Human Rights Watch No Equal Justice Plra Report 2009

Human Rights Watch No Equal Justice Plra Report 2009

• Topics: PLRA

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United States

H U M A N

No Equal Justice

R I G H T S

The Prison Litigation Reform Act in the United States

W A T C H

No Equal Justice
The Prison Litigation Reform Act in the United States

Copyright © 2009 Human Rights Watch
All rights reserved.
Printed in the United States of America
ISBN: 1-56432-497-4
Cover design by Rafael Jimenez
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June 2009

1-56432-497-4

No Equal Justice
The Prison Litigation Reform Act in the United States
I. Summary ......................................................................................................................... 1
II. Recommendations .......................................................................................................... 5
III. Incarceration in the United States ................................................................................. 6
IV. Enactment of the Prison Litigation Reform Act ............................................................... 9
V. The Exhaustion Requirement ......................................................................................... 11
Shortening the Statute of Limitations ............................................................................ 13
A Trap for the Unwary..................................................................................................... 14
No Exceptions, No Excuses ............................................................................................ 16
Case Study: Immunizing Rape ....................................................................................... 18
Case Study: No Remedy for Rape Resulting in HIV Infection .......................................... 20
VI. The Physical Injury Requirement.................................................................................. 23
Case Study: No Remedy for a Year in Solitary Confinement ............................................27
VII. The PLRA’s Application to Children ............................................................................. 29
VIII. The PLRA’s Effect on Prisoners’ Access to the Courts ................................................. 35
IX. The PLRA Violates Human Rights ................................................................................. 37
X. Calls for Reform .............................................................................................................41
XI. Conclusion .................................................................................................................. 44
Acknowledgments ............................................................................................................ 46

I. Summary
Because a prisoner ordinarily is divested of the privilege to vote, the right to
file a court action might be said to be his remaining most fundamental
political right, because preservative of all rights.
—United States Supreme Court, McCarthy v. Madigan, 503 U.S. 140, 153
(1992).
This amendment will help put an end to the inmate litigation fun-and-games.
—Senator Robert Dole, during Senate debate on an early version of the
Prison Litigation Reform Act, September 29, 1995.
What was a sentence for a white collar crime that should have ended many
years ago will never end. I got a life sentence.
—Keith DeBlasio, December 8, 2008. DeBlasio was raped while incarcerated
in a federal prison and contracted HIV as a result.
Carved in stone over the entrance to the United States Supreme Court are the words “equal
justice under law.” And for more than 140 years, the US Constitution has guaranteed to all
persons the “equal protection of the laws.”1 But for those in prisons, jails, and juvenile
facilities in the United States, the promise of equal justice is illusory. The Prison Litigation
Reform Act (PLRA), passed by Congress in 1996, denies equal access to the courts to the
more than 2.3 million incarcerated persons in the United States.
The PLRA subjects lawsuits brought by prisoners in the federal courts to a host of burdens
and restrictions that apply to no other persons. As a result of these restrictions, prisoners
seeking the protection of the courts against unhealthy or dangerous conditions of
confinement, or those seeking a remedy for injuries inflicted by prison staff and others, have
had their cases thrown out of court. These restrictions apply not only to persons who have
been convicted of crime, but also to pretrial detainees who have not yet been tried and are
presumed innocent. Human Rights Watch is not aware of any other country in which national

United States Constitution, amend. 14, sec. 1.

Human Rights Watch | June 2009

legislation singles out prisoners for a unique set of barriers to vindicating their legal rights in
court.2
The PLRA’s restrictions include:
The exhaustion of remedies requirement. Before a prisoner may file a lawsuit in court, he
must first take his complaints through all levels of the prison’s or jail’s grievance system,
complying with all deadlines and other procedural rules of that system.3 If the prisoner fails
to comply with all technical requirements, or misses a filing deadline that may be as short as
a few days, his right to sue may be lost forever.
The physical injury requirement. A prisoner may not recover compensation for “mental or
emotional injury” unless she makes a “prior showing of physical injury.”4 Under this
provision, prisoners who have been subjected to sexual assault and other intentional abuse
by prison staff have been denied a remedy. Indeed, because of this provision, many of the
abuses that took place in Iraq’s Abu Ghraib prison would not have been compensable if they
had occurred in a US prison or jail.
Application to children. The provisions of the PLRA apply not only to adult prisoners, but also
to children confined in prisons, jails, and juvenile detention facilities.5 The exhaustion
requirement has proven to be an especially formidable barrier to justice for incarcerated
children, particularly in light of court rulings that efforts to exhaust on their behalf by parents
or other adults do not satisfy the PLRA.
Restrictions on court oversight of prison conditions. The PLRA restricts the power of federal
courts to make and enforce orders limiting overcrowding or otherwise remedying unlawful
conditions in prisons and jails.6
Limitations on attorney fees. If a prisoner files a lawsuit and wins, establishing that her
rights have been violated, the PLRA limits the amount her attorneys can be paid.7
2

For ease of reference, this report uses the term “prisoners” to refer collectively to convicted persons, pretrial detainees, and
children held in juvenile detention facilities. The terms “children,” “juveniles,” and “youths” refer to persons under the age of
18.

42 United States Code (U.S.C.) sec. 1997e(a).

42 U.S.C. sec. 1997e(e).

18 U.S.C. sec. 3626(g)(3) and (5); 42 U.S.C. sec. 1997e(h).

18 U.S.C. sec. 3626.

42 U.S.C. sec. 1997e(d).

No Equal Justice

The PLRA’s sponsors argued that the law was necessary to deal with “frivolous” lawsuits
brought by prisoners. Some prisoners, like some non-prisoners, do file frivolous suits, and
the PLRA includes the reasonable requirement that prisoner cases be subject to a
preliminary screening process and be immediately dismissed if they are frivolous or
malicious, or if they fail to state a claim on which relief can be granted.8 But the cases
described in this report show that other provisions of the PLRA have resulted in dismissal of
claims involving serious physical injury, sexual assault, and intentional abuse by prison
staff—claims that no reasonable person would characterize as frivolous.
Unlike many other democracies, the United States has no independent national agency that
monitors conditions in prisons, jails, and juvenile facilities and enforces minimal standards
of health, safety, and humane treatment. Perhaps for this reason, oversight and reform of
conditions in these institutions has fallen primarily to the federal courts. Beginning in the
1970s, lawsuits brought by prisoners led to improved medical care, sanitation, and
protection from assault. While significant problems remained, by the time the PLRA was
passed in 1996, US prison conditions had been transformed in just a few short decades.
The effect of the PLRA on prisoners’ access to the courts was swift. Between 1995 and 1997,
federal civil rights filings by prisoners fell 33 percent, despite the fact that the number of
incarcerated persons had grown by 10 percent in the same period. By 2001 prisoner filings
were down 43 percent from their 1995 level, despite a 23 percent increase in the
incarcerated population. By 2006 the number of prisoner lawsuits filed per thousand
prisoners had fallen 60 percent since 1995.
If the effect of the PLRA were to selectively discourage the filing of frivolous or meritless
lawsuits, as its sponsors predicted, then we would expect to find prisoners winning a larger
percentage of their lawsuits after the law’s enactment than they did before. But the most
comprehensive study to date shows just the opposite: since passage of the PLRA, prisoners
not only are filing fewer lawsuits, but also are succeeding in a smaller proportion of the
cases they do file. This strongly suggests that rather than filtering out meritless lawsuits, the
PLRA has simply tilted the playing field against prisoners across the board. The author of a
comprehensive study on the impact of the act concludes that “the PLRA’s new decision
standards have imposed new and very high hurdles so that even constitutionally meritorious
cases are often thrown out of court.”

28 U.S.C. sec. 1915(e)(2); 28 U.S.C. sec. 1915A; 42 U.S.C. sec. 1997e(c)(1).

Human Rights Watch | June 2009

Jeanne Woodford, the former warden of San Quentin State Prison and former director of the
California Department of Corrections, told Human Rights Watch that she believes the PLRA
has endangered the progress that has been made in prison administration:
I do think the PLRA does need to be reformed. I think that there’s prison
experts around the country who would agree with that.... I’m told that many
people in [the American Correctional Association] believe that as well. That
they’re starting to see abuses.... A lot of the corrections professionals were
telling me that they had concerns that a lot of the steps forward they’d made
in Texas were reverting because of the PLRA. And I can see that happening in
California too.9
Drawing on interviews with former corrections officials, prisoners denied remedies for abuse,
and criminal justice experts, this report examines three provisions of the PLRA—the
exhaustion requirement, the physical injury requirement, and the law’s application to
children—and their effect on prisoners’ access to justice.
Thirteen years after the passage of the PLRA, it has become apparent that Congress went too
far. Congress must act now to amend the PLRA, to restore the rule of law to US prisons, jails,
and juvenile facilities, and ensure that “equal protection of the laws” is not an empty
promise.10

Human Rights Watch telephone interview with Jeanne Woodford, former warden of San Quentin State Prison and former
director of the California Department of Corrections, October 29, 2008.
10

The PLRA governs lawsuits brought in the federal courts of the United States. Many US states have subsequently enacted
laws that similarly restrict prisoners’ access to state courts. See, for example, Maryland Prisoner Litigation Act, Annotated
Code of Maryland, secs. 5-1001–5-1007, 1997. Those laws are beyond the scope of this report.

No Equal Justice

II. Recommendations
To the President and Congress of the United States:
Enact legislation that amends the PLRA by:
1. removing the requirement that courts dismiss lawsuits in which prisoners have not
exhausted the prison or jail grievance system, and instead substituting a provision
allowing courts to stay such lawsuits temporarily to allow prisoners to take their
complaints through the grievance system (amend 42 U.S.C. sec. 1997e(a)).
2. allowing prisoners to recover compensation for mental or emotional injuries on the
same basis as non-prisoners (eliminate 42 U.S.C. sec. 1997e(e)).
3.

removing from the scope of the PLRA persons held in juvenile detention facilities,
and persons under age 18 held in adult prisons and jails (amend 18 U.S.C. sec.
3626(g)(3) and (5) and 42 U.S.C. sec. 1997e(h)).

Human Rights Watch | June 2009

III. Incarceration in the United States
The United States has the largest prison population in the world, with more than 2.3 million
persons behind bars on any given day.11 The United States also has the world’s highest per
capita rate of incarceration, with 760 incarcerated persons for every 100,000 residents. This
rate is five to ten times higher than those of other industrialized democracies like England
and Wales (151 per 100,000), Canada (116), and Sweden (74).12
But the US prison system is also atypical in other ways. As already noted, unlike many other
democracies, the United States has no independent national agency that monitors prison
conditions and enforces minimal standards of health, safety, and humane treatment. The
bipartisan Commission on Safety and Abuse in America’s Prisons recently concluded that
“few [US] states have monitoring systems that operate outside state and local departments
of corrections, and the few systems that do exist are generally underresourced and lacking in
real power.”13 By contrast, in Great Britain, independent oversight of prison conditions is
provided by Her Majesty’s Inspectorate of Prisons. In 46 European states, the Council of
Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment supplements monitoring by national bodies.14
The United States is also unusual in depriving prisoners of the right to vote. In all but two of
the fifty US states, convicted prisoners are barred from voting. This is in marked contrast to
many other democracies, which either allow all prisoners to vote (such as Austria, Germany,
and Ireland) or disfranchise only a small proportion of prisoners (such as France, Norway,
and Portugal).15 The United States Supreme Court has recognized that the disfranchisement
of prisoners makes their right of access to the courts correspondingly more important:
“[b]ecause a prisoner ordinarily is divested of the privilege to vote, the right to file a court

The number of individuals who are incarcerated at some point in a given year is even higher; the US Bureau of Justice
Statistics estimates that 13.6 million persons were admitted to local jails in the 12-month period ending June 30, 2008.
Bureau of Justice Statistics, “Growth in Prison and Jail Population Slowing: 16 States Report Decline in the Number of
Prisoners,” March 31, 2009, http://www.ojp.usdoj.gov/bjs/pub/press/pimjim08stpr.htm (accessed May 31, 2009).
12

International Centre for Prison Studies, King’s College London, “World Prison Brief,”
http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_stats.php?area=all&category=wb_poprate (accessed May
31, 2009).
13

“Confronting Confinement: A report of the Commission on Safety and Abuse in America’s Prisons,” June 2006,

http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf (accessed June 4, 2009), p. 79.
14

Ibid., p. 80.

