 You're watching FJTN, the Federal Judicial Television Network. The Federal Judicial Center presents Prison Litigation Reform Act Update, an FJTN program for judges, staff attorneys and law clerks. This broadcast is a videotaped and edited version of a lecture presented at the Center's National Workshop for District Judges in Baltimore, Maryland. The lecture was given on August 11, 1999 by Lynn S. Brannum, a visiting professor of law at the University of Illinois College of Law in Champaign, Illinois. I am here today to talk to you about the Prison Litigation Reform Act. Now the Prison Litigation Reform Act was enacted in April of 1996. It had two ostensible purposes. The first purpose was to curb the number of frivolous lawsuits that were filed by prisoners. And the second purpose was to end what Congress perceived as judicial micro-management of correctional systems. To meet that first purpose, what Congress did is erect a number of hurdles that prisoners must cross over before the court will get to the stage of processing, motions to dismiss, summary judgment, et cetera. Now that first hurdle is an exhaustion requirement found in 42 U.S.C. section 1997 E.A. And basically this provision says that no action shall be brought under section 1983 or any other federal law by a prisoner until such administrative remedies as are available have been exhausted. Now to really understand the significance of this provision and some of the issues that are coming before the court, we have to understand and take a look at what exhaustion, the exhaustion provision that preceded the PLRA, because there are some major changes that have been effected by the PLRA. Under the pre-PLA law, exhaustion was discretionary. If the court felt that exhaustion was appropriate and in the interest of justice, the court could require that the inmate exhaust administrative remedies, whereas now exhaustion is mandatory. Secondly, under the prior law, the prisoner could only be required or I should say that adjudication of the claim would only be deferred for 180 days. In other words, if the correctional officials had not processed the grievance within that 180-day period, the stay would be lifted. And all of that, that time cap is now gone in the PLRA. So there are no time limitations on the face of the provision for the processing of these grievances. Third, under the prior law, an inmate could be required to exhaust the grievance procedure only if the process either met certain requirements under a statute known as the Civil Rights of Institutionalized Persons Act or had otherwise been found to be fair and effective by the court. So there were some real substantive requirements that had to be met. Those statutory standards, for example, required that there be expedited processing of emergency grievances. All that language is now gone. There's no longer reference to a need for the remedies to be fair and effective or, as it's said, elsewhere in that pre-PLRA statute, plain, speedy and effective. The only substantive requirement that's on the face of the current exhaustion requirement is that the remedies be available, although that one little word has created an enormous amount of litigation. And then under the pre-PLRA law, the exhaustion provision only applied to state and local inmates and under the current law, the exhaustion requirement also applies to federal inmates. Now there are a number of issues that are raised by this PLRA exhaustion requirement. It is one of the most hotly litigated provisions in the PLRA. One of the questions raised by the PLRA is, is this exhaustion requirement jurisdictional? And thus far, most of the courts have concluded that it is not. And one of the reasons why they have concluded that it's not a jurisdictional requirement, in other words, failure to exhaust does not deprive the court of subject matter jurisdiction, is that there is another provision in the PLRA which provides you with the authority to dismiss a claim because it is a prisoner's claim because it is frivolous, for example, or fails to state a claim. And you can do that even if the inmate has not exhausted administrative remedies. So what the courts have concluded, they've said, well, we wouldn't have the authority to dismiss for frivolousness if the exhaustion requirement was jurisdictional. So again, most of the courts have concluded this is not a jurisdictional requirement. Now, probably the most controversial issue concerned, I'm sorry, raised by the PLRA is this. What if an inmate is seeking damages in a lawsuit, wants to obtain damages in a lawsuit? But damages are not available through the grievance process. Does the exhaustion requirement still apply? And the courts are very much split on this issue. The 5th, 9th, and 10th circuits have concluded that in this particular situation, exhaustion is not required. And let's look at some of the reasons for their conclusion. First of all, these courts that have concluded that exhaustion is not required when the inmate is only seeking damages. And let's give this kind of a practical bent. Let's give a real scenario so we can understand the issue. Let's assume that we have an inmate who's diabetic, and he alleges that because of the deliberate indifference of the medical officials and prison officials to his serious medical need, he had to have a leg amputated. And he wants to sue for damages, but that grievance process or damages are not available, monetary relief not available through that process. Again, must he exhaust? And the courts concluding that he does not have to exhaust have first pointed to the text of the exhaustion provision. Let's go back and take a look