Adequate Access to Court: The Hurdles to Prison Litigation in Federal Court when Considering the Effect of PLRA and Limitations of LSC. By: Ashley Austin

Adequate Access to Court: The Hurdles to Prison Litigation in Federal Court when Considering the Effect of PLRA and Limitations of LSC.

By: Ashley Austin

Congress enacted the Omnibus Consolidated Rescissions and Appropriations Act of 1996 on April 26, 1996.[1] The purpose of this Act was to “mak[e] appropriations for fiscal year 1996 to make a further downpayment toward a balanced budget, and for other purposes” which seemed to be a typical fiscal bill; however, this Act would change the lives of hundreds of thousands of incarcerated individuals across the United States.[2] Contained within Title VIII of this act, the Prison Litigation Reform Act of 1995 was also enacted but received little acknowledgement.[3] Less than a year after this act, a regulation concerning the services provided by the Legal Services Corporation further changed prisoners’ access to the court system.[4] These two seemingly small enacted rules would have massive impacts on the civil rights of prisoners, specifically the ability to challenge conditions without needing to afford an attorney.

Although prisoners lose many rights upon incarceration, one right that remains protected while in custody is the right to access courts.[5] This right, grounded in the Fourteenth Amendment’s Due Process Clause, ensures that violations of constitutional rights can be addressed and further violations can be prevented.[6] However, the extent of this right in most cases is limited to providing inmates with reasonable access to law libraries and the use of materials (such as paper and pencils) to prepare their submissions to the court.[7] While it is only required that reasonable access to a law library is required, the Court in Bounds speaks in dicta about the usefulness and possible benefits of having legal counsel assist prisoners in their civil cases.[8] The language in Bounds that seems to push for a more accessible court system is but a dream. After 1997, it has been almost impossible for credible claims coming from correctional setting to make it to court for consideration on the merits.

Many factors are in place that block a prisoner’s access to having their concerns heard in court: 1) the existence of complicated administrative remedies, 2) the Prison Litigation Reform Act (PLRA), 3) financial hurdles of many prisoners, and 4) the lack of legal aid provided to assist prisoners. Each of these aspects will be discussed in part below, with primary attention on the PLRA and lack of legal aid for prisoners. Additionally, possible areas of improvement will be provided upon conclusion.

Administrative remedies, or grievances as they are often called in prisons, in theory are quick and easy ways for the administration within the prison to address the concerns and issues of those housed within the prisons. However, many criticisms regarding the adequacy of the grievance system have been pointed out by attorneys focusing on prison litigation that have yet to be addressed. For instance, the grievance system at place in prisons may be entirely inadequate or unfair for those using the system. If grievance forms are unavailable to the inmates, the system has limited time response periods making successful grievances impossible, or if the inmates are otherwise dissuaded from using the grievance system, the system is entirely without a basis and fails to be useful in addressing issues within the prison.[9]

In other areas of the law, there is no requirement for administrative remedies to be exhausted prior to bringing suit for violations of constitutional law.[10] However, after the implementation of PLRA, the requirement for prisoners to exhaust all possible administrative remedies was made clear. The PLRA states that “[n]o action shall be brought with respect to prison conditions . . . or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.”[11] This provision alone requires that unless everything possible has been done within the prison, regardless of the availability of those procedures, a prisoner is not allowed to bring suit.[12] If prisoners do not have private counsel to assist in their cases, most of those incarcerated cannot afford to pay filing fees up front. Instead of allowing for prisoners to have their filing fees waived, prisoners can file in forma pauperius and set up a monthly payment plan that comes out of their prison commissary account.[13] However, if three cases are dismissed by the court at any time during the inmates incarceration, at any point or at any facility, for being “frivolous, malicious, or fails to state a claim upon which relief may be granted,” any following civil action or appeal is not permitted to be brought in forma pauperius, unless “imminent danger of serious physical injury” is present.[14]

Following from the “three strikes provision” of § 1915(g), inmates are severely limited by their ability to afford outside counsel in many circumstances. Not only may attorneys be able to negotiate for administrative hearings instead of a lawsuit, but attorneys are also more skilled in drafting legal instruments than most prisoners.[15] It is, unfortunately, more likely that prisoners will have cases dismissed for failure to state a claim in cases due to their lack of familiarity with civil procedure requirements as compared to attorneys.[16] Furthermore, although the “three strikes provision” only prevents a prisoner from filing in forma pauperius, any later cases must be filed with the entire filing fee presented to the court upon filing.[17] Unless a prisoner’s family has substantial money to assist in paying for the filing fees, it is almost impossible for a prisoner to save enough to be able to afford them on their own.[18]

