 So the 6th Circuit and 9th Circuits have held that the courts do not have the discretion to afford the inmate the opportunity to amend the complaint and then the 5th Circuit has held that the inmates can be afforded that opportunity and indeed must generally be afforded that opportunity to amend the complaint. Now again this is a question of great practical import as many of you have probably observed prisoners do not typically draft their complaints shall we say artfully. I used to work for a clerk for federal district judge in the brunt of my work involved the processing of prisoner claims and again very often you will see inmates sue parties who are not suitable they'll sue the state very often there will be something let's say with a medical claim it looks like there's a it could be that the prisoner could prove the facts demonstrating deliberated difference but right now on the face of the complaint it looks like this is now more a claim of negligence or maybe the prisoner hasn't included facts showing personal involvement of that particular defendant in the alleged constitutional provision again this happens with a great deal of frequency and very often I've watched a number of different district courts in different districts in the country and very often the response has been to give the prisoner a chance to amend the complaint depending on what that the complaint actually looks like and again the question is can you still do that and the courts are divided on that on that question. I don't understand the 9th Circuit to have said you must dismiss the complaint I thought it said you must dismiss the complaint. Okay I'm sorry. That's a very. You are correct. That's a major difference. That on that that claim they they do not have the opportunity to amend the claim I'm sorry I misspoke the inmate does not have the opportunity to amend that claim correct any questions about that the screening requirement of the PL array. Okay well then let's move on to the next turtle that inmates must cross over and that is known as the physical injury requirement 42 USC section 1997 E E says that no federal action may be brought by a prisoner who's confined in a correctional facility for mental or emotional injury suffered while in custody unless there is a prior showing a physical injury so the inmate cannot sue for mental or emotional injury without that prior showing a physical injury now let me give you an example of a case where this physical injury requirement would apply it's a real case where the correctional officer held a loaded gun in the prisoner's mouth for a period of time and the didn't shoot the prisoner and so the prisoner sued claiming that that had constituted cruel and unusual punishment. He didn't suffer any physical injury he was suing for the traumatic experience and the physical injury requirement would foreclose that kind of claim at least that would be the argument. The threshold question concerning the physical injury requirement is is this requirement constitutional and thus far we have the DC Court of Appeals and the Seventh Circuit holding that the provision is constitutional Seventh Circuit said emphasize that it was holding that the provision was constitutional as applied in that particular case and let me tell you about that particular case that came before the Seventh Circuit it was the Zayner case inmates sued claiming that they had been exposed to asbestos when working in the prison kitchen so they were they were suing they wanted an injunction and they also wanted damages for their emotional and mental injuries as they waited for years to find out whether or not they were going to get terminally ill from this exposure they wanted to be compensated for that and one of the questions before the Seventh Circuit was does this physical injury requirement unconstitutionally restrict the remedies available or the remedial relief that a court can award for a constitutional violation. The Seventh Circuit did say that there is a point where the restriction of remedial relief is tantamount to taking away of the rights themselves but the court said and that when we reached that point there would be a constitutional problem with the statute in question but the Seventh Circuit said in this particular case we hadn't reached that point the inmates could still obtain an injunction to preclude their further exposure to the asbestos and if they ever did get ill from the exposure to asbestos they could recover damages for that for that illness. The Seventh Circuit acknowledged that the inmates would not be fully compensated for the injuries they suffered for the years of wondering if they were going to die from the asbestos exposure but the court basically reminded us and said that there are a lot of times when people do suffer a harm but they are not fully and even from a constitutional violation but are not compensated for that harm and we know that because of application of immunity doctrines. One of the most significant questions raised by this physical injury requirement is what is the effect of this provision on constitutional violations that do not result in a physical injury for example violation of religious freedom if an inmate was not permitted to have a Bible in his cell and he is suing for damages is he foreclosed from bringing suit because there is no physical injury involved. Courts are divided on this question and the Ninth Circuit and several of the district courts have held that the physical injury requirement does not bar suit in this particular situation. What they have said is this they have said well the inmate who was not permitted to have access to a Bible is not really suing for emotional injury he is suing