1983 Prisoner Civil Rights Complaints.

Found this brief overview of the 42 U.S.C. Section 1983 Civil Rights law, which is what most prisoner claims fall under. I'm just borrowing from David J. Don's website - I don't know him, so that's not necessarily an endorsement. He does have experience in cases of police misconduct, though - and hangs out in the same office complex as Robbins and Curtin, who kick ass. In fact, David Don and Anne Findling did a presentation together recently on police liability for continuing ed credits, so their peers must respect them both.

Also for families pursuing personal injury or wrongful death cases against the state, Augustine Jimenez III ended up taking Sandra Cunningham's claim.

Those of you considering filing suit against the state need to pay attention to the deadline for filing a Notice of Claim (the grounds for your intent to sue), which is 180 days (6 months) after the injury or death.


For the most part, living prisoners will find that they have to litigate their claims pro per (themselves). So, here are some links to resources to print and send to them:

Here's the form to file a 1983 CR complaint in Federal District Court.

Here's the National ACLU's prisoner rights' page.

Here's the AZ ACLU's resources page.

Here's the National Lawyer's Guild/Columbia Law Review Jailhouse Lawyers Handbook.

And here's the scoop on the hoops and barriers to justice set up by the Prison Litigation Reform Act.

All that said, keep in mind that I have no legal training- I''m basically a jailhouse lawyer; I'm just not locked up myself.

That should be enough to get everyone started.

None of the above attorneys asked me to put in a plug for them, by the way.
(For all I know they'd just as soon I don't.)

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AN OVERVIEW OF 42 U.S.C. SECTION 1983

A) 42 U.S.C. Section 1983

The cornerstone of much police misconduct litigation is Title 42 U.S.C. § 1983, Rev.Stat. § 1979, derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13, which provides: 

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

b) THREE BASIC ELEMENTS of a Section 1983 Claim:

1. Who is a Person?

A: Any individual, Supervisors, Entities and Municipalities. 

(a) Individual v. Official Capacity Suits. Courts Have Distinguished Between Suits Against Real Persons in Their "Official Capacity" and Suits Against Real Persons in Their "Individual Capacity." See Kentucky v . Graham, 473 U .S. 159 (1985)

(b) Individuals: A state, county or municipal employee who violates a plaintiff’s rights may be sued individually and be held liable for damages. E.g., Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358,116 L.Ed.2d 301 (1991).

(c) Supervisors: A supervisor may be held personally liable for his/her supervisory failures that result in a constitutional deprivation. Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991); Watkins v. City of Oakland, 145 F.3d 1087, 1093-94 (9th Cir.1998).

i) In Larez v. City of Los Angeles, 946 F.2d 630, 645 (9^th Cir. 1995), the Ninth Circuit Court reasoned that:

Even when a sheriff did not knowingly disregard a plaintiff’s plea to see a doctor, he can be held liable if he knew the jail’s system was so deficient as to expose prisoners to substantial risk of significantly unmet serious medical needs. Thompkins v. Belt, 828 F.2d 298, 304 (5^th Cir.1987).

(d) Local Municipalities - eg. Cities, Counties, Other legal entities school boards.

B: The Follow are Not Considered a "Person" Under Section 1983:.

(a) "The State" is not a person, but individual actors working for the state can be parties. 11th Amendment Immunity. The Eleventh Amendment bars damage actions against state officials in their official capacities. See Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir.1997). In addition, “neither a State nor its officials acting in their official capacities are ‘persons' under [42 U.S.C.] § 1983. Will v. Michigan Dep't State Police, 491 U.S. 58, 71 (1989). This holding would not bar claims for prospective declaratory or injunctive relief against any Defendant acting in an official capacity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-06 (1997)

(b) The United States federal government is not a person, but individual actors working for the US government can be parties in a Biven's claim. Damages suits against federal officials for violation of the Constitution authorized under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court recognized that it had always permitted suits for injunctive action against federal officers if they violated the Constituion and thus allowing a damages action as well did not unreasnably extend federal court jurisdiction. A Bivens action is identical in almost every respect ot cause of action asserted against state officers under Section 1983. Carlson v. Green

C: The case of Private Prisons-

(a) The theories of liability and defenses available depend on whether it is a state prisoner or a federal prisoner bringing the action. The defenses of qualified immunity and the Federal Prison Litigation Reform Act (PLRA) are often not available in litigation against private prisons.

