Inmates who cried wolf: the dangers of applying the PLRA's limit on appellate attorney's fees in prisoner deprivation of rights claims.

• Author: Shakro, Peter
• Position: Prison Litigation Reform Act of 1996

"[E]ating, sleeping, dressing, washing, working, and playing are all done under the watchful eye of the State.... What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State." (1)

1. INTRODUCTION

   Beginning in the mid-1970s, the incarceration rate in the United States began to skyrocket, increasing rapidly during the "War on Drugs" in the 1980s and continuing to rise as states began to adopt three-strikes laws. (2) The exponential increase in the prison population inevitably led to an increase in prisoner grievances. (3) In 1995, the year prior to the passage of the Prison Litigation Reform Act ("PLRA"), prisoners filed 41,679 civil rights actions nationwide, more than double the number of such actions filed a decade earlier. (4) Prisoner civil rights actions accounted for more than thirteen percent of all civil cases filed in the federal district courts, (5) and the estimated cost of inmate lawsuits totaled $81 million. (6) Given the high frequency of prisoner civil rights claims as well as the escalating costs associated with prisoner litigation, lawmakers grew concerned that federal courts were being inundated with expensive cases that lacked merit. (7) Members of Congress emphasized that "prisoner litigation does not operate in a vacuum," but rather "tie[s] up the courts, waste[s] valuable legal resources, and affect[s] the quality of justice enjoyed by law-abiding citizens." (8) Lawmakers' concerns intensified in light of the small fraction of meritorious inmate claims. The vast majority of inmates who file lawsuits ultimately fail to secure a favorable judgment, (9) as the bulk of claims are later deemed frivolous. (10)

   In 1996, Congress hastily passed the PLRA following limited congressional debate. (11) This Note examines a recent circuit split concerning one of the PLRA's central provisions, a limitation on the amount of attorney's fees which may be awarded for successful representation of an inmate. Part II outlines the development of the PLRA and the circumstances surrounding the pertinent legislative history. Part III discusses three germane provisions of the PLRA: (A) the requirement of exhausting alternative remedies prior to filing complaints, (B) the physical injury requirement, and (C) the limitation on attorney's fees. Part IV analyzes a recent circuit split between the Sixth Circuit and Ninth Circuit over the application of the PLRA's attorney's fee cap when fees have been accumulated defending a judgment on appeal. Emphasis is placed on evaluating the Sixth Circuit's and Ninth Circuit's rationales for determining whether the cap on attorney's fees applies to appellate fees in addition to fees accrued in order to secure an initial monetary judgment on behalf of a prisoner. Finally, this Note evaluates the practical and policy implications of interpreting the PLRA's fee cap to limit an award of appellate fees, advocating for the Ninth Circuit's rationale in Woods v. Carey. (12)

2. LEGISLATORS RESPOND TO A RISE IN UNSUBSTANTIATED PRISONER COMPLAINTS

   In 1994, in response to a barrage of frivolous inmate court filings and the immense costs associated with hearing the claims, legislators began to rally support to adopt legislation aimed at deterring such litigation. Strategically, legislators highlighted the most outrageous prisoner complaints in order to underscore the absurd, and at times, even comedic nature of the lawsuits: "America was warned, [prisoners] were bogging down the courts with abusive lawsuits." (14)

   The legislative history of the PLRA provides a flavor of inmates' purported injuries. In one case, an inmate sued for "$1 million in damages for civil rights violations because his ice cream had melted." (15) The court noted "that the right to eat ice cream was clearly not within the contemplation of our Nation's forefathers." (16) In another case, "an inmate alleged that being forced to listen to" country music amounted to cruel and unusual punishment. (17) One prisoner brought suit for damages because a piece of cake on his dinner tray was "hacked up" when it was served to him. (18) Similarly, another inmate sued when "he was served chunky instead of smooth peanut butter." (19) Aside from food-related injustices, one particularly trendy prisoner commenced litigation demanding LA Gear or Reebok Pumps instead of Converse tennis shoes while imprisoned. (20) With such an outrageous list of extreme examples, lawmakers were able to gather support for legislative reform without dissent. Senator Spencer Abraham summarized, "These kinds of lawsuits are an enormous drain on the resources of our States and localities, resources that would be better spent incarcerating more dangerous offenders instead of being consumed in court battles without merit." (21)