to vindicate a constitutional right and that is really the major part of their analysis and the only I guess question I guess that would be raised by that is is that not always true when an inmate is filing suit to seek redress for violation of a constitutional right that they are seeking vindication of the constitutional right so the result may be right of those courts but it seems like there might be something more it may or may not be right but it might it would seem that there would be something more in the analysis. So we have some courts holding the physical injury requirement does not apply to that claim of a bridgement of religious freedom we have other courts some district courts concluding that it does apply and that the inmate can only seek an injunction so we can get access to that Bible in the future or could seek nominal damages but not compensatory. Now the Seventh Circuit and a district court in the southern district of New York have added a bit of a twist to this issue and I've got the citation for the district court opinion here let me talk though about the Seventh Circuit case because it's quite interesting in light of the other seconds Seventh Circuit case we talked about involving asbestos exposure in this particular case Robinson versus Page the prisoners were suing because there was they allegedly there was lead in the water and so they were seeking damages because of being of their exposure to the lead in the water. The Seventh Circuit emphasized that this physical injury requirement only applies when the inmate is seeking compensation for emotional or mental injuries and the Seventh Circuit said in this case in that case before the court that's not what the prisoner was seeking compensation for he was seeking compensation for the physical effects of exposure to lead that cumulatively over time can have dramatically adverse effects on the prisoner's health and this district court in New York had the same kind of analysis dealing with asbestos exposure but in this particular case the inmates were suing not for emotional injury they were suing because there they had there is this there's been this effect in their bodies it may not manifest itself for a number of years but they could be bring suit on despite this this physical injury requirement question is does the physical injury requirement apply when prisoners are seeking injunctive relief or declaratory relief and thus far the courts that have addressed this issue have said no that it does not the fifth seventh tenth and dc circuits does the physical injury requirement apply to persons who have been prisoners who have now been released and they're seeking in other words can they seek compensation for emotional and mental injuries not accompanied by physical injury the seventh circuit has concluded that the physical injury requirement does not apply to release prisoners and they've done so largely because of the way in which the definition of prisoners in the PLRA or this part of the PLRA prisoner refers to persons incarcerated or detained in any facility who is accused of etc of a crime or adjudicated delinquent for violations of criminal law etc so again the seventh circuit is saying that physical injury requirement does not apply to release prisoners now what that means if that holding is correct what that means is a practical matter is this if a prisoner let's say the prisoner who had a loaded gun stuck in his mouth if he is released before the statute of limitations elapses he can recover damages for that violation assuming it's cruel and unusual punishment whereas a prisoner who was the victim of the same kind of conduct who is incarcerated and not released before the statute of limitations has run would not be able to recover damages there's some questions about what is the physical injury that would support a claim for emotional or mental injuries what what does that mean what what what exactly is a physical injury now something to note go back to the three strikes provision and you will recall that there is that proviso in the three strikes provision that says the inmate with three strikes can sue inform apoparous if he faces an imminent threat of serious physical injury there is a seriousness component to that proviso or exception here when we're getting into the physical injury requirement there is not that reference to a serious physical injury it just says that there has to be physical injury what does that mean well in the district in the DC circuit the court has said that somatic manifestations of him of emotional distress and inmate says he's losing weight he can't sleep because of all these bad things that have happened to him does that satisfy the physical injury requirement that particular court is saying no in the northern district of texas the court said that the following did not satisfy the physical injury requirement a bleeding tongue injured shoulder minor abrasions on the arm and chest contusions with slight swelling of the jaw wrists that were red and swollen and scratches to the face and nose and there are a number of other cases listed in the outline interpreting that physical injury requirement now do you have any questions or comments about the physical injury requirement you know there is an argument in the in the earliest days of the republic the court said it didn't matter because it never applied to anybody in the old days but that the constitution was self enforcing we got 1983 so that eliminated any question about the self enforcing character of the constitution because as we know once congress speaks that ends the federal common law but where the congress has now deprived the prisoner of a right to bring an action under