American Civil Liberties Union, “Out of Step with the World: An Analysis of Felony Disfranchisement in the U.S. and Other
Democracies,” May 2006, http://www.aclu.org/images/asset_upload_file825_25663.pdf (accessed June 4, 2009), pp. 3, 6-7.

No Equal Justice

action might be said to be his remaining most fundamental political right, because
preservative of all rights.”16
Perhaps for these reasons, reform of US prisons and jails has taken place primarily through
litigation, rather than through executive or legislative action.17 And lawsuits brought by
prisoners and their lawyers have transformed the US prison system in a few short decades.
In the 1978 case of Hutto v. Finney, the US Supreme Court gave the following description of
conditions in one Arkansas prison:
Cummins Farm, the institution at the center of this litigation, required its
1,000 inmates to work in the fields 10 hours a day, six days a week, using
mule-drawn tools and tending crops by hand. The inmates were sometimes
required to run to and from the fields, with a guard in an automobile or on
horseback driving them on. They worked in all sorts of weather, so long as
the temperature was above freezing, sometimes in unsuitably light clothing
or without shoes. The inmates slept together in large, 100-man barracks and
some convicts, known as “creepers,” would slip from their beds to crawl
along the floor, stalking their sleeping enemies. In one 18-month period,
there were 17 stabbings, all but 1 occurring in the barracks. Homosexual rape
was so common and uncontrolled that some potential victims dared not
sleep; instead they would leave their beds and spend the night clinging to
the bars nearest the guards' station....
Inmates were lashed with a wooden-handled leather strap five feet long and
four inches wide. Although it was not official policy to do so, some inmates
were apparently whipped for minor offenses until their skin was bloody and
bruised....
The “Tucker telephone,” a hand-cranked device, was used to administer
electrical shocks to various sensitive parts of an inmate's body....
Confinement in punitive isolation was for an indeterminate period of time. An
average of 4, and sometimes as many as 10 or 11, prisoners were crowded
16

McCarthy v. Madigan, 503 U.S. 140, 153 (1992).

For a typical view, see Malcolm M. Feeley and Van Swearingen, “The Prison Conditions Cases and the Bureaucratization of
American Corrections: Influences, Impacts and Implications,” Pace Law Review, vol. 24, 2004, p. 442, concluding that
“litigation has probably been the single most important source of change in prisons and jails in the past forty years.”

Human Rights Watch | June 2009

into windowless 8′x10′ cells containing no furniture other than a source of
water and a toilet that could only be flushed from outside the cell. At night
the prisoners were given mattresses to spread on the floor. Although some
prisoners suffered from infectious diseases such as hepatitis and venereal
disease, mattresses were removed and jumbled together each morning, then
returned to the cells at random in the evening.18
Spurred by Hutto and other Supreme Court decisions ruling that prison conditions were
subject to constitutional limits, prisoners and their attorneys filed lawsuits challenging
inadequate medical and mental health care, dangerous and unhealthy physical facilities,
abuse by prison staff, and other unlawful conditions. In many cases, federal courts issued
prison-wide or even statewide orders to remedy these deficiencies. There remain serious
problems in US prisons, particularly with respect to the treatment of vulnerable prisoners
such as juveniles and persons with mental illness or physical disabilities. But by the mid1990s, conditions such as those at Cummins Farm were largely a thing of the past.19
While the passage of the PLRA has had a detrimental effect on reform efforts, litigation
brought by prisoners continues to play a critical role in enforcing minimal standards in US
prisons and jails. According to Jeanne Woodford, former San Quentin warden and California
corrections director, “litigation is probably the only thing that allows us to do our jobs as
professionals.” Woodford told Human Rights Watch of her testimony in a lawsuit involving
conditions on California’s death row. “I said to the judge, ‘if it wasn’t for this litigation, I
wouldn’t be able to do my job as a warden, and my job as a warden is to keep everyone
safe.’”20

Hutto v. Finney, 437 U.S. 678, 682-683 nn. 3-6 (1978) (citations omitted).

See, for example, Vincent M. Nathan, “Have the Courts Made a Difference in the Quality of Prison Conditions? What Have We
Accomplished to Date?” Pace Law Review, vol. 24, 2004, pp. 423-24 (describing cases); Human Rights Watch, Ill-Equipped: US
Prisons and Offenders with Mental Illness (New York: Human Rights Watch, 2003),
http://www.hrw.org/en/reports/2003/10/21/ill-equipped-0 pp. 46-47 (same).
20

Human Rights Watch telephone interview with Jeanne Woodford, October 29, 2008.

No Equal Justice

IV. Enactment of the Prison Litigation Reform Act
In the spring of 1996 Congress passed the Prison Litigation Reform Act, and President
Clinton signed the bill into law on April 26, 1996. The PLRA brought sweeping and
unprecedented changes in the ability of prisoners to seek relief in court from conditions that
threaten their health and safety or otherwise violate their legal rights.21
The PLRA governs lawsuits brought in the federal courts of the United States, whether those
lawsuits involve federal, state, or local facilities. Many US states have enacted laws that
similarly restrict prisoners’ access to state courts; those laws are beyond the scope of this
report.22
The proponents of the PLRA argued that prisoners were clogging the courts with an
avalanche of frivolous lawsuits, thus impairing the quality of justice enjoyed by law-abiding
persons. In reality, prisoners were filing lawsuits at about the same rate as non-incarcerated
persons,23 and prisoner lawsuits often involved allegations of physical abuse, inadequate
medical care, and other non-frivolous claims. The PLRA’s supporters also expressed concern
about court orders regulating prison conditions, although such orders were issued only if a
court found that prisoners’ rights had been violated, or if prison officials consented to the
order. Nevertheless, the PLRA passed with broad support from both Republicans and
Democrats.24
For a bill that made major changes in the enforceability of fundamental rights, the PLRA
received remarkably little congressional scrutiny. It was passed not as a freestanding bill,
but as an amendment to a bill to appropriate funds for the continued operation of the
federal government.25 The legislative record consists largely of anecdotes about allegedly
frivolous litigation brought by prisoners, such as a case in which “an inmate sued, claiming

Under US law, a private citizen cannot compel the criminal prosecution of another person. Linda R.S. v. Richard D., 410 U.S.
614 , 619 (1973). Therefore, for prisoners who are subjected to unlawful conduct, a civil lawsuit is the only remedy.
22

See, for example, the Maryland Prisoner Litigation Act, Ann. Code Md. secs. 5-1001–5-1007.

Margo Schlanger, “Inmate Litigation,” Harvard Law Review, vol. 116, April 2003, p. 1692.

For a critique of the arguments of the PLRA’s proponents, see Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1692

(concluding that “the most basic element of the critics' account—that the reason so few inmate plaintiffs were successful was
that their cases were simply frivolous (and not just legally frivolous but actually laughable)—is not true”).
25

Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1559.

Human Rights Watch | June 2009

cruel and unusual punishment because he received one jar of chunky and one jar of creamy
peanut butter after ordering two jars of chunky from the prison canteen.”26
While the provision for preliminary screening of prisoner lawsuits is reasonable, other
provisions of the PLRA erect significant obstacles to the enforcement of fundamental rights.
For example, when a court has issued an order to remedy unlawful conditions in a prison, jail,
or juvenile facility, the PLRA provides that officials can render that order unenforceable
simply by filing a motion in court.27 And the law’s severe restrictions on attorney fees mean
that even prisoners with meritorious cases have difficulty finding lawyers to assist them.28

Dennis C. Vacco, Frankie Sue del Papa, Pamela Fanning Carter, and Christine O. Gregoire, “Free the Courts from Frivolous
Prisoner Suits,” New York Times, March 3, 1995, p. A26 (letter to the editor from Attorneys General of New York, Nevada,
Indiana, and Washington). Federal Appeals Court Judge Jon O. Newman researched three of the cases described in this letter,
and concluded that the descriptions were “at best highly misleading and, sometimes, simply false.” Jon O. Newman, “Pro Se
Prisoner Litigation: Looking for Needles in Haystacks,” Brooklyn Law Review, vol. 62, 1996, p. 520.
27

18 U.S.C. sec. 3626(e)(2).

See, for example, Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 2006) (en banc) (attorney who won excessive force case for
prisoner received payment of $1.50 as a result of PLRA’s limits on attorney fees); Pearson v. Welborn, 471 F.3d 732 (7th Cir.
2006) (attorney who won prisoner’s claim that staff unlawfully retaliated against him, resulting in confinement in “supermax”
prison for more than one year, received payment of $1.50 due to PLRA’s fee limitations). The Pearson case is discussed further
in section VI, below.

No Equal Justice

V. The Exhaustion Requirement
Ordinarily, a person filing a lawsuit alleging that government officials have violated her
constitutional rights may go directly to court. Even if an administrative process exists, there
is no requirement to complete it as a prerequisite to filing suit.29 Until passage of the PLRA,
this general rule applied to prisoners as well.
Most prisons and jails have a system of administrative remedies, more commonly known as
grievance systems. These are mechanisms through which prisoners can file complaints or
make requests in writing, and receive a written response from corrections officials. Most
grievance systems have filing deadlines—a prisoner must file within a certain time of the
incident complained about—and most have one or more levels of appeal.
Grievance systems emerged in the 1970s as a means of quickly and informally resolving
minor issues by encouraging prisoners to address problems through established channels.
They are also a means of keeping officials apprised of problems and concerns among the
prison population—a review of all the grievances filed in a given month or year may reveal,
for example, a pattern of misconduct by a particular staff member. Grievance systems were
never designed to be the first step in a lawsuit, and it was never contemplated when they
were first introduced that a misstep in the grievance process could result in a prisoner
forfeiting his right to file in court.
Before passage of the PLRA, exhaustion of prison grievance systems could be required only
in very narrow circumstances. If the attorney general of the United States had certified that a
prison’s or jail’s grievance system met specified standards, or if a federal judge found that
the system was “otherwise fair and effective,” a lawsuit filed by a prisoner could be stayed
for up to six months to require the prisoner to exhaust “such plain, speedy, and effective
administrative remedies as are available.” In addition, exhaustion could be required only of
adults who had been convicted of a crime, not of detained children or persons held in jail
awaiting trial.30
The PLRA dramatically altered this legal landscape, deleting the requirement that grievance
systems be “fair and effective,” and requiring that a lawsuit filed by a prisoner who had not
pursued all avenues for redress within the grievance system be dismissed rather than merely
29

Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 516 (1982).

42 U.S.C. sec. 1997e (1995).

Human Rights Watch | June 2009

stayed. The PLRA’s exhaustion requirement also applies to any adult or child held in a prison,
jail, or juvenile detention facility.31 Indeed, it applies even if the grievance system cannot
provide the remedy the prisoner is seeking, such as monetary compensation.32
A basic structural problem with the exhaustion requirement is that prison officials
themselves—the defendants in most lawsuits brought by prisoners—typically design the
grievance system that prisoners must exhaust before filing suit. This creates obvious
incentives for prison officials to design grievance systems with short deadlines, multiple
steps, and numerous technical requirements. And unlike prior law, the PLRA imposes no
requirements for grievance systems: “the sky’s the limit for the procedural complexity or
difficulty of the exhaustion regime.”33
Some grievance systems include requirements that seem designed to discourage, rather
than facilitate, compliance by prisoners. For example, some systems require that a prisoner
first raise the issue she wishes to grieve with the staff member involved—even if the
grievance involves an assault or other abusive conduct by that same staff member. One
recent case ruled that a prisoner whose complaint was that he was threatened and
physically assaulted by a corrections officer failed to exhaust because he did not first
discuss the issue with the officer who had allegedly assaulted him.34
There is also some evidence that prison officials have taken advantage of the PLRA to
discourage lawsuits by making grievance systems more demanding. In Illinois, after a court
ruled that a prisoner had complied with the state prison system’s grievance process,
rejecting prison officials’ argument that his grievance was not sufficiently detailed,35 the
prison system revised the policy to require “details regarding each aspect of the offender’s
complaint, including what happened, when, where, and the name of each person who is the
subject of or who is otherwise involved in the complaint.”36

42 U.S.C. sec. 1997e(a), (h).

Booth v. Churner, 532 U.S. 731, 734 (2001).

Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1650.

Sanders v. Bachus, 2008 WL 54228571, at *5 (W.D. Mich. 2008).

Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).

Corrections, Criminal Justice, and Law Enforcement: Filing of Grievances, Illinois Administrative Code, title 20, sec.
504.810(b), 2003.

No Equal Justice

Shortening the Statute of Limitations
The statute of limitations is the time period within which a person must bring a lawsuit; after
the statute of limitations has run, the right to sue is lost. These limitation periods vary from
state to state, but are typically one, two, or three years from the incident that is the subject
of the suit.
For prisoners, the PLRA effectively shortens the statute of limitations, from one or more years
sometimes to a matter of days. If a prisoner misses the deadline for filing his initial
grievance—or for filing any required appeals within the grievance system—his right to sue is
forever lost. In Woodford v. Ngo, in 2006, the US Supreme Court ruled that a prisoner’s
lawsuit must be dismissed because he had missed the California prison system’s deadline
for filing a grievance, which was 15 working days.37 Although the statute of limitations for the
prisoner’s claim was one year,38 the court ruled that the PLRA requires prisoners to comply
with the grievance system’s “deadlines and other critical procedural rules,” and that the
prisoner’s failure to meet the 15-day deadline had forfeited his right to sue.39
California’s deadline of 15 working days is far from unusual. According to one brief filed in
the Woodford case, 13 state prison systems have grievance filing deadlines of 10 calendar
days or less; some are as short as two or three days.40 Deadlines typically apply not only to
the filing of the initial grievance, but to filing at each of the required levels of appeal. The
California grievance system has three levels, each with a 15-day filing deadline.41
Courts have generally not excused prisoners’ failures to meet even very short grievance filing
deadlines, despite the existence of extenuating circumstances. For example:
•

37
38

A court dismissed a prisoner’s lawsuit for failure to exhaust, despite the fact that he
had been hospitalized outside the institution during the entire grievance filing
period.42

548 U.S. 81, 87 (2006).
See Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004) (at the time of Ngo’s lawsuit, the statute of limitations for

civil rights actions brought under 42 U.S.C. sec. 1983 in California was one year; it has since been revised to two years).
39

548 U.S. at 90.

Brief for the Jerome N. Frank Legal Services Organization of the Yale Law School as Amicus Curiae in Support of Respondent,
Woodford v. Ngo, No. 05-416, 2006 WL 304573. See also Woodford, 548 U.S. at 118 (Stevens, J., dissenting) (noting that
grievance filing deadlines “are generally no more than 15 days, and … in nine States, are between 2 and 5 days”).
41

Brief for the Jerome N. Frank Legal Services Organization of the Yale Law School as Amicus Curiae in Support of Respondent,

Woodford v. Ngo, No. 05-416, 2006 WL 304573.
42

Steele v. N.Y. State Department of Correctional Services, 2000 WL 777931, at *1 (S.D.N.Y. 2000).

Human Rights Watch | June 2009

•

A prisoner’s lawsuit alleging that he was beaten by staff was dismissed because the
prisoner had not initiated the grievance process within two business days of the
incident, despite the prisoner’s claim that immediately following the assault he was
placed in segregation, where officers did not provide him with grievance forms.43

•

A prisoner missed the 14-day grievance deadline because he was on suicide watch,
with no access to writing materials, for 19 days immediately after the incident giving
rise to the grievance. Although he later filed a grievance, the court dismissed for
failure to exhaust, ruling that he should have filed “as soon as he was released from
suicide watch.”44

•

A court ruled that a prisoner who had filed his grievance late, after being stabbed
and having a kidney removed in the hospital, had failed to exhaust; the PLRA “does
not ... excuse prompt filing of prison administrative remedies because of mental or
emotional injury.”45

•

A prisoner missed the 48-hour grievance filing deadline because he needed the
names of the officers involved in the incident and it took him a week to obtain this
information; his case was dismissed for failure to exhaust.46

A Trap for the Unwary
In a case involving employment discrimination, the US Supreme Court warned that
“technicalities are particularly inappropriate in a statutory scheme in which laymen,
unassisted by trained lawyers, initiate the process.”47 But under the PLRA, it is common for
courts to conclude that prisoners have failed to exhaust because they made minor technical
errors in the grievance process.
Jeanne Woodford, former director of the California Department of Corrections, described to
Human Rights Watch some of the difficulties prisoners have in navigating the grievance
system in California state prisons:
Their appeal gets screened out for lack of documentation and they’re unable
to get the documentation. I think a lot of them have trouble once the appeal
is screened out—maybe not understanding why the appeal was screened
43

Latham v. Pate, 2007 WL 171792, at *2 (W.D. Mich. 2007).

Green v. McBride, 2007 WL 2815444, at *3 (S.D.W.Va. 2007).

Harris v. Walker, 2006 WL 2669050, at *3-4 (S.D. Miss. 2006).

Whitener v. Buss, 268 Fed. Appx. 477, 478-79 (7th Cir. 2008).

Love v. Pullman Co., 404 U.S. 522, 527 (1972).

No Equal Justice

out.... For example, you’re only supposed to put one issue on an appeal, and
some inmates put multiple issues on an appeal, because it may have all
occurred in the same incident, and the inmate doesn’t understand that.48
Woodford added that at some California prisons, as many as half of all grievance appeals
are “screened out” because of technical errors by prisoners.49
Cases in which prisoners have had their cases dismissed because of technical errors in the
grievance process are common:
•

A prisoner who was stabbed in the eye had his lawsuit dismissed because, while he
had properly filed his original grievance, he failed to indicate whether he wished to
appeal when this grievance was denied.50

•

A prisoner alleging that he had received inadequate dental care had his grievance
rejected because he appended seven pages of information regarding his dental
needs; when the prisoner then filed suit over inadequate dental care, the case was
dismissed for non-exhaustion.51

•

A prisoner who alleged that he was attacked by other prisoners, was left for 12 hours
without medical attention, was in a coma for days and in the hospital for months,
and suffered severe permanent injuries including cognitive impairment and memory
loss, had his lawsuit dismissed because he appealed his grievance too soon.52

Many cases are dismissed because the prisoner used the wrong form, or wrote to the wrong
entity within the prison system. Cases have been dismissed, in whole or in part, because the
prisoner:
•

Submitted a form to the “inmate appeals branch” rather than to the “appeals
coordinator.”53

•

Filed an “administrative appeal” rather than a “disciplinary appeal.”54

Human Rights Watch telephone interview with Jeanne Woodford, October 29, 2008.

Ibid.

Russell v. Johnson, 2008 WL 596524, at *2-3 (M.D. Ga. 2008).

Cadogan v. Vittito, 2007 WL 2875464, at *2-3 (E.D. Mich. 2007).

Asberry v. Oklahoma Department of Corrections, 2009 WL 152536, at *3 (E.D. Okla. 2009).

Chatman v. Johnson, 2007 WL 2023544, at *6, report and recommendation adopted, 2007 WL 2796575 (E.D. Cal. 2007).

Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001).

Human Rights Watch | June 2009

•

Wrote directly to the grievance body rather than filing a “service request” form.55

•

Sent appeal documents to the secretary of the Department of Corrections rather than
to the secretary’s Office of Inmate Grievances and Appeals.56

•

Filed a new grievance rather than seeking reinstatement of a previous grievance (the
court characterized its dismissal of the case as “hyper-technical” but required by the
PLRA).57

No Exceptions, No Excuses
Courts have not been receptive to the argument that the exhaustion requirement should be
excused, even when there is good cause for the prisoner’s failure to pursue remedies within
the prison grievance system. Among the justifications for non-exhaustion courts have
rejected are:
•

Dyslexia58

•

Illiteracy59

•

Inability to read English60

•

Cerebral palsy61

•

Mental illness62

•

Brain injury and memory loss63

•

Blindness64

•

Being in a coma65

McNeal v. Cabana, 2006 WL 2794337, at *1 (N.D. Miss. 2006).

Keys v. Craig, 160 Fed. Appx. 125, 126 (3d Cir. 2005).

Whitney v. Simonson, 2007 WL 3274373, at *2, report and recommendation adopted, 2007 WL 4591593 (E.D. Cal. 2007),
aff’d, 2009 WL 604912 (9th Cir. 2009).
58

Williams v. Pettiford, 2007 WL 3119548, at *3 (D.S.C. 2007).

Ramos v. Smith, 187 Fed. Appx. 152, 154 (3d Cir. 2006).

Benavidez v. Stansberry, 2008 WL 4279559, at *4 (N.D. Ohio 2008).

Elliott v. Monroe Correctional Complex, 2007 WL 208422, at *3 (W.D. Wash. 2007).

Yorkey v. Pettiford, 2007 WL 2750068, at *4 (D.S.C. 2007).

Williams v. Kennedy, 2006 WL 18314, at *2 (S.D. Tex. 2006); Rigsby v. Schriro, 2008 WL 2705376, at *3 (D. Ariz. 2008).

Fry v. Al-Abduljalil, 164 Fed. Appx. 788, 790-91 (10th Cir.2006); Ferrington v. Louisiana Department of Corrections, 315 F.3d
529, 532 (5th Cir. 2002).
65

Parker v. Adjetey, 89 Fed. Appx. 886, 887-88 (5th Cir. 2004).