at that. They have pointed out that this provision only requires exhaustion of administrative remedies. The provision does not speak of a need to exhaust the institutional grievance procedure. And elsewhere in the PLRA there is a reference to administrative grievance procedure. So these courts are saying that this textual, that this difference in language has substantive import. Secondly, these courts concluding that exhaustion is not needed have observed that in their opinion the purposes of the exhaustion requirement would not be furthered through exhaustion in this context. Now there are two purposes of an exhaustion of administrative remedies requirement. One of the purposes furthered by exhaustion is to protect agency authority. But these courts have opined that agency authority is not protected through exhaustion here because the agency doesn't have any authority to award damages. And secondly, a second purpose served by exhaustion is that it does promote and further judicial efficiency. Of course the hope is that through the exhaustion process the problem will be resolved and you won't be burdened with the prisoner's claim. And basically what these courts have said is that this matter will not be resolved through the grievance process since that inmate who lost his leg cannot get the damages that he is seeking. Do you think that the state sought to change their grievance procedure so they could award damages through an administrative process? Well instead of expressing my opinion let me just tell you that one of the circuits that has concluded that exhaustion is not required when damages are unavailable. The fifth circuit has simply made that point. The fifth circuit has said there is nothing that prevents the prison officials from changing their grievance processes so that monetary relief can be awarded or perhaps there might be some legislative changes that are needed. So again that's really the point that you're making which is the question was whether or not these grievance processes should be changed to permit the award of damages and really the fact that they can be changed is one reason for at least one circuit's belief that exhaustion is not required. And then a final reason for not requiring exhaustion in this particular context these courts have looked at really a body of Supreme Court case law where the Supreme Court has repeatedly said that exhaustion is not necessary when the remedies that are available are inadequate. And probably the case that would be most arguably on point is Rider vs. Cooper which was a case where the plaintiff was seeking monetary relief from the Interstate Commerce Commission. The commission had no power to award that relief and the Supreme Court said exhaustion was not necessary in that particular context. So again we see a number of reasons for the courts on this side who are concluding that exhaustion is not necessary. The 7th and the 11th circuits have concluded that exhaustion is required for the inmate who's seeking damages but monetary relief is not available through the grievance process and here is their reasoning. First they've cited the change in the wording of the exhaustion provision that deletion of the language, the reference to a need for the remedies to be fair and effective. And these courts are saying that the deletion of that language has some substantive meaning. In other words that because Congress deleted that language, Congress intended that prisoners be required to exhaust remedies even when it would be ineffectual, even when maybe it would even be unfair to require exhaustion. That is still something that Congress envisioned. Secondly these courts concluding that exhaustion is still necessary. They've said well exhaustion does have some value even in this context and one reason why it has value is that through the grievance or the processing of that grievance a record will be produced that would be helpful to the judicial processing of the claim. Now whether or not that is a persuasive argument would probably depend on what kinds of records are being produced by the grievance processes and does anybody have any comments on that? Is the paperwork that is being submitted to your court, do you see detailed fact finding coming out of the grievance process? Almost never is one judge's response. Anybody else seeing very detailed fact finding? No. Okay. It's usually just maybe a low summary paragraph. Okay and most there's a small paragraph maybe two, three, four sentences. Invariably these are prepared by, not by lawyers, they're prepared by lieutenant correctional lieutenants, people at that level who are simply extracting a canned result. Okay. There's a book with a set of results. So we're hearing that at least in some states it's really kind of a boiler plate response to the grievance. It's not prepared by lawyers and so at least in some states perhaps the written paperwork coming out of the grievance process may not be so helpful in terms of facilitating judicial review but these courts that have concluded that exhaustion is required have pointed out another value to exhaustion in this context. They have said that although the inmate may not be able to obtain damages through the grievance process or from the grievance process he may be able to obtain some adequate though substitute relief and you might wonder well what would that substitute relief be? It's hard to envision with this inmate who lost his leg what substitute relief would be but for an inmate who is seeking a fairly small amount of damages an example of substitute relief would be this. What inmates want more than anything other than their freedom? Very