the constitution as an example because religious freedom doesn't result somatic change I suppose we're now going to revive the question about whether the constitution is self enforcing right right there's a real fundamental question raised by the physical injury requirement and again the 7th circuit did did intimate that there would be a point or could be a point where the restriction remedies does and seems to be actually suggesting there is a self that it is self enforcing but in that particular case they said the restriction would did not go that far lots of ancient cases that say that right and certainly bivins is is based on that principle right absolutely now this is in my opinion and I've spent oh I can't say even hours it seems like a lifetime looking at these cases I think this is tough stuff I think it's very complicated stuff and I think that I'm an educated person now the question is can prisoners understand all of these issues and complexes these that we have been talking about in 1994 there was a study by the national center for education statistics it's a very sophisticated study found that seven out of every ten prisoners operated the lowest literacy levels that they cannot understand complex written materials they certainly can't integrate them now the next question is what happened happens if an inmate is so lucky as to cross over these hurdles and then crosses over all the other hurdles that people encounter when litigating a claim and the inmate actually wins well the PL array not only erect some obstacles for prisoners bringing suits but it also does limit the remedial relief that can be awarded prisoners and there are two main types of restrictions one is in the area of prospective relief let's talk about injunctions at the time the PL array was enacted states across the country had court orders in effect governing conditions in correction facilities in states over 30 the states had prisons operating under court order and then the virgin islands Puerto Rico etc and there is in the PL array a provision that says that if there is a court order granting prospective relief in effect and there had been no finding no finding by the court that the prospective relief was necessary to correct the violation of a federal right narrowly drawn and that it was the least intrusive means of correcting that violation if there had not been that court finding then the prospective relief should be set aside now there is a caveat or an exception to that termination provision and that is that if the court now makes written finding that the relief prospective relief is still necessary to remedy a violation of the federal right it is no broader than necessary to correct the violation is narrowly drawn and is the least intrusive means of correcting that violation then the prospective relief will remain in effect one of the questions about the termination provision is well what does this mean as a practical matter and that kind of depends on what the termination provision means by it it says if the court makes written findings based on the record that all of this is meant what does the record mean well if it means the record at the time the courts injunction was entered then what that would mean is that court orders across the country are going to be set aside at least consent decrees because when consent decrees are entered into there is not this kind of finding by the court in fact correctional officials typically they refuse to enter into a consent decree unless there is some kind of provision in the decree that says just by entering into this decree does not mean that we are violating the constitution so if that is what record meant court orders across the country would be immediately set aside but the alternative interpretation is that record refer based on the record refers to you know evidence that has been adduced and presented at a hearing so the question is does there have to be a hearing to determine whether or not the perspective relief is still needed and is nearly drawn etc some of the circuits are saying that there is a right to such a hearing and and for example one of the courts mentioned how would we possibly know whether or not the violation is current ongoing unless we have unless we have such such a hearing one one part of the termination provisions that really has not become the focus of litigation yet I think we're in the first round of PLRA litigation but something that's going to come up I think is this on under the PLRA if the court denies the termination motion because it finds it finds it this exception applies under the PLRA the prison officials have to wait a year but then they can come back in again with another motion to terminate and what that means is a practical matter is this if we're gonna have a hearing each time there's such a motion there's going to be really ongoing litigation basically each year the court will be reexamining whether or not there's a constitutional violation whether or not the relief is is narrowly tailored etc now there there's been a lot of litigation regarding the constitutionality of the termination provision and one of the questions about that's come up one of the constitutional issues is does it impinge upon or does it violate separation of powers and again there are a lot of different arguments that have been asserted by prison advocates as to why they believe it impinges upon separation of powers but one of the issues is this does the termination provision unconstitutionally reopen a final judgment there's a Supreme Court case plow versus spendthrift farm ink in and what it happened kind of the history leading up to that case the Supreme Court had interpreted a statute of