(b) "Under color of law": Private corporations operating state or local prison or jail facilities may be sued under 42 U.S.C. § 1983. Correctional Services Corp. v. Malesko, 534 U.S. 61, 71 n.5 (2001); Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003) (reinstating § 1983 claim against jail’s private medical provider).

(c) No Qualified Immunity: Qualified immunity is not available as a defense in a Section 1983 claim brought against privately employed prison guards and their corporate employer. Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100 (1997)

2. What's "Color of law?"

A: "Under Color of" Law and "State Action," Are Coterminous Terms, West v . Atkins: "[I]f a defendant's conduct satisfies the state action requirement of the Fourteenth Amendment, 'that conduct [is] also action under color of state law and will support a suit under § 1983." Lugar v . Edmondson Oil Co., 457 U .S . 922 (1982) : "Under Color of" Law and "State Action" Are Coterminous Terms Because "Congress Thought It Was Creating a Remedy as Broad as the Protection that the Fourteenth Amendment Affords."

(a) off duty officers in uniform.- Mitchell v. Dillard Dept. Stores, Inc., 197 Ariz. 209, 3 P.3d 1129 (App. 2000).

(b) Private companies- working with state.

iii. What's the Constitutional Law and Other Laws?

A: Section 1983 is not itself a source of substantive rights, it merely provides a method for the vindication of rights elsewhere conferred in the United States Constitution and Laws.

B: Section 1983 does not grant a cause of action for violations of purely state law.

C: Other Laws to Consider: Americans with Disabilities Act (ADA); Rehabilitation Act, Individuals with Disabilities Education Improvement Act (IDEA).

c) THE NON-BASIC ELEMENTS

i. What are the causation elements?

A: Causation element is from state law proximate cause or "moving force". Implicit element of causation in Section 1983. See Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 286-87 (1977); Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir.1980), cert. denied, 449 U.S. 875 (1980).

ii. State of Mind Elements? "Section 1983 contains no "express requirement of a particular state of mind." Daniels v. Williams, 474 U.S. 327 (1986)

iii. How Then Are Standards Found for § 1983 Cases? Daniels v. Williams, supra : the § 1983 Standard Is the Same as "That necessary to state a violation of the underlying constitutional right . . . . [I]n any given § 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right ; and depending on the right, merely negligent conduct may not be enough to state a claim." the Supreme Court Has Explicitly Rejected the Idea that There Is One Statutorily-Prescribed Standard for All § 1983 Actions.

d) The Applicable Standards / State of Mind Depend on the Context: Whether the victim is an arrestee, a pretrial detainee, or a sentenced inmate, and the context of when the deprivation occurs. To illustrate we can consider various common fact patterns:

i. USE OF GENERAL FORCE: The General 4th Amendment Standard. To protect the public from a police officer's use of non-lethal force, the constitution requires only that the police officer behave in an objectively “reasonable” manner. Graham v Connor, 490 U.S. 386 (1989). That analysis requires balancing the "nature and quality of the intrusion" on a person's liberty with the "countervailing governmental interests at stake" to determine whether the use of force was objectively reasonable under the circumstances. Graham, 490 U.S. at 396. The constitution does not require a police officer to give a warning or have probable cause before using non-lethal force.

ii. USE OF DEADLY FORCE: More Stringent 4th Amendment Standard. A police officer's use of deadly force is presumptively unconstitutional unless the officer is able to satisfy three constitutional requirements: (1) that deadly force was necessary (i.e., that no non-deadly alternative was available.) See Brower v. County of Inyo, 884 F.2d 13 16 (9th Cir. 1989), on remand from Brower v. County of Inyo, 109 S. Ct. 1378.; (2) the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to him or to others; and (3) if feasible, the officer has given some warning. Quintanilla v. City of Downey, 84 F.3d 353 (9th Cir. 1996); Tennessee v. Gamer, 47 1 U.S. at 3,ll, 105 S. Ct. at 1696,1701.

