The Prison Litigation Reform Act (PLRA) & IFP Limits

It is not uncommon for certain prisoners in state prison and those in county jail to dispense legal advice to other prisoners.  As criminal defense attorneys, we often speak with such “jail house lawyers” (who call us) in discussing some legal issue or another that prompts the call.  We sometimes even learn a thing or two!  Other times, we chuckle with no small amount of empathy for certain misguided arguments or understanding because we were once fresh out of law school and struggling to make sense of the law despite passing the bar exam.

Some of these jail house lawyers, however, have no doubt knowingly engaged in frivolous appeals and meritless civil actions as sport or entertainment.

Congress has sought to limit this in The Prison Litigation Reform Act (PLRA) at 28 U.S.C. § 1915(g).  It provides that “[I]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis [IFP] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it was frivolous, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 

Courts have agreed that the “imminent danger exception” to the “three strikes” clause in 1915(g) requires a nexus between plaintiff’s claim and the alleged danger. 

Edward Vincent Ray, Jr., a state prisoner, filed a pro se complaint under 42 U.S.C. § 1983 in which he alleged that a corrections officer tampered with his mail in violation of the First and Fourteen Amendments to the United States Constitution. 

Mr. Ray wrote a motion to proceed IFP and filed it the same day as his complaint, but the federal district court denied his motion after finding that he was barred from proceeding IFP under the “three strikes” provision of the PLRA and cited to three prior dismissals against Mr. Ray. 

In its denial, the district court rejected Ray’s contention that he was under imminent danger of serious physical injury because he was housed with the general population despite his classification as a “Sensitive Needs Yard Inmate.”  The district court held there was no nexus between his civil complaint and the alleged imminent danger.  Ray also failed to pay the filing fees and the court dismissed the action.

Mr. Ray, as one would expect, then filed a timely pro se notice of appeal in the United States Court of Appeal for the Ninth Circuit and moved to proceed IFP on appeal.  In his appeal, Ray argued that he showed imminent danger of serious physical injury was transferred to a mixed population prison housing in retaliation for filing a grievance against E. Lara, the corrections officer at issue.  He also argued that the district court erred by not first permitting him a hearing before dismissing his action on the three strikes issue under Andrews v. King (9th Cir., 2005) 398 F. 3d 113.

The Ninth Circuit permitted Ray’s appeal to proceed and appointed pro bono counsel to represent Ray.

In its opinion (Edward Vincent Ray v. E. Lara), the Ninth Circuit affirmed the district court on all grounds.  It found there was no abuse of discretion in not holding a hearing for Ray under Andrews first before dismissing his action.  It also found that the three prior cases that were found frivolous were indeed correctly found as frivolous.

The issue that this article believes merits the most discussion is the “imminent danger of serious physical injury” exception, as we believe this issue is the most difficult to establish.

Mr. Ray argued that no nexus was required between the claim asserted and the danger, but the Ninth Circuit strongly disagreed.  It explained that the PLRA was intended to limit the filing of civil lawsuits by prisoners, particularly those with a demonstrated history of doing so, but that limitation should not apply when the subject matter of the lawsuit pertains to stopping an imminent threat of serious physical injury.  Consequently, the Ninth Circuit affirmed the district court’s dismissal of the case.

The citation for the United States Court of Appeals for the Ninth Circuit ruling discussed above is Edward Vincent Ray, Jr. v. E. Lara (9th Cir. 2022) 31 F. 4th 692.

For more information about prisoner legal action, please click on the following articles: