Wake Forest Law Review
24Oct

Striking Out of Federal Court: Heck Dismissals are now PLRA Strikes in the Fourth Circuit

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By Alex Gracia

As of September 16, 2024, indigent prisoner-plaintiffs in North Carolina must be weary when their civil rights claims are dismissed.[1] The failure to do so could result in the loss of important financial protections afforded to them.[2]

Background

The Federal Reserve reports that 37% of all adults would not be able to cover a $400 emergency expense with cash or its equivalent.[3] While some of those people could pay using another method, 13% of all adults cannot afford the emergency expense “by any means.”[4] To initiate a lawsuit in a federal district court, prospective plaintiffs must pay fees totaling $402,[5] which can pose an insurmountable financial burden to filing suit in federal court. This $402 fee is made up of a $350 statutory filing fee,[6] and an additional $52 miscellaneous fee “[f]or filing any document that is not related to a pending case or proceeding.”[7] With these conditions in place, it can be difficult for indigent plaintiffs to seek justice for their injuries.[8] This is especially true for prisoners who want to bring claims against prison officials. Among prisoners, 57% of men and 72% of women were considered in poverty before they were arrested.[9]

Luckily, the common law has a rich history of allowing indigent plaintiffs to bring their claims in forma pauperis (IFP), which allows them to avoid prepaying court fees.[10] The IFP doctrine was formalized by Congress in 1892,[11] and is today codified as 28 U.S.C. § 1915.[12] The statute permits a federal court to authorize proceeding IFP when a litigant offers a good faith affidavit stating “that the person is unable to pay” prefiling fees.[13]

However, Congress noticed that there were too many meritless suits being brought IFP by prisoners in the federal courts.[14] As stated by the Supreme Court, “[w]hat this country needs, Congress decided, is fewer and better prisoner suits.”[15] To meet that end, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA).[16] Among other things, the PLRA sought to reduce frivolous prisoner litigation by introducing a “three-strike rule,” which bars a prisoner from proceeding IFP if they have “on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal . . . that was dismissed on the grounds that it [was] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted . . . .”[17] Thus, after three “strikes,” a prisoner loses their ability to proceed IFP, which could mean that they are “out” of federal court.[18]

Heck Dismissals

When a prisoner believes that their rights have been violated by a prison official, they may choose to bring a “civil action for deprivation of rights,” under 42 U.S.C. § 1983.[19] If their § 1983 suit is successful, a prisoner can secure monetary damages or other equitable relief.[20]

There is a wrinkle, however. Sometimes, prisoners bring claims that, if successful, would undermine the legality of their imprisonment in the first place.[21] The Supreme Court dealt with this problem in Heck v. Humphrey.[22] In Heck, a prisoner brought a § 1983 claim against prosecutors and investigators for unlawful investigation, destroying exculpatory evidence, and using illegal voice identification procedures at trial.[23] The district court found that the prisoner’s claim called into question the validity of his imprisonment, so it dismissed his complaint without prejudice.[24] The Seventh Circuit affirmed the district court’s decision by finding that a § 1983 action that calls into question the legality of the conviction is more properly characterized as an application for habeas corpus, which requires all state remedies to be exhausted before it can be heard.[25]

When Heck reached the Supreme Court, the Court held that for a § 1983 claim to be cognizable, the plaintiff must show that his or her conviction has been reversed, expunged, invalidated, or questioned.[26] The Court found that, when evaluating a prisoner’s §1983 claims, courts must “consider whether a judgment in favor of the plaintiff would necessarily imply the validity of his conviction or sentence; if it would, the complaint must be dismissed . . . .”[27] This requirement became known as the “favorable termination” requirement.[28]

Heck Dismissals and PLRA Strikes

Does a dismissal under Heck give a prisoner-plaintiff a PLRA strike? The Supreme Court has declined to specify,[29] and the circuit courts are now split on the question.[30] The Third, Fifth, Tenth, and D.C. Circuits have held that a Heck dismissal qualifies as a dismissal for failure to state a claim because the favorable termination requirement is effectively an element of a § 1983 claim.[31] On the other hand, the Second, Seventh, and Ninth Circuits have taken the alternate position that a Heck dismissal is sometimes, but not always, a strike.[32]