No Equal Justice

One scholar, after surveying cases decided under the PLRA’s exhaustion requirement,
summarized her findings: “Inmates who filed only the first level of grievance, or who failed to
comply with a stringent time limit (sometimes even because they were hospitalized for the
injury motivating the lawsuit), or who simply wrote a letter to prison authorities rather than
filling out the requisite form, are seeing their constitutional cases dismissed for failure to
exhaust.”66 Indeed, the PLRA is not limited to constitutional claims, but restricts prisoners’
ability to bring claims under other laws as well.
In a case involving the exhaustion requirement, the US Supreme Court said that “[b]eyond
doubt, Congress enacted [the PLRA] to reduce the quantity and improve the quality of
prisoner suits.”67 A central argument of the PLRA’s supporters was that the law would filter
out only frivolous or plainly meritless prisoner suits, but would not affect those that raised
serious issues. As Senator Orrin Hatch put it, “I do not want to prevent inmates from raising
legitimate claims. This legislation will not prevent those claims from being raised. The
legislation will, however, go far in preventing inmates from abusing the Federal judicial
system.”68 Representative Charles Canady sounded a similar note: “These reasonable
requirements will not impede meritorious claims by inmates but will greatly discourage
claims that are without merit.”69
But the exhaustion requirement has nothing to do with the merit of the prisoner’s underlying
claim. It requires dismissal of the case—regardless of its merit—if the prisoner has failed to
comply with the procedural requirements, however petty, of the prison grievance regime. The
legality or illegality of the conduct the prisoner is complaining of, or the magnitude of the
harm she has suffered, simply do not matter. As one scholar summarized the first several
years of the PLRA, “inmates who experience even grievous loss because of unconstitutional
misbehavior by prison and jail authorities will nonetheless lose cases they once would have
won, if they fail to comply with technicalities of administrative exhaustion.”70

Schlanger, “Inmate Litigation,” Harvard Law Review, pp. 1653-54 (footnotes omitted).

Porter v. Nussle, 534 U.S. 516, 524 (2002).

Statement of Senator Orrin Hatch (R-UT), September 29, 1995, Congressional Record, vol. 141, 1995, p. S14,627.

Statement of Representative Charles Canady (R-FL), February 9, 1995, Congressional Record, vol. 141, 1995, p. H1480.

Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1694.

Human Rights Watch | June 2009

Case Study: Immunizing Rape
Sexual abuse of female prisoners by male prison staff is a well-documented phenomenon in
US prisons.71 In January 2003, 16 women prisoners filed suit alleging an ongoing pattern of
rape and sexual abuse by staff of the New York State Department of Correctional Services
(DOCS). The lawsuit, detailing instances of forcible rape, coerced sexual activity, oral and
anal sodomy, and forced pregnancies, asked the court to intervene to halt the ongoing
sexual abuse.72
Rather than address the merits of the women’s claims, the federal court hearing the case
took nearly five years to first consider whether they had exhausted administrative remedies
as required by the PLRA. In 2007 the court dismissed all of the women’s claims for injunctive
relief—that is, for an order to the prison system to remedy the ongoing abuse. The court
acknowledged that some of the women had complained about the abuse to the New York
state prison system’s inspector general; others had complained to the supervisor of the
officer who had abused them; others still had spoken about the abuse to a prison official
whom they felt comfortable approaching. One woman had filed a formal grievance and
pursued it through all three levels of the grievance system, but the judge ruled that that was
not sufficient because, he said, she had not named all supervisory defendants or linked
their actions to her abuse by a particular officer, even though she had identified the core
failing in the lawsuit: officers about whom there are repeated credible complaints of sexual
abuse are nonetheless permitted to continue to guard women prisoners. As a result, the
court ruled that she could not challenge the supervisory defendants’ failings in supervision,
investigation, and discipline of staff.
The court ruled that none of the actions taken by the women to alert DOCS to the ongoing
sexual abuse were sufficient to satisfy the PLRA, and so all their claims for injunctive relief
were dismissed:
The evidence does not demonstrate that Plaintiffs' efforts at grieving properly
were thwarted, but rather shows that they merely selected to pursue informal
avenues instead of the formal grievance procedure.... One cannot exhaust all
administrative remedies by merely pursuing an informal avenue over the

See, for example, Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human

Rights Watch, December 1996), http://www.hrw.org/legacy/reports/1996/Us1.htm; Daskalea v. District of Columbia, 227 F.3d
433, 436 (D.C. Cir. 2000) (“Uncontradicted evidence at the trial of this case established the routine sexual abuse of women
inmates by prison guards at the District of Columbia Jail”).
72

Amador v. Andrews, No. 03 Civ. 0650 (KTD) (GWG) (S.D.N.Y.), First Amended Complaint, Sept. 5, 2003.

No Equal Justice

formal grievance procedure. Thus, because Plaintiffs ... did not complete the
three-step grievance procedure, they have not properly exhausted all of their
administrative remedies.73
Dori Lewis, one of the lawyers representing the women, explained to Human Rights Watch
that prison officials had previously taken the position that prisoners complaining about staff
sexual abuse were not required to file a grievance:
With respect to staff sexual assault, DOCS had told women prisoners that
they could complain to anyone with whom they feel comfortable, and their
complaint would be forwarded to the inspector general’s office. They made
clear that the inspector general’s office, and only the inspector general’s
office, had authority to take action. And in spite of that, they have come into
court and argued that women prisoners needed to file grievances.74
Lisa Freeman, Lewis’s co-counsel, summed up the effect of the PLRA in the New York case:
“It allows for the ongoing problem of staff sexual abuse to continue unabated.”75 Lewis
elaborated,
For other women in prison, it reinforces that there’s no point in coming
forward about these kinds of complaints. Women prisoners already think
that their complaints of staff sexual abuse will accomplish nothing unless
they have physical proof of the complaint. Now they’re being told that even
when women have come forward, even when they may have had physical
evidence or other strong evidence, it’s still not good enough to get into court
because they didn’t navigate this opaque and complex system.76

Amador v. Andrews, 2007 WL 4326747, at *7-9 (S.D.N.Y. 2007) (emphasis in original).

Human Rights Watch telephone interview with Dori Lewis, New York, NY, March 31, 2009. Ultimately, six women were
permitted to proceed against individual officers for money damages, but none were permitted to challenge DOCS policies and
procedures or seek a court order that would remedy the ongoing abuse. As of spring 2009—six years after the suit was filed—
an appeal of this ruling is pending. Ibid.

Human Rights Watch telephone interview with Lisa Freeman, New York, NY, March 31, 2009.

Human Rights Watch telephone interview with Dori Lewis, March 31, 2009.

Human Rights Watch | June 2009

Dangers of Reporting Rape in Prison
When a prisoner has been sexually assaulted by another prisoner, to complain to prison
staff is to risk violent retaliation, either by the original assailant or by other prisoners. One
prisoner explained to Human Rights Watch:
The first time [I was raped] I told on my attackers. All [the authorities] did
was moved me from one facility to another. And I saw my attacker again
not too long after I tolded on him. Then I paid for it. Because I tolded on
him, he got even with me. So after that, I would not, did not tell again.77
For a male prisoner, to be known as a rape victim (“punk”) dramatically increases the risk
of future assault, and to be known as someone who informs on prisoners to the
authorities (a “snitch”) invites attack by other prisoners. Thus, a prisoner who complains
to staff about being raped is doubly at risk:
[T]he first time I was raped, I did the right thing. I went to an officer, told
him what happened, got the rectal check, the whole works. Results? I get
shipped to [another prison]. Six months later, same dude that raped me is
out of seg[regation] and on the same wing as I am. I have to deal with 2
jackets now: snitch & punk. I ... had to think real fast to stay alive. This was
my first 2 years in the system. After that I knew better.78

Case Study: No Remedy for Rape Resulting in HIV Infection
Keith DeBlasio was incarcerated in a federal prison for credit card fraud and other white
collar crimes when another prisoner, a known leader of a prison gang, began threatening
him. DeBlasio repeatedly sought protection from prison staff, but no action was taken. The
gang leader raped him on a number of occasions, which resulted in DeBlasio contracting HIV.
DeBlasio filed grievances about the assaults. Although his initial grievances were timely
filed, his subsequent appeals were rejected as untimely or otherwise defective. As a result,
DeBlasio was deemed to have failed to exhaust administrative remedies, a prerequisite to
filing a lawsuit to recover compensation for his injuries.
77

Human Rights Watch, No Escape: Male Rape in U.S. Prisons (New York: Human Rights Watch, April 2001),
http://www.hrw.org/legacy/reports/2001/prison/, p. 132.

Ibid., p. 132.

No Equal Justice

Now out of prison, DeBlasio is chronically ill with HIV disease:
I get $637 a month from the government because of my disability. And that
doesn’t even pay the bills. And if it wasn’t for my family, I’d be out on the
street. And they did this.... I should have had some way to have something—
to go after damages. This was an individual they knew was a sexual predator,
and HIV positive.... You cannot tell me it was not the responsibility of the
institution to have protected me.79
DeBlasio does not believe that the PLRA was intended to prevent prisoners in his situation
from filing suit:
The whole purpose of the PLRA, and this is in the congressional record, was
to alleviate some of the frivolous lawsuits.... At no point in time can
somebody claiming a sexual assault or physical assault be considered
frivolous.... In a situation where my entire ability to support myself, not to
mention my health being so bad that my mother had to hold the glass and
put the straw into my mouth—this is a situation where there’s no doubt that I
should be compensated. But these are the types of things that because of
the PLRA that they manage to keep out of court.80
DeBlasio summed up his situation: “What was a sentence for a white collar crime that
should have ended many years ago will never end. I got a life sentence.”81
Expecting a prisoner to commence the grievance process within a few days of experiencing
rape, assault, or a similar event is unrealistic in light of the dynamics of trauma. Terry Kupers,
a psychiatrist who has interviewed and evaluated more than a thousand prisoners,
explained:
Trauma has specific dynamics of its own. The person goes into a very
dysfunctional state right after the trauma. They’re flooded with emotions.
What we generally find is a dysregulation of emotions and cognition that
lasts for many days. This is the period when there are intrusive symptoms,
79

Human Rights Watch telephone interview with Keith DeBlasio, Great Cacapon, WV, December 8, 2008.

Ibid.

Human Rights Watch | June 2009

flashbacks, et cetera. And in that state a person is unable to carry out an
organized task. And that happens to be the same timeline as the deadline for
the internal grievances.... Particularly when you’re looking at survivors of
sexual assault, they don’t do anything for a long time. They mull it over. They
tend to withdraw and be isolated. And they tend to be flooded with emotions,
and for instance, experience shame. And reporting in a formal way is the last
thing on their mind.82
Attorney Lisa Freeman, who represents female prisoners who allege sexual abuse by prison
staff, agreed:
The time frame of the grievance process basically calls for people who are
suffering this very traumatic injury to come forward and complain about it in
a timely fashion.... In the community there’s a complete understanding that
victims of sexual abuse don’t come forward with an immediate outcry in most
instances.83

Human Rights Watch telephone interview with Terry Kupers, Oakland, CA, November 14, 2008.

Human Rights Watch telephone interview with Lisa Freeman, March 31, 2009.

