
first eight to ten hours, unable to sit for more than 30 or
40 minutes of the total time, in acute pain, with clear, visible
swelling in a portion of his leg that had previously been injured
in a motorcycle accident, during which time he repeatedly asked
to see a doctor. Id. at *8 (dissenting opinion). The appeals court
affirmed the dismissal of his claim as de minimis on the ground
that the plaintiff did not complain about his leg upon release or
shortly thereafter when he saw medical staff. Id. at *4. (The
decision was initially published, but Westlaw has removed
the opinion from its original citation and replaced it with a note
stating that it was “erroneously published.” Jarriett v. Wilson,
414 F.3d 634 (6th Cir. 2005).) As to electric shock, see Payne v.
Parnell, 2007 WL 2537839 at *4 (5th Cir. 2007), in which the
court held that being jabbed with a cattle prod was not de
minimis, despite the lack of long-term damage, in part because it
was “calculated to produce real physical harm.” As to
waterboarding, I have fortunately seen nothing analogous.
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3. There’s a statutory approach that no one seems to have noticed
that resolves some of these definitional problems. The federal
criminal civil rights statute, 18 U.S.C. § 242, requires a showing
of “bodily injury” in order to support a sanction of more than one
year in prison. There’s no definition of bodily injury, but some
courts have borrowed a definition from other statutes using that
term: “(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain; (C) illness; (D) impairment of a function of a
bodily member, organ, or mental faculty; or (E) any other injury
to the body, no matter how temporary.” 18 U.S.C. §§ 831(f)(5),
inter alia. See U.S. v. Gonzales, 436 F.3d 560, 575 (5th Cir.
2006); U.S. v. Bailey, 405 F.3d 102, 111 (1st Cir.2005); U.S. v.
Myers, 972 F.2d 1566, 1572 (11th Cir.1992) (adopting quoted
standard in § 242 cases). I am not sure what meaningful
difference there could be between bodily and physical injury. If
this definition were applied to the PLRA physical injury
requirement, the terms “physical pain” and “illness” would
resolve numerous borderline cases.
V.

ATTORNEYS’ FEES RESTRICTIONS

A. Rates

1. The PLRA restricts fees to 150% of the Criminal Justice Act rate.
42 U.S.C. § 1997e(d)(3).
2. There is a conflict among circuits about what the CJA rate is for
this purpose. Compare Hadix v. Johnson, 398 F.3d 863 (6th Cir.
2005); Webb v. Ada County, 285 F.3d 829, 838-39 (9th Cir.
2002); Laube v. Allen, 506 F.Supp.2d 969, 987 (M.D.Ala.,
Aug. 31, 2007) (holding rate set by Judicial Conference pursuant
to its authority to calculate cost of living increases governs PLRA
fees) with Hernandez v. Kalinowski, 146 F.3d 196, 201 (3d Cir.
1998) (holding that a rate that was authorized but not
“implemented” because of budgetary constraints was not the
“established” rate); Jackson v. Austin, 267 F.Supp.2d 1059,
1064-65 (D.Kan. 2003) (assuming the lower funded rates apply).
3. The rate set by the Judicial Conference and applicable under
Hadix, Webb, etc., is not published, and counsel must generally
contact the Administrative Office of the Courts to find it out.
(The 2010 CJA rate is $139 an hour.) See Graves v. Arpaio, 633
F.Supp.2d 834, 854 (D.Ariz. 2009) (holding CJA rate was $118,
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yielding a PLRA rate of $177, during relevant time period). This
information is, amazingly, not documented in a publicly available
source.
B. Applicability

1. The restrictions apply to fees sought under 42 U.S.C. § 1988,
which governs fees in cases under 42 U.S.C. §§ 1981, 1981a,
1982, 1983, 1985, 1986, or 13981, title IX of Public Law 92-318
[20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration
Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land
Use and Institutionalized Persons Act of 2000 [42 U.S.C.A.
§ 2000cc et seq.], or title VI of the Civil Rights Act of 1964 [42
U.S.C.A. § 2000d et seq.].
2. They do not apply to fees sought against federal defendants under
the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), or
under the federal disability statutes, which have their own
attorneys’ fees provisions. 42 U.S.C. § 12205 (ADA); 29 U.S.C.
§ 794 (Rehabilitation Act).
C. Fees’ Relation to Merits and Results