Relevant for North Carolinian prisoners, the Fourth Circuit picked a side of the split in September 2024.[33] In Brunson v. Stein, Brunson was imprisoned after being convicted of a sexual-abuse offense.[34] He had “previously filed four § 1983 suits that were all dismissed under Heck.”[35] The district court concluded that the Heck dismissals were for failure to state a claim upon which relief can be granted, so Brunson had more than three PLRA strikes on his record.[36] Thus, it did not authorize Brunson to proceed IFP.[37] After paying the $402, Brunson’s case proceeded as normal and the district court dismissed his claim.[38] When Brunson appealed his claim, he applied to forgo prepaying fees by arguing that Heck dismissals were not strikes under the PLRA.[39]

The Fourth Circuit held that “a dismissal under Heck is necessarily a dismissal for ‘failure to state a claim upon which relief may be granted’ and qualifies as a PLRA strike.”[40] It considered the language of Heck’s holding: “a § 1983 plaintiff must prove that the conviction or sentence has been . . . invalidated.”[41] If a prisoner-plaintiff’s claim invokes Heck, they must show that their conviction has been invalidated or face dismissal.[42] Without showing favorable termination, the court reasoned, an element of the claim must be missing.[43] In other words, the complaint has failed to state a claim upon which relief can be granted.[44] Because this type of dismissal is a PLRA strike,[45] Brunson’s four previous Heck dismissals disqualified him from proceeding IFP.[46]

The consequences of Brunson could be drastic for indigent prisoners in North Carolina and the greater Fourth Circuit. What could be perceived as a “flood of nonmeritorious claims,”[47] from prisoners could also reasonably be perceived as the natural effect of the high quantity of pro se plaintiffs in prisons. For more than twenty years, over 90% of prisoner civil rights or conditions claims were brought by prisoners pro se.[48] With very little legal training or experience, many indigent prisoners may bring claims when they perceive a violation of their rights without understanding the procedural intricacies of habeas corpus petitions or 42. U.S.C. § 1983 claims.[49] After repeated attempts, they may be forced to pay or strike themselves out of federal court.[50]

Interestingly, a solution may already be found within the text of the federal IFP statute.[51] It states that “[t]he court may request an attorney to represent any person unable to afford counsel.”[52] With court-appointed counsel, prisoner-plaintiffs may have better luck proceeding IFP in their attempts to redress their grievances with prison and state officials. Still, for whatever reason, most prisoners proceed pro se.[53] With that being the case, indigent prisoner-plaintiffs in North Carolina must tread carefully around the new IFP landscape established by Brunson.

[1] See Brunson v. Stein, 116 F.4th 301 (4th Cir. 2024).

[2] Id.

[3] Bd. of Governors of the Fed. Rsrv. Sys., Economic Well-Being of U.S. Households in 2023 33 (2024), https://www.federalreserve.gov/publications/files/2023-report-economic-well-being-us-households-202405.pdf.

[4] Id. at 32.

[5] See Brunson, 116 F.4th at 305.

[6] 28 U.S.C. § 1914(a).

[7] District Court Miscellaneous Fee Schedule, U.S. Cts., (Dec. 1, 2023), https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.

[8] See Rosa v. Doe, 86 F.4th 1001, 1003–4 (2d Cir. 2023) (noting that these conditions existed in 2022).

[9] Bernadette Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the Pre-incarceration Incomes of the Imprisoned, Prison Policy Initiative (July 9, 2015), https://www.prisonpolicy.org/reports/income.html.

[10] See Rosa, 86 F.4th at 1004 (describing the in forma pauperis tradition existing as early as 1295 in English ecclesiastical courts).

[11] Act of July 20, 1892, ch. 209, 27 Stat. 252.

[12] See Rosa, 86 F.4th at 1005.