limitations dealing with securities litigation and and the court had interpreted this statute of limitations in such a way that it led to the dismissal of a plaintiff's case Congress disagreed with the way in which the court had interpreted the statute of limitations so Congress passed a statute clarifying what it believed had always been the statute of limitations and directing the courts to reopen all those cases that had been dismissed because of limitations problems so now the case or issue comes before the Supreme Court does this congressional statute statute directing courts to now reopen those cases does that statute impinge on separation of powers and the court concluded that it did that Congress was unconstitutionally requiring the courts to reopen a final judgment so the issue considering the PLRA and the termination provision is does the termination provision unconstitutionally require the federal courts or federal court to reopen a final a final judgment the circuits thus far that have addressed this issue have distinguished plow but they've they've distinguished it for different reasons once again we have a difference in reasoning which because of the difference in reasoning on this and the three strikes issue I do wish that the issues could get to the Supreme Court so we could get some helpful clarification but two of the circuits the fourth and eleventh circuits have said no wait a second this is different with the PLRA because we're talking about having the courts reexamine an injunction and that's different because in plow the the case involved damages only and these two circuits have said an injunction is not a final judgment and the reason why it's not a final judgment according these courts they say these injunctions sometimes they last it seems like forever they're 20 25 years 30 years and they change over time they can change over over time so they are not a final judgment now if that reasoning is correct it may be it may not but if it is correct what that means is that a bill that's passed the House twice now is constitutional as far as this separation of powers issue this is called the delay amendment again it was passed last year by the House and it was also passed in June again and is now in the Senate basically what this bill would do is set aside any consent decree that was any fact at the time the PLRA was enacted period in other words the delay amendment would set aside consent decrees for example in the prison area even if conditions in the prison are still unconstitutional and even if prison officials want the consent decree to remain in effect but if those circuits are correct that an injunction is not a final judgment and this is okay as far as that part of the Constitution is concerned so this is a piece of legislation that you might want to keep an eye out for because this may be something that you're going to confront with confront down the road now the there's there's the comment that there is the rueful problem now if what what you refer to as a rueful problem is that in a Supreme Court case called rueful versus inmates of Suffolk County the court said there that a consent decree I don't have the exact language here but basically said that a consent decree is a final judgment period but what the fourth and eleventh circuits have responded they've said well it's a final judgment for some purposes but not for other purposes and for separation of power powers purposes it is not a final judgment yes yes some of the other circuits that have upheld the termination provision these these circuits have held well of an injunction or perspective relief that it is a final judgment but that it can be modified to the extent equity requires and because of this change in the law due to the PL array because of the termination provision equity requires that courts reexamine these these orders that they have previously previously entered these are private rights in these consent degrees that are entered into between inmates and a Department of Corrections if the rights are considered to be these federal rights are considered private rights then clearly the willing West Virginia case which dealt with public rights and allowed a consent decree to be set aside would not apply I wonder what the holdings that are coming down in this area will do to consent judgments generally well all right couple points first of all there was a mention by the judge of there is another separation of powers issue raised in fact there are several others raised by the termination provision and one is one is whether that's that brings up the willing issue is whether or not the Congress is basically dictating the result in a case without changing the the underlying law and the response of the circuits that have found that there is not that that kind of separation powers problem they're saying well Congress has changed the under underlying law they've just changed the court's remedial authority and they've also said that Congress isn't dictating a result because the courts must still go through this process of deciding whether or not the relief is still necessary to remedy the violation etc. now you're what you have brought up is that there is language in the wheeling case that said that seems to suggest that that generally setting aside even the prospective relief would create separation powers problem there it didn't because it dealt with a public right with a private right it would so so again clearly if that proposed legislation to which you referred a moment ago in the house where he comes law there'd be an effective argument it seems to me for separation powers application well I think one of the values of this amendment is it does help to