No Equal Justice

VI. The Physical Injury Requirement
In 2004, images of sadistic abuse at Iraq’s Abu Ghraib prison shocked the world. Photos
showed naked prisoners terrorized by snarling dogs, hooded prisoners made to stand in
"stress positions," and prisoners piled naked into pyramids for the amusement of guards. If
those abuses had occurred in a US prison, compensation for the victims would be barred by
the "physical injury" requirement of the PLRA.84
The general rule in US law is that mental or emotional injury to a person, if caused
intentionally, is harm for which monetary compensation can be claimed (“compensable” in
legal terminology). For example, victims of verbal sexual or racial harassment in the
workplace can recover money damages for the resulting emotional distress, even if they
suffer no physical injury.
The PLRA abolishes this rule for prisoners. It provides that a prisoner may not sue “for
mental or emotional injury suffered while in custody without a prior showing of physical
injury.”85 The physical injury requirement simply declares a certain category of injury to be
noncompensable, without regard to the merit of the prisoner’s claim or the culpability of the
defendant. Thus, even a prisoner who is the victim of intentionally abusive staff conduct,
resulting in extreme emotional distress, cannot recover compensation. As one federal judge
put it,
[I]magine a sadistic prison guard who tortures inmates by carrying out fake
executions—holding an unloaded gun to a prisoner's head and pulling the
trigger, or staging a mock execution in a nearby cell, with shots and screams,
and a body bag being taken out (within earshot and sight of the target
prisoner). The emotional harm could be catastrophic but would be noncompensable [under the PRLA].86
One witness testifying before the Commission on Safety and Abuse in America’s Prisons
suggested that this provision of the PLRA “seems to make it national policy ... that mental
84

See Bob Herbert, “America’s Abu Ghraibs,” New York Times, May 31, 2004, p. A17 (“Not only are inmates at prisons in the
U.S. frequently subjected to similarly grotesque treatment, but Congress passed a law in 1996 to ensure that in most cases
they were barred from receiving any financial compensation for the abuse”).
85

42 U.S.C. sec. 1997e(e).

Siggers-El v. Barlow, 433 F.Supp.2d 811, 816 (E.D. Mich. 2006) (quoting with approval a hypothetical set forth in plaintiff’s

brief).

Human Rights Watch | June 2009

torture is not actionable.”87 And indeed, a recent study of 279 survivors of torture in the
former Yugoslavia concluded that “psychological stressors cannot be easily distinguished
from physical torture in terms of their relative psychological impact.” The study’s authors
identified “sham executions, threats of rape, sexual advances, threats against self or family,
witnessing the torture of others, humiliating treatment, isolation, deprivation of
urination/defecation, blindfolding, sleep deprivation, and certain forced stress positions” as
forms of abuse that “seemed to be as distressing as most physical torture stressors.”88 Many
of these abuses have been documented in US prisons, and under the PLRA, all of them
would be considered “mental or emotional injury” that would not be compensable without a
“prior showing of physical injury.”
The physical injury provision of the PLRA is particularly anomalous in light of the fact that,
under US criminal law, many acts that produce only “mental or emotional injury” are treated
as serious crimes. For example, a person may be convicted of assault on a federal officer and
sentenced to prison even if there is no physical contact, as long as there is “such a threat or
display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or
death.”89 However, if the same conduct were directed toward a prisoner by a corrections
officer, the PLRA’s physical injury requirement would bar any compensation.
Indeed, some courts have ruled that the PLRA bars compensation for even the most extreme
mistreatment of prisoners. Stephen Jarriett filed a lawsuit alleging that prison officials forced
him to stand in a two-and-a-half foot square cage for about 13 hours, naked for the first eight
to ten hours, and unable to sit for more than 30 or 40 minutes of this time. He was in acute
pain from a clearly visible swelling in his leg from a previous injury and repeatedly asked to
see a doctor, but his requests were ignored. The court ruled that the PLRA barred
compensation for this treatment because any physical injury was “de minimis,” a legal term
meaning too trivial to deserve the court’s attention.90
Although the plain language of the PLRA suggests that any “physical injury” is enough to
support compensation, many courts have ruled that injuries they deem minor do not qualify.
87

Commission on Safety and Abuse in America’s Prisons, “Confronting Confinement,” p. 86. This provision of the PLRA does
not affect the availability of injunctive relief—a legal term meaning a court order to halt ongoing unlawful conduct. However, in
the case of a sexual assault or other discrete incident of abuse that is already completed, injunctive relief is not available, and
the only possible remedy is money damages.
88

Metin Başoğlu, Maria Livanou, and Cvetana Crnobarić, “Torture vs. Other Cruel, Inhuman, or Degrading Treatment: Is the
Distinction Real or Apparent?” Archives of General Psychiatry, vol. 64, no. 3, 2007, pp. 277-285, http://archpsyc.amaassn.org/cgi/content/full/64/3/277 (accessed June 2, 2009).
89

U.S. v. Walker, 835 F.2d 983, 987 (2d Cir. 1987).

Jarriett v. Wilson, 162 Fed. Appx. 394, 403 (6th Cir. 2005) (dissenting opinion).

No Equal Justice

Conditions courts have found insufficient to satisfy the PLRA’s physical injury requirement
include:
•

Facial burns91

•

An “open wound” to the head causing “severe pain”92

•

Being forced to defecate in one’s clothing and sleep in feces93

•

An asthma attack requiring hospitalization in the critical care unit94

•

Extreme pain resulting from broken teeth with exposed nerve95

•

Sexual touching and even assault (see details below)

Under the physical injury requirement, courts have also ruled that prisoners who suffer
violation of their constitutional right to practice their religion cannot recover compensation
for that violation.96 And at least one court has ruled that racially discriminatory treatment by
prison staff is a “mental or emotional injury” for which the PLRA bars compensation.97 Before
enactment of the PLRA, prisoners were able to recover damages both for violation of their
religious rights and for racial discrimination.98
Several courts have relied on this provision of the PLRA to dismiss prisoner claims of sexual
abuse by staff. The following claims have been dismissed under the physical injury
requirement:
•

A prisoner who alleged that a female corrections officer had grabbed his penis
and held it in her hand.99

•

A prisoner who alleged that a prison employee reached between his legs and
rubbed his genitals.100

Brown v. Simmons, 2007 WL 654920, at *6 (S.D. Tex. 2007).

Diggs v. Emfinger, 2008 WL 544293, at *4, report and recommendation rejected on other grounds, 2008 WL 516378 (W.D. La.

2008).
93

Brooks v. Delta Correctional Facility, 2007 WL 2219303, at *1 (N.D. Miss. 2007).

Williams v. Smith, 2006 WL 938980, at *2 (W.D. Ky. 2006).

Olivas v. Corrections Corp. of America, 408 F.Supp.2d 251, 254, 259 n. 4 (N.D. Tex. 2006).

Searles v. Van Bebber, 251 F.3d 869, 876-77 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247, 250-51 (3d Cir. 2000).

Jones v. Pancake, 2007 WL 4104890, at *3 (W.D. Ky. 2007).

See Bryant v. McGinnis, 463 F. Supp. 373 (W.D.N.Y. 1978) (religious rights); Mickens v. Winston, 462 F. Supp. 910 (E.D. Va.
1978) (racial discrimination).

Smith v. Shady, 2006 WL 314514, at *2 (M.D. Pa. 2006).

Human Rights Watch | June 2009

•

Prisoners who alleged that an officer had fondled their genitals and “sexually
battered them by sodomy;” the court dismissed the case because “the plaintiffs
do not make any claim of physical injury beyond the bare allegation of sexual
assault.”101

•

Two female prisoners who alleged that they were strip-searched by male guards.
After the incident, one woman began to suffer migraine headaches, while the
other attempted suicide by drug overdose. The court ruled that the women had
not satisfied the PLRA’s physical injury requirement; “a few hours of lassitude
and nausea and the discomfort of having her stomach pumped is no more than a
de minimis physical injury.”102

Courts have also ruled that people who are wrongly imprisoned, or wrongly placed in
segregation or solitary confinement, cannot recover compensation due to the physical injury
requirement. For example, Christopher Brumett alleged that he was illegally jailed for
approximately six months; the court ruled that the PLRA barred any compensation because
he did not allege a physical injury.103
The PLRA bars damages even for prisoners placed in segregation due to intentional staff
misconduct. A court specifically found that prison staff unconstitutionally retaliated against
Jeffery Royal for his complaints about inadequate medical care by placing him in segregation
for 60 days. Nevertheless, because Royal did not allege any physical injury as a result of this
violation of his rights, he could recover only $1 in damages.104
According to Dr. Kupers, confinement in segregation, while not compensable under the PLRA,
can result in injuries that are very real:
What we know is that long-term isolated confinement causes difficulty
thinking, cognitive impairment, and difficulty with memory. A very frequent,
almost universal symptom is that they’ve stopped reading, because it’s
useless to read—they can’t remember what they read three pages ago.... I’ve

100

Cobb v. Kelly, 2007 WL 2159315 (N.D. Miss. 2007).

101

Hancock v. Payne, 2006 WL 21751, at *3 (S.D. Miss. 2006).

102

Moya v. City of Albuquerque, Civil No. 96-1257 DJS/RLP (D.N.M., Memorandum Opinion and Order, Nov. 17, 1997), pp. 3-4.

103

Brumett v. Santa Rosa County, 2007 WL 4287558, at *2 (N.D. Fla. 2007).

104

Royal v. Kautzky, 375 F.3d 720, 722-24 (8th Cir. 2004).

No Equal Justice

never met anybody who hasn’t been damaged by long-term confinement in
segregation.105
Similarly, in a 2005 filing in the US Supreme Court, a group of psychologists and
psychiatrists surveyed the literature on isolated confinement and concluded that “[n]o study
of the effects of solitary or supermax-like confinement that lasted longer than 60 days failed
to find evidence of negative psychological effects.”106

Case Study: No Remedy for a Year in Solitary Confinement
Alex Pearson was just two days away from transfer out of Tamms Correctional Center,
Illinois’s most restrictive prison, when he was found guilty of a disciplinary infraction. This
infraction halted his transfer to a less restrictive prison and extended his time at Tamms by
more than a year. A court described conditions at Tamms as follows:
In contrast to inmates in a typical “general population” prison, inmates in
Tamms have no contact with other inmates. Instead, they are housed in
single cells, which they leave for only an hour each day for “individualized
recreation” in a 30-foot long, 15-foot wide partially-covered cement enclosure.
Inmates at Tamms do not hold prison jobs, do not interact with other
prisoners, and are allowed contact with visitors, if at all, only through a glass
partition while in restraints.107
Pearson described to Human Rights Watch the effects of his extra year at Tamms:
I was at my lowest I could possibly be. I was super stressed out.... I couldn’t
write, I couldn’t eat—it took me at least six months to where I could gain my
full functioning back. It affected me physically, and it also affected me
emotionally in terms of my relationship with my family. It took me six months

105

Human Rights Watch telephone interview with Terry Kupers, November 14, 2008. Human Rights Watch has repeatedly
documented the damaging effects of isolated confinement, particularly on persons with mental illness. See, for example,
Human Rights Watch, Ill-Equipped, pp. 145-173; Human Rights Watch, Cold Storage: Super-Maximum Security Confinement in
Indiana, October 1997, http://www.hrw.org/legacy/reports/1997/usind/, pp. 62-74.