often what they want more than anything is to be transferred to another prison. They either want to be at a prison that's closer to home or they want to be in a prison that has a lower security level. So the argument of these courts would be that maybe the inmate may not get money but maybe they can work out some kind of a deal and again then the courts won't be burdened with the claim et cetera. Perhaps that's the rationale. And then finally the courts that are concluding that exhaustion is necessary they've expressed a great concern that unless they mandate unless exhaustion is required in this context an enormous loophole will be created and that inmates will just throw in a damages claim and get right into court contrary to the intent of the PLRAS exhaustion provision. Now several years ago I did a study on different ways to reduce the costs of pro se inmate litigation and as part of that study one step that I took I surveyed 13 departments of corrections and I did find that for those departments the only times that they would provide monetary relief to a prisoner they all provide a monetary relief for a prisoner seeking money for lost or damaged property. A few provided money for inmates seeking compensation for miscalculated state pay or commissary charges. But other than that monetary relief was not available through the grievance process so the reality is again usually inmates cannot get money for most of the claims that they would be asserting in court. I think that the the pivotal question here we are of course trying to discern congressional intent and the real question is what did congress intend when it deleted that reference to a need for the remedies to be fair and effective and there are two options one is that the deletion of that language has substantive meaning as we had discussed that congress really intends for prisoners have to exhaust remedies even when it would be ineffectual or even unfair. An inmate is experiencing chest pains and there's not expedited processing for emergency grievances he would still have to exhaust even though it might be ineffective that exhaustion process in addressing the alleged deliberate indifference to his medical needs. So one possibility is that that language change has substantive import the other possibility is that it is procedural in nature and quite honestly I don't know because the legislative history is less than illuminating on this but the other possibility would be that this is procedural let me explain. Typically with exhaustion provisions persons must exhaust administrative remedies unless the plaintiff proves that those remedies are inadequate. Under the pre PLRA law the system was very different prisoners didn't have to exhaust unless the prison officials proved that the grievance process met certain standards so it may be that that language change is simply procedural in nature that it's kind of putting prisoners at a level playing field and that now they have the burden like non-prisoners of proving inadequacy of administrative remedies but certainly a nettles some question confronting the courts. A third issue concerning this exhaustion requirement is whether a state court remedies must be exhausted so must the prisoner not only process his claim through the prison grievance process but also file a tort suit in state court before he can bring the claim in federal court and thus far the courts have concluded that that's not what the exhaustion provision means it's not demanding exhaustion of state judicial remedies their reasoning is grounded on some of the language in the PLRA the legislative history of the PLRA and also a long standing distinction in the law between exhaustion of administrative remedies and exhaustion of judicial remedies yes have you found that lack of exhaustion of administrative remedies is raised very often has there been a study of that my impression is that it is not raised you mean you mean by the by the prison officials that they're claiming lack of exhaustion well I haven't seen it I'd have to say that that it is not frequently but it is an issue that comes up now under the PLRA this isn't this is something that judges are examining suesponte without without any you know exhaustion argument being made by the defense defendants I think it depends on the attorney general but it's raised 98% of the time that they spot a any prisoner petition going through that hadn't been exhausted they're going to raise that same thing is true okay so what we're hearing is in some courts the Bayard exhaust is not coming up as an issue very often and in other courts it is coming up very often yes judge on our court it's a screening process raised by the court suesponte in the screening process right that's very often the case now under the PLRA but this does raise the question of how courts are implementing this exhaustion requirement let me let me just say we even on this issue we do see a split between the courts as to what the prisoners responsibilities are in terms of demonstrating exhaustion the 6th circuit has said that the prisoner has a burden of both pleading and proving exhaustion and the prisoner must attach the administrative decision that demonstrates that exhaustion has occurred to the complaint whereas there are some other circuits and they would be the 5th and 10th circuits which have said that this is a matter which is a resolved or an issue that's resolved based on the pleadings without proof what the 10th circuit has said though is if there is a doubt as to whether or not the prisoner is exhausted the court can direct the prison officials to prepare what is called a martinez report basically