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Appendix C: Significant Decisions Under 802 and 803(d) ( 7(d) and (e)) of the Prison Litigation Reform Act*

Table of Contents

Automatic Stay
Termination
Attorneys' Fees
 Retroactivity
 Application to Juvenile Plaintiffs
Special Masters
Prisoner Release Orders
Exhaustion
Mental or Emotional Injury Without Physical Injury
In Forma Pauperis Provisions
 Additional Decisions on In Forma Pauperis Provisions

Automatic Stay -- Prison Litigation Reform Act (PLRA) 802(a) (amending 18 U.S.C. 3626(e)(2)).

United States v. Michigan, No. 1:84 CV 63, Opinion (W.D. Mich. July 3, 1996) (stay denied by 6th Cir., Sept. 17, 1996): Judge Enslen found the provision violative of separation of powers and due process.

Hadix v. Johnson, 933 F. Supp. 1362 (W.D. Mich. July 3, 1996) (stay denied by 6th Cir., Sept. 19, 1996): Judge Enslen found the provision violative of separation of powers and due process.

Hadix v. Johnson, 933 F. Supp. 1360 (E.D. Mich. July 5, 1996): Judge Feikens declared the provision unconstitutional, adopting Judge Enslen's reasoning.

Carty v. Farrelly, No. 94-78, Order (D.V.I., July 17, 1996): Judge Brotman granted plaintiffs' motion for a stay of the provision. His Order contained no analysis.

Gavin v. Ray, No. 4-78-70062, Ruling and Order Staying Automatic Stay Provision (S.D. Iowa Aug. 9, 1996): Judge Vietor declined to give effect to the automatic stay provision. The Order did not set forth any reasons, but, at the hearing on the motion, Judge Vietor stated that the provision is "very likely unconstitutional" and that Judge Enslen's decision in United States v. Michigan/Hadix v. Johnson is "well-reasoned."

Ruiz v. Scott, Civ. Action No. H-78-987 (S.D. Tex. Sept. 25, 1996): Judge Justice found the PLRA's 30-day and 180-day automatic stay provisions unconstitutional. (He addressed both provisions because the defendants have filed two termination motions -- one under the PLRA and the other under Dowell/Freeman.) He reasoned as follows:

It is impossible for the Court to resolve defendants' motions within the 30-day period specified in 18 U.S.C. sec. 3626(e)(2)(A)(I), or the 180-day period in subsection (A)(ii). The Court believes that the status quo should be preserved pending the resolution of defendants' motions, and finds that the PLRA "automatic stay" provisions violate the Separation of Powers and due process of law, substantially for the reasons discussed in Hadix and Gavin.

McClendon v. Albuquerque, Civ. No. 95-24 MV/RLP, Memorandum Opinion and Order (D.N.M. Oct. 29, 1996): Judge Vasquez found that the automatic stay provision violates the separation of powers because it encroaches upon the uniquely judicial act of deciding to terminate relief. His reasoning drew extensively on Judge Enslen's decision in Hadix and turned in part on the finding that the parties were not (and could not have been) prepared to make the requisite evidentiary presentation within the 30-day period. Although not at issue in the order, the court stated in dicta that it "agrees that the immediate termination provision of the Act is unconstitutional as applied to final judgments." Id. at 7.

Inmates at the Indiana State Farm v. Bayh, Cause No. IP 82-0477-C M/S (S.D. Ind. Nov. 20, 1996): The defendants moved for termination of a consent decree pursuant to the PLRA. Two days before the 30-day automatic stay was to take effect, the plaintiffs moved for a preliminary injunction of the stay provision. Approximately 1 week later, Judge Larry McKinney denied the plaintiffs' motion, stating that the stay had already gone into effect under the statute "by operation of law" and that the motion is therefore moot.

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Termination -- PLRA 802(a) (amending 18 U.S.C. 3626(b)(2) and (b)(3)).

Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996) (reh'g denied Jan. 10, 1997, application for stay pending petition for cert. filed Jan. 17, 1997): In a unanimous opinion (Judges Wilkins, Williams, and Motz), the court upheld the district court's termination of a consent decree under 3626(b)(2). The court ruled that interpreting "Federal right" to include rights created in a consent decree would be "nonsensical"; that the holding of Plaut v. Spendthrift Farm Inc., 115 S. Ct. 1447 (1995), is limited to retrospective relief and that the holdings of State of Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855) (hereinafter Wheeling Bridge), System Fed'n No. 91 v. Wright, 364 U.S. 642 (1961), and Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), authorize the legislative termination of prospective relief; that the provision does not run afoul of United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), because Congress has amended the underlying law (which is not the Eighth Amendment, but the authority of the courts to award relief greater than that required by Federal law) and because the provision provides a standard to which district courts must adhere (the Constitution sets the ceiling) but does not dictate the result that they must reach; that the provision does not burden the fundamental right of access to courts because it impairs neither the rights to bring a claim nor to enforce the relief that is obtained (rather, it just limits the relief to which one is entitled); that the provision rationally serves the legitimate purpose of preserving State sovereignty by protecting States from overzealous supervision by the Federal courts in the area of prison conditions litigation (a point that the inmates conceded); that the provision does not violate the due process "vested rights doctrine" because the plaintiffs have no property interest in the rights conferred by the consent decree; and that the test required of "retroactive" application of statutes need not be met because this is not a retroactive application.

Gates v. Gomez, Civ. No. S-87-1636 LKK (E.D. Cal. July 23, 1996): The defendants moved under 3626(b)(2) to terminate an order issued by Judge Karlton on April 9, 1996. That order found that defendants were not in compliance with the consent decree in the case and ordered defendants to take necessary action to remain in compliance. Judge Karlton denied the defendants' motion to terminate the April 9th order, finding that the order was necessary to "correct the violation of [a] Federal right," namely, the violation of the consent decree. That is, a final judgment of a Federal court, valid at the time of entry, creates rights that can fairly be characterized as a "Federal right." Id. at 5.

The court also found that the defendants had waived their right -- a right that was existent at the time the decree was entered, and one that they retain under the PLRA -- to have plaintiffs' relief limited to statutory or constitutional minima. Id. at 7. This finding relied in part on the fact that the decree at issue states that "the parties agree that in entering into this consent decree they waive specific findings of fact and conclusions of law and any determination whether the remedies provided are legally required." However, the court's reasoning seems applicable to decrees that do not include such a provision because such "waiver" is implicit in a consent decree.

