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Bruce v. Samuels, HRDC amicus brief, USSC, PLRA fees, 2015

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No. 14-844

In The

Supreme Court of the United States
____________________________
ANTOINE BRUCE, Petitioner,
v.
CHARLES E. SAMUELS, JR., ET AL.,
Respondents.
_____________________________
On Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia Circuit
_____________________________
BRIEF OF THE SOUTHERN POVERTY LAW CENTER,
THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS, AND THE HUMAN RIGHTS DEFENSE CENTER
AS AMICI CURIAE IN SUPPORT OF PETITIONER
_____________________________

CLIFFORD M. SLOAN
Counsel of Record
PAUL M. KERLIN
MARISA B. VAN SAANEN
JAMES C. ALTMAN
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Ave., N.W.
Washington, D.C. 20005
(202) 371-7000
cliff.sloan@skadden.com

Counsel for Amici Curiae

i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ............................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT.................................................... 2
ARGUMENT .............................................................. 3
I.

CONGRESS ENACTED THE PLRA
AGAINST THE BACKGROUND OF
THIS COUNTRY’S TRADITION OF
ACCESS TO THE COURTS AND THE
OPPORTUNITY FOR JUDICIAL
REDRESS ........................................................ 4

II.

THE FEE-COLLECTION PROVISION
OF THE PLRA REFLECTS A
CAREFUL BALANCE..................................... 7

III.

THE “PER CASE” APPROACH
THREATENS TO DETER
MERITORIOUS LAWSUITS ........................ 11

CONCLUSION ......................................................... 15

ii
TABLE OF AUTHORITIES

CASES
Adkins v. E. I. DuPont de Nemours & Co.,
335 U.S. 331 (1948) ......................................... 5
Baggett v. Ashe,
41 F. Supp. 3d 113 (D. Mass. 2014) .............. 14
Bounds v. Smith,
430 U.S. 817 (1977) ......................................... 6
Brown v. Plata,
131 S. Ct. 1910 (2011) ............................. 10, 11
Coleman v. Tollefson,
135 S. Ct. 1759 (2015) ................................. 5, 6
Colon v. Howard,
215 F.3d 227 (2d Cir. 2000) ........................... 13
Davis v. Ayala,
135 S. Ct. 2187 (2015) ................................... 12
Ex Parte Hull,
312 U.S. 546 (1941) ......................................... 6
Hogan v. Fischer,
738 F.3d 509 (2d Cir. 2013) ........................... 13
Johnson v. Avery,
393 U.S. 483 (1969) ......................................... 6
Jones v. Bock,
549 U.S. 199 (2007) ................................. 6, 7, 9

iii
In re Medley,
134 U.S. 160 (1890) ....................................... 12
Morrison v. Garraghty,
239 F.3d 648 (4th Cir. 2001) ......................... 14
Rich v. Secretary, Florida Department of
Corrections, 716 F.3d 525
(11th Cir. 2013).............................................. 13
Sanchez v. Pereira-Castillo,
590 F.3d 31 (1st Cir. 2009) ............................ 14
Skinner v. Switzer,
562 U.S. 521 (2011) ......................................... 9
Torres v. O’Quinn,
612 F.3d 237 (4th Cir. 2010) ........................... 7
Wall v. Wade,
741 F.3d 492 (4th Cir. 2014) ......................... 13
Wolff v. McDonnell,
418 U.S. 539 (1974) ......................................... 6
STATUTES
28 U.S.C. § 1915 ................................................. 2, 7, 8
OTHER AUTHORITIES
141 Cong. Rec. S14,627 (daily ed. Sept. 29,
1995) (statement of Sen. Hatch) ..................... 9
141 Cong. Rec. S14,628 (daily ed. Sept. 29,
1995) (statement of Sen. Reid) ...................... 10
141 Cong. Rec. S7526 (daily ed. May 25, 1995)
(statement of Sen. Kyl).............................. 9, 10