Fees must be “directly and reasonably incurred in proving an
actual violation of the plaintiff’s rights” to be awarded under the
PLRA, 42 U.S.C. § 1997e(d)(1)(A), and must be “proportionately
related to the court ordered relief for the violation.” 42 U.S.C.
§ 1997e(d)(1)(B)(i)
1. These provisions call into question the ability to recover fees in
cases that are settled, especially where the settlement is not in the
form of a judgment enforceable in federal court. They place a
premium on settling fees concurrently with the merits. (The
relative dearth of PLRA attorneys’ fees litigation suggests that
most practitioners have figured this out.)
2. Some courts have held that settled injunctive cases may support
fee awards where there are findings or a record showing that
there was a violation of rights, even if not adjudicated. See Laube
v. Allen, 506 F.Supp.2d 969, 979-80 (M.D.Ala., Aug. 31, 2007)
(holding that fees may be awarded for injunctive settlements to
the extent they satisfy the PLRA’s “need-narrownessintrusiveness” requirement and the fees were “directly and
reasonably incurred” in obtaining it); Watts v. Director of
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Corrections, 2007 WL 1100611 at *3 (E.D.Cal., Apr. 11, 2007)
(awarding fees for “proving an actual violation” notwithstanding
that case was settled), amended on reconsideration on other
grounds, 2007 WL 1752519 (E.D.Cal., June 15, 2007); Lozeau v.
Lake County, Mont., 98 F.Supp.2d 1157, 1168 n.1 and 1170
(D.Mont. 2000) (“Defendants cannot settle a case, promise
reform or continued compliance, admit the previous existence of
illegal conditions, admit that Plaintiffs’ legal action actually
brought the illegal conditions to the attention of those in a
position to change them and subsequently allege a failure of
proof.”); Ilick v. Miller, 68 F.Supp.2d 1169, 1173 n. 1 (D.Nev.
1999). This proposition has not been tested in damage litigation
to my knowledge.
D. Fees’ Relation to Damages

1. In cases where only damages are recovered, fees are limited to
150% of the damage recovery, 42 U.S.C. § 1997e(d)(2), resulting
in awards of $1.50 where the trier of fact awards only nominal
damages. Keup v. Hopkins, 596 F.3d 899, 905-06 (8th Cir.
2010); Pearson v. Welborn, 471 F.3d 732, 742-43 (7th Cir.
2006); Boivin v. Black, 225 F.3d 36 (1st Cir. 2000).
2. Up to 25% of money judgments must be used to satisfy attorneys’
fees claims. 42 U.S.C. § 1997e(d)(2). Courts have disagreed
whether the statutory language “not to exceed” 25% means that the
court must apply 25%, see Keller v. County of Bucks, 2005 WL
1595748 at *1 (E.D.Pa., July 5, 2005); Jackson v. Austin, 267
F.Supp.2d 1059, 1071 (D.Kan. 2003), or has discretion to apply a
lesser percentage. See Parker v. Conway, 581 F.3d 198, 205 (3d
Cir. 2009) (following Boesing, affirming application of 18% of
judgment to fees); Boesing v. Spiess, 540 F.3d 886, 892 (8th Cir.
2008) (affirming district court’s application of 1% of $25,000
recovery); Siggers El v. Barlow, 433 F.Supp.2d 811, 822-23
(E.D.Mich. 2006) (applying $1.00 of the recovery to attorneys’
fees, noting that the jury found that defendants had lied about their
conduct and awarded significant damages as punishment and
deterrent); Farella v. Hockaday, 304 F.Supp.2d 1076, 1081
(C.D.Ill. 2004) (“The section’s plain language sets forth 25% as
the maximum, not the mandatory amount.”); see also Kahle v.
Leonard, 563 F.3d 736, 743 (8th Cir. 2009) (in determining
percentage, court “should consider: (1) the degree of the opposing
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parties’ culpability or bad faith, (2) the ability of the opposing
parties to satisfy an award of attorneys’ fees, (3) whether an award
of attorneys’ fees against the opposing parties could deter other
persons acting under similar circumstances, and (4) the relative
merits of the parties’ positions,” inter alia).
F.

Fee Agreements

The statute does not preclude agreements to pay higher fees than
the statute provides. 42 U.S.C. § 1997e(d)(4).
VI.

FILING FEES

A. Prisoners must Pay even under the in Forma Pauperis
Provisions

1. Ordinarily, they pay from their prison accounts by installments.
28 U.S.C. § 1915(b).
2. Why bother with in forma pauperis status? Unless it is significant
to have the client pay directly, the only reasons I can see (28 U.S.C.
§ 1915(c, d)) are:
•

The U.S. Marshals will serve process for free (often late and
sometimes incorrectly)

•

There are savings in preparing the appellate record if
necessary.

3. Prisoners with “three strikes” (three prior dismissals as frivolous,
malicious, not stating a claim, or seeking damages from an
immune defendant) generally cannot use the in forma pauperis
provisions, 28 U.S.C. § 1915(g), so if the client or family can’t
pay the fee up front, counsel will have to advance it.
B. Fees and Joinder in Multi-Plaintiff Cases

Some courts have held that the logic of the filing fees provisions
means either that multiple plaintiffs must each pay the entire filing
fee, or even that prisoners cannot file multi-plaintiff complaints
notwithstanding the joinder rules. Compare Hubbard v. Haley, 262
F.3d 1194, 1197 (11th Cir. 2001) (holding multi-plaintiff complaints
barred) with Hagan v. Rogers, 570 F.3d 146, 154-56 (3d Cir. 2009);
Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004) (both
holding PLRA does not alter joinder rules but each plaintiff must pay
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a separate fee) and In re Prison Litigation Reform Act, 105 F.3d
1131, 1137-38 (6th Cir.1997) (single filing fee should be divided
among multiple plaintiffs).
1. This discussion takes place in pro se cases, and much of it is
directly related to the problems of managing such litigation.
2. If there is no definitive authority to the contrary in your
jurisdiction, and counsel submits the complaint with a check for
one filing fee, it will probably be accepted and the issue may
never come up.

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NOTES

319

NOTES

320