The court stated that its rulings were based on its duty to construe statutes to avoid constitutional questions. The court also stated that "to the extent that the PLRA appears to constrain the ability of a state to settle its litigation on terms satisfactory to itself, the statute raises questions under the Tenth Amendment." Id. at 9 n.11 (citing United States v. Bekins, 304 U.S. 27, 52 (1937) ("It is of the essence of sovereignty to be able to make contracts and give consents bearing upon the exertion of governmental power")).

Benjamin v. Jacobson, 935 F. Supp. 332 (S.D.N.Y. July 23, 1996) (stayed by 2d Cir., Aug. 27, 1996): Judge Baer upheld 3626(b)(2), terminating consent decrees in 7 different cases involving Rikers Island and 16 other jails in New York City. He rejected the Rules Enabling Act argument, finding that the termination provision is not in direct conflict with Federal Rule of Civil Procedure 60(b).

Separation of Powers: He rejected the finality argument, finding that the holding of Plaut does not apply to injunctions, pursuant to the holding of Wheeling Bridge. He rejected the United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), argument, finding that the PLRA does not dictate certain findings or results under old law, but changes the law governing the district court's remedial powers. He found that the termination provision does not prevent the Federal courts from imposing effective relief for constitutional claims, although it does create "cramped . . . new legal standards."

Equal Protection: He found that the statute is subject to "rational basis" scrutiny because it does not "implicate [prisoners' fundamental right of court access, which is limited under Lewis v. Casey, 116 S. Ct. 2174 (1996), to a] right of initial access to commence a lawsuit." The termination provision survives this scrutiny because it serves the legitimate interests of (1) "ensur[ing] that federal courts return control over prison management to democratically accountable state and local governments as soon as federal court supervision became unnecessary to remedy a . . . constitutional violation;" and (2) "creat[ing] a uniform national standard for consent and litigated judgments based on a belief that consent judgments, even though agreed to initially, imposed severe burdens on states and local governments and that these burdens exceeded what was constitutionally required." With respect to singling out prison conditions litigation, he ruled that "Congress may determine that the problems of prison conditions consent decrees involve unique issues that are more pressing and in need of reform."

Due Process: He found that the analysis under the "vested rights" doctrine is parallel to that under Plaut/Wheeling Bridge. Moreover, although consent decrees are contracts, the impairment of such contracts is subject to the rational basis review that is applied to congressional impairment of private contracts.

Judge Baer found that he lacked a record on which to make the findings that would be necessary to allow the relief to remain in effect under 18 U.S.C. 3626(b)(3), and that the statute directed the immediate termination of an injunction in such circumstances. He denied the plaintiffs' request to postpone a decision on this motion pending an opportunity to create a factual record necessary to make such findings.

United States v. Michigan, No. 1:84 CV 63 (W.D. Mich. Sept. 12, 1996): In response to the defendants' motion for termination, the United States asked for an evidentiary hearing under 3626(b)(3) (they did not argue that the termination provision is unconstitutional). In order to prepare for the hearing, the United States sought to tour the defendants' facilities but the defendants denied the request. Judge Enslen granted the plaintiffs' motion to conduct tours, reasoning that the court "intends to conduct fact-finding proceedings as necessary to rule on the motion to terminate the consent decree" and the "record at this time is not sufficient as to current conditions to allow the Court to make findings as to how the PLRA applies to the various issues, and evidence produced by the parties will assist the Court in making its determination." The decision lends support to the position that plaintiffs are entitled to a (b)(3) hearing before relief is terminated.

Gavin v. Ray, Civ. No. 4-78-CV-0062, Order Denying Motion for Immediate Termination (S.D. Iowa Sept. 18, 1996): Judge Vietor declared the PLRA's immediate termination provisions unconstitutional under the principle of the separation of powers. He found that the holding of Wheeling Bridge is limited to public rights, and that the holding of Plaut extends to cases involving injunctive relief for constitutional claims. He also found as follows:

Further, the PLRA undermines the court's power to decide when prospective relief should end. The federal judiciary is vested with the "power, not merely to rule on cases, but to decide them . . ." Plaut, 115 S. Ct. at 1453. Under the PLRA, however, in order to prevent immediate termination of the decree, plaintiffs must show a current or ongoing violation of a federal right. 18 U.S.C. 3626(b)(3). As long as defendants comply with the consent decree, plaintiffs cannot prove a current or ongoing violation of a Federal right. In these types of cases, there is no opportunity for the court to "decide" whether prospective relief should remain in effect.

He declined to reach the other constitutional arguments raised by the plaintiffs -- equal protection and due process. He rejected the Rules Enabling Act argument.

McClendon v. Albuquerque, Civ. No. 95-24 MV/RLP, Memorandum Opinion and Order (D.N.M. Oct. 29, 1996): In ruling on the constitutionality of the automatic stay provision, Judge Vasquez stated that "the court agrees that the immediate termination provision of the Act is unconstitutional as applied to final judgments [but] the parties disagree and the Court questions [, but does not here decide,] whether [one of the four orders sought to be terminated] constitute a final judgment." Id. at 7. Although the order states that the termination motion remains to be decided by the court, this sentence appears to be a ruling (or at least a tentative ruling) on the termination question with respect to the other three orders.

Hadix v. Johnson, 947 F. Supp. 1100 (E.D. Mich. Nov. 1, 1996): Judge Feikens ruled that 3626(b)(2) and (b)(3) violate the principle of separation of powers because they run afoul of Plaut and because they abrogate a court's power to enforce its orders, one of the most vital constitutional powers of the judiciary. This power is not one that is subject to congressional override because it derives from the Constitution, as interpreted by the Supreme Court in the line of cases from Dowell to Rufo. Judge Feikens makes the following notable point:

The Act's use of the term "prospective relief" masks the real issue . . . : can injunctive relief based on past negotiations, costs assessments, and compromises between parties be overturned by an act of Congress?

I conclude that it is not prospective relief that is being altered, but the consent judgment itself.

Id. at 1109. Judge Feikens did not reach the plaintiffs' other arguments, such as equal protection and due process.

Bobby M. v. Chiles, No. 83-7003 MMP (N.D. Fla. Nov. 6, 1996): Judge Maurice Paul terminated the remaining portions of a consent decree pursuant to the PLRA. The plaintiffs did not argue that the termination provisions are unconstitutional; rather, they asked the court to make the findings necessary to allow the relief to remain in effect under 3626(b)(3). The court declined to do so, reasoning that even if current conditions are unconstitutional, the defendants have adopted renovation and construction plans to remedy the problem areas. Thus, continuation of the consent decree is not a necessary means of correcting the violations.