[13] 28 U.S.C. § 1915(a).

[14] See Jones v. Bock, 549 U.S. 199, 203 (2007).

[15] Id. (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)).

[16] Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321.

[17] 28 U.S.C. § 1915(g).

[18] See id.

[19] 42 U.S.C. § 1983.

[20] See id. (“Every person who . . . subjects, or causes to be subjected, any citizen of the United States or other person . . . to the deprivation of any rights . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”).

[21] See Heck v. Humphrey, 512 U.S. 477, 483 (1994).

[22] Id.

[23] See id. at 479.

[24] See id.

[25] See id. at 479–80.

[26] See id. at 486–87.

[27] Id. at 487.

[28] Id. at 492 (Souter, J., concurring).

[29] See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724 n.2 (2020) (declining to address the question).

[30] See Brunson v. Stein, 116 F.4th 301, 305–06 (discussing the “entrenched circuit split” on the issue).

[31] See, e.g., Garrett v. Murphy, 17 F.4th 419, 427 (3d Cir. 2021); Colvin v. LeBlanc, 2 F.4th 494, 499 (5th Cir. 2021); Smith v. Veterans Admin., 636 F.3d 1306, 1311–12 (10th Cir. 2011); In re Jones, 652 F.3d 36, 38 (D.C. Cir. 2011).

[32] See, e.g., Cotton v. Noeth, 96 F.4th 249, 257 (2d Cir. 2024); Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011); Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1056 (9th Cir. 2016).

[33] See Brunson v. Stein, 116 F.4th 301 (4th Cir. 2024).

[34] See id. at 304.

[35] Id.

[36] See id. at 304–05.

[37] See id.

[38] See id. at 305.

[39] See id.

[40] Id. at 306.

[41] Id. (quoting Heck v. Humphrey, 512 U.S. 477, 486–87 (1994)).

[42]See Heck, 512 U.S. at 486–87.

[43]See Brunson, 116 F.4th at 307.

[44]See id.

[45]See 28 U.S.C. § 1915(g).

[46]See id. at 309.

[47] Jones v. Bock, 549 U.S. 199, 203 (2007).

[48] Margo Schlanger, Prison and Jail Civil Rights/Conditions Cases: Longitudinal Statistics, 1970-2021, U. of Mich. L. Sch., Pub. L. & Legal Theory Research Paper Series, April 2022 4, https://ssrn.com/abstract=4085142.

[49] See Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5 U.C. Irvine L. rev. 153, 153–54 (2015) (“The PLRA conditioned court access on prisoners’ meticulously correct prior use of onerous and error-inviting prison grievance procedures.”).

[50] See id. at 155.

[51] 28 U.S.C. § 1915(e)(1).

[52] Id.

[53] See Schlanger, supra note 48, at 4.

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3Nov

Can Prisoners Challenge the Conditions of their Confinement Through a Writ of Habeas Corpus?

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By Max Anthony

On September 26, 2022, thousands of prisoners across the state of Alabama launched a labor strike in response to the “deteriorating conditions” and “pervasive violence” inside state prisons.[1]  In fact, conditions have deteriorated to the point that multiple homicides and drug overdoses occur on a weekly basis resulting in a “new normal.”[2]  This new normal caught the eye of the Department of Justice (“DOJ”), who filed a lawsuit against the Alabama Department of Corrections (“ADOC”) in 2020.[3]  The lawsuit alleges, inter alia, that ADOC has failed “to provide safe conditions of confinement in violation of the Constitution.”[4]

Specifically, locks in ADOC’s prions are “broken or defective,” surveillance cameras do not function, and dormitories are “open and overcrowded” requiring prisoners to use “shared showering and toileting facilities.”[5]  Additionally, plumbing does not work, causing routine “flooding.”[6]  These unsafe conditions create “heighten[ed] tensions,” increasing violence.[7]  For example, from 2018 to 2019, at least twenty-four prisoners were killed, leading to ADOC having “the highest homicide rate in the nation for a state prison system.”[8]  From 2019 to 2020, “at least 825 prisoner-on-prisoner assaults” occurred with one prisoner being “stabbed repeatedly in the face” and another hospitalized after being stabbed in the stomach twenty-six times.[9]