iv
Bureau of Justice Statistics, U.S. Department
of Justice, Challenging the Conditions
of Prisons and Jails: A Report on
Section 1983 Litigation (1994) ...................... 11
Federal Bureau of Prisons, Program
Statement 8120.02 – Work Programs
for Inmates – FPI § 345.51
(July 15, 1999),
http://www.bop.gov/policy/progstat/8120
_002.pdf ............................................................ 8
Jack B. Weinstein, Adjudicative Justice in a
Diverse Mass Society, 8 J.L. & Pol’y 385
(2000) ............................................................... 5
Learned Hand, Address at the 75th
Anniversary of the Legal Aid Society of
New York (Feb. 16, 1951) ................................ 5
Stipulation and Order of Settlement, Hogan v.
Fischer, 6:09-CV-06225 (W.D.N.Y. Sept.
12, 2014), ECF No. 118 ................................. 13
Stipulation For A Stay With Conditions,
Peoples v. Fischer, No. 1:11-cv-02694SAS (S.D.N.Y. Feb. 19, 2014), ECF No.
124 .................................................................. 12
Third Amended Complaint, Peoples v. Fischer,
No. 1:11-cv-02694-SAS (S.D.N.Y. Mar. 6,
2013), ECF No. 93 ......................................... 12
Thomas Jefferson, First Inaugural Address
(Mar. 4, 1801),
http://www.loc.gov/exhibits/treasures/i
mages/vc6796b.jpg ........................................... 5

INTEREST OF AMICI CURIAE1
The Southern Poverty Law Center (“SPLC”) is
a nonprofit civil rights organization dedicated to
fighting hate and bigotry, and to seeking justice for
the most vulnerable members of society. Since its
founding in 1971, the SPLC has won numerous
landmark legal victories on behalf of the exploited,
the powerless, and the forgotten. SPLC’s lawsuits
have toppled institutional racism in the South,
bankrupted some of the nation’s most violent white
supremacist groups, and won justice for exploited
workers, abused prison inmates, disabled children,
and other victims of discrimination.
The National Association of Criminal Defense
Lawyers (“NACDL”) is a nonprofit voluntary
professional bar association that works on behalf of
criminal defense attorneys to ensure justice and due
process for those accused of crime or misconduct.
NACDL was founded in 1958. It has a nationwide
membership of approximately 10,000, with up to
40,000 affiliates. NACDL’s members include private
criminal defense lawyers, public defenders, military
defense counsel, law professors, and judges. NACDL
is dedicated to advancing the proper, efficient, and
just administration of justice. NACDL files
The parties have consented to the filing of this brief and
their letters of consent have been filed with the Clerk. Under
Rule 37.6 of the Rules of this Court, amici state that no counsel
for a party authored this brief in whole or in part, and no such
counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief. No person
other than amici, amici members, or counsel for amici, made a
monetary contribution to its preparation or submission.
1

2
numerous briefs as amicus curiae each year, in the
United States Supreme Court and other courts,
seeking to provide assistance in cases that present
issues of broad importance to criminal defendants,
criminal defense lawyers, and the criminal justice
system as a whole.
The Human Rights Defense Center (“HRDC”)
is a non-profit organization founded in 1990 that
nationally advocates on behalf of those imprisoned in
American detention facilities. The HRDC serves as
an important source of news and legal research for
prisoners’
rights
advocates,
policy
makers,
academics, researchers, journalists, attorneys, and
others involved in criminal justice-related issues. In
support of this effort, HRDC publishes materials
including Prison Legal News, a monthly publication
with subscribers in all 50 states and internationally
that provides a voice to prisoners, their families, and
others affected by criminal justice policies.
INTRODUCTION AND SUMMARY OF
ARGUMENT
Under the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(b)(1), “if a prisoner
brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the
full amount of a filing fee.” The prisoner initially is
required to pay a partial filing fee, and then required
“to make monthly payments of 20 percent of the
preceding month’s income credited to the prisoner’s
account” until the fee is paid in full. Id. at
§ 1915(b)(2).

3
This case presents the question of the
meaning of the 20-percent-of-monthly-income
requirement when a prisoner files more than one
lawsuit—a total of 20 percent of the prisoner’s very
modest monthly income (the “per prisoner”
approach); or 20 percent for each lawsuit, which
could lead to 40, 60, 80, or 100 percent of the
prisoner’s monthly income, depending on the number
of lawsuits filed (the “per case” approach).
Amici respectfully submit that the “per
prisoner” approach best reflects the intent of the
PLRA and the careful balance that the statute
strikes. The “per prisoner” approach likewise best
comports with this country’s deep tradition of
allowing adequate opportunity for judicial redress,
regardless of an individual’s financial means or legal
status.
ARGUMENT
Both the “per prisoner” approach and the “per
case” approach require the prisoner to pay all of his
or her filing fees. The issue in this case is the timing
and amount of the required partial payments in
meeting that obligation.
The “per prisoner” approach, in mandating
that the prisoner pay a significant amount (20
percent) of his or her limited monthly income every
month until the debt for the filing fees is discharged,
requires a substantial ongoing financial contribution
from the prisoner. At the same time, it avoids the
imposition of an overwhelming burden that easily
could inhibit the filing of colorable and meritorious
claims.