Hadix v. Johnson, No. 4:92:CV:110 (W.D. Mich. Nov. 18, 1996): Judge Enslen expressed the view that the termination provisions of the PLRA require a court to alter a final judgment pursuant to new standards and thereby "impermissibly invade[] upon the province of the judiciary." Id. at 7. However, he acknowledged that reasonable minds can differ on this question and he reserved ruling on the motion until the Sixth Circuit issues a decision on the appeal of his ruling that the stay provision is unconstitutional. He did, however, proceed to address the two other constitutional arguments made by the plaintiffs against the termination provisions. First, he held that the termination provisions do not obstruct a court's ability to effectively remedy violations of constitutional rights. Id. at 9-10. Second, he held that the provisions do not run afoul of United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), because, unlike the stay provision (in which "Congress automatically grants movants relief with no provision for a case-by-case analysis"), the termination provisions "simply change . . . the standard that courts are to apply in a particular type of case. The ultimate decision is left to the courts after a determination of the specific facts of the case." Id. at 10.

Inmates at the Indiana State Farm v. Bayh, Cause No. IP 82-0477-C M/S (S.D. Ind. Nov. 20, 1996): In addressing the defendants' motion to terminate a consent decree, Judge Larry McKinney found that the present record did not provide sufficient evidence to allow him to make the findings that permit continuation of the decree under 3626(b)(3). He then gave the parties the following obtuse directions:

Assuming that it was not Congress' intent to destroy valid consent decrees based on settlements that were freely reached by both sides after years of litigation, the Court now orders both sides of this controversy to do one of three things. First, they may request a hearing at which both sides will present evidence that would enable the Court to have a basis to find that the original agreed entry met the requirements of the PLRA . . . . Second, they could request a hearing at which each side would present evidence and defend a proposed modification of the original consent decree. If either of these first two alternatives is employed, the parties are cautioned that the Court would expect to be presented with evidence with which to make written findings that the relief remains necessary to correct a current or ongoing violation of a Federal right, that it is narrowly drawn and the least intrusive means of correcting the violation. If neither of these alternatives is acceptable, the Court will have no choice but to find that non-constitutional grounds do not exist for deciding the dispute, and will turn to the constitutional issues raised by the Inmates.

Order at 12-13 (citation and paragraph breaks omitted). To muddle matters further, the court added the following footnote (without any citations to the legislative history or to anything else):

The Court acknowledges the logic of the Inmates' argument that for the PLRA to require a finding that the defendant has actually violated the prisoners' Federal rights it would have to have a full-blown trial. It would be highly unlikely that a defendant would stipulate to that fact during a settlement. Moreover, conducting a trial to determine the existence of a violation would defeat the purpose of a settlement. Apparently, something less than a full adversarial hearing was contemplated by Congress. All that is needed, in fact, is a finding that the remedy sought would be aimed at correcting a violation.

Order at 12 n.3.

Hazen v. Reagan, No. 4-75-CV-80201, and Dee v. Brewer, No. 4-77-CV-80102 (S.D. Iowa Nov. 29, 1996): Judge Charles R. Wolle denied the defendants' motion to terminate consent decrees in two cases pursuant to the PLRA, stating as follows:

I have compared the issues, the briefs, and the theories presented here and in Gavin. The arguments presented by counsel are essentially the same. Judge Vietor's reasoning is sound. Judges of this court have usually followed decisions of other district judges in cases with facts and applicable law that are not readily distinguishable.

For the reasons set forth by Honorable Harold D. Vietor in Gavin v. Ray, Civil No. 4-78-CV-70062 (S.D. Iowa Sept. 18, 1996), the court denies the defendants' motion for termination of relief in these two cases.

Inmates of the Suffolk County Jail v. Sheriff of Suffolk County, No. 71-162-REK, 1997 WL 2474, Order (D. Mass. Jan. 2, 1997): In ruling on the defendants' motion to terminate a consent decree pursuant to the PLRA, Judge Keeton elected to avoid a constitutional question by interpreting the termination provision to call for the termination of "the threat of specific enforcement of orders to comply, backed up by the contempt power of the court for noncompliance," but not to call for termination of the "judgment" or "the adjudication of defendants' obligation to comply with their agreement." Id. at 29. In another portion of his order, he explains this distinction as one between remedial provisions on the one hand and "an adjudication of a breach of some legally recognized duty or violation of some legally protected right, or a consent or agreement in lieu of litigating all the way to an adjudication," on the other. Id. at 19. As an alternative ground of decision, should his interpretation of the statute be rejected on appeal, he ruled that the termination provision "offends the principle of separation of powers to the extent that it is interpreted as having retroactive effect to reopen consent decrees entered before its enactment." Id. at 30.

James v. Lash, Nos. S 73-5 AS, 3687, 1996 WL 738957, 1996 U.S. Dist. LEXIS 19081 (N.D. Ind. Dec. 13, 1996): Judge Sharp terminated a consent decree entered in 1982, finding that the record did not demonstrate a current or ongoing violation of a Federal right. The plaintiffs argued that the defendants' desire to terminate the consent decree demonstrates that "they no longer want to comply with its terms," such that relief is rendered "necessary" under 3626(b)(3). The court found "an unsupported assertion that the defendants might alter the status quo to the extent a violation occurs . . . to be too speculative to satisfy 3626(b)(3)." "At most, the statute could be interpreted as allowing for a finding that there is a substantial and very real danger that a violation of rights will follow the termination of a consent judgment." Because that was not shown here, termination was appropriate. The court acknowledged that the courts are split on the question of the constitutionality of the termination provision, but the court declined to reach this question because the plaintiffs did not raise it. Id. at *2-3.

Watson v. Ray, No. 4-78-CV-80106 (S.D. Iowa Feb. 10, 1997): Judge Wolle denied the defendants' motion to terminate a decree that was entered in 1981. The decree had been entered with the consent of the parties after the court had made a finding of a constitutional violation. Judge Wolle reasoned as follows:

I have studied other decisions on the constitutionality of section 3626(e) [sic] of the PLRA. I find the reasoning in the decision filed by Judge Vietor [in Gavin v. Ray, supra], and the decisions on which Judge Vietor relied, to be more persuasive than the reasoning in cases upholding the constitutionality of that PLRA provision. In particular, I am not persuaded by Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996).