Even the correctional officers contribute to the violence.[10]  For instance, four correctional officers were indicted in 2020 after “using excessive force on a prisoner and for obstructing justice by filing false reports to conceal their misconduct.”[11]  Others have beaten “handcuffed prisoners . . . by striking them repeatedly with a baton.”[12]  All of this has been caused by ADOC’s failure to provide “adequate” educational and work opportunities and its failure to “implement effective classification and housing policies.”[13]

DOJ, however, is challenging these conditions of confinement as violative of the “Eighth and Fourteenth Amendments” of the United States Constitution.[14]  The question remains then whether the prisoners can challenge the conditions of their confinement through a writ of habeas corpus. 

The Supreme Court has explicitly left open the question of whether prisoners may challenge the conditions of their confinement through a writ of habeas corpus.[15]  Recognizing this unanswered question, the Supreme Court, in Ziglar v. Abbasi,[16] explained in dicta that habeas would provide a faster and more direct route to relief, “if necessity required its use.”[17]  Although the Court declined to determine the scope or availability of a habeas remedy because it was not at issue, it did explain that a successful habeas petition would require “officials to place [prisoners] in less-restrictive conditions immediately.”[18]

Further, in Preiser v. Rodriguez,[19] the Supreme Court determined that when a prisoner is put “under additional and unconstitutional restraints during his lawful custody” habeas corpus may be available to remove the restraints “making the custody illegal.”[20]  This is because habeas may be “available to challenge such prison conditions.”[21]  The Court also clarified that if a prisoner challenges both the conditions of their confinement and the fact or length of the confinement, the “latter claim . . . is cognizable only in federal habeas corpus.”[22]  However, the Court declined to define the contours of habeas because plaintiffs properly filed under § 1983.[23]  In his dissent, Justice Brennan concluded that some instances remain where a claim may “properly be brought in habeas corpus, even though it is somehow sufficiently distant from the ‘core of habeas corpus.’”[24]

Indeed, earlier Supreme Court cases established that prisoners may use habeas corpus to challenge the conditions of their confinement.  For example, in Johnson v. Avery,[25] a state prisoner sought relief from his confinement in a maximum security unit through a writ of habeas corpus.[26]  The prisoner was challenging a prison regulation that barred prisoners from assisting others in preparing writs of habeas corpus.[27]  The Court held that habeas corpus could be used to challenge unconstitutional conditions of confinement when prison regulations conflict with “federal constitutional or statutory rights.”[28]  In fact, the Court emphasized the “fundamental importance of the writ of habeas corpus in our constitutional scheme.”[29]

Circuit courts, however, are split on the question of whether prisoners can challenge the conditions of their confinement through a writ of habeas corpus.[30]  For example, in unpublished opinions, the Fourth Circuit has held that conditions of confinement claims are not cognizable in habeas proceedings.[31]  All of these cases cite Preiser to hold that a conditions of confinement claim is only appropriate in a § 1983 claim, not through a habeas petition. However, the Preiser court simply concluded a § 1983 action is a “proper remedy” for a state prisoner challenging only the conditions of their prison life, “but not the fact or length of his custody.”[32]  But, in the very next paragraph, Justice Stewart clearly stated, “[t]his is not to say that habeas corpus may not also be available to challenge such prison conditions.”[33]

As Justice Brennan made clear in his dissent, the court’s holding simply means that if a prisoner is challenging the fact or duration of their confinement then a habeas petition is their only option, but a conditions of confinement claim can be brought either through a habeas petition or a civil rights claim.[34]

