by Cassie Pierson, Staff Attorney, Legal Services for Prisoners with Children
The Prison Litigation Reform Act (PLRA) of 1995 placed many restrictions on prisoners who attempt to sue their jailers under 42 U.S.C. ß 1983.
One key provision of the PLRA is the “exhaustion” requirement. This requires that the prisoner-plaintiff fulfly exhaust her or his administrative remedies (602 process) before filing suit. As you all probably know, exhausting the 602 process can truly be an exhausting experience. You have to file the initial appeal, wait for the answer (usually a denial), appeal to the next level, wait again, receive another denial (probably), then appeal to the Director’s level in Sacramento. Then you wait again.
All of this may sound simple. Prisoners, at least those in California prisons, know that appeals have a way of disappearing at one level or another. Of course, if your appeal is “lost” you can file another and start the whole process over again. It is not unusual for the 602 process to take nearly one year to be concluded.
After you receive the Director’s determination you have exhausted your administrative remedies and may file a complaint in federal court. Now your work starts anew. If you have access to law books, paper, pens (or a typewriter), you begin researching and writing. You will probably write many letters to private attorneys and legal services agencies asking them to review your story and take your case. However, because the PLRA also limits the amount of fees that an attorney may collect and budget for litigation may be very limited, it will be difficult to find representation.
Both of these PLRA provisions (exhaustion and fees limits) apply to class action suits as well. To satisfy the exhaustion requirement, each named plaintiff must be able to show exhaustion in order to proceed on behalf of the class. This adds to the difficulty of identifying potential class representatives. Of course, the costs associated with litigating a class action suit are much higher and place even greater burden on financially struggling legal servies agencies and attorneys.
However, none of this is to discourage you from pursuing justice if you have been harmed by a guard, a doctor, a counselor or anyone else employed by the Department of Corrections. You have the right under the U.S. Constitution to seek redress for harms inflicted upon you. More importantly, you have the right as a human, to be treated with respect whether you are incarcerated or not.