4
The “per case” approach, in contrast, in
compelling 20 percent of a prisoner’s monthly income
for each case filed by a prisoner (up to 100 percent of
a prisoner’s total income) would create an
insuperable obstacle for incarcerated individuals
seeking judicial redress, including individuals with
colorable and meritorious claims that would be
raised in multiple lawsuits.
Accordingly, amici respectfully highlight three
points for this Court’s consideration. First, an
important background principle for Congress’s
adoption of the PLRA’s fee-collection provision was
this country’s longstanding commitment to ensuring
a reasonable opportunity for judicial access for all,
including incarcerated individuals.
Second,
Congress sought a careful balance in the feecollection provision, not the imposition of a
potentially crushing burden that might block judicial
access for legitimate claims. Third, the recent
history of litigation by prisoners confirms that there
are numerous important examples of meritorious
prisoner lawsuits—the kinds of suits that might well
be deterred or foreclosed if the “per case” approach is
adopted.
I.

CONGRESS
ENACTED
THE
PLRA
AGAINST THE BACKGROUND OF THIS
COUNTRY’S TRADITION OF ACCESS TO
THE COURTS AND THE OPPORTUNITY
FOR JUDICIAL REDRESS

The principle that the opportunity to seek
judicial redress should not be precluded based on
financial resources is well-settled in American law.
Judge Learned Hand’s famous “commandment” that

5
“thou shalt not ration justice” is woven into the
American fabric.2 As long ago as Thomas Jefferson’s
first Inaugural Address in 1801, the newly
inaugurated President emphasized that “[e]qual and
exact justice to all men . . . form[s] the bright
constellation, which has gone before us.”3 As Judge
Jack B. Weinstein has explained, “Accessibility to
the courts and other adjudicatory institutions on
roughly equal terms is essential to equality before
law. . . . Equal access to the judicial process is a sign
of a just society.”4
Federal legislation permitting in forma
pauperis litigation reflects this cardinal commitment.
More than a century ago, in 1892, Congress enacted
the first federal in forma pauperis (“IFP”) statute,
“intend[ing] to guarantee that no citizen shall be
denied an opportunity to commence, prosecute, or
defend an action, civil or criminal, in any court of the
United States, solely because his poverty makes it
impossible for him to pay or secure the costs.”
Adkins v. E. I. DuPont de Nemours & Co., 335 U.S.
331, 342 (1948) (internal quotation marks omitted).
This Court, moreover, recently reaffirmed that,
“[o]rdinarily, a federal litigant who is too poor to pay

The Honorable Learned Hand, Address at the 75th
Anniversary of the Legal Aid Society of New York (Feb. 16,
1951).
2

Thomas Jefferson, First Inaugural Address (Mar. 4,
1801), http://www.loc.gov/exhibits/treasures/images/vc6796b.jpg.
3

Jack B. Weinstein, Adjudicative Justice in a Diverse
Mass Society, 8 J.L. & Pol’y 385, 388-89 (2000).
4

6
court fees may proceed in forma pauperis.” Coleman
v. Tollefson, 135 S. Ct. 1759, 1761 (2015).
This protection of the opportunity for judicial
redress applies fully to incarcerated individuals. As
Chief Justice Roberts explained for a unanimous
Court, “Our legal system . . . remains committed to
guaranteeing that prisoner claims of illegal conduct
by their custodians are fairly handled according to
law.” Jones v. Bock, 549 U.S. 199, 203 (2007). The
Court repeatedly has emphasized the importance of
ensuring that prisoners have access to judicial
redress and that their right to bring claims is not
barred by unwarranted obstacles. See, e.g., Bounds
v. Smith, 430 U.S. 817, 824-25, 828 (1977) (holding
that prisoners have the right to access courts to
pursue relief for constitutional violations); Johnson
v. Avery, 393 U.S. 483, 485 (1969) (prisoners’ rights
of access to courts may not be denied); Ex Parte Hull,
312 U.S. 546 (1941) (holding that prisoners have a
right of access to the courts free of the interference of
unreasonable prison regulations). As the Court has
stressed, “[t]here is no iron curtain drawn between
the Constitution and the prisons of this country. . . .
[Prisoners] retain right of access to the courts.”
Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974).
Congress enacted the PLRA in 1996 against
this background of a deep national commitment to
preserving access to the courts for incarcerated
individuals.