3. THE ENACTMENT OF THE PLRA

   In 1996, Congress passed the PLRA "to reduce the burdens on the federal courts from what was perceived as a tidal wave of lawsuits--many of them frivolous--brought by imprisoned individuals." (22) Though advocates of the legislation touted the anticipated decrease in frivolous complaints due to the law's stringent limitations on inmate access to the courts, the new law's swift passage also received immediate criticism. For example, the PLRA has been disparaged as "being the result of a rushed enactment that was subject to little congressional debate," sheepishly pushed through as a rider to an appropriations bill. (23) Among the critics, "Senator Edward Kennedy complained that '[t]he PLRA was the subject of a single hearing in the Judiciary Committee, hardly the type of thorough review that a measure of this scope deserves.'" (24) Rather than a fully vetted law, "[i]t has been described by Professors Mark Tushnet and Larry Yackle as a 'symbolic statute'--one passed so that legislators [could] 'tell their constituents that they [had] done something about a problem,'--but with all too 'real consequences.'" (25)

   Despite the criticism, the PLRA aimed to reduce the amount of lawsuits filed by prisoners (26) in several ways. (27) In order to appreciate the full magnitude of the circuit split over the limitation on attorney's fees, it is important to review the greater scheme of perhaps the most pertinent PLRA-initiated limitations on prisoner complaints, as well as how they mesh.

   1. Exhaustion Requirement

      First, the PLRA prohibits a prisoner from filing a lawsuit under [section] 1983, (28) a civil action for deprivation of rights, without first seeking other forms of redress. (29) What has been referred to as the exhaustion requirement in the statute states that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." (30) If a state has not adopted an administrative grievance procedure, the absence of such a process could be grounds for bringing a prisoner civil rights claim. (31)

      The exhaustion requirement's scope is wide-ranging and has withstood challenges to its application. For example, in Porter v. Nussle, an inmate challenged the exhaustion requirement in his case in which he alleged excessive use of force by prison officials. (32) The inmate argued that exhaustion should not be required when the alternative remedial process is controlled by the same prison officials who are accused of wrongdoing. The Court disagreed, holding "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." (34) Thus, the exhaustion requirement must still be met despite prison officials' disincentives to address grievances when they are the very agents causing a prisoner's complaint. (35) Prison power dynamics prove to be obstacles in fulfilling the exhaustion requirement because oftentimes inmate complaints must first be filtered through the personnel who are the alleged transgressors. (36)

   2. Physical Injury' Requirement

      A second pertinent provision of the PLRA is the physical injury requirement. Section 1997e(e) provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." (37) Like the exhaustion requirement, the physical injury requirement has also been criticized as overly restrictive. (38) "While the PLRA was enacted to limit the number of frivolous lawsuits ... [it] has been applied to numerous constitutional torts that can hardly be deemed frivolous--infringement of the First Amendment right to free exercise of religion, violation of the constitutional right to privacy, [and] infliction of psychological torture...." (39) The distinction between physical and nonphysical injury is problematic because "[t]hese constitutional injuries are rarely accompanied by physical injury, yet are still fundamental rights protected under the Constitution." (40) Thus, one commentator has argued that drawing such a distinction creates an erroneous "hierarchy of injuries," providing transgressors with immunity so long as no physical scars are left behind. (41) "The result is that an attorney may only take on cases where the prisoner has been physically injured, ignoring other constitutional cases that are just as meritorious and deserving of judicial attention." (42)

      Moreover, the physical injury requirement's restrictions specifically, and the PLRA provisions in their totality, have been criticized for weakening institutional and societal interests in maintaining the integrity of the justice system. (43) While imprisonment may be viewed as a proper vehicle for retribution, the...