Judge Wolle previously weighed in on this issue in Hazen v. Reagen and Dee v. Brewer.

Johnson v. Robinson, Civ. Action Nos. WMN 77-113, 78-1730, and 77-116, Memorandum (D. Md. Feb. 26, 1997): Judge William M. Nickerson terminated various consent agreements that were entered into between 1983 and 1988 governing conditions of confinement at the Maryland House of Correction in Jessup, the Maryland Correctional Institute at Hagerstown, and the Maryland Penitentiary in Baltimore. Because the case is in the Fourth Circuit, the court's hands were somewhat tied by the decision in Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996). The court rejected the two arguments raised by plaintiffs that were not directly addressed in Plyler, namely, that the termination provision violates the 10th amendment and that the provision strips the Federal courts of the power to impose effective remedial measures for constitutional violations.

Shortly after the defendants filed their termination motion, the plaintiffs had filed a motion requesting a hearing pursuant to 18 U.S.C. 3626(b)(3) to allow them to demonstrate current and ongoing constitutional violations at the facilities. (This had not occurred in Plyler.) The court declined to rule on whether "an evidentiary hearing is ever permitted or required in response to a 3626(b)(2) motion to terminate" (id. at 7), but found that such a hearing was not called for because (1) even if they rise to the level of constitutional violations, the incidents described in the expert reports filed by plaintiffs in support of their motion do not warrant the broad, systemwide prospective relief required under the stipulated agreements and should be addressed with suits for individual relief instead; (2) plaintiffs' counsel have had liberal access to the institutions since the entry of the stipulated agreements, but the constitutional violations of which they now complain have not previously been brought to the court's attention; and (3) the plaintiffs' request that the court delay ruling on the termination motion to give them an opportunity to develop a record of current conditions is inconsistent with the PLRA's "clear message that Courts are to determine as expeditiously as possible whether a consent decree must be terminated." Id. at 6-9.

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Attorneys' Fees -- PLRA 803, subsec. (d) (amending 42 U.S.C. 1997 (e)).

Retroactivity

Jensen v. Clarke, 94 F.3d 1191 (8th Cir. Sept. 5, 1996): The Eighth Circuit ruled that the fee provisions do not apply retroactively "in this case" because "[t]he Act was not in effect when the plaintiffs' attorneys accepted this appointment, when liability and fee determinations were made, or even when we [previously] remanded this case." The court found that a contrary ruling would unsettle reasonable expectation and reliance. Id. at *31-34. The opinion does not specify whether the work at issue was performed before or after passage. (The plaintiffs' attorney stated that all of the work at issue in the fee award was done before the PLRA's passage.)

Cooper v. Casey, USCA No. 95-2324 and 95-3529, 1996 U.S. App. LEXIS 26009 (7th Cir. Oct. 2, 1996): Judge Posner held that the PLRA's attorney fee provisions are inapplicable to work performed before the Act's passage. A contrary ruling would attach new consequences to completed conduct without clear indication of congressional intent to do so. Id. at *21. The plaintiffs had prevailed in the case before the PLRA's passage, although the court did not mention this in discussing the question of retroactivity.

Bowers v. Boyd, Civ. Action No. 3:90-3062-17, Order Awarding Attorneys' Fees (D.S.C. May 29, 1996): Judge Anderson found that the fee provisions are inapplicable to work performed before passage of the Act. The court reasoned that the amendments in section 802 specify their application to previously granted relief, while the amendments regarding fees are in a section that does not contain such a provision. Furthermore, the language of the fee provisions themselves "would seem ineffective to modify a rate to be paid for work already completed." Id. at 2 and n.1. The decision does not address the question of the applicability of the provisions to work performed after passage. Although not explicitly mentioned in the order, it is apparent that the plaintiffs prevailed before the PLRA's passage.

Hadix v. Johnson, Civ. Action No. 80-73581, Opinion and Order Regarding Plaintiffs' Motion for Attorney Fees (E.D. Mich. May 30, 1996): Judge Feikens ruled that the fee provisions are inapplicable to work performed before passage of the Act. The court found that congressional intent was unclear, but that application of the provisions to work done before passage would disrupt the established expectations of the parties. Id. at 3. The decision does not address the question of the applicability of the provisions to work performed after passage. The plaintiffs prevailed in the case many years ago, and the matter has been in a monitoring phase since that time.

Weaver v. Clarke, 1996 U.S. Dist. LEXIS 9682 (D. Neb. June 18, 1996): The court found at a preliminary injunction hearing that the plaintiff was likely to succeed on the merits but denied the request for a preliminary injunction because of the lack of irreparable injury. Thereafter, the defendants "voluntarily" ceased the practice that plaintiff was challenging and then successfully moved for summary judgment. The plaintiffs then filed for attorneys' fees. The defendants argued that the PLRA's requirement that fees can only be awarded to the extent that they are "directly and reasonably incurred in proving an actual violation of the plaintiff's rights" abolished catalyst theory.

The judge ruled in the plaintiff's favor, finding that the fee provisions are not applicable retroactively to cases in which "all the events that triggered entitlement to attorney's fees took place prior to the date of enactment of the PLRA." This is so because "the portion of the PLRA upon which defendants rely has no stated effective date as compared with section 802 of the Act" and application of the provisions would cause "manifest injustice" and upset settled expectations. Id. at *7. (The decision does not specify whether all of the fees at issue were for work done before passage, although that appears likely.) The court also ruled that "at the very least Plaintiff established a presumptive violation of the Eighth Amendment [at the preliminary injunction hearing]. Consequently, . . . the requested attorney's fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights." Id. at *8-9.

Chappell v. Gomez, No. C 93-4421 FMS, Order Finding Prison Litigation Reform Act Shall Not Apply to Requests for Fees; Vacating Hearing (N.D. Cal. Aug. 8, 1996): Judge Fern Smith ruled that the fee provisions are inapplicable to a case that was reduced to judgment before the passage of the PLRA because a contrary ruling would upset settled expectations and reasonable reliance and would cause manifest injustice. "Because the judgment was rendered before the PLRA was enacted, the law governing at the time of the judgment will apply to all attorney fees incurred in association with this case, including fees incurred after the enactment of the PLRA." Id. at 6.