Not only are prisoners highly disadvantaged because a lawyer is sometimes necessary, prisoners are almost entirely unable to be represented by legal aid attorneys who can assist free-citizens with civil issues. Many legal aid organizations aimed at helping low-income individuals are funded by the federal organization Legal Services Corporation (LSC). Additionally, LSC, established by Congress and regulated by a group of individuals appointed by the President and confirmed by the Senate, are subject to federal regulations in order to avoid any political issues.[19] Among these regulations, any organization funded by LSC in any state are not permitted to provide any type of services to inmates.[20] More specifically, “recipients [shall] not participate in any civil litigation on behalf of persons incarcerated in Federal, State, or local prisons.”[21] Additionally, LSC funded organizations must “use its best efforts to withdraw promptly from. . . litigation” if a client becomes incarcerated after the case is started.[22] Although not all legal aid organizations are LSC funded, most of them are. This restriction further limits the availability of attorneys to assist prisoners in civil cases.

There are many hurdles that inmates face when trying to file a civil case in federal court to protect their rights under the Constitution and federal law. These hurdles disproportionately affect individuals coming from a low-income background, regardless of the merit of their claim. If the grievance systems in prisons are made to where they are impossible to satisfy and PLRA does not allow an inmate to file in forma pauperius, they are at risk for having their voices silenced while behind bars. To protect one of the rights still awarded to the incarcerated, and ensure more rights are not violated, legal services must be provided to those prisoners who cannot afford private counsel. While some organizations providing individual representation to inmates exist, they are few and far between. In 1977, it was estimated that only 500 full-time lawyers would be needed to serve the needs of the entire national prison population.[23] Although the prison population has exponentially increased in the past 40 years, the need for attorneys helping prisoners is higher than ever. Current non-profit organizations should expand to help this population, and prisoner rights based non-profits are must be formed to address this growing need.

[1] Pub. L. No. 104 – 134, 110 Stat. 1321.

[2] Id.

[3] Id.

[4] 45 C.F.R. § 1637 (1997).

[5] JLM,

[6] See Procunier v. Martinez, 416 U.S. 396, 419 (1974).

[7] See Bounds v. Smith, 430 U.S. 817, 825 (1977).

[8] Id.

[9] Josh Kurtzman, Overcoming the Exhaustion Requirement of the Prisoner Litigation Reform Act, Am. Bar Ass’n Sec. of Litig. Young Advoc., Jan. 7, 2016, http://apps.americanbar.org/litigation/committees/youngadvocate/articles/winter2016-0116-overcoming-exhaustion-requirement-prisoner-litigation-reform-act.html.

[10] See Clark D. Elwood, Elimination of the Exhaustion Requirement in Section 1983 Cases: Patsy v. Board of Regents {102 S. Ct. 2257}, 25 J. Urb.& Comtemp. L. 313, 314-15 (1983).

[11] 42 U.S.C. § 1997e(a) (1996).

[12] See Kurtzman, supra note 9. Although it may be possible to bring these suits by challenging the availability of the grievance procedures, that may not be within an inmates ability without having counsel assist.

[13] See 28 U.S.C. § 1915 (1996); ACLU, Know Your Rights: The Prison Litigation Reform Act (PLRA), https://www.aclu.org/sites/default/files/images/asset_upload_file79_25805.pdf.

[14] 28 U.S.C. § 1915(g) (1996).

[15] See Bounds, 430 U.S. at 825.

[16] See John Midgley, Pro Se Tips and Tactics – Motions to Dismiss, Prison Legal News, Dec. 1998, at 12.

[17] 28 U.S.C. § 1915(g).

[18] See, e.g., Daniel Wagner, Meet the Prison Bankers Who Profit From the Inmates, Time (Sept. 30, 2014), http://time.com/3446372/criminal-justice-prisoners-profit/.

[19] Legal Services Corporation, Who We Are, http://www.lsc.gov/about-lsc/who-we-are.

[20] 45 C.F.R. § 1637 (1997).

[21] Id. at § 1637.1.

[22] Id. at § 1637.4.

[23] Bounds, 430 U.S. at 832.

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