7
II.

THE FEE-COLLECTION PROVISION OF
THE PLRA REFLECTS A CAREFUL
BALANCE

Faced with a substantial volume of prisoner
lawsuits, Congress revisited the IFP statute with
regard to prisoners in the PLRA. As this Court has
explained, Congress sought a balanced approach.
Congress wished both to curb frivolous litigation and
to preserve access for colorable and meritorious
claims. The goal was to ensure “that the flood of
nonmeritorious claims does not submerge and
effectively preclude consideration of the allegations
with merit.” Jones, 549 U.S. at 203.
While the PLRA “changed the landscape of
prisoner litigation,” Torres v. O’Quinn, 612 F.3d 237,
241 (4th Cir. 2010), it refined but, importantly, did
not eliminate IFP treatment for prisoners. Instead,
as noted, with respect to fee collection, the PLRA
instituted a general requirement that “if a prisoner
brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the
full amount of a filing fee.” 28 U.S.C. § 1915(b)(1).
The prisoner is required to pay an initial partial
filing fee and then “monthly payments of 20 percent
of the preceding month’s income credited to the
prisoner’s account” until the fee is paid in full. Id. at
§ 1915(b)(2).5

With respect to the initial filing fee, the statutory
provision provides that “[t]he court shall assess and, when
funds exist, collect, as a partial payment of any court fees
required by law, an initial partial filing fee of 20 percent of the
greater of – (A) the average monthly deposits to the prisoner’s
(cont’d)
5

8
It is telling that Congress, even in enacting
the restrictions of the PLRA, adhered to the wellestablished tradition of recognizing the fundamental
importance of IFP for prisoners in the federal
judicial system.
It required a significant, but
measured, monthly contribution from a prisoner
earning an income—not 100 percent, not 50 percent,
but 20 percent. On its face, this is an assiduous
balance, not an onerous imposition that effectively
renders even the prisoner’s meager income illusory.6
In keeping with this balance, a proper
understanding of the fee-collection provision caps the
prisoner’s monthly obligation at 20 percent of the
prisoner’s monthly income regardless of the number
of cases for which the prisoner owes such fees.
Again, it is significant that the prisoner remains
obligated to pay all of the filing fees for all of his or
her cases; the issue is whether that payment is
accelerated by requiring 40 percent, or 60 percent, or
80 percent, or 100 percent, of the prisoner’s scant
monthly income if he or she files more than one
lawsuit. Only a “per prisoner” reading, maintaining
the monthly obligation at 20 percent of monthly
________________________
(cont’d from previous page)
account; or (B) the average monthly balance in the prisoner’s
account for the 6-month period immediately preceding the
filing of the complaint or notice of appeal.” 28 U.S.C. § 1915
(b)(1).
Earnings for federal prisoners range from a starting
point of only $0.23 per hour to a maximum of $1.15 per hour.
See Fed. Bureau of Prisons, Progr. Stmt. 8120.02 – Work
Programs for Inmates – FPI § 345.51 at ch. 5, p. 1 (July 15,
1999), http://www.bop.gov/policy/progstat/8120_002.pdf.
6

9
income, is consistent with the careful balance struck
by Congress.
Particularly against the backdrop of our
national commitment to judicial access for all,
including prisoners, it is clear that Congress did not
intend the PLRA to operate as a roadblock that
would deprive IFP prisoners of access to the courts
for colorable and meritorious litigation. Instead, the
legislative history shows that, even when legislators
were eager to end what they viewed as frivolous
lawsuits, they did not intend to prevent prisoners
from filing potentially legitimate claims. See, e.g.,
141 Cong. Rec. S14,627 (daily ed. Sept. 29, 1995)
(statement of Sen. Hatch) (“I do not want to prevent
inmates from raising legitimate claims. This
legislation will not prevent those claims from being
raised.”).
In enacting the PLRA, Congress “placed a
series of controls on prisoner suits, constraints
designed to prevent sportive filings in federal court.”
Skinner v. Switzer, 562 U.S. 521, 535 (2011). It did
not seek a total ban on prisoners’ IFP filings. See,
e.g., Jones, 549 U.S. at 204 (explaining that, through
the PLRA, “Congress enacted a variety of reforms
designed to filter out the bad claims and facilitate
consideration of the good”).
With respect to the fee-collection provision in
particular, the fee obligations—a requirement to pay
the entirety of the fee and an obligation to pay up to
one-fifth of the prisoner’s monthly income—was
meant to deter frivolous litigation, but not to
preclude prisoners from proceeding with potentially
meritorious claims. See, e.g., 141 Cong. Rec. S7526