Miller-Bey v. Stiller, Civ. Action No. 93-CV-72111-DT, Order Adopting Magistrate Judge's Report and Recommendation (E.D. Mich. Feb. 25, 1997): Judge Horace W. Gilmore adopted a Magistrate's recommendation that the fee provisions be found inapplicable to work performed before passage of the Act in a case in which the plaintiff obtained a preliminary injunction before the PLRA's passage. The Magistrate had reasoned that the application of the provisions would attach new consequences to events completed prior to enactment. Magistrate's Report and Recommendation at 5. The judge stated that the PLRA is not applicable "in this case." Order at 2. He also awarded, at pre-PLRA rates, attorneys' fees for work done in litigating the issue of fees. Id. This amounts to a ruling that the PLRA's attorney fee provisions are not applicable to work performed after passage. (One has to consult the fee petition to determine the hourly rate that was used to compute the latter award. The order simply sets forth the total amount, and states that the PLRA is inapplicable to "this case.")

Anderson v. Kern, Civ. No. F-90-0205 GEB JFM P, Order (E.D. Cal. Sept. 30, 1996) (adopting Magistrate's Findings and Recommendations of Aug. 20, 1996): Judge Burrell adopted a Magistrate's recommendation that the fee provisions be found inapplicable to work performed before or after the PLRA's passage in a case in which an injunction was issued, and plaintiffs' counsel was found to be entitled to a fee award (although the amount of the fee award has been the subject of dispute since that time) before the act's passage. Order at 2 n.1. A contrary ruling would constitute a manifest injustice and upset settled expectations. Magistrate's Findings and Recommendations at 5-6. (The decisions do not squarely address whether the triggering date for retroactivity analysis is the date of the district court's decision on the merits or the district court's decision that plaintiffs' counsel is entitled to fees.)

Webb v. Ada County, No. CV 91-0204-S-EJL, Order Adopting Report and Recommendation (D. Idaho Sept. 30, 1996): Judge Lodge held that the PLRA's attorney fee provisions are not applicable to a case in which plaintiffs "prevailed" before the statute's passage and all of the work at issue was performed before passage. The court reasoned that the fees provisions appear in section 803, which was not made applicable to pending cases, unlike section 802; and that application of the provisions would constitute a manifest injustice. Id. at 15-18.

Browning v. Vernon, No. CV 91-0409-S-BLW, Report and Recommendation (D. Idaho Oct. 2, 1996): A magistrate recommended that the fee provisions be found inapplicable to work performed before passage for several reasons: (1) the plaintiffs had prevailed, and the magistrate had recommended a fee award, before passage, although the Judge adopted that recommendation after passage; (2) application of the provisions would be unjust "because the PLRA was not the law at the time that the Plaintiffs' counsel agreed to take the case"; and (3) the section of the bill that contains the fee provisions does not include a retroactivity provision, unlike another section of the act. Id. at 3-4. The language in the recommendation would support a claim that the PLRA's attorney fee provisions should not be applied to cases that were filed before the PLRA's passage, regardless of whether the plaintiffs prevailed before passage or the award relates to work performed before passage.

Gates v. Gomez, Civ. No. S-87-1636 LKK JFM P, Findings and Recommendations (E.D. Cal. Nov. 25, 1996), adopted in full (E.D. Cal. Jan. 8, 1997): In a case involving a 1989 consent decree, Judge Karlton has adopted in full Magistrate Judge Moulds' recommendation that the PLRA's attorney fee provisions be found inapplicable to a plaintiffs' claim for fees, which was limited to work done before the act's passage, because the decree specified that fees are to be awarded under the terms set forth in 42 U.S.C. 1988 and 29 U.S.C. 794(b) and has not been modified. Recommendation at 5. The Magistrate declined to reach the question of the applicability of the provisions to work performed after passage. Id. (This decision has little application to a case in which the consent decree does not include a similar provision.)

Hadix v. Johnson, 947 F. Supp. 1113 (E.D. Mich. Dec. 4, 1996): In a case involving an 11-year-old consent decree, Judge Feikens ruled that PLRA rates -- $112.50 per hour -- are applicable to work performed after April 26, 1996, the date of the statute's passage. Finding congressional intent unclear, the court reasoned that the prospective application of the statute was not "retroactive" under Landgraf and would not create a manifest injustice. Id. at 1115.

Perrier v. City of Albuquerque, Civ. 95-943 RLP/WWD, Memorandum Opinion and Order (D.N.M. Dec. 17, 1996): Magistrate Judge Puglisi recommended that the PLRA's fee provisions be found inapplicable to a "catalyst" case that the plaintiff voluntarily dismissed several months after the PLRA's passage. The magistrate recommended that the provisions be found inapplicable to work performed before and after passage because "[t]he events giving rise to this lawsuit occurred in the summer of 1995, before the PLRA was enacted" and "Plaintiff's counsel undertook the case and performed most of the work for which he is seeking fees before the PLRA was enacted." A contrary ruling would give the PLRA retroactive effect. Id. at 4.

Hurley v. Rahman, No. 77 Civ. 3847 (RLC), Endorsement (S.D.N.Y. Dec. 23, 1996): In a case involving a 1983 consent decree, Judge Carter ruled that the PLRA's fee provisions are not "retroactively applicable to cases initiated before PLRA's enactment." A contrary ruling would upset settled expectations and attach new legal consequences to the rendering of services. Id. at 1. Although the work at issue was performed before the effective date of the act, the ruling lends support to the argument that the fee provisions are inapplicable to work performed after passage as well as in cases initiated before passage.

Coleman v. Wilson, Civ. No. S-90-0520 LKK JFM P, Findings and Recommendations (E.D. Cal. Jan. 21, 1997): Magistrate Moulds has recommended that the fee provisions be found inapplicable to work performed before passage because a contrary ruling would give retroactive effect to the statute. Id. at 5.

Hook/Gluth/Casey v. Arizona Department of Corrections, Nos. 95-17317, 96-15642, slip op. (9th Cir. Feb. 27, 1997): The Ninth Circuit implicitly ruled that the PLRA's attorney fee provisions are not applicable to work performed before the act's passage. The defendants had appealed a decision that predated the PLRA, in which the district court had awarded attorneys' fees to plaintiffs' counsel -- under pre-PLRA terms -- for prosecuting a contempt motion and successfully defending against a motion to modify the injunction. The Ninth Circuit affirmed the decision. (*This decision is of limited value for three reasons. First, the defendants did not argue that the PLRA should govern the attorney fee award, and the Ninth Circuit did not squarely address the question. Second, in a section of the opinion unrelated to attorneys' fees, the court stated that it would not "consider the applicability, if any, of the [PLRA] to this appeal," a question that "should be decided, in the first instance, by the district court." Id. at n.1. Finally, a court has the inherent power to award attorneys' fees for the prosecution of contempt. See Perry v. O'Donnell, 759 F.2d 702, 703-05 (9th Cir. 1985). An award entered pursuant to this power is probably not subject to the PLRA.)