Using this analysis, the Court of Appeals for the District of Columbia Circuit, in Aamer v. Obama,[35] held a prisoner may challenge the conditions of their confinement “in a federal habeas corpus petition.”[36]  The court specifically stated that Preiser did not “hold that the converse is also true—that is, that any claim challenging something apart from the fact or duration of confinement may not be raised in habeas.”[37]  Instead, the D.C. Circuit concluded the “weight of the reasoned precedent in the federal Courts of Appeal” compels the conclusion that conditions of confinement claims may be brought through a habeas petition.[38]  This view is further supported by the First Circuit, in United States v. DeLeon,[39] which concluded “[i]f the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.”[40]

In sum, the writ of habeas corpus should encompass a challenge to a prisoner’s conditions of confinement.  Including these claims within the scope of habeas will allow it to “to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.”[41]  In doing so, prisoners will be freed from the torturous conditions that are stripping them of their basic human rights.

[1] Keri Blakinger, Alabama Said Prison Strike Was ‘Under Control.’ Footage Shows System in Deadly Disarray., Marshall Project (Oct. 6, 2022), https://www.themarshallproject.org/2022/10/06/alabama-said-prison-strike-was-under-control-footage-shows-system-in-deadly-disarray.

[2] Id.

[3] Complaint at 1, United States v. Alabama, 2020 WL 7246531 (No. 2:20-cv-01971-JHE) (Dec. 9, 2020).

[4] Id. at 1–2.

[5] Id. at 18.

[6] Id. at 19.

[7] Id.

[8] Id. at 6–7.

[9] Id. at 7–8.

[10] Id. at 14–15.

[11] Id.

[12] Id. at 15.

[13] Id. at 12.

[14] Id. at 20.

[15]  See Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement.”).

[16] 137 S. Ct. 1853 (2017).

[17] Id. at 1863.

[18] Id. at 1862–63.

[19] 411 U.S. 475 (1973).

[20] Id. at 499.

[21] Id.

[22] Id. n.14.

[23] Id. at 500. 

[24] Id. at 506.

[25] 393 U.S. 483 (1969).

[26] Id. at 484.

[27] Id.

[28] Id. at 486.

[29] Id. at 485; see also Wilwording v. Swenson, 404 U.S. 249 (1971) (concluding state prisoners have a cognizable claim in habeas corpus to challenge their living conditions and disciplinary measures in prison); In re Bonner, 151 U.S. 242, 259 (1894) (“[The writ of habeas corpus] was intended as a protection of the citizen from encroachment upon his liberty from any source”) (emphasis added).

[30] See, e.g., Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (holding state prisoners can only use a habeas petition if their claims lie at the core of habeas corpus); Miller v. United States, 564 F.3d 103, 105 (1st Cir. 1977) (recognizing federal prisoners may challenge the conditions of their confinement through a habeas petition under 28 U.S.C. § 2241).

[31] See, e.g., Wilborn v. Mansukhani, 795 F. Appx. 157, 164 (4th Cir. 2019) (concluding prisoner’s challenge to the conditions of his confinement do not “fall within the scope of habeas corpus”); Rodriguez v. Ratledge, 715 F. Appx. 261, 266 (4th Cir. 2017) (explaining plaintiff’s deprivation of good conduct is cognizable under § 2241, but his challenge to the conditions of his confinement is not).

[32] Preiser, 411 U.S. at 499.

[33] Id.

[34] See id. at 505 (“Yet even though a prisoner may challenge the conditions of his confinement by petition for writ of habeas corpus, he is not precluded by today’s opinion from raising the same or similar claim…by suit under the Ku Klux Klan Act, provided he attacks only the conditions of his confinement and not its fact or duration”).

[35] 742 F.3d. 1023 (2014).

[36] Id. at 306.

[37] Id. at 300.

[38] Id. at 306.

[39] 444 F.3d 41 (1st Cir. 2006).

[40] Id. at 59.

[41] Jones v. Cunningham, 371 U.S. 236, 243 (1963).