10
(daily ed. May 25, 1995) (statement of Sen. Kyl)
(“The modest monetary outlay will force prisoners to
think twice about the case and not just file
reflexively.”); id. (“The filing fee is small enough not
to deter a prisoner with a meritorious claim, yet
large enough to deter frivolous claims and multiple
filings.”). Indeed, as one legislator declared, “If [a
prisoner] ha[s] a meritorious lawsuit, of course they
should be able to file.” 141 Cong. Rec. S14,628 (daily
ed. Sept. 29, 1995) (statement of Sen. Reid). Such
statements are consistent with a “per prisoner”
approach, which strikes a balance between allowing
a prisoner access to courts and requiring that
prisoner to undertake financial obligations in
seeking to file lawsuits. They are inconsistent,
however, with a “per case” approach that would, on a
monthly basis, impose a multiple (or multiples) of
twenty percent of income on prisoners with
extremely limited resources.
As this Court has explained regarding the
PLRA, “[c]ourts should presume that Congress was
sensitive to the real-world problems faced by those
who would remedy constitutional violations in the
prisons and that Congress did not leave prisoners
without a remedy for violations of their
constitutional rights.” Brown v. Plata, 131 S. Ct.
1910 (2011). Such a presumption is not consistent
with an adoption of the “per case” approach
requirement of overwhelming payments.
The “per case” approach turns the PLRA fee
structure on its head with prisoners forced to choose
between retaining meager income or pursuing relief
for violations of constitutional rights or other wrongs.
Such a reading is inconsistent with Congress’s

11
balanced approach—preserving IFP status for
prisoners and carefully imposing both an obligation
for the total amount of filing fees and a limitedpercentage partial monthly contribution. Only the
“per prisoner” approach faithfully reflects and
implements that balance.
III.

THE
“PER
CASE”
APPROACH
THREATENS TO DETER MERITORIOUS
LAWSUITS

Complaints filed by prisoner-litigants have
promoted the amelioration of legal violations and
serious abuse within prison walls. See, e.g., Plata,
131 S. Ct. at 1947 (upholding a meaningful reduction
in prison population in overcrowded prisons found to
have been in violation of the Eighth Amendment).
Indeed, the United States Department of Justice
recognizes that prisoner lawsuits may well
demonstrate “credible . . . allegations of civil rights[]
violations.”7
The important role that prisoner lawsuits
have played, and continue to play, in remedying
legal violations, either through adjudication or
through change-implementing settlements, can be
seen in at least three areas: (1) solitary confinement
and conditions of confinement; (2) religious freedom;
and (3) the Fourth Amendment.

BUREAU OF JUSTICE STATISTICS, U.S. DEPARTMENT OF
JUSTICE, CHALLENGING THE CONDITIONS OF PRISONS AND JAILS:
A REPORT ON SECTION 1983 LITIGATION 39 (1994).
7

12
Solitary confinement and conditions of
confinement: This Court has long recognized that
solitary confinement provokes, even for prisoners
sentenced to death, “a further terror and peculiar
mark of infamy.” In re Medley, 134 U.S. 160, 170
(1890). The practice, however, is not uncommon,
with estimates of 25,000 inmates in this country
serving sentences in whole or in substantial part in
solitary confinement. Davis v. Ayala, 135 S. Ct. 2187,
2208 (2015) (Kennedy, J., concurring).
While the issue of solitary confinement
continues to present profound legal issues, prisoner
litigation has raised important challenges to this
practice and resulted in substantial changes. For
example, pro se inmates in New York brought a
§ 1983
challenge
regarding
allegations
of
unconstitutional and arbitrary conditions and
punishments in connection with respective 1,095-day,
730-day, and 1,095-day periods of solitary
confinement in prison Special Housing Units. Third
Am. Compl. at ¶ 7, Peoples v. Fischer, No. 1:11-cv02694-SAS (S.D.N.Y. Mar. 6, 2013), ECF No. 93.
In a settlement with the government, the
prisoners were successful in bringing about reform of
New York’s solitary confinement procedures,
including a presumption against this practice for
pregnant prisoners, and alternative procedures for
prisoners under the age of 18 or with significant
intellectual disabilities. See Stipulation For A Stay
With Conditions, Peoples v. Fischer, No. 1:11-cv02694-SAS (S.D.N.Y. Feb. 19, 2014), ECF No. 124.
Examples of meritorious prisoner litigation
regarding abuses in other conditions of confinement