Gates v. Gomez, Civ. No. S-87-1636 LKK JFM P, Findings and Recommendations (E.D. Cal. Mar. 14, 1997): In a case involving a 1989 consent decree, Magistrate Judge Moulds has recommended that the PLRA's attorney fee provisions be found inapplicable to the plaintiffs' claim for fees for work performed after passage, because the decree specified that fees are to be awarded under the terms set forth in 42 U.S.C. 1988 and 29 U.S.C. 794(b) and has not been modified. Recommendation at 3. (This decision has little application to a case in which the consent decree does not include a similar provision.)

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Application to Juvenile Plaintiffs

Alexander S. v. Boyd, Civ. Action No. 3:90-3062-17, Order Awarding Attorneys Fees for the Period February-July 1996 (D.S.C. Aug. 30, 1996): Judge Anderson ruled that the fee provisions are inapplicable to actions filed by juvenile plaintiffs. His conclusion rests on the distinction between adult and juvenile facilities in the definitional sections of 42 U.S.C. 1997, which were not amended by the PLRA.

Special Masters -- PLRA 802(a) (amending 18 U.S.C. 3626(f)).

The omnibus appropriations bill signed by the President on September 30, 1996, contains a provision prohibiting the use of funds appropriated to the judiciary for the payment of masters appointed before the PLRA's passage. The precise text of the provision is as follows:

None of the funds available to the Judiciary in fiscal years 1996 and 1997 and hereafter shall be available for expenses authorized pursuant to section 802(a) of title VIII of section 101(a) of title I of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Public Law 104-134, for costs related to the appointment of Special Masters prior to April 26, 1996.

Pub. L. No. 104-208, tit. III, 306 (Sept. 30, 1996), reprinted in 142 Cong. Rec. H 11656 (Sept. 28, 1996). The provision strongly supports the view that the other provisions regarding masters are also inapplicable to masters appointed before the Act's passage.

Casey v. Lewis, Nos. 90-0054 and 91-1808 PHX CAM (D. Ariz. May 15, 1996); Gluth v. Arizona Department of Corrections, Civ. No. 84-1626-PHX CAM (D. Ariz. May 15, 1996); Hook v. Arizona, Civ. No. 73-97 PHX CAM (D. Ariz. May 16, 1996): Judge Muecke ruled in three separate cases that the appointment of a special master is not "prospective relief" and that, consequently, the automatic stay provisions are not applicable to a motion to modify an appointment.

Coleman v. Wilson, Civ. No. S-90-520 LKK (E.D. Cal. July 11, 1996); Gates v. Gomez, Civ. No. S-87-1636 LKK (E.D. Cal. July 12, 1996): Judge Karlton found in two separate cases that: (1) the appointment of a special master is not "relief" within the meaning of the statute such that the PLRA's special master provisions are not applicable to masterships created before passage of the act; and (2) a "mediator" whose appointment was a "creature of an agreement between the parties" (rather than a creature of Federal Rule of Civil Procedure 53 or the "inherent power of the court"), and whose powers and duties resemble and overlap with, but differ from, a Rule 53 master, is not subject to the special master provisions of the PLRA.

Madrid v. Gomez, No. C90-3094-THE, Order (N.D. Cal. Aug. 23, 1996): Judge Henderson ruled that the special master provisions are inapplicable to masterships created before passage because the appointment of a master is not "relief" and the application of the provisions to such masterships would have a "retroactive" effect under the holding of Landgraf.

Williams v. Edwards, 87 F.3d 126, 133 (5th Cir. 1996): Judge Henderson cited this case in Madrid as implicitly reaching the same conclusion. See Madrid Order at 7 n.6.

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Prisoner Release Orders -- PLRA 802(a) (amending 18 U.S.C. 3626(a)(3)).

Doe v. Younger, Civ. Action No. 91-187, Opinion and Order at 10-12 (E.D. Ky. Sept. 4, 1996): Judge Bertelsman ruled that an injunction that forbids the county from housing juveniles in the Kenton County Detention Center (KCDC) for a period of more than 15 days is not a "prisoner release order" under the PLRA. The county argued that the order "has the purpose or effect of reducing or limiting the prison population" under 18 U.S.C. 3626(g)(4) so that the order cannot go into effect without invoking the procedural mechanisms set forth in 3626(a)(3). The court disagreed, finding that the text of the statute and the House Judiciary Committee's Report indicated that "prisoner release orders" are limited to "prison caps, i.e., orders directing the release of inmates housed in a particular institution once that institution houses more than a specific number of persons."

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Exhaustion -- PLRA 803(d) (amending 42 U.S.C. 1997e(a)).

Handeberry v. Thompson, No. 96 Civ. 6161 (KMW) (S.D.N.Y. Dec. 10, 1996): Magistrate Francis recommended that the PLRA's exhaustion requirement be found inapplicable to a class action in which the available grievance system did not provide an "adequate and speedy" remedy for the plaintiffs' claims; in such a case, exhaustion would be "futile." In reaching this ruling, the Magistrate drew on the general body of law regarding exhaustion of administrative remedies.

Nunn v. Michigan Department of Corrections, No. 96-CV-71416 (E.D. Mich. Feb. 4, 1997): Judge Corbett O'Meara held that the PLRA's exhaustion requirement is inapplicable to cases filed before passage. The court held that a contrary ruling would run afoul of Landgraf. In reaching this conclusion, the court relied on decisions declining to apply the PLRA's attorney fee provisions retroactively.

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Mental or Emotional Injury Without Physical Injury -- PLRA 803(d) (amending 42 U.S.C. 1997e(e)).

Taifa v. Bayh, 1996 WL 441809 (N.D. Ind. June 6, 1996), report and recommendation approved sub nom., Isby v. Bayh, 1996 WL 441820 (N.D. Ind. July 24, 1996): The court conclusorily applied the provision in rejecting a claim that was filed before the PLRA's passage, without reference to the issues of statutory construction, retroactivity, or constitutionality.