iii. HIGH SPEED CHASE: Most Stringent 14th Amendment Substantive Due Process Claim: Requires proof of intent to harm. The "Shocks the Conscious Test." County of Sacramento v. Lewis, 523 U.S. 833 (1998)

iv. MALICIOUS PROSECUTION: A Section 1983 malicious prosecution plaintiff must prove that defendants acted for the purpose of depriving him of a specific constitutional right. Awabdy v. City of Adelanto, 368 F.3d 1062, 1069 (9th Cir.2004). Malicious prosecution invokes the Fourth Amendment right not to be arrested without probable cause and thereafter wrongfully prosecuted.

v. USE OF FORCE IN JAILS:

A: PreTrial Detainees: Fourteenth Amendment: Neely v. Feinstein, 50 F.3d 1502, 1508 (9th Cir. 1995) ("[0]ur Fourteenth Amendment jurisprudence has never required officials to have a subjective awareness of the risk of harm in order to be deemed `deliberately indifferent."'); Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc) (holding that "deliberate indifference is the level of culpability that pretrial detainees must establish for a violation of their personal security interests under the fourteenth amendment.").

B: Convicted Inmates: Eighth Amendment Strict standard: Requires a showing that the force was used "maliciously and sadistically to cause harm." Helling v. McKinney, 509 U.S. 25 (1993); Whitley v. Albers, 475 U.S. 312 (1986) (deliberate indifference means "malicious, sadistic, or wanton intent to harm" rather than good faith effort to restore order); To the extent that the plaintiff must prove a due process or cruel and unusual punishment violation, the immunity defense should be inappropriate. Wilson v. Seiter, 501 U .S . 294, 111 S.Ct. 2321 (1991), Hudson v McMillian 503 U.S. 1, 112 S. Ct. 995 (1992)

 

C: Conditions of Confinement: Farmer v . Brennan, 511 U .S . 825, 114 S .Ct . 1970, 1976-77 (1994) (prisoner safety from other prisoners, transsexual's 8th Am. claim for loss of health or safety after attack by other inmates requires proof of "deliberate indifference" as subjective component and "substantial risk of serious harm," as objective component). Jail officials have a duty to protect inmates from violence at the hands of other inmates. See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005)

vi. CORRECTIONAL MEDICAL CARE: The Supreme Court has stated that "deliberate indifference" to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain" and amounted to "cruel and unusual punishment," prohibited by the 8th Amendment. Estelle v. Gamble, 429 U .S. 97, 104, 97 S. Ct. 285 (1976). Under this standard, the plaintiff must prove both an objective and a subjective component. Hudson v. McMillan, 503 U.S. 1 (1992); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992).

A: The objective component is that the alleged deprivation must be, objectively, “sufficiently serious.” Farmer, 511 U.S. at 834. A “serious medical need” exists if the failure to treat a prisoner's condition would result in further significant injury or the unnecessary and wanton infliction of pain contrary to contemporary standards of decency. Helling v. McKinney, 509 U.S. 25, 32-35 (1993). A serious medical need has been defined as "one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Ramos v. Lamm, 639 F.2d 555, 575 (10th Cir. 1980).