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24Apr

U.S. Jails & Prisons Poorly Positioned to Prevent COVID-19 Spread

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Photo by Emiliano Bar on Unsplash

By Amanda Manzano

           The rapid spread of COVID-19 has disrupted business as usual across the globe and created a “new normal” for human social behavior; a normal that U.S. prisons and jails as we know them do not have the luxury, or ability, to implement. Physical distancing in public, self-isolation, and the use of face masks have all cemented themselves as routine practices in daily American life per CDC guidelines issued in the virus’s wake.[1] The CDC advises that avoiding exposure to the illness is the single best measure to prevent infection, and accordingly, recommends a minimum of six feet between person to person.[2] The Federal Bureau of Prisons (the “BOP”) has limited visitation, transfers, and staff training to limit the spread as much as possible, but what is happening within prison walls to manage internal spread and keep inmates safe?[3] The reality is, the infrastructure of American jails and prisons is such that managing disease is difficult during ordinary times, let alone in a pandemic of this magnitude, and the virus is taking its toll behind bars.

            The BOP notes modified operations in light of COVID-19 to maximize social distancing.[4] These efforts include “consideration of staggered meal times and staggered recreation times . . . to limit congregate gatherings.”[5] A cursory glance at infections throughout the BOP’s 122 facilities demonstrates this response is failing.[6] As of April 23, 620 federal inmates and 357 BOP staff have tested positive for COVID-19.[7] Twenty-four inmates have died.[8] Reports from state prisons are even more grim. The Marion Correctional Institution in Ohio is home to one of the most rampant outbreaks in the country.[9] There, 73 percent of inmates have tested positive for the virus.[10] The Ohio Department of Rehabilitation and Correction reports 3,816 inmates and 346 staff have tested positive in its twenty-eight facilities.[11] At Rikers Island, home to New York City’s largest jail complex, upwards of 1,000 inmates have contracted the virus.[12]

            Pandemic aside, the CDC acknowledges that health problems are more apparent in jails and prisons than in free communities.[13] The close proximity among inmates and staff, poor circulation, and limited sanitization resources create a breeding ground for contagious disease, and our ability to respond within the current framework is limited.[14] As it stands, the United States has nearly 2.3 million individuals in our jails, prisons, and juvenile correctional facilities.[15] By the numbers, following social distancing guidelines within these institutions would be impossible for the 10.6 million people going into jail each year and additional 600,000 checking into prisons.[16] The BOP’s modifications of staggered meal and recreation times cannot overcome crowded cells and intake rooms to prevent the spread of a virus of this contagion.

            For the time being, the best measure of precaution for the safety of inmates, staff, and the general public is to reduce jail and prison populations as much as possible. U.S. Attorney General William Barr released a memo on April 6 that addresses the heart of this remedy and contentious issue generally: pretrial detention.[17] The purpose of pretrial detention is to assure (a) the appearance of the defendant at trial and (b) the safety of others.[18] The Attorney General acknowledges the risk that every new intake poses to our jails and prisons and recommends an analysis weighing each defendant’s individual risk of flight and threat to the community against the benefits of preventing spread of COVID-19 in these vulnerable institutions.[19] Some cities have halted arrests and prosecutions for low level offenses to help control the flow of inmates.[20] Some have even begun to release low-level offenders from their sentences to clear even more space.[21] Additionally, some argue the elimination of cash bail would avoid undue risk to those who have not been convicted of a crime and free precious space in our jails.[22] A defendant’s inability to post bail during a pandemic broadens the threat from a person and a community to our entire society as each jail and prison becomes a hot spot for COVID-19.

            The infrastructure of our prison complexes and the ethics of incarceration in the United States present challenges every day. COVID-19 highlights some of our shortcomings in the most dramatic of fashions, demonstrating how the risks of crowded and unsanitary facilities extend far beyond those walls. These institutions achieve segregation but cannot, in even the best of circumstances, entirely insulate themselves from the greater public. Providing inmates and corrections staff with subpar facilities and operations will reflect on communities accordingly, and the spread of COVID-19 has shown exactly that.

[1] Coronavirus Disease 2019, CDC (Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.

[2] Id.

