The Prison Litigation Reform Act – A Product Liability Statute in Disguise

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Faegre Drinker Biddle & Reath LLP

United States prisoners file an inordinate number of often frivolous lawsuits. In federal district courts alone, prisoners filed more than 28,000 last year. With time on their hands, and influenced by plaintiff attorneys’ advertisements and/or sensational media coverage of multimillion-dollar personal injury verdicts, many prisoners pursue baseless product liability actions. Their goal: winning an outsized verdict or, at least, a quick, nuisance-value settlement. They have had little to lose. Yet, defendant pharmaceutical companies are forced to litigate these cases, faced with the attendant costs of often-complicated inmate discovery. Many judges and/or magistrates, perhaps influenced by civil rights concerns, sometimes bend the rules of Civil Procedure for pro se prison plaintiffs. The result: Expensive litigation of often meritless lawsuits with virtually no chance of collecting costs as a prevailing party.

The Prison Litigation Reform Act, 28 U.S.C. § 1915 (PLRA), is an invaluable tool for dealing with the most troublesome of prisoner plaintiffs — the serial filers. Although relatively unknown to most non-criminal-law practitioners, a review of the requirements of the PLRA is beneficial for counsel representing pharmaceutical and medical device manufacturers defending claims filed by prisoners.

In 1996, Congress passed the PLRA in response to concerns that prisoner lawsuits had “grown astronomically—from 6,600 in 1975 to more than 39,000 in 1994.” 141 Cong. Rec. S14408–01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole). Congress’s goal was to identify ways to limit abuse of the court system. One focus was addressing the ease with which inmates could obtain in forma pauperis (IFP) status. Once granted by a court, IFP status excuses a plaintiff from paying filing fees and makes them eligible for court-recruited pro bono counsel in their civil action. One minor step Congress took was to modify this system so that inmates granted IFP status were still required to pay filing fees, but on an extended schedule based on a percentage of their prison account. However, this provision does nothing to deter litigation by prisoners with little or no funds in their prison accounts.

More significantly, the PLRA created a “three-strikes rule,” to prevent serial litigants from obtaining IFP status. Specifically, a court may not grant a prisoner IFP status if they have “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 is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Notably, the statute includes dismissals pursuant to Federal Rule of Civil Procedure 12(b)(6) as “strikes” against the inmate. Thus, an earlier court need not have made a finding that an action was “frivolous” in order for a prior dismissal to count against the litigant. Moreover, courts are required to apply the three-strikes rule regardless of the perceived merits of the underlying claim. Abdul-Akbar v. McKelvie, 239 F.3d 307, 316 (3d Cir. 2001) (“Here it [Congress] has taken away our ability as judges to grant I.F.P. status to a ‘three-strikes’ prisoner, no matter how meritorious his or her subsequent claims may be . . . .”).

When denied IFP status, a prisoner must pay the same fees as any other plaintiff pays or face dismissal for failure to prosecute pursuant to Federal Rule of Civil Procedure 41. These fees may constitute an insurmountable hurdle for pro se prisoners filing frivolous lawsuits. Even if the plaintiff can pay these filing fees, the denial of IFP also prohibits the court from securing pro bono counsel for the plaintiff. See, e.g., Mills v. Fischer, 645 F.3d 176, 178 (2d Cir. 2011). Without counsel, it is less likely that an incarcerated plaintiff will be able to obtain a qualified expert to opine on causation, which ordinarily provides a ready-made basis for summary judgment.

The three-strikes rule contains an escape clause that experienced prisoner-litigants try to use to avoid denial of IFP status. If a prisoner is under “imminent danger of serious physical injury,” the three-strikes rule does not apply. 28 U.S.C. § 1915(g). While pro se prisoners invoke the provision in the product liability context, it is rarely, if ever, applicable. The harm alleged in these actions has already occurred, and a danger cannot be imminent if it has already caused the harm at issue. See, e.g., Abdul-Akbar, 239 F.3d at 315 (“By using the term ‘imminent,’ Congress indicated that it wanted to include a safety valve for the ‘three-strikes’ rule to prevent impending harms, not those harms that had already occurred.”).

In sum, counsel representing pharmaceutical companies should be aware that the PLRA provides an effective means to limit potentially costly prisoner litigation. It should be considered anytime an inmate files a product liability action.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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