13
also are readily available. See, e.g., Hogan v. Fischer,
738 F.3d 509, 512 (2d Cir. 2013); Stipulation and
Order of Settlement, Hogan v. Fischer, 6:09-CV06225 (W.D.N.Y. Sept. 12, 2014), ECF No. 118
(settlement resolving pro se prisoner Eighth
Amendment claims of correctional officers spraying
prisoner-litigant in his cell with mixture of fecal
matter, vinegar, and machine oil); Colon v. Howard,
215 F.3d 227 (2d Cir. 2000) (confinement of pro se
prisoner-litigant in Special Housing Unit for 305
days required procedural due process protections).
Religious freedom: The preservation of
religious freedom also has featured prominently in
meritorious prisoner litigation. In one example, the
government violated the Free Exercise Clause by
requiring inmates to provide physical indicia of
Islamic faith to receive accommodations for
Ramadan observance. Wall v. Wade, 741 F.3d 492,
499-500 (4th Cir. 2014). As a result of this policy,
the prisoner had been “absolutely precluded from
observing Ramadan because of the defendants’
actions,” and was eventually faced with starvation or
violating his religious beliefs. Id. at 501-02. In
considering this claim—initially brought pro se—the
court held that the fact that a prisoner does not have,
for example, a prayer rug is insufficient to determine
whether he is a practicing Muslim. Id. at 500.
Without the opportunity for meritorious
prisoner
litigation,
constitutional
violations
regarding religious practice and observance would
persist. See, e.g., Rich v. Sec’y, Florida Dep’t of Corr.,
716 F.3d 525 (11th Cir. 2013) (reversing summary
judgment against prisoner-litigant, who initially
filed pro se, regarding government failure to provide

14
kosher diet); Morrison v. Garraghty, 239 F.3d 648
(4th Cir. 2001) (holding, in pro se prisoner litigation,
that prison officials’ refusal to consider prisoner’s
request for Native American religious items because
he was not of Native American heritage violated the
Equal Protection Clause).
Fourth Amendment: Egregious violations of
the Fourth Amendment by prison employees also
have been exposed and resolved through the efforts
of prisoner-litigants. For example, plaintiff Debra
Baggett represented a class of 178 female inmates
videotaped by male correctional officers while
subjected to strip searches. Baggett v. Ashe, 41
F. Supp. 3d 113 (D. Mass. 2014). Among other
practices in the videotapes, prisoners were required
to strip and manipulate their bodies, including
lifting their breasts and spreading their legs. Id. at
120-21. The court found that these searches “clearly
transgressed the Constitution and injured the
plaintiff class.” Id. at 127. Other examples of
meritorious prisoner litigation enforcing important
Fourth Amendment rights also are readily available.
See, e.g., Sanchez v. Pereira-Castillo, 590 F.3d 31
(1st Cir. 2009) (exploratory surgery of prisonerlitigant’s
abdomen
was
an
unreasonable,
unconstitutional
search
under
the
Fourth
Amendment where less intrusive testing could have
sufficed).
These examples of meritorious prisoner
lawsuits highlight the importance of preserving a
reasonable, practical opportunity for judicial redress
while interpreting and enforcing the PLRA. Under a
“per case” approach, in which a prisoner’s colorable
lawsuits would expose the prisoner to substantial

15
multiples of his or her very limited monthly income
for filing more than one lawsuit, meritorious
lawsuits challenging solitary confinement and
conditions of confinement, protecting religious
freedom, enforcing the Fourth Amendment, and
raising other fundamental claims likely would be
chilled and deterred.
Without this important
prisoner litigation regarding these issues, the
mistreatment of prisoners and the violations of
constitutional law and human dignity might well
proceed unchecked and unabated.
CONCLUSION
For the foregoing reasons, amici respectfully
submit that the “per prisoner” approach best aligns
with this country’s tradition of adequate opportunity
for judicial redress, and best reflects the intent of the
PLRA and the careful balance that the statute
strikes.
Respectfully submitted,
CLIFFORD M. SLOAN
Counsel of Record
PAUL M. KERLIN
MARISA B. VAN SAANEN
JAMES C. ALTMAN
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Ave., N.W.
Washington, D.C. 20005
(202) 371-7000
cliff.sloan@skadden.com
August 18, 2015



 

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