106

Wilkinson v. Austin, No. 04-495, Brief of Professors and Practitioners of Psychology and Psychiatry as Amicus Curiae in
Support of Respondent, 2005 WL 539137, at *4.
107

Pearson v. Welborn, 471 F.3d 732, 734 (7th Cir. 2006).

Human Rights Watch | June 2009

to get up the strength to write to them and tell them I wouldn’t be leaving
[Tamms].108
With the assistance of counsel, Pearson filed a civil lawsuit, and a jury found that prison
staff had unlawfully given him the infraction in retaliation for complaining about conditions
and for refusing to act as an informant. However, when Pearson tried to recover
compensation for the harsh conditions he had endured at Tamms as a result of the
retaliatory infraction, the court ruled that recovery was barred by the PLRA because Pearson
had suffered no physical injury. Although Pearson testified that during the additional year at
Tamms he had become depressed and lost approximately 50 pounds, the court ruled that
this did not constitute a physical injury that would allow him to recover compensation.109
Pearson described the lasting effects of this experience with the PLRA:
You want to think that the justice system works for those who are in the
right.... [But] if you are a prisoner, no matter what you do, even if you’re right,
the justice system is still not going to acknowledge you or treat you like
someone else whose rights have been violated. They’re not going to treat you
the way they would treat an average person, just because you are a
prisoner.110

108

Human Rights Watch telephone interview with Alex Pearson, Pontiac, Illinois, January 7, 2009.

109

Pearson v. Welborn, 471 F.3d 732, 744-45 (7th Cir. 2006).

110

Human Rights Watch telephone interview with Alex Pearson, January 7, 2009.

No Equal Justice

VII. The PLRA’s Application to Children
The chief argument of the PLRA’s Congressional sponsors was that prisoners were
inundating the courts with lawsuits, many of them frivolous and malicious. But incarcerated
children filed very few lawsuits even before the PLRA’s passage.111 Nevertheless, the PLRA
applies with equal force to adult prisoners and to children—both children tried as adults and
sent to adult prison, and those detained in the juvenile justice system.112
While incarcerated children do not often file lawsuits, they are sometimes the victims of
serious mistreatment and abuse. For more than a decade Human Rights Watch has
documented physical and sexual abuse, as well as unhealthy and inhumane conditions of
confinement, suffered by incarcerated children in the United States.113
In February 2007 a report revealed that two high-ranking administrators at the West Texas
State School, a juvenile facility operated by the Texas Youth Commission (TYC), had engaged
in sexual conduct with several incarcerated children.114 Under the PLRA, detained children
wishing to file a lawsuit over such abuse must first take their complaints all the way through
the facility’s grievance system. But the same report found that “[y]outh and employee
grievance programs at the facility were ineffective and sabotaged.”115
The following month, the US Department of Justice Civil Rights Division notified the governor
of Texas of its conclusion that staff at TYC’s Evins Regional Juvenile Center failed to protect
residents from abuse by staff and violence by other children, in violation of the US
Constitution.116 The Justice Department characterized the grievance system at Evins as
111

Margo Schlanger and Giovanna Shay, “Preserving the Rule of Law in America's Jails and Prisons: The Case for Amending
the Prison Litigation Reform Act,” University of Pennsylvania Journal of Constitutional Law, vol. 11, December 2008, p. 152, n.
66.
112

18 U.S.C. sec. 3626(g)(3), (5); 42 U.S.C. sec. 1997e(h).

113

See, for example, Human Rights Watch, Custody and Control: Conditions of Confinement in New York’s Juvenile Prisons for
Girls, September 2006, http://www.hrw.org/sites/default/files/reports/us0906webwcover.pdf; Human Rights Watch, No
Minor Matter: Children in Maryland’s Jails, November 1999, http://www.hrw.org/legacy/reports/1999/maryland/; Human
Rights Watch, High Country Lockup: Children in Confinement in Colorado, August 1997,
http://www.hrw.org/sites/default/files/reports/us978.pdf; Human Rights Watch, Children in Confinement in Louisiana,
October 1995, http://www.hrw.org/legacy/reports/1995/Us3.htm.
114

Texas Youth Commission, Office of the General Counsel, “Summary Report for Administrative Review,” West Texas State
School, http://www.dallasnews.com/sharedcontent/dws/img/02-07/0218tyc_pages1.pdf (accessed May 31, 2009), p. 1.
115

116

Letter from Wan J. Kim, assistant US attorney general, to Texas Governor Rick Perry, March 15, 2007,
http://www.dallasnews.com/sharedcontent/dws/img/03-07/0316tycletter.pdf (accessed May 31, 2009), p. 2.

Human Rights Watch | June 2009

“dysfunctional,” adding that “[o]ne youth reported that he was sitting at a table writing a
grievance when a staff member came by and took it away from him.”117
A March 2007 report by the Texas state auditor similarly concluded that “TYC’s youth
grievance process does not ensure that all grievances are received and investigated
appropriately and in a timely manner.”118 The auditor noted substantial delays in processing
grievances; policies that allowed staff members to investigate grievances filed against
themselves; and policies allowing youth to be punished for filing grievances deemed
frivolous or excessive by staff.119
Deborah P., age 18, has been incarcerated in juvenile facilities operated by the Texas Youth
Commission since she was 14 years old. She explained,
When I first came here it was very hard for me to actually fill out a grievance
because I never went to school, and my grade level was so low. When I finally
did fill out a grievance, they didn’t accept it because of my handwriting.120
Deborah P. also said that other youth in the facility do not know how to use the grievance
system.121
The grievance exhaustion requirement has significantly interfered with the ability of adult
prisoners to protect their rights in court (see section V, above). But it has had an even more
pronounced effect on incarcerated children because of their greater vulnerability and more
limited ability to follow complex and multi-step grievance processes.
Former Corrections Director Woodford told Human Rights Watch of her observations in
California: “I’ve been in some of the county facilities where I’ve been very concerned about
the conditions [for children] ... I think they’re particularly vulnerable, and [have] an inability
to reach outside the prison to get to [lawyers] and others, that we all need to be concerned
about.” Woodford described a visit to one juvenile facility (which she preferred not to name)
117

Ibid., p. 9.

118

Texas State Auditor’s Office, “An Investigative Report on the Texas Youth Commission,” SAO Report No. 07-022, March
2007, http://www.sao.state.tx.us/reports/main/07-022.pdf (accessed May 31, 2009), p. 4.
119

Ibid., pp. 4-8.

120

Human Rights Watch telephone interview with Deborah P. (pseudonym), Brownwood, Texas, February 2, 2009. Deborah P.
is currently a plaintiff in a class action lawsuit challenging conditions in TYC facilities; a paralegal from her lawyers’ office was
on the line during this interview.

121

Ibid.

No Equal Justice

where “[t]he staff couldn’t clearly articulate to me what the grievance system was.” She
believes that children in custody have an especially difficult time with grievances: “I think
the rules are very complicated, and I think the literacy among juveniles is usually pretty poor.
The ability to find people to help you seems to have been more difficult in the juvenile
system.”122
Orlando Martinez has been director of juvenile corrections for the states of Georgia and
Colorado. He too told Human Rights Watch that incarcerated children have difficulty
exhausting multi-step grievance systems:
I don’t know if they have the reading skills, the language skills, or
conceptualization skills, maturity, to be able to follow it. I think they have a
short attention span. If it’s not resolved right away, they’re not going to
pursue it.... They have learning disabilities, they have mental health issues—
their needs are so great.123
Kim Brooks Tandy is a lawyer and executive director at the Children’s Law Center in
Covington, Kentucky. She explained the difficulty of getting incarcerated children to navigate,
or even understand, multi-step grievance systems: “The concept of ‘exhaustion’ is almost
nonexistent with my clients. They are confused by language on grievance forms and do not
understand why there are multiple levels at the institution and through the Chief Inspector’s
office which must be completed.”124
Psychiatrist Terry Kupers explained to Human Rights Watch why it is even more difficult for
children to successfully navigate a prison grievance system than for adult prisoners: “On
average, juveniles are more impulsive, less capable of planning a course of action and
taking steps, particularly when there are timelines for taking those steps.... So they’re just
less capable, on average, than an adult of doing that.”125
Despite these limitations, courts have enforced the exhaustion requirement against children
as strictly as they have against adult prisoners. In one case in Indiana, a detained juvenile’s
lawsuit alleging that he had been beaten was dismissed because he had not exhausted the
facility’s five-level grievance system. Although it was undisputed that immediately after the
122

Human Rights Watch telephone interview with Jeanne Woodford, October 29, 2008.

123

Human Rights Watch telephone interview with Orlando Martinez, April 16, 2009.

124

Email correspondence from Kim Brooks Tandy to Human Rights Watch, April 15, 2009.

125

Human Rights Watch telephone interview with Terry Kupers, November 14, 2008.

Human Rights Watch | June 2009

beating he had no access to writing materials and was held in segregation until after the
deadline for filing a grievance had passed, the court stated without explanation that “if he
had submitted a grievance after his release from segregation ... it would have been
considered [by facility officials], even though submitted after the period prescribed for the
filing of a grievance.”126
In most other settings, society recognizes the limited abilities of children by permitting (and
in many cases requiring) their parents or other adults to act on their behalf. For example, a
minor cannot bring or defend a lawsuit in US federal court without assistance from a
guardian or other adult.127 However, federal courts have ruled that the efforts of parents or
other adults on behalf of incarcerated children do not satisfy the PLRA’s exhaustion
requirement.128
S.Z., a resident in an Indiana juvenile detention facility, was raped and repeatedly beaten by
other detainees over a period of months. On one occasion he was beaten with “padlockladen socks”; on another day a beating triggered a seizure-like reaction. Some staff
allegedly encouraged the beatings and would arrange fights between detainees, sometimes
handcuffing one resident so that others could beat him.129
S.Z.’s mother learned of the ongoing abuse of her son and frantically tried to protect him.
She complained to staff at the facility, wrote to the facility superintendent, wrote to juvenile
court judges, contacted the deputy director of the Department of Corrections, and eventually
contacted the governor of Indiana.130
However, when S.Z. filed a lawsuit to recover compensation for his injuries, the case was
dismissed on the ground that his mother’s actions did not satisfy the PLRA’s exhaustion
requirement: “[H]er efforts cannot be said to have satisfied [S.Z.’s] obligation under the
Prison Litigation Reform Act to exhaust available administrative remedies, and [S.Z.] did not

126

M.C. ex rel. Crider v. Whitcomb, 2007 WL 854019, at *3 (S.D. Ind. 2007).

127

Fed. R. Civ. P. 17(c).

128

This is consistent with the general rule under the PLRA that exhaustion must be completed by the detained person, not by

others acting on his or her behalf. See, for example, Harris v. Le Roy Baca, 2003 WL 21384306, at *3 (C.D. Cal. 2003) (rejecting
the contention that a grievance filed by counsel on prisoner’s behalf satisfies the exhaustion requirement); El'Shabazz v. City
of Philadelphia, 2007 WL 2155676, at *3 (E.D. Pa. 2007) (grievances filed by prisoner’s father on his behalf did not satisfy
PLRA).
129

Minix v. Pazera, 2005 WL 1799538, at *1-2 (N.D. Ind. 2005). For the purpose of ruling on the state’s motion to dismiss the
case, the court accepted these facts as true.
130

Ibid., at *2, *4.