crystallize the constitutional the constitutional issues purpose of declaring it I'm in terms of for example determining whether perspective relief is a final judgment and also whether this argument that it is a final judgment but it can be the the judgment can be reexamined to the extent equity requires an equity requires it because of the change in the law well this would be a change in the law in the sixth circuit they attempt to get around that by saying but that question always remains with the judiciary so that it that legislation to which you made reference I forget what the house bill number is where to become law it seems to me it would be a slam dunk for a separation of powers so one of the questions that are points it's been made by the judges you know is where are we going from here not just in terms of legislation but but what are the implications of the termination provisions and right now the law is is is terminating consent decrees and court orders in the prison area subject to this caveat and the reality is if this is constitutional then we could have similar legislation in any other area of the law so it is another yet another level of problem which is the consent decrees take have a contractual component to the question is whether or not Congress can consistent with the Constitution and bear the contractual agreement made by the litigants right right so be it the the judges point is that beyond the separation of powers issue there's some complicated due process issues as well does the inmates have a vested right in this in this consent decree to which they've contracted and does does now requiring them to basically reprove their case and maybe even every year unconstitutionally excuse me impinge on that constitutional right now I had mentioned that there were two restrictions in terms of the remedial relief awarded to inmates and the other area where there we see restrictions is in the attorneys fees there are a number of restrictions on attorneys fees that could be awarded prisoners in these kinds of cases when they prevail and I think that the two that are the most important or the most significant would be number three and number four basically what now the restriction referred to in number three is that the defendant can be required to pay only attorneys fees that would be a hundred and fifty percent of the monetary judgment so if the inmate receives a hundred dollars in damages the most attorneys fees that the defendant can be required to pay would be a hundred and fifty dollars and again you you've had a lot of prisoner cases I imagine in your court may not have had a lot go to trial but you do know that very often if they do win they don't they they often won't win big they will the monetary relief will often be small so this can have a dramatic effect on the attorneys fees that are awarded and then also there are restrictions on the maximum hourly rate that can be awarded for attorneys fees the bottom line is this is that when you do all the math the most that could be awarded in attorneys fees at least in some districts in the country would be a hundred and twelve dollars and fifty cents the judicial conference has authorized in ninety three of the ninety four districts seventy five dollars an hour for work under the criminal justice act and that's kind of the guiding light for the award of attorneys fees under the PLRA but here's the catch Congress hasn't appropriated funds to actually implement implement this this kind of award across the country so Congress has only appropriated funds to permit attorneys under the CJA to receive sixty five dollars for in court work and forty five dollars for out of court work so what that means is a practical matter is that in many many districts are looking at the appropriated funds and they're saying that attorneys representing these prisoners at most can get ninety seven dollars and fifty cents for their in court work and sixty seven dollars and fifty cents for out of court work for some attorneys that would be a significant reduction in what's what they would typically have been have been awarded I did want to tell you briefly about the impact of the PLRA the question is you know we've seen all of these restrictions and what as a practical matter what what what is that meant to the courts and before the PLRA was enacted prisoner the number of prisoner suits filed was increasing dramatically between 1980 and 1995 the number of suits went up 227 percent but during that same time period the number of state prisoners went up 237 percent so the per capita rate was actually declining but the point is the number of civil rights suits was going up enormously now let's look and see what's happened with the the PLRA I've got the pre PLRA figure this was the number filed in 1995 by state prisoners 1998 we see a 30 by 1998 we've seen a 37 percent decrease in the number of civil rights suits filed by state prisoners and what's a bit remarkable about that or striking about that statistic is that at the same time the number of state prisoners has gone up 13 percent no no this is just federal court the federal district it's just federal yes okay and again so we may have this dramatic reduction the federal courts but we're now seeing many more losses filed in state courts now in some states so there they are parroting the PLRA they're adopting their own versions of the P state PLRA so it may be over time that will spread across across the country it has been my pleasure and honor to talk to you today about the Prison Litigation Reform Act I hope you enjoy the rest of your stay in Baltimore and again I encourage you to come up here and talk with me after the session thank you very much