come back to the court and report on this issue now two other issues that have come up concerning the exhaustion provision that I want to cover with you and they both relate to delay first the prisoners delay in filing a grievance and here's the question or issue if you look at grievance processes they always have deadlines for the filing of a grievance and the question is this what if the prisoner doesn't meet that deadline can he now come into court and and argue that the court must process the claim because there is no available administrative remedy the prison officials will not process the grievance because he didn't file it in time and that this is obviously there's a concern here that prisoners will just sit on their grievances not not bring them to the prison officials so they can get right into federal court so there is some concern about circumvention of the exhaustion requirement by the prisoners there are a few district decisions coming out of the northern district of Illinois that have held that exhaustion is not required at that point the 6th circuit has said this if the prisoner had notice of the exhaustion requirement he knows he has to exhaust before he can bring that legal claim and he had a quote reasonable opportunity to file that grievance he cannot come into court well that's that's at least a starting point but I think that leaves open the enormous question what is a reasonable opportunity to file a grievance now in many systems the time for filing a grievance is very short it may be for example for to the prisoner may have 14 days from the incident in question to file the grievance so if the prisoner doesn't file the grievance within two weeks does that mean he can't get into federal court that would in effect be a two week statute of limitations and there would be some tension between a holding that bars review the claim in that situation with some supreme court case law which is held that basically held that four month statute of limitations and six month statute of limitations would not be applied to section 1983 suits because that's just too short of a time period very often people won't recognize within four months or six months that they have a compensable constitutional claim so if that is true certainly it would seem two weeks is a short period of time but again it's it's it is a question not as much case law as we would expect because I think it's it is a bit complicated now one thing to look for at least if you're in the 11th circuit some grievance processes permit the department of corrections to wave the deadline so if the general as a general rule the inmate must file the grievance within 14 days but for good cause they may process as grievance if you can show there was good cause for not filing it in time the 11th circuit has occurred that I'm sorry has held that where there is that kind of waiver per provision in the grievance process exhaustion has not occurred unless and until that inmate seeks a waiver of the filing deadline the other issue concerning delay in the processing of grievances would be department of corrections delay very often again the procedures will have deadlines for the processing of those grievances maybe at the institutional level the inmate must receive a response to his grievance within 30 days and then it goes up to the next level and there must be the response within 30 days etc and the question is this what if the correction officials don't meet those deadlines 30 days pass 45 days pass 60 days pass at what point can the inmate get bring his claim to court when his claim his grievance has really gone into some kind of administrative black hole the 5th circuit has erected a bright line rule here and the 5th circuit has held that once the deadline has passed the remedies are deemed exhausted and the prisoner can bring his claim in court now again one potential complexity to look at and it will be important to some courts look to see if in your grievance process there is a provision which says that if the officials at one level haven't processed the grievance in time the inmate at that point can immediately go up to the next level there are some courts that say with that kind of system the inmate must go on to the next level before his remedies administrative remedies will be deemed exhausted so let me stop at this point and see what questions or comments you have about the exhaustion requirement yes sir perhaps I misunderstood what you said at the beginning of your lecture but you were talking about is there a difference between administrative remedies and grievance procedures or what did you do? okay let's let's look at this that is what the exhaustion requirement says that administrative remedies as are available are and this gets to the issue of when damages are not available must the inmate still exhaust and those in those courts that have concluded that exhaustion is not required in that context have said this provision doesn't talk about exhaustion of the institutional grievance procedure it speaks of exhaustion of administrative remedies elsewhere in the PLRA there is a provision that uses that language administrative grievance procedure says an inmate can't sue just because prison officials haven't developed such a procedure so that difference in language are saying because this doesn't refer to exhaustion of institutional grievance procedure exhaustion is not required when damages are unavailable other questions or comments okay there is I think it sort of defeats the rumbles case one of the purposes of the grievance procedure to call attention of the prison officials to the problem and it's sort of too bad that