No Equal Justice

satisfy that obligation either.”131 The grievance system had five steps and would have
required S.Z. to file his initial grievance within 48 hours of being raped or beaten.132
In another case, a juvenile filed a lawsuit alleging that staff had hit him, shocked him with a
stun gun, and then led him down the hall by his testicles to an isolation cell. Although his
lawyer had discussed the incident with the jail administrator, the Federal Bureau of
Investigation, the Kentucky State Police, and the Kentucky Department of Juvenile Justice,
the court ruled that this did not satisfy the PLRA and the suit was dismissed for failure to
exhaust.133
There have also been cases of correctional officials interfering with efforts to help
incarcerated youth file grievances. Kim Brooks Tandy told Human Rights Watch of a lawyer
from her office who helped two youths complete grievance forms and explained exhaustion
requirements to them; both youths had been assaulted by staff and wanted to take legal
action. After the lawyer provided this assistance, correctional officials barred her from
returning to the facility, and asserted in court papers that she was “destabiliz[ing] the ...
population” by “violat[ing] an unwritten ... regulation prohibiting attorneys from actively
participating in the grievance process.” A federal judge ordered that the attorney be allowed
to enter the facility and meet with detained children, but specified that she “is not permitted
to write the grievance application, request the processing of, or process the grievance
application.”134
Attorney Dori Lewis told Human Rights Watch that the PLRA has made it even more difficult
to vindicate the legal rights of detained youth: “The PLRA is making litigation on behalf of
juveniles extremely difficult. Finding kids who are willing to come forward and file a
complaint inside the institution, while [they are] still there, where everyone knows about it,
is almost impossible.”135
Former juvenile corrections director Orlando Martinez believes that applying the PLRA to
incarcerated youth fails to recognize important differences between children and adults:
131

Ibid., at *7.

132

Ibid., at *3. Because S.Z. was released before the statute of limitations expired, he was able to re-file his lawsuit. Since he
was no longer a prisoner, the PLRA did not apply, so his lawsuit was allowed to proceed. Schlanger and Shay, “Preserving the
Rule of Law in America's Jails and Prisons,” University of Pennsylvania Journal of Constitutional Law, p. 154 n. 82.
133

Brock v. Kenton County, KY, 93 Fed. Appx. 793, 795, 799 (6th Cir. 2004).

134

Email correspondence from Kim Brooks Tandy to Human Rights Watch, April 15, 2009; J.P v. Taft, No. 04-CV-692 (S.D. Ohio),
order, April 8, 2005, pp. 2, 5.
135

Human Rights Watch telephone interview with Dori Lewis, March 31, 2009.

Human Rights Watch | June 2009

It’s almost like the public policy issue is that kids are not like adults, except
when it comes to crime. They can’t marry, they can’t sign contracts, they can’t
drink, they can’t vote, until they’re 18. But when it comes to crime, the PLRA
just assumes that they’ll be able to follow the same process as an adult. But
all the scientific research and studies of the brain we have indicate that they
don’t mature until they’re age 25.... It really calls into the question what the
purpose of the juvenile court is.... The juvenile court is there to protect and
help this kid mature and live crime free. The PLRA is not consistent with that
philosophy—it’s a very criminal justice process.136

136

Human Rights Watch telephone interview with Orlando Martinez, April 16, 2009.

No Equal Justice

VIII. The PLRA’s Effect on Prisoners’ Access to the Courts
The effect of the PLRA on prisoners’ access to the courts was swift and devastating. Between
1995 and 1997, federal civil rights filings by prisoners fell 33 percent, despite the fact that
the number of incarcerated persons had grown by 10 percent in the same period.137 By 2001
prisoner filings were down 43 percent from their 1995 level, despite a 23 percent increase in
the incarcerated population.138 By 2006, the number of prisoner lawsuits filed per thousand
prisoners had fallen 60 percent since 1995.139
If the effect of the PLRA were to selectively discourage the filing of frivolous or meritless
lawsuits, as its sponsors predicted, then we would expect to find prisoners winning a larger
percentage of their lawsuits after the law’s enactment than they did before. But the most
comprehensive study to date shows just the opposite: since passage of the PLRA, prisoners
not only are filing fewer lawsuits, but also are succeeding in a smaller proportion of the
cases they do file.140 This strongly suggests that, rather than filtering out meritless lawsuits,
the PLRA has simply tilted the playing field against prisoners across the board. The author of
a comprehensive study on the impact of the act concludes that “the PLRA’s new decision
standards have imposed new and very high hurdles so that even constitutionally meritorious
cases are often thrown out of court.”141
The PLRA has also apparently resulted in a significant decline in judicial oversight of
conditions in correctional facilities. Between 1995 and 2000, the number of states with less
than 10 percent of their prison populations under court supervision more than doubled, from
12 to 28.142 After tracing the history of US prison litigation from the 1960s to the present, one
scholar recently concluded that “the PLRA has contributed to a major decline in the
regulation of prisons and jails by court order.”143 In the absence of other methods of
oversight, this decreased monitoring by the courts is cause for concern.
137

Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1634.

138

Schlanger, “Inmate Litigation,” Harvard Law Review, pp. 1559-60.

139

Schlanger and Shay, “Preserving the Rule of Law in America's Jails and Prisons,” University of Pennsylvania Journal of
Constitutional Law, pp.141-42.

140

Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1664 (“the average likelihood of plaintiffs’ success is lower, not

higher, on the post-PLRA docket”).
141

Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1644.

142

Commission on Safety and Abuse in America’s Prisons, “Confronting Confinement,” pp. 85-86.

143

Margo Schlanger, “Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders,” New York University

Law Review, vol. 81, 2006, p. 602.

Human Rights Watch | June 2009

Former director Woodford told Human Rights Watch that she believes the PLRA has had a
negative effect on conditions in US prisons:
I do think the PLRA does need to be reformed. I think that there’s prison
experts around the country who would agree with that.... I’m told that many
people in [the American Correctional Association] believe that as well. That
they’re starting to see abuses.... A lot of the corrections professionals were
telling me that they had concerns that a lot of the steps forward they’d made
in Texas were reverting because of the PLRA. And I can see that happening in
California too.144
Former director Martinez similarly believes that the obstacles erected by the PLRA have a
negative effect on conditions for incarcerated youth: “I think they need advocacy from the
outside. I think that without having either legal advocacy or other advocacy, the conditions
at these facilities will continue to deteriorate.”145

144

Human Rights Watch telephone interview with Jeanne Woodford, October 29, 2008. However, this view is not unanimous.
Martin Horn, Commissioner of the New York City Department of Correction, has stated that “[t]here is no real evidence any of
[the PLRA’s] prudent rules have resulted in the denial of access to the courts on the part of state or local inmates. The
concerns [PLRA critics] express are speculative and theoretical.” Letter from Martin F. Horn to Honorable John Conyers and
Honorable Lamar Smith, April 10, 2008, p. 4.

145

Human Rights Watch telephone interview with Orlando Martinez, April 16, 2009.

No Equal Justice

IX. The PLRA Violates Human Rights
Under the US Constitution, treaties signed and ratified by the United States “shall be the
supreme law of the land.”146 The United States has signed and ratified a number of human
rights treaties, including the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Convention against Torture), the International
Covenant on Civil and Political Rights (ICCPR), and the International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD). The United States has also signed,
but not yet ratified, the Convention on the Rights of the Child (CRC).147
A bedrock principle of international human rights law is the equality of all persons before the
law. Thus the ICCPR provides:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.148
The ICCPR specifically provides that “[a]ll persons shall be equal before the courts and
tribunals.”149 The PLRA’s restrictions on court access, which apply only to prisoners, are
fundamentally at odds with these requirements.
A second foundational principle of human rights law relevant here is that persons whose
rights have been violated are entitled to an effective remedy for that violation. The ICCPR
requires that ratifying countries “ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that the violation
has been committed by persons acting in an official capacity.”150 The Convention against
146

United States Constitution, art. VI, cl. 2.

147

Although the United States has not yet ratified the CRC, as a signatory to the treaty it is obligated “to refrain from acts
which would defeat [its] object and purpose.” Vienna Convention on the Law of Treaties, art. 18.

148

International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N.
GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United
States on June 8, 1992, art. 26.
149

Ibid., art. 14, sec. 1.

150

Ibid., art. 2, sec. 3.

Human Rights Watch | June 2009

Torture similarly requires each ratifying country to “ensure in its legal system that the victim
of an act of torture obtains redress and has an enforceable right to fair and adequate
compensation.”151 ICERD requires that victims of racial discrimination have “the right to
seek ... just and adequate reparation or satisfaction for any damage suffered as a result of
such discrimination.”152
As this report makes clear, the PLRA in many cases operates to deprive prisoners of an
effective remedy—or indeed, any remedy at all—for violations of their rights. Prisoners who
fail to comply with all the requirements of their institution’s grievance system may forfeit
their right to compensation even for extremely serious injuries. And the PLRA’s physical
injury requirement means that even prisoners who are the victims of intentional staff abuse
will often be denied a remedy.
The Committee Against Torture, the body of independent experts that monitors state parties’
compliance with the Convention against Torture, most recently reviewed US compliance with
the Convention in 2006. In its conclusions and recommendations, the committee recognized
that the PLRA’s physical injury requirement contravenes article 14 of the treaty (requiring
redress for victims of torture), and called for its repeal:
The Committee is concerned by section 1997e(e) of the 1995 Prison Litigation
Reform Act which provides “that no federal civil action may be brought by a
prisoner for mental or emotional injury suffered while in custody without a
prior showing of physical injury.” (article 14).
The State party should not limit the right of victims to bring civil actions and
amend the Prison Litigation Reform Act accordingly.153

151

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture),
adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered
into force June 26, 1987, ratified by the United States on October 21, 1994, art. 14, sec. 1.

152

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A.
Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January
4, 1969, ratified by the United States on October 21, 1994, art. 6.

153

Committee Against Torture (CAT), “Consideration of Reports Submitted by States Parties under Article 19 of the Convention,

Conclusions and Recommendations of the Committee against Torture, United States of America,” CAT/C/USA/CO/2, May 18,
2006,
http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/e2d4f5b2dccc0a4cc12571ee00290ce0/$FILE/G06
43225.pdf (accessed June 5, 2009), para. 29 (emphasis in original).

No Equal Justice

Finally, human rights treaties recognize the special status and needs of children. The ICCPR
provides:
Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right to
such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.154
The treaty also requires that “juvenile offenders shall be segregated from adults and be
accorded treatment appropriate to their age and legal status,”155 and that when juveniles are
accused of crime, “the procedure shall be such as will take account of their age and the
desirability of promoting their rehabilitation.”156
In its General Comment 17, the Human Rights Committee reiterated:
[I]f lawfully deprived of their liberty, accused juvenile persons shall be
separated from adults and are entitled to be brought as speedily as possible
for adjudication; in turn, convicted juvenile offenders shall be subject to a
penitentiary system that involves segregation from adults and is appropriate
to their age and legal status, the aim being to foster reformation and social
rehabilitation.157
The Convention on the Rights of the Child similarly requires that:
Every child deprived of liberty shall be treated with humanity and respect for
the inherent dignity of the human person, and in a manner which takes into
account the needs of persons of his or her age....158
Every child deprived of his or her liberty shall have the right to prompt access
to legal and other appropriate assistance[.]159
154

ICCPR, art. 24, sec. 1.