[3] BOP Implementing Modified Operations, Fed. Bureau of Prisons,  https://www.bop.gov/coronavirus/covid19_status.jsp (last visited Apr. 24, 2020).

[4] Id.

[5] Id.

[6] About Our Facilities, Fed. Bureau of Prisons,  https://www.bop.gov/about/facilities/federal_prisons.jsp (last visited Apr. 24, 2020).

[7] COVID-19 Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Apr. 24, 2020).

[8] Id.

[9] Bill Chappell, 73% of Inmates at an Ohio Prison Test Positive for Coronavirus, NPR (Apr. 20, 2020, 3:58 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/04/20/838943211/73-of-inmates-at-an-ohio-prison-test-positive-for-coronavirus.

[10] Id.

[11] COVID-19 Inmate Testing, Ohio Department of Rehabilitation and Correction (Apr. 23, 2020), https://coronavirus.ohio.gov/static/DRCCOVID-19Information.pdf.

[12] Deanna Paul & Ben Chapman, Rikers Island Guards Are Dying in One of the Worst Coronavirus Outbreaks, Wall St. J. (Apr. 22, 2020, 8:19 AM) https://www.wsj.com/articles/rikers-island-jail-guards-are-dying-in-one-of-the-worst-coronavirus-outbreaks-11587547801.

[13] Correctional Health: Behind the Wall, CDC, https://www.cdc.gov/correctionalhealth/default.htm (last visited Apr. 24, 2020).

[14] Stir Crazy – Prisons Worldwide Risk Becoming Incubators of COVID-19, The Economist (Apr. 20, 2020), https://www.economist.com/international/2020/04/20/prisons-worldwide-risk-becoming-incubators-of-covid-19 [hereinafter Stir Crazy]  

[15] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html.

[16] See Id (discussing current incarceration rates and annual trends in new incarcerations). See also Stir Crazy, supra note 14 (analyzing the role of prison population in increasing risk of COVID-19 spread amongst the incarcerated).

[17] Memorandum from the Office of the Attorney General for All Heads of Department Components and All United States Attorneys (Apr. 6, 2020), https://www.justice.gov/file/1266901/download [hereinafter Attorney General’s Memorandum].  

[18] 18 U.S.C. § 3142(e)(1) (2018).

[19] Attorney General’s Memorandum, supra note 17.

[20] Chris W. Surprenant, COVID-19 and Pretrial Detention, Mercatus Ctr. (Mar. 30, 2020), https://www.mercatus.org/publications/covid-19-policy-brief-series/covid-19-and-pretrial-detention.

[21] Id.

[22] The Bail Project Urges Jail Releases Amid Coronavirus Spread, The Bail Project, https://bailproject.org/covid-19/ (last visited Apr. 24, 2020).

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27Mar

Fourth Circuit Reverses Dismissal of Prisoners’ Complaint for Mootness

Categories: 4th Cir. Blog Archive Civil Cases
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By John Van Swearingen

On March 24, 2017, the Fourth Circuit issued a published opinion in the prisoner civil rights case Porter v. Clarke. Plaintiffs, originally four Virginia death row inmates, filed a complaint in the United States District Court for the Eastern District of Virginia alleging that the conditions of their confinement amounted to cruel and unusual punishment violative of the Eighth Amendment. One inmate was executed during the course of this action, leaving three inmates as Plaintiffs. Defendants, the Director of the Virginia Department of Correction and the Warden of the Sussex I State Prison, thereafter changed the policies at issue in the complaint. The district court subsequently dismissed Plaintiff’s action for mootness. Plaintiffs timely appealed, claiming their action is not moot.

Facts and Procedural History

In November 2014, when Plaintiffs filed this lawsuit, the Virginia Department of Corrections was operating under a pair of 2010 policies that governed the living conditions of death row inmates. Plaintiffs spent twenty-three hours a day in seventy-one-square-foot cells, alone, with a steel bed, a desk, and a combination commode-and-sink. Death row inmates could not have “contact” visits with anyone; all visitation was separated by plexiglass. The warden had unlimited discretion in granting contact visits with immediate family under “extreme circumstances.”