all the prisoner now has to do it just ask for damages and they can bypass that many prisoners as you know their purpose is really not a genuine purpose to pay damages they want to harass somebody or call attention to their plight or something like that right so there is there is the concern again as we and and and I'm we're hearing it from you that inmates will just automatically attach that damages claim to get into court I suppose a rejoinder would be from from the point that was made earlier a response would be that well the correctional officials can just go ahead and make monetary relief available and close up that loophole that really the the ball is in there in their part and again just two very different perspectives on this issue now if inmates cross over that hurdle the second hurdle that they have to cross over would be the filing fee requirements most of you would be very familiar with these requirements there may be some some new judges on the on the bench so I'm going to go through just the basics of this how the courts have resolved the constitutional issue is a segue into a discussion of a more complex hurdle which would be the three strikes provision but basically this is the filing fee requirements it's a two-step process and first there will be an initial partial filing fee that is assessed of when an indigent inmate is bringing is bringing suit and basically what what the court will assess will be 20% of the greater of either the average monthly deposits to the prisoner's account or the average monthly balance in the account over the preceding six month period now let's assume the court does the math and concludes that the initial fee should be three dollars but the inmate has absolutely no money in the trust fund account now and the question is can can the suit proceed well there's a proviso in section 1915 before that says if the prisoner has no assets and no means by which to pay the initial partial filing fee that should not and will not preclude him from having his claim adjudicated now a couple points on this proviso first the seventh circuit has pointed out this this reference to no means in other words there may be no money in the trust fund account but at the inmate has a job and there's going to be money coming in very soon then this proviso doesn't kick in and the court should get get the money before processing the claim another interpretation of this provision comes out of the sixth circuit and the sixth circuit has said if the inmate doesn't have that three dollars we got to go ahead and let him you know get that claim in court but as soon as he gets some money in his account we can withdraw that money out of the account even if it hasn't reached ten dollars and that's that's again the view of the sixth circuit now there's a second step to this the filing fee requirements and those that would be the payment of installments and basically what this provision I've got it I'm going to read it verbatim because there's some the courts are interpreting very differently this provision but basically says that the prisoner shall be required to make the monthly payments of twenty percent of the preceding month's income credited to the prisoner's account and the agency of the having custody of that prisoner shall forward the payments from that account to the clerk of the court each time the amount of the account exceeds ten dollars and the until the filing fees are paid now just to let you know how one circuit is interpreting this provision once again it is the sixth circuit what the sixth circuit is saying is that let's assume again once again we do the math and the prisoner based on the math for the preceding month that comes to the prisoner owes five dollars and what the sixth circuit is saying as soon as there is more money in the account than ten dollars let's assume there's twelve dollars that five dollars can be taken out even though it brings the account down to seven dollars that is how one circuit is interpreting that provision now with this provision like many other parts of the PLRA has provoked a lot of litigation about its constitutionality but thus far on this issue we have a lot of consensus the we have nine circuits weighing in that the filing fee requirements are constitutional the two main objections to the filing fee provisions that are legally based objections coming from the prisoners they're arguing that it infringes on right of access to the courts and then a violation of equal protection and as far as infringing on the right of access to the courts basically what the courts are responding they're saying look this initial fee is quite modest inmates their basic needs are met they are provided with food and medical care and shelter etc the installment provisions don't kick in until there's at least ten dollars in the in the account and then there's some other reasons so again just not finding a great deal of substance to that claim and as far as the equal protection claim of course we know that that very often rises or falls with the courts finding as to whether or not there's a substantial interest that's been a fundamental right that's been impinged by the provision and since right of access to the courts is not unconstitutionally impinged the the courts just have to look to see if there's a rational basis for this differential treatment of prisoners and the courts have said yes that there is and two of the main points that we see coming out of the opinions again this recurring point inmates basic needs are met so it's it's it's entirely rational to have these different requirements filing fee requirements and also inmates have a lot more