155

Ibid., art. 10, sec. 3.

156

Ibid., art. 14, sec. 4.

157

UN Human Rights Committee, General Comment 17, Rights of the Child, E/C.12/GC/17 (2005), para. 2.

158

Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No.
49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, art. 37(c).

159

Ibid., art. 37(d).

Human Rights Watch | June 2009

The PLRA’s application of the same restrictions to detained children as to adult prisoners
cannot be reconciled with this well-established recognition of the special needs and status
of children, and the obligation to provide detained children with treatment “appropriate to
their age and legal status.”

No Equal Justice

X. Calls for Reform
As the disturbing effects of the PLRA have come to light, calls to reform the law have come
from a variety of quarters. Concerned with the PLRA’s negative effects on the health and
safety of incarcerated persons, Human Rights Watch consistently has called for its reform or
repeal since its enactment in 1996.160
In February 2007 the American Bar Association (ABA) passed a resolution urging
governments at all levels in the United States to “ensure that prisoners are afforded
meaningful access to the judicial process to vindicate their constitutional and other legal
rights and are subject to procedures applicable to the general public when bringing
lawsuits.”161 The ABA specifically called for reform of the PLRA in several respects, including
repeal of the physical injury requirement, amendment of the exhaustion requirement, and
repeal of the provisions extending the law to children.162
The Commission on Safety and Abuse in America’s Prisons163 similarly recommended
significant reform of the PLRA, including elimination of the physical injury requirement and
modification of the exhaustion requirement to require exhaustion only of grievance systems
that meet minimal standards of fairness.164 In a November 2007 letter to Congress, the
commission’s co-chairs summarized its conclusions regarding the PLRA:
Our Commission concluded that there are aspects of the PLRA that, in effect
if not in intention, present serious obstacles to the federal courts’ ability to
deliver justice and protect prisoners who are in danger or subject to abuse....
The Commission reached the conclusion that the PLRA’s physical injury
requirement should be repealed. The requirement stands as an
unconscionable bar to fully remedying—and thus, hopefully, preventing—a
160

See, for example, Human Rights Watch, Ill-Equipped, p. 10; Human Rights Watch, No Escape, p. 12; Human Rights Watch,

All Too Familiar, pp. 10-11.
161

American Bar Association, Criminal Justice Section, “Report to the House of Delegates: Recommendation,” approved by the
House of Delegates February 12, 2007.
162

Ibid.

163

The Commission on Safety and Abuse in America’s Prisons, convened by the nonprofit Vera Institute of Justice, was cochaired by a former US attorney general and a former appellate judge. Its 20 members included prison administrators,
scholars, and a former director of the Federal Bureau of Investigation.

164

Commission on Safety and Abuse in America’s Prisons, “Confronting Confinement,” pp. 86-87.

Human Rights Watch | June 2009

range of violations of constitutional rights. It is a blunt tool that does not
differentiate in any way between meritorious and non-meritorious claims.
Rather, it discourages prisoners with very serious constitutional claims from
bringing those claims to light in a federal court. Moreover, it does so in a way
that discriminates for no valid purpose—and to much harmful effect—against
prisoners....
The Commission also recognized the importance of amending the PLRA’s
exhaustion rules. The exhaustion rule, like the physical injury requirement,
poses far too high a barrier to a federal court hearing of federal law violations.
Its breadth and inflexibility discriminates against prisoners among other civil
rights litigants and results in the suppression of meritorious claims no less
than non-meritorious claims, indeed perhaps even more so.165
Most recently, in January 2008 the chairman of the National Prison Rape Elimination
Commission166 wrote to Congress to express the Commission’s view “that certain PLRA
provisions frustrate Congress’s goal of eliminating sexual abuse in US prisons, jails, and
detention centers.”167 The chairman explained,
Medical professionals, corrections experts, and advocates have provided us
with extensive information indicating that the PLRA’s requirement that a
prisoner successfully exhaust all available administrative remedies before
filing suit has undermined the ability of sexual assault victims to gain access
to the crucial external oversight of the judicial branch—and as a result, has
obstructed their ability to obtain the relief and redress to which they may be
legally entitled. Because of the emotional trauma and fear of retaliation or
repeated abuse that many incarcerated rape victims experience, as well as
the lack of confidentiality in many administrative grievance procedures,
many victims find it extremely difficult—if not impossible—to meet the short
timetables of administrative procedures.

165

Letter from Nicholas de B. Katzenbach and Hon. John J. Gibbons, co-chairs of the Commission on Safety and Abuse in
America’s Prisons, to Chairman John Conyers Jr., US House of Representatives Committee on the Judiciary, et al., November 8,
2007, pp. 2-3.
166

The National Prison Rape Elimination Commission, established by the National Prison Rape Elimination Act of 2003, is
chaired by a federal trial judge. Its eight members include a former prison administrator, academics, a former prisoner, and a
Human Rights Watch staff member.

167

Letter from Reggie B. Walton, chairman, National Prison Rape Elimination Commission, to Representatives Bobby Scott (DVA) and Randy Forbes (R-VA), January 24, 2008.

No Equal Justice

Additionally, we have learned that the physical injury requirement of the
PLRA fails to take into account the emotional and psychological damage
incurred by victims of sexual assault and abuse, even in the absence of
actual or obvious physical injury. Indeed, we were shocked to learn that
there have even been cases in which courts have ruled that actual rape does
not constitute physical injury under the PLRA. Very real non-physical harms
can result from a wide array of sexual abuse situations in prisons and jails,
such as explicit sexual gestures and harassing language, groping of breasts
and touching of genitals, or being forced to masturbate another or in front of
another. Additionally, sexual assault victims often suffer from rape trauma
syndrome, a type of post traumatic stress disorder; and a range of
psychological distress (fear, emotional numbness, flashbacks, nightmares,
obsessive thoughts, major depressive episodes, and anger) can occur
months or years after an incident. We have become distressingly confident
that victims of sexual assault are losing vital protections and avenues for
relief as a result of the legislative provision requiring an actual physical
injury.168

168

Ibid.

Human Rights Watch | June 2009

XI. Conclusion
The PLRA has had a devastating effect on the ability of incarcerated persons to protect their
health and safety and vindicate other fundamental rights. While justified by the PLRA’s
sponsors as necessary to prevent frivolous lawsuits, the requirement that prisoners first take
their complaints through the facility’s grievance system, no matter how complicated or
multilayered the process or how short the deadlines, has barred relief for prisoner claims
regardless of their merit. The provision prohibiting compensation for “mental or emotional
injury” unless accompanied by physical injury has placed an entire category of improper and
even abusive staff behavior beyond the reach of the law. And the PLRA’s application to
children has made it even more difficult for courts to protect the rights of this vulnerable
population, even in cases of ongoing physical or sexual abuse.
Even some judges who stand to benefit from reduced workload as a result of the PLRA have
found the law unhelpful. One federal appellate judge expressed his frustration:
I ... wonder aloud why this sort of administrative/procedural detail under the
PLRA has to be so complicated. I'd say that when an experienced district
judge ... is reversed three times in the same case on a little point like this,
something is rotten in Denmark.... I always thought the PLRA was supposed
to make the handling of prisoner litigation more efficient. If that's its goal,
and this sort of thing is its result, Congress should go back to the drawing
board.169
Thirteen years after the enactment of the PLRA, it is time for Congress to amend the law.
Prisons, jails, and juvenile detention facilities are unique environments. On the one hand,
they are places where liberty is severely restricted—where men, women, and children live,
often for years or decades at a time, under the constant surveillance and near-absolute
power of custodial staff. Even their ability to communicate with the outside world is
restricted, with letters and telephone calls subject to monitoring and censorship.
At the same time these facilities are, of necessity, closed institutions to which outside
access is limited. Most prisons severely restrict access by the news media and many flatly
prohibit media interviews with prisoners, practices that have been upheld by the US
169

Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999) (Evans, J., concurring).

No Equal Justice

Supreme Court.170 Therefore, the kind of public and media scrutiny that helps prevent abuses
of power in other government institutions simply does not operate in places of incarceration.
This combination of virtually unlimited power and lack of transparency creates a potential for
abuse—a potential that, as this report makes clear, is realized all too frequently in prisons,
jails, and juvenile detention facilities. If abuse is to be prevented, and remedied when it
does occur, there must be an outside agency with the power to compel access to information
and order a remedy in appropriate cases.
In the United States this role has historically been carried out by the federal courts. But the
PLRA, by erecting barriers to court access that apply only to incarcerated persons, has
severely limited the ability of the courts to perform this function. Reasonable amendments to
the PLRA would remove these barriers while leaving intact the law’s central feature: the
preliminary screening of prisoner cases and early dismissal if they are plainly without merit.
Congress should enact these amendments without delay to restore the rule of law to prisons,
jails, and juvenile detention facilities in the United States.

170

Houchins v. KQED, Inc., 438 U.S. 1 (1978); Saxbe v. Washington Post Co., 417 U.S. 843 (1974).

Human Rights Watch | June 2009

Acknowledgments
This report was authored by David Fathi, director of the US Program of Human Rights Watch.
The report was edited by Benjamin Ward, associate director of the Europe and Central Asia
division; James Ross, legal & policy director; and Joe Saunders, deputy program director.
Additional review was provided by Jamie Fellner, senior counsel in the US Program, and Lois
Whitman, director of the Children’s Rights division. Layout and production were coordinated
by Grace Choi, publications director; Fitzroy Hepkins, mail manager; and Abigail Marshak,
US Program associate.
Human Rights Watch wishes to thank Elizabeth Alexander, John Boston, Amy Fettig, and
Margo Schlanger for expert review and assistance.

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H U M A N

www.hrw.org

W A T C H

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The Prison Litigation Reform Act in the United States
The Prison Litigation Reform Act (PLRA), passed by Congress in 1996, creates a separate and unequal legal system
for the more than 2.3 million incarcerated persons in the United States. The PLRA singles out lawsuits brought by
prisoners in federal courts for a host of burdens and restrictions that apply to no other persons.
As a result of these restrictions, prisoners seeking the protection of the courts against unhealthy or dangerous
conditions of confinement, or a remedy for sexual assault and other injuries inflicted by prison staff and inmates,
have had their cases thrown out of court. These restrictions apply not only to persons who have been convicted
of crime, but also to pretrial detainees who have not yet been tried and are presumed innocent, and to children
in juvenile facilities.
Human Rights Watch is not aware of any other country in which national legislation singles out prisoners for a
unique set of barriers and obstacles to vindicating their legal rights in court.
Drawing on interviews with former corrections officials, prisoners denied remedies for abuse, and criminal justice
experts, No Equal Justice examines the effect of the PLRA on prisoners’ access to justice. It concludes with specific
recommendations for reform of the law to help restore the rule of law to US prisons, jails, and juvenile facilities.

Prisoners sleep on the floor in the Marion County
Lockup in Indianapolis, Indiana.
© 2001 AP Photo/Indianapolis Star, Mike Fender

R I G H T S

The Habeas Citebook Ineffective Counsel Side

Disciplinary Self-Help Litigation Manual - Side