Prison Litigation Reform

• Publication year: 2021

76 Nebraska L. Rev. 781. Prison Litigation Reform

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Laurie Smith Camp*

Why Nebraska Needs Prison Litigation Reform

TABLE OF CONTENTS

I. Introduction 781
II. The Federal Prison Litigation Reform
Act Is a Success. 781
III. Inmate Litigation Is Costly 783
IV. Nebraska Inmates Are "Frequent Filers" 784
V. Nebraska's Efforts to Control Inmate Litigation
Have Succeeded Only when Addressing the Inmates'
Underlying Motivation 787
VI. Conclusion 788

I. INTRODUCTION

The Prison Litigation Reform Act (PLRA), enacted by Congress on April 26, 1996,(fn1) has reduced frivolous and recreational inmate litigation in federal courts. At the same time, the Act appears to have diverted inmate litigation to state courts. This article presents arguments in favor of state legislation, similar to PLRA, to reduce inmate litigation in Nebraska state courts.]

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II. THE FEDERAL PRISON LITIGATION REFORM ACT IS A SUCCESS

In 1995, inmates in state prisons filed more than 40,000 civil rights actions in federal courts.(fn2) Nebraska inmates were responsible for 323 of those cases.(fn3) These figures do not include actions brought by inmates in federal prisons, other types of civil actions such as petitions for habeas corpus or mandamus, or actions filed by inmates in state courts.(fn4)

When PLRA took effect in 1996, it included provisions designed to reduce frivolous and recreational inmate litigation.(fn5) First, inmates must pay the full filing fee in all civil actions. PLRA provides a mechanism for the collection of the fee in installments and does not prevent inmates from bringing civil actions or appealing civil judgments because of indigence.(fn6) Second, PLRA mandates that federal courts must

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dismiss inmate civil rights actions that are frivolous, malicious, or fail to state a claim.(fn7) Finally, inmates who have had an action dismissed as frivolous, malicious, or for failing to state a claim on three or more prior occasions while incarcerated may not file another federal civil rights action unless the inmate is in imminent danger of serious physical injury.(fn8) In 1996, the number of civil rights actions filed by Nebraska inmates in federal court decreased to 146, and continued to fall to only 109 in 1997.(fn9) Likewise, inmate federal civil rights actions referred to the Nebraska Attorney General's Office dropped by two-thirds in 1996, and continued to decline in 1997.(fn10)

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While PLRA has reduced inmate federal civil litigation in Ne-braska, it has had a less desirable side effect: an increase in inmate lawsuits in Nebraska state courts.(fn11) State legislation patterned after PLRA is needed to reduce frivolous and recreational inmate litigation in Nebraska's state courts.

III. INMATE LITIGATION IS COSTLY

In 1964, the United States Supreme Court found that inmates could avail themselves of the federal civil rights statute 42 U.S.C. §1983 (fn12) to challenge the conditions of their confinement under the United States Constitution or federal law.(fn13) In 1977, the Supreme Court held that inmates have a constitutional right of access to the courts, which must be adequate, effective, and meaningful.(fn14) According to the Supreme Court, the right requires prison authorities to assist inmates in the preparation and filing of pleadings by providing prisoners with adequate law libraries or assistance from persons trained in the law.(fn15) Following these decisions, inmate federal civil rights actions increased from fewer than 10,000 in 1978, to more than 40,000 in 1995.(fn16)

Inmate litigation has a cost. In Nebraska, the Attorney General's Office employs five lawyers and two secretaries who devote most of their time to defending the state and its employees from inmates' claims. The Department of Correctional Services has employees in all Nebraska prison institutions who devote much of their time to the preparation of litigation reports and discovery documents. When a case goes to trial, state employees who are named as defendants or as witnesses must appear. The inmate plaintiffs and inmate witnesses have to be transported and supervised by state employees. Moreover, the inmates themselves must be transported, which may create potential security risks. Judges and other court personnel must review the complaints filed by the inmates and devote substantial time to ruling

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on motions, holding pretrial conferences, and conducting trials. Taxpayers bear the burden of those costs. Beyond the inmate context, other litigants and their lawyers bear the burden of delays in court proceedings caused by the glut of inmate litigation.

Frivolous and recreational inmate litigation also hurts the inmates themselves. Inmates, who should be learning respect for the court system, may come to view it as an easily manipulated game. Resources that could be spent on programs helping to rehabilitate inmates are devoted instead to litigation. Doctors, dentists, psychologists, and other professionals who otherwise would be willing to work in a correctional system refuse to jeopardize their careers, reputations, professional insurance, and financial security by working with inmates.(fn17)

IV. NEBRASKA INMATES ARE "FREQUENT FILERS"

Nebraska has a relatively small inmate population,(fn18) but the Ne-braska inmates are among the most frequent filers of lawsuits.(fn19) Five factors may contribute to Nebraska's status as a state with one of the highest rates of claims filed by inmates.

First, Nebraska has succeeded in providing inmates with access to courts. All secure Nebraska correctional institutions housing adult inmates are equipped with law libraries. Inmate legal aides are given

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comprehensive training through a course developed in consultation with the Nebraska College of Law.(fn20)

Second, inmate idleness may contribute to recreational litigation. Moreover, a...