free time than non-prisoners I know they have a lot more free time than than I do and so that there's a rational basis for again requiring the payment of these fees so again the the constitutional objections just being rebuffed by the courts now let's compare what the courts have said about the filing fee requirements to what they've said about a third hurdle that inmates must must cross in order to get their claims adjudicated by the courts and that is known as the three strikes provision if an inmate on three or more occasions while incarcerated or detained has filed a claim that was dismissed either because it was frivolous malicious or failed to state a claim that prisoner cannot bring a suit in form of papyrus generally so of course what that means generally he must pay that full filing fee hundred fifty dollars of fees filing in the district court in the district court and then would have to pay the full fee on appeal now there is an exception here and it has three parts to it if the inmates claim involves an imminent threat of serious physical injury he can bring that suit in form of papyrus the poor inmate cans but again there's an imminency requirement the injury faced must be serious and it must be physical in nature so the question or one of the questions raised by the three strikes provision is is it constitutional and I guess that gets into the question of is there is you know does the case law regarding the filing fee payments and their constitutionality how persuasive it is or how applicable it is to this constitutional issue now it's it is a it is a bit of a different issue because whereas with the filing fee payments there's that kind of the proviso the caveat that says if the inmate has no money he can get into court there is no such proviso here so there will be some instances for certain types of claims where the indigent inmate with three strikes simply is not going to get his claim into court so the inmate who claims a violation of right to religious freedom who has three strikes and he's poor is not going to get that claim into court so it is a different issue thus far the courts of appeals that have addressed this this issue have upheld the constitutionality of the three strikes provision but what I find very interesting is that we have substantial differences in their reasoning so it does suggest to me that that it is a difficult it is a difficult and complex constitutional question let's look at the different reasonings of the of the courts we do have some district courts that have concluded that is unconstitutional thus far no no court of appeals and and then you give some thought to which court's reasoning you find a most persuasive the fifth and the ninth circuits have upheld the constitutionality of the three strikes provision and basically this has been their analysis they said you know we've looked out at the case law or looked at the case law supreme court case law and we have found that the court has upheld filing fees as long as they do not impact on a claim or I'm sorry as long as they do not impact on a fundamental right or claim involving a fundamental right so for example persons in bankruptcy indigent persons involved in bankruptcy proceedings can be required to pay a filing fee so then the next step in these two circuits analysis was was this the fifth circuit for example looked at the claim that was before the court in this particular case the inmate was challenging his transfer to the administrative segregation unit that's what his claim was all about the fifth circuit said there is no fundamental right to remain in the general population unit of a prison so this case does not involve a fundamental right therefore the filing fee I'm sorry therefore the three strikes provision as applied in this particular case is constitutional now the question about the this line of reasoning is simply it appears as though it's possible in these these circuits you literally on a case by case basis have to analyze the constitutionality in other words in in some prisoners cases there would be no fundamental right implicated by the prisoners claim but in other cases there would be and so in those cases the constitutional analysis and outcome might be very different and what that would require is rather sometimes rather sophisticated analysis before determining whether the three strikes provision bars the inmate from coming into suit I'm sorry coming into court in form of papyrus now the sixth circuit has very different kind of analysis in upholding the three strikes provision basically what the sixth circuit has said analyzing whether or not the provision impinges on the right of access to the courts the sixth circuit has said well it doesn't the three strikes provision doesn't unconstitutionally impinge on right of access to the courts because inmates can still bring their claims in state court so they still have access to courts now to test that that that line of reasoning is is that is that correct and again I don't know until we get definitive word from the Supreme Court you don't know for sure but what what I do know is that there was a Supreme Court case a number of years ago back in the 40s where a prisoner complained because prison officials would scrutinize his complaint or they did scrutinize his complaint they said it doesn't it doesn't meet the requirements that have to be met in order to file suit in federal court the Supreme Court said that that prison official screening of the prisoners legal complaints impinge on the right of access to the courts and here would be the question what if prison officials only screened the complaints as far as those