Markley v. DeBruyn, 1996 WL 476635 (N.D. Ind. Aug. 19, 1996): The court conclusorily applied the provision in rejecting a claim that had been filed before the PLRA's passage, without reference to the issues of statutory construction, retroactivity, or constitutionality.

Adams v. Hightower, No. 3:96-CV-2683-G (N.D. Tex. Sept. 25, 1996): The plaintiff sought compensation for mental stress caused by an invasion of his privacy. The court dismissed the action after finding that the plaintiff had failed to show physical injury, without any discussion about the breadth of the application of the provision or its constitutionality.

Barnes v. Ramos, 1996 WL 599637 (N.D. Ill. Oct. 11, 1996): Judge Coar found this provision inapplicable to the plaintiff's due process challenge to a prison disciplinary proceeding:

Barnes has not brought this suit to recover damages for mental or emotional injuries suffered as a consequence of defendants' actions. Rather, he alleges that his constitutional rights were violated because he was denied due process, because false charges were filed against him, and because he was subjected to cruel and unusual punishment. For none of these claims does Barnes assert that he suffered emotional or mental harm, nor do any of these causes of action require such an allegation. For example, a 1983 action alleging a procedural due process clause violation requires proof of three elements, none of which include emotional, mental, or physical harm: 1) a deprivation of a constitutionally protected liberty or property interest; 2) State action; and 3) constitutionally inadequate process. Therefore, the PLRA does not require dismissal of Barnes's claims.

Id. at 2 (citation omitted).

Puisis v. Nyberg, No. 93 C 6602, 1996 WL 754107, 1996 U.S. Dist. LEXIS 19586 (N.D. Ill. Dec. 31, 1996): Judge Plunkett denied the defendants' motion to dismiss the plaintiffs' claim regarding inadequate medical care. The defendant argued that 42 U.S.C. 1997e(e) mandates dismissal because the plaintiff failed to allege physical injury. The court stated as follows:

[T]his case was filed two years before the PLRA was passed. The parties have not had an opportunity to brief the issue of whether the PLRA's restriction of a civil action by a prisoner to a showing of a prior physical injury applies to pending cases. More importantly, we cannot say that discovery or expert testimony might not reveal that a physical injury has in fact resulted from Nyberg's three days without proper medication. These issues are better resolved at summary judgment or trial rather than on a motion to dismiss.

Id. at *4.

Ramirez v. City and County of San Francisco, No. C 89-4528 FMS, Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment (N.D. Cal. Jan. 23, 1997): Judge Fern Smith ruled that the "physical injury" provision is inapplicable to a medical care claim filed before the PLRA's passage. She reasoned that a contrary ruling would constitute an impermissible retroactive application under Landgraf because it would "eliminate plaintiff's once legally cognizable claim for pain and suffering." Id. at 19.

Woods v. Eberly, Civ. Action No. 95-M-368, Recommendation of United States Magistrate Judge (D. Colo. Jan. 21, 1997): Magistrate Judge Borchers recommended that 42 U.S.C. 1997e(e) be found inapplicable to a general conditions of confinement challenge that was initiated before the PLRA's passage. The magistrate reasoned that the application of the provision to pending claims would create a retroactive effect under the holding of Landgraf.

Zehner v. Trigg, 1997 U.S. Dist. LEXIS 369 (S.D. Ind. Jan. 15, 1997): The plaintiff-prisoners and ex-prisoners sought monetary damages against the defendant correction officials for violations of their eighth amendment rights caused by deliberate exposure to asbestos. Defendants moved for judgment on the pleadings based on 803(d)(e) of the PLRA, codified at 42 U.S.C. 1997e(e). Judge David Hamilton granted the defendants' motion, finding that (1) "physical injury" requires a showing of "disease or other adverse physical effects," rather than mere inhalation or ingestion of asbestos, id. at *14; (2) the provision is applicable to former prisoners, Id. at *15-27; (3) the provision does not unconstitutionally impair judicial power to effectively vindicate prisoners' constitutional rights because the Constitution does not require a damages remedy for every violation (as demonstrated by the doctrines of qualified and absolute immunity), and injunctive relief remains available, id. at *29-41; (4) the provision does not burden prisoners' constitutional right of access to courts because it does not "completely prevent plaintiffs from vindicating their Eighth Amendment rights," it simply limits the relief available to them, id. at 43-47; and (5) plaintiffs' equal protection challenge to the provision does not call for strict scrutiny because prisoners are not a suspect class and no fundamental right is burdened, and the provision rationally serves the legitimate purpose of discouraging the filing of frivolous suits, id. at *47-54. Plaintiffs did not argue that the provision is inapplicable to actions filed before the PLRA's passage. Id. at *8 n.1.

Nunn v. Michigan Department of Corrections, No. 96-CV-71416 (E.D. Mich. Feb. 4, 1997): Judge Corbett O'Meara held that the "physical injury" requirement is inapplicable to the plaintiffs' eighth amendment claim (for which plaintiffs seek damages) because their emotional distress stems from rape and sexual assault -- which involved "physical injury" -- suffered at the hands of Department of Corrections employees.

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In Forma Pauperis Provisions -- PLRA 804 (amending 28 U.S.C. 1915). (Note: This document is not intended to include the various court decisions regarding the PLRA's in forma pauperis (IFP) provisions. These cases are included here because of their relevance to the arguments in support of striking down the provisions that are covered here.)

Lyon v. Van De Krol, 940 F. Supp. 1433 (S.D. Iowa 1996), appeal pending (8th Cir. 1997): Judge Longstaff struck down the "three strikes you're out" provision of the PLRA ( 804(d), codified at 28 U.S.C. 1915(g)), as violative of equal protection because it treats those who proceed IFP differently from those who do not. He subjected the provision to strict scrutiny because it burdens the fundamental right of prisoners to file constitutional claims in Federal court. He found that the standards of review set forth in Turner v. Safley, 482 U.S. 78 (1987), Procunier v. Martinez, 416 U.S. 396 (1974), and Thornburgh v. Abbott, 490 U.S. 401 (1989), are inapplicable because they involved "prison administration and security matters," while 1915(g) relates to "Federal court administration and legal issues." In applying strict scrutiny, he found that, even if the interest in deterring frivolous lawsuits is compelling, 1915(g) only stops indigent inmates. Furthermore, the provision's application is not limited to frivolous lawsuits. That is, the provision is both under- and over-inclusive, rather than narrowly tailored.