B: The subjective component is the mental state that the prison officials must avoid -- not to be "deliberately indifferent" to the risk of harm to the inmate. Farmer, 511 U.S. at 834. An official is deliberately indifferent to a serious medical need if the official “knows of and disregards an excessive risk to inmate health or safety.” Id. at 837. Deliberate indifference requires more culpability than ordinary lack of due care for a prisoner's health. Id. at 835. In assessing whether the official acted with deliberate indifference, a court's inquiry must focus on what the prison official actually perceived, not what the official should have known. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir.1995). To prevail on an Eighth Amendment medical claim, the plaintiff must “show that the course of treatment the doctors chose was medically unacceptable under the circumstances ··· and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996), cert. denied, 519 U.S. 1029. A claim of mere negligence or harassment related to medical problems is not enough to make out a violation of the Eighth Amendment. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981). Simple malpractice, or even gross negligence, does not constitute deliberate indifference. McGuckin, 974 F.2d at 1059. Similarly, a difference of opinion between a prisoner-patient and prison medical authorities regarding what treatment is proper and necessary does not give rise to a § 1983 claim. Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir.1970).

C: Mere negligence or medical malpractice does not establish a sufficiently culpable state of mind. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980). However, a prisoner does not have to prove that he was completely denied medical care in order to demonstrate deliberate indifference. Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir.2000). Deliberate indifference may be shown when an official denies, delays, or intentionally interferes with treatment or by the way that a medical professional provided the care. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006). To prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the course of treatment the doctors chose was medically unacceptable in light of the circumstances and that it was chosen in conscious disregard of an excessive risk to plaintiff's health. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996).

D: Negligence is Sometimes Sufficient. A pattern of "repeated examples of negligent acts" by prison officials may constitute deliberate indifference. Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980).

e) Not Actionable:

i. Forbidden by Judge-Made, Sometimes Called "Equitable,' Principles, see Younger v. Harris, 401 U .S. 37 (1971) (§ 1983 cannot ordinarily be used to obtain an injunction against state criminal proceeding) ;

ii. Claims against Purely Private Person Alleging that they violated the Fourteenth Amendment are not Actionable. See Blum v. Yaretsky, 457 U.S. 991(1932)

iii. Claims against State Officials for Violation of State Law.

Law Offices of David J. Don, PLLC
301 East Bethany Home Road, Suite B-100
Phoenix, Arizona 85012
Telephone: 480-948-1212 / Fax: 480-422-9029
E-Mail: info@azcivilrights.com

Prison Rape: Our laws will not protect us.

Nor will our silence, so speak out or there will most certainly be neither justice nor peace.

The following post comes from the excellent blog Solitary Watch - appropriate for International Women's Day today, particularly given Arizona's history with the Justice Department on the issue. Men are victims of prison rape all too often too, of course, though we are less inclined to call it what it is. Approximately 300 prisoners will be raped today in America alone. One of every eight children we incarcerate will be sexually abused or exploited in custody.

Please take a few minutes to follow the embedded links and defend those whose voices have been so effectively shut out by our courts and legislatures - and ignored by the communities in which they are imprisoned. If you email us a copy of your comments, we'll probably post it. Send them to prisonabolitionist@gmail.com.

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Prison Rape, the PREA, and the PLRA

March 7, 2011
SOLITARY WATCH

Guest Post by Jennifer Wedekind

Editor’s Note: Jennifer Wedekind is a journalist whose work has appeared in Mother Jones, In These Times, and the Multinational Monitor. She is a 2011 JD Candidate at Georgetown Law.

The public comment period for the PREA regulations extends through April 4, 2011. To submit a comment or read the full text of the proposed standards, go to this page on the website of Just Detention International, an organization devoted to exposing and eliminating the epidemic of prison rape.

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The Department of Justice in early February opened a comment period for proposed regulations under the Prison Rape Elimination Act (PREA). Passed in 2003, the Act requires the Attorney General to promulgate national standards for the detection, prevention, reduction and punishment of prison rape. While its ultimate aim is to stem the rampant sexual abuse that occurs in prisons and jails across the country, up until now PREA has largely been an aspirational and fact-gathering statute.

The proposed regulations are structured around recommended standards put forth by the Prison Rape Elimination Commission, established by PREA, in a comprehensive 2009 report on the “the penological, physical, mental, medical, social, and economic impacts of prison rape in the United States.” However, subsequent comments by interested parties citing concerns about prison security and inmate “gamesmanship” have resulted in some of the recommendations being largely neutered. Additionally, a statutory mandate that no regulation impose substantial additional costs on prison authorities may limit the types of programs the regulations can implement. However, the comment period will allow for criticism and revision of the proposed regulations and provides an open forum for prisoner-rights advocates to be heard.

