Unfairness In Prisoner Litigation Is Baked Into Statute

By David Shapiro | June 21, 2020, 8:02 PM EDT

David Shapiro
David Shapiro
On June 8, the U.S. Supreme Court handed down a new decision on the Prison Litigation Reform Act, a federal statute that limits prisoners' access to federal court in a variety of ways.

The specific provision at issue in Lomax v. Ortiz-Marquez restricts in forma pauperis litigation by inmates who have accrued three "strikes." A prisoner acquires a strike by filing case that is dismissed as frivolous, malicious, or failing to state a claim.

Once a prisoner has three strikes, he or she cannot bring another lawsuit without paying the entire filing fee upfront (unless a very narrow exception applies). Having to pay the filing fee upfront makes litigation impossible for most inmates because they have no income except — if they are lucky — a prison job that pays cents an hour.

Specifically, the new decision holds that a dismissal for failure to state a claim amounts to strike regardless of whether the dismissal was with prejudice or without prejudice. It will result in more prisoners acquiring three strikes, effectively barring them from further litigation.

The petitioner and his counsel fought a brilliant fight. Arthur Lomax, a prisoner in Colorado, managed to write a pro se petition sufficiently compelling that the Supreme Court ordered the defendants to respond.

Hats off to Lomax for getting the Supreme Court to notice his pro se cert petition. It's a rare prisoner who can pull that off with no legal training and limited access to legal materials. Indeed, getting a case noticed in the cert pool is no mean feat for most lawyers.

Experienced Supreme Court counsel then appeared on Lomax's behalf and offered a creative and powerful argument that dismissal for failure to state a claim is a term of art that means dismissal for failure to state a claim with prejudice. The court granted certiorari, but then affirmed 9-0.

It is difficult to quarrel with the unanimous ruling. After all, the modern court relies primarily on the plain text of a statute to discern its meaning. The statute in question does not differentiate between dismissals with and without prejudice. Therefore, as the court held, a dismissal for failing to state a claim — whether with prejudice or without it — counts as a strike.

Congress enacted the Prison Litigation Reform Act in the late 1990s because state prison officials sought new defenses against lawsuits brought by prisoners. There was a perception that prisoners filed too many frivolous suits, burdening governmental defendants and their lawyers and clogging up the courts. The statute therefore created a broad complement of rules designed to impede prison conditions suits, especially frivolous ones.

The three-strikes rule is one such obstacle, and it's not hard to understand how the provision responds to a concern about frivolous suits. The provision's essential logic posits that if a prisoner has had three cases thrown out at the pleadings stage, or as frivolous or malicious, he or she has a penchant for filing vexatious suits. Therefore, the prisoner should not be allowed to take advantage of in forma pauperis status in the future.

But drilling down on that logic requires separating between two very different definitions of "frivolous" — legally meritless and intentionally vexatious. You might call a suit "frivolous" because any competent lawyer would recognize its lack of legal merit and refuse to file it. Or by "frivolous" you might mean something very different — your client's act was trivial or plainly justified, and the sole purpose of the lawsuit is to ruin her day.

It's true that prisoners file many frivolous complaints, but in my experience as a civil rights appellate lawyer, those frivolous suits are legally meritless far more often than they are vexatious. Technical traps abound in federal civil rights litigation over prison conditions, creating a minefield for pro se litigants. A wrong step, and your suit may be frivolous in the sense of meritless even if you don't have a vexatious bone in your body.

Did you exhaust all of your administrative remedies? Did you sue the right party, remembering that you can sue officers in their personal capacity but not the state or the prison itself? Did you consider whether the statute that creates your cause of action allows for monetary damages? Did you consider whether being moved from one facility to the next mooted your injunctive claim? And so forth.

If most prisoners could afford lawyers, those lawyers would explain these pitfalls and advise against filing suits with obvious flaws. But most prisoners cannot afford lawyers, deprived as they are of almost every means to earn an income. Navigating the courts by their own lights and often in good faith, prisoners can rack up strikes. Sometimes a prisoner gets two strikes in the same case, one for the complaint and one for the appeal.

The Prison Litigation Reform Act itself contributes to the difficulty prisoners have finding lawyers. Civil rights lawyers often rely on Title 42 of the U.S. Code, Section 1988, a federal statute that shifts attorney fees to the defendant if the plaintiff prevails in a civil rights case against a government actor.

But in prisoner suits — and only prisoner suits — the Prison Litigation Reform Act places severe caps on fees even if the plaintiff wins the case. The act therefore makes prison conditions cases among the least remunerative form of civil rights work, reducing attorneys' incentive to talk to prisoners about their potential cases.

As professor Margo Schlanger has written, "prisoner civil rights cases, as one would expect, are overwhelmingly pro se — and at a much higher rate than prior to the PLRA, which drastically limited attorneys' fees."

Given the important role lawyers play in explaining the law to clients and preventing meritless complaints from being filed, the Prison Litigation Reform Act creates an unfortunate irony. The fee provisions make it harder for prisoners to discuss their potential cases with lawyers, likely resulting in pro se complaints that are substantively meritless or frivolous for a technical reason. And the three-strikes provision penalizes inmates who file complaints that lawyers would have corrected or counseled their clients not to file.

But that unfairness is baked into the statute itself. In Lomax, the Supreme Court merely did as Congress said.



David M. Shapiro is director of the Supreme Court and appellate program of the Roderick and Solange MacArthur Justice Center and clinical associate professor of law at Northwestern Pritzker School of Law.

Disclosure: Shapiro filed an amicus brief on behalf of the MacArthur Justice Center in support of neither party in Lomax v. Ortiz-Marquez.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.


The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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