Hampton v. Hobbs, 1997 U.S. App. LEXIS (6th Cir. Feb. 13, 1997): The Sixth Circuit upheld the filing fee requirements, finding that they do not violate (1) the right of access to courts; (2) the first amendment; (3) equal protection; (4) substantive or procedural due process; or (5) the double jeopardy clause.

Roller v. Gunn, USCA No. 96-6992, slip op. (4th Cir. Feb. 19, 1997): The Fourth Circuit upheld the filing fee and cost provisions of the PLRA ( 804(a), codified at 28 U.S.C. 1915(1), (2), (3) & (4)). The court rejected the plaintiffs' challenge based on the right of court access for three reasons: First, the right of court access is subject to Congress' article III power to set limits on Federal jurisdiction. "Congress is no more compelled to guarantee free access to Federal courts than it is to provide unlimited access to them." Id. at 7. Second, courts have generally upheld the imposition of partial filing fees on IFP plaintiffs. Id. at 8 (citing numerous cases). Third, the filing fee requirements are too "mild" to amount to a "burden" on the right. Id. at 9-10. With respect to equal protection, the court ruled that prisoners are not a suspect class and the provisions do not burden any fundamental rights and are therefore reviewed under rational basis scrutiny. The classification chosen by Congress -- singling out prisoners -- was rational because prisoners are not similarly situated to nonprisoners. They have their basic material needs, paper, postage, and legal assistance provided at State expense, and they often have free time on their hands that other litigants do not possess. As a result, there has been a far greater opportunity for abuse of the Federal judicial system in the prison setting. Prisoners are also different from other litigants in that they are under the control of the State, so it is administratively easier for the courts to check their finances than it would be for other IFP plaintiffs. A legislature may take one step at a time, addressing itself to the phase of the problem that seems most acute. Id. at 11-12.

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Additional Decisions on In Forma Pauperis Provisions

Those who are following the case law regarding the retroactivity of the IFP provisions should look at two recent cases: Strickland v. Rankin County Correctional Facility , 195 F.3d 972 (5th Cir. 1997) (applying Landgraf to reach the conclusion that certification and filing fee requirements apply to cases in which Notice of Appeal was filed before PLRA's passage; no constitutional analysis); Ayo v. Bathey, 106 F.3d 98 (5th Cir. 1997) (applying Landgraf to reach the conclusion that certification and filing fee requirements apply to cases in which appellate briefing was completed before PLRA's passage; no constitutional analysis). There is already a substantial body of case law on this question. The Second Circuit has ruled that the IFP provisions generally apply to appeals pending at the time of the PLRA's enactment (see Covino v. Reopel, 89 F.3d 105, 108 (2d Cir. 1996)), but that they do not apply to appeals that were fully briefed before the PLRA's passage. Duamutef v. O'Keefe, 98 F.3d 22, 24 (2d Cir. 1996); Ramsey v. Coughlin, 94 F.3d 71, 73 (2d Cir. 1996). The Tenth Circuit has ruled, without analysis, that the filing fee requirements do not apply if the notice of appeal was filed before the act's effective date. See White v. Gregory, 87 F.3d 429 (10th Cir. 1996); Zimmer v. Bork, No. 95-3337, 1996 U.S. App. LEXIS 21441 (10th Cir. Aug. 20, 1996); Hay v. Giles, No. 96-3142, 1996 U.S. App. LEXIS 21149 (10th Cir. Aug. 20, 1996). The Seventh Circuit has reached the same conclusion. Thurman v. Gramley, No. 96-1062 (7th Cir. Sept. 23, 1996). The Ninth Circuit has reached a contrary conclusion. See Marks v. Solcum, No. 96-15877 (9th Cir. Oct. 18, 1996).

With respect to the PLRA's "three strikes" provisions, 28 U.S.C. 1915(g), at least two courts have held that cases dismissed before the PLRA's passage count towards the three strikes. See Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996); and Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996). The analysis in these cases rested solely on Landgraf; the Constitution went unmentioned. For those challenging this provision, Burris v. Parke, No. 95-3725 (7th Cir. Sept. 12, 1996), which considered the question of the retroactivity of the 1996 Antiterrorism and Effective Death Penalty Act's limitation on the filing of successive habeas corpus petitions, lends support to the position that pre-PLRA filings should not count toward the three strikes. Also, remember the decision in Lyon v. Van De Krol, 940 F. Supp. 1433 (S.D. Iowa 1996), striking down this provision as unconstitutional. See Update XIII. That decision is currently on appeal.

Another case worth examining is In re Prison Litigation Reform Act, 105 F.3d 1131 (6th Cir. 1997) (addressing the application of the IFP provisions to class actions and plaintiffs released from prison before the filing fee is fully paid); and McGann v. Commissioner, Social Security Administration, No. 96-6071 (2d Cir. Sept. 9, 1996) (finding that filing fee provisions do not apply to plaintiffs released from prison while appeal is pending).

Finally, there is a conflicting body of law on the application of the PLRA's IFP provisions to habeas and mandamus proceedings. The following cases address the question: Madden v. Myers, 102 F.3d 74 (3d Cir. 1996) (filing fee requirements do not apply to mandamus); United States v. Cole, 101 F.3d 1076 (5th Cir. 1996) (filings fee requirements do not apply to habeas); Liriano v. United States, 1996 U.S. App. LEXIS 26297 (2d Cir. 1996) (filings fee requirements do not apply to 2244 actions and other "gatekeeping" motions); Martin v. United States, 96 F.3d 853 (7th Cir. 1996) (PLRA not applicable to mandamus); Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996) (filing fee requirements do not apply to habeas); In re Nagy, 89 F.3d 115 (2d Cir. 1996) (filing fee requirements apply to extraordinary writs such as mandamus that seek relief analogous to civil complaints under 42 U.S.C. 1983, but do not apply to writs directed at judges conducting criminal trials); Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996) (filing fee requirements apply to mandamus); United States v. Jones, 1996 U.S. Dist. LEXIS (N.D. Ill. 1996) (filing fee requirements do not apply to habeas); and Doren v. Mazurkiewicz, 935 F. Supp. 604 (E.D. Pa. 1996) (filing fee requirements apply to habeas).

Note: The above list of cases is not intended to be exhaustive. These filing fee cases are included because they set forth analysis that may be relevant to the other provisions of the PLRA.

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