Documente Academic
Documente Profesional
Documente Cultură
No. 19-1000
JAYSON M. OSLUND,
Plaintiff-Appellant,
v.
C/O MULLEN,
Defendant-Appellee.
On Appeal from the United States District Court for the District of Colorado
Case No. 15-cv-00491-KMT
The Honorable Kathleen M. Tafoya, Magistrate Judge
Danielle C. Jefferis
Nicole B. Godfrey
Laura Rovner
STUDENT LAW OFFICE | Civil Rights Clinic
University of Denver College of Law
2255 East Evans Avenue, Suite 335
Denver, CO 80208
Tel: 303.871.6155
Fax: 303.871.6847
Email: djefferis@law.du.edu
Pursuant to Federal Rule of Appellate Procedure 26.1, those among the amici
that are corporations declare they have no parent corporations and no publicly traded
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TABLE OF CONTENTS
ARGUMENT .........................................................................................................11
CONCLUSION ......................................................................................................28
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TABLE OF AUTHORITIES
CASES
Prager v. Campbell County Memorial Hosp., 731 F.3d 1046 (10th Cir. 2013)......26
STATUTES
42 U.S.C. § 1997e....................................................................................................22
OTHER AUTHORITIES
Annie Correal, No Heat for Days at a Jail in Brooklyn Where Hundreds of Inmates
Are Sick and ‘Frantic,’ THE NEW YORK TIMES (Feb. 1, 2019)............................12
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Brennan Center for Justice, Criminal Disenfranchisement Laws Across the United
States (last updated May 30, 2019) ......................................................................18
Drew Kann, 5 facts behind America’s high incarceration rate, CNN (July 10,
2018) ....................................................................................................................12
Human Rights Watch, No Equal Justice: The Prison Litigation Reform Act in the
United States (2009) .................................................................................... passim
Jennifer Gonnerman, Do Jails Kill People?, THE NEW YORKER (Feb. 20, 2019)...12
Mark Binelli, Inside America’s Toughest Federal Prison, THE NEW YORK TIMES
MAGAZINE (Mar. 26, 2015) ..................................................................................12
Rachel Poser, Why It’s Nearly Impossible for Prisoners to Sue Prisons, New
Yorker (May 30, 2016) ............................................................................21, 22, 24
Stanley E. Sacks, Preservation of the Civil Jury System, 22 WASH. & LEE. L.R. 76
(1965) ...................................................................................................................27
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Amici curiae are organizations and law firms across the country that regularly
through litigation. Amici also advocate for greater access to justice for people who
are incarcerated. Through their experience, amici have acquired expertise about
prison-conditions litigation. Amici provide this Court information that will assist in
the determination of the case’s merits: Amici discuss the barriers incarcerated people
face when litigating civil rights claims in federal courts, which make it incredibly
difficult for their cases to advance to trial. Amici explain that because of the
transparency and accountability of prisons and jails, it is crucial courts honor the
Amici are:
The Abolitionist Law Center (“ALC”) is a public interest law firm that
engages in public education, litigation, and advocacy that furthers efforts to end mass
the courts, are subject to adverse and differential treatment, and often have to litigate
conditions of incarceration. Rigorous protection of the rights of those who face the
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greatest barriers to utilizing the courts to vindicate their rights and humanity is an
urgent task that is long overdue, and ALC welcomes increased scrutiny from
lawyers, courts, and the public so that the present inequities can be remedied.
and equality embodied in the Constitution and this nation’s civil rights laws. The
ACLU of Colorado is one of its statewide affiliates that works on behalf of prisoners
The Cardozo Civil Rights Clinic (“the Clinic”) is a law school clinic at the
Benjamin N. Cardozo School of Law in New York City. The Clinic litigates federal
civil rights cases on behalf of individuals incarcerated in federal, state, and local
prisons and jails in New York and elsewhere. Prisoners whose civil rights cases
reach a jury trial often face biases based on their status as incarcerated persons. The
Clinic is interested in ensuring that jury verdicts awarded to prisoners in civil rights
organization that works with communities under threat to fight for justice and
confinement and abuse. Recent cases include Ashker v. Governor, No. 09-cv-05796
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(N.D. Cal.) (class action which resulted in settlement ending indeterminate solitary
confinement in California prisoners); Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016)
Communications Management Unit); and Ziglar v. Abbasi, 137 S. Ct. 1843 (2017)
(regarding ability of detainees in federal jail to sue federal officials for money
damages under the Constitution). CCR, along with the National Lawyers Guild, also
guide for people in prison who are seeking relief from abuse or other constitutional
those who are attempting, against incredible odds, to enforce their rights.
civil rights secured by law. CREEC has extensive experience representing prisoners
CREEC clients and lawyers face numerous barriers in bringing meritorious cases to
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Frank & Salahuddin LLC is a civil rights law firm in Denver that regularly
represents people who have their civil rights violated by employees of prisons and
jails in federal litigation. In the firm’s experience, defendants in such cases regularly
seek extensive delay, preferring to put off payment as long as possible even where
liability is clear, in the hope that an indigent inmate will become desperate and settle
their claim for far less than a jury would award. The principal backstop against this
tactic is the defendants’ knowledge that jury awards are unpredictable, can be large,
and will be enforced. As such, the firm has an interest in ensuring that jury verdicts
against state actors in prisoners’ cases are given full effect by the federal courts.
Denver that regularly represents inmates and former inmates who have been
counsel, inmates’ cases are frequently disposed of without any determination on the
merits. The very few that make it through to trial for a jury’s consideration serve an
important role in educating the public and the judiciary about the extent of the
violations occurring and the importance juries place on civil rights. The firm has an
interest in federal judiciary respect for jury verdicts and the finality of such
decisions.
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rights of people held in state and federal prisons, local jails, immigration detention
centers, civil commitment facilities, Bureau of Indian Affairs jails, juvenile facilities,
and military prisons. HRDC’s advocacy efforts include publishing two monthly
publications, Prison Legal News, which covers national and international news and
litigation concerning prisons and jails, as well as Criminal Legal News, focused on
criminal law and procedure and policing issues. HRDC also publishes and distributes
self-help reference books for prisoners, and engages in state and federal court
litigation on prisoner rights issues, including wrongful death, class actions, and
Section 1983 civil rights litigation concerning the First Amendment rights of
prisoners and their correspondents. It constantly faces the barriers put up to limit the
that regularly represents prisoners whose constitutional rights have been violated in
federal civil rights litigation. As such, the firm has a strong interest in ensuring that
pro-plaintiff jury verdicts in prisoner cases are respected and given full effect by the
federal courts.
Killmer, Lane & Newman, LLP, (“KLN”) is a Denver civil rights law firm
that represents people whose constitutional rights have been violated by law
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enforcement agencies, including jails and prisons. Due to the nature of these cases,
including the applicability of numerous legal immunities and other defenses specific
underwriting the expenses of their own case, this constituency of clients has an
superior financial resources. The right to a jury trial and respect for the considered
Loevy & Loevy (“Loevy”) is a national civil rights law firm headquartered in
of people mistreated in prisons, jails, and other detention facilities throughout the
country. Loevy has tried many such cases before a jury and successfully obtained
awards of both compensatory and punitive damages. The firm also regularly consults
with and advises pro bono counsel in prisoners’ rights cases during all phases of
immensely difficult for counsel to litigate, and nearly impossible for pro se
imprisoned plaintiffs, forced to litigate from the confines of their jail