going to the federal court but they let anything any prisoner claims go to the state court would that mean because they have access to the state courts does that mean there would not be an impingement on the right of access to the courts a six circuit did also say that or did intimate that there might be some constitutional problems with three strikes provision six circuit did say to the extent that any provisions of 28 USC the three strikes provision restrict the right to have arguably meritorious claims reviewed those provisions could be deemed unconstitutional and then finally a very different kind of reasoning coming out of the 11th circuit 11th circuit basically said inmates access to the courts is not unconstitutionally impinged because all they have to do is pay the full filing fee does anybody have a response to that to that what would be the response there is no ability to do so right we're talking right now about injured indigent inmates and and but the 11th circuit it was their belief that they acknowledge that the inmate might not be able to immediately pay the full filing fee but they basically said the inmate can save up his dollars or pennies and eventually pay that fee now this is where we see a very very great difference of opinion between judges as far as indigent inmates ability to pay the full filing fee the 11th circuit thinks that this is this is real realistic realistic to expect the district court from the eastern district of arkansas said that this ignores the realities of prison life so share with me and share with us what's happening in your state does anybody know how much prisoners are being paid those that do have jobs how much they are being paid in your in your own states anybody this may not be something that that's come across your desk but does anybody know I've gotten feedback that in one state I know it's seven cents an hour it can be I haven't been in michigan prisons for a while but then it was I think it was 30 cents you can get over a dollar for some prison industries so again whether or not you concur in the reasoning of the 11th circuit may again depend on your perception of one inmates and the facts about what inmates are being paid if they are employed in your particular state the 11th circuit also said inmates right of access to the courts is not unconstitutionally impinged because they can get into court if they claim that they have that they are facing an imminent danger of serious physical injury is a response to that well the reality is there would be some claims where the indigent inmate with three stikes is not facing serious physical injury so he won't be able to get in court such as when there is an impingement on the right to religious freedom there is in the outline a great deal of case law listed about what constitutes a strike I want to highlight two issues here and how the courts are resolving them one is does a claim that was dismissed for example for frivolousness before the PLRA was enacted count as a strike and thus far seven of the circuits have said yes yes that pre PLRA dismissal does count as a strike and then the other question is what happens if we have an inmate with two strikes and then a district court dismisses his claim his third claim for frivolousness the question is can he appeal and inform a popper's status and what most of the courts are holding that have addressed this issue they have held that the district court dismissal does not constitute would not be considered a strike until an appeal has been either saved or exhausted so the inmate can bring that appeal inform a popper's are there any questions about the three strikes provision or comments about that provision yes respect to the retroactivity or the earlier strikes I believe the administrative office or the judicial sector has developed a database it was very useful for federal prisoners that you can find out where they've been and all about the cases that they may have filed and other jurisdictions right so the comment is this gets to again the practical the practical aspects of enforcing this three strikes provision and the AO does have this database setup you can run a search and find out if the prisoner has had other lawsuits in other federal district courts now it's my understanding unless there's been some changes within the past few months that that database does not tell the actual disposition that they'll have to be some kind of follow up there sometimes but at least it's a good first step in trying to ascertain whether or not the inmate has prior strikes the possibility of the state to raise the defense and if they don't it's way as a practical matter that's the other way that this matter is coming before the court the states do have their own records and they'll bring this no doubt they will bring this to the courts attention now this next hurdle that inmates must cross over the PL array provides for suesponte dismissal of inmate claims are frivolous, malicious, a failed to state of claim or seek monetary relief from a defendant who is immune from such damages one of the again most controversial issues and also very important question that's before the courts concerning these screening provisions in the PL array is this can an inmate be afforded does the court have the discretion to afford an inmate the opportunity to amend his complaint before a suesponte dismissal the 6th circuit and the 9th circuits have concluded that the court does not have that discretion that if on the face of the complaint it right now does not state a cognizable claim the court must dismiss the claim or complaint and cannot the inmate the opportunity to amend it