Inmates were allotted one hour of “outdoor recreation” five days a week. This consisted of an empty outdoor cell similar in size to the inmates’ living cells. Inmates had zero access to any group behavioral, educational, vocational, or religious services.

In August 2015, Defendants established new interim guidelines permitting death row inmates one-and-a-half-hour weekly contact visits with immediate family, one-and-a-half-hour weekend and holiday contact visits with other approved visitors, one-and-a-half-hour outdoor recreation sessions five days a week, daily one-hour indoor recreation sessions with up to three other inmates, and a daily fifteen-minute shower. Defendants built a new outdoor recreation area for group activities and an indoor recreation dayroom for group behavioral, educational, vocational, and religious services.

In December 2015, Plaintiffs and Defendants filed cross-motions for summary judgment. Defendants never explicitly moved for dismissal on the grounds of mootness. At the motion hearing, Defendants also noted that they would not take any action binding them to the new guidelines, stating instead that the fluid nature of corrections require that they be able to increase security back to “lockdown status” if need be.

In May 2016, the district court requested an update from Defendant’s on the status of the interim guidelines. Defendants filed an affidavit stating they had updated to new policies providing one-and-a-half-hour outdoor recreation five days a week, one-hour indoor recreation with up to four inmates daily, fifteen minute daily showers, weekly one-and-a-half-hour contact visitation sessions with immediate family and one approved other visitor, non-contact weekend and holiday visitation, and extended visitation sessions granted on a case-by-case basis. Per Defendants’ affidavit, the new policies will be reviewed annually and updated in no later than three years.

In July 2016, the district court granted summary judgment for Defendants’ despite the Defendants’ refusal to neither admit that the pre-2015 inmate conditions violated the Eighth Amendment nor offer any guarantee that the pre-2015 policies would not be restored. The lower court dismissed the Plaintiff’s cross-motion as moot, and Plaintiffs timely appealed.

Mootness Requires More Than a Voluntary Cessation of the Challenged Behavior

Under Article III § 2 of the United States Constitution, federal courts are deprived of subject matter jurisdiction when litigation ceases to involve a “case or controversy.” In other words, as noted by the United States Supreme Court in Powell v. McCormack, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” 395 U.S. 486, 496 (1969).

However, in City of Mesquite v. Aladdin’s Castle, Inc., the Supreme Court also noted that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” 455 U.S. 283, 289 (1982). As noted by the First Circuit in ACLU of Mass. v. U.S. Conference of Catholic Bishops, a savvy litigant could otherwise render itself immune to litigation by voluntary ceasing a challenged behavior upon the filing of a complaint, then resume that behavior following dismissal for mootness. 705 F.3d 44, 54–55 (1st Cir. 2013).

Instead, a Defendant seeking dismissal for mootness must, pursuant to the Supreme Court’s holding in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., meet the heavy burden of showing that “it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” 528 U.S. 167, 190 (2000). This burden is not met if, as in the Fourth Circuit’s decision in Pashby v. Delia, a defendant retains the authority to reinstate a challenged policy. 709 F.3d 307, 316–17 (4th Cir. 2013).

Nothing here bars Defendants from returning to the original policies addressed in Plaintiff’s complaint. Indeed, they have stated that the policies may be reinstated in some form if a situation demanded “lockdown” of the inmates. Further, Defendants expressly refused to commit to the revised policies or admit that the original policies violated Plaintiff’s Eighth Amendment rights. The Fourth Circuit expressly declined to support or denounce the original policies, noting that there may be valid “penological rationale” for reverting to the original policies as described if a situation rendered those policies appropriate. However, the Fourth Circuit noted that this very possibility rendered the dismissal of Plaintiff’s complaint for mootness improper.

Disposition

The Fourth Circuit reversed the district court’s judgment and remanded for further proceedings. Since Defendants expressly retained the discretion to reinstate the policies challenged by Plaintiffs, the voluntary dismissal of those policies did not render the action moot.

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