The problem of prison rape that PREA is attempting to address is nothing short of staggering. An estimated 88,500 adult inmates — 4.4 percent of prison inmates and 3.1 percent of jail inmates — reported at least one instance of sexual victimization in the previous year, according to a 2010 Bureau of Justice Statistics report. At a Hughes Unit prison in Texas, the facility with the highest rates of reported victimization, 8.6 percent of inmates reported being sexually assaulted by another inmate. Sexual victimization by guards is equally as prevalent. In the Crossroads Correctional Facility in Missouri, the male facility with the highest rates of guard sexual misconduct, 8.2 percent of inmates reported being victimized. At the women’s Bayview Correctional Facility in New York, 11.5 percent of inmates reported sexual victimization by guards.

When a prisoner comes forward and reports a sexual assault, he or she is more likely to face retribution than redress. Complaining prisoners frequently face retaliatory harassment, discipline or further abuse. A full 25 percent of inmate victims are summarily sent to solitary confinement, according to the Department of Justice’s own numbers.

Additionally, an inmate complaint will rarely result in legal sanctions for the perpetrator or prison authorities, despite the fact that the Supreme Court has held that placing an inmate at risk of sexual assault with deliberate indifference can be a violation of the 8th Amendment. The main obstacle between inmates and a courtroom is the 1996 Prison Litigation Reform Act (PLRA). Congress passed the PLRA in an effort to prevent “frivolous” inmate lawsuits and created considerable hurdles that an inmate must overcome to see his or her day in court. Significantly, any regulations passed under PREA will have to be in compliance with the PLRA, which may hamper its effectiveness in some areas.

In cases of sexual assault, inmates are most often stymied by two PLRA requirements — an exhaustion of all administrative remedies and a showing of physical harm. If a prisoner fails to comply with the technical and often arbitrary requirements of the administrative procedures, or if the inmate misses one of the filing deadlines — which may be as short as 48 hours — his or her right to sue is forever forfeited. Cases are frequently dismissed because of technical errors, because the wrong form was used or because the complaint was submitted to the wrong entity within the sprawling prison system.

In a notable 2003 case, Human Rights Watch reported that sixteen female inmates filed suit alleging systematic sexual abuse by prison staff, including forcible rape, coerced sexual activity, oral and anal sodomy, and forced pregnancies. The federal court hearing the case refused to address the merits, instead taking nearly five years to conclude that the women’s use of informal reporting procedures provided by the prison resulted in a failure to adequately exhaust all administrative remedies.

The PLRA also requires a showing of physical injury — and many jurisdictions do not consider a sexual assault to constitute a physical injury per se. This provision in particular is frequently relied upon to dismiss claims by victims of sexual assault, who frequently have no proof of physical injury due to delay in reporting, lack of additional violence during the assault, or inadequate prison medical providers, who often do not have the resources or willingness to administer a rape kit.

Advocates hope the final PREA regulations will provide more services for inmates and more accountability for prison administrators. However, while the regulations may be able to ease some of the administrative burdens currently on inmate victims, it will not provide a private cause of action and the PLRA will still dictate access to courts.

The proposed regulations would ban cross-gender strip searches, create minimum standards for investigations following a report, require correctional facilities to provide medical and mental health care, and institute a zero tolerance policy for sexual assault and harassment. The regulations also purport to make the prison grievance systems more accessible, however they don’t go as far as most advocates think necessary. It remains to be seen what effect, if any, the regulations will have.

Damage Done: the Prison Litigation Reform Act.

This we must change this session of Congress, with Webb's Commission on Criminal Justice Reform.

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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 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]

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.”

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]

Revive the Prison Abuse Remedies Act: Human Rights Day

Upcoming Events

December 10: International Human Rights Day.

December 17: International Day to End Violence Against Sex Workers (Tucson Memorial).

December 18: Sex Workers Outreach Project Protest at the AZ DOC in Phoenix.

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This post is from October, but seemed appropriate to renew for Human Rights Day. We need to make sure the next session of congress deals with with the Prison Abuse Remedies Act.

Prison Abuse Remedies Act

Below is an editorial by the New York Times urging revision of the Prison Reform Litigation Act, which has been preventing prisoners from obtaining legal remedies to neglect and abuse since 1996 (another piece of legislative garbage he signed to repress resistance). The authors below make the direct link between the abuses of that law by prison officials, and the deplorable conditions in American prisons today. Let's make sure Congress passes the Prison Remedies Act ths year - before they full on into their 2010 campaigns.

Thanks to Lois at the Real Cost of Prisons Project for passing this on to us. Perhaps in the meantime the draft legislation could be used a the foundation for new state legislation to remedy prison abuse.

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Letter to the Editor: Abuse of Female Prisoners
Published: October 2, 2009
To the Editor: New York Times
Re “Prisoners’ Rights” (editorial, Sept. 24):

You are right to call for legislation amending the Prison Litigation Reform Act. We sued on behalf of female prisoners in the New York State prison system who reported that they had been sexually assaulted by staff members, and have been appalled to spend the last six years litigating whether these 17 women — each of whom bravely complained of her abuse to departmental officials — exhausted their administrative remedies sufficiently to satisfy the law.

As a result, New York State has been able to avoid addressing the prison system’s longstanding failure to protect female prisoners from sexual abuse, allowing more and more women to be victimized.

The Prison Litigation Reform Act was sold in Congress as a measure against frivolous litigation, but has served in reality to prevent the redress of the most serious violations of prisoners’ human rights. The time has come for reform, or better yet, repeal of the law.

Lisa Freeman
Dori Lewis
New York, Sept. 24, 2009

The writers are lawyers with the Prisoners’ Rights Project of the Legal Aid Society and lawyers for the plaintiffs in Amador v. Andrews.
http://www.nytimes.com/2009/10/02/opinion/lweb02prisoner.html?_r=3&pagewanted=print_

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Editorial - NY Times
Prisoners’ Rights

Published: September 23, 2009

In 1996, Congress passed a law that made it much harder for inmates to challenge abusive treatment. It has contributed significantly to the bad conditions — including the desperate overcrowding — that prevail today. 
 
The law must be fixed.
 

Times Topics: Prisons and Prisoners

In the name of clamping down on frivolous lawsuits, the Prison Reform Litigation Act barred prisoners from suing prisons and jails unless they could show that they had suffered a physical injury. Prison officials have used this requirement to block lawsuits challenging all sorts of horrific conditions, including sexual abuse.

The law also requires inmates to present their claims to prison officials before filing a suit. The prisons set the rules for those grievance procedures, notes Stephen Bright, the president of the Southern Center for Human Rights, and they have an incentive to make the rules as complicated as possible, so prisoners will not be able to sue. “That has become the main purpose of many grievance systems,” Mr. Bright told Congress last year.

In the last Congress, Representative Robert Scott, Democrat of Virginia, sponsored the Prison Abuse Remedies Act. It would have eliminated the physical injury requirement and made it harder for prison officials to get suits dismissed for failure to exhaust grievance procedures. It would have exempted juveniles, who are especially vulnerable to abuse, from the law’s restrictions.

The bill’s supporters need to try again this year. Conditions in the nation’s overcrowded prisons are becoming increasingly dangerous; recently, there have been major riots in California and Kentucky. Prisoner lawsuits are a way of reining in the worst abuses, which contribute to prison riots and other violence.

The main reason to pass the new law, though, is human decency. The only way to ensure that inmates are not mistreated is to guarantee them a fair opportunity to bring their legitimate complaints to court.
http://www.nytimes.com/2009/09/24/opinion/24thu4.html?scp=1&sq=prisoners%E2%80%99%20rights&st=cse

This and other news about women and mass incarceration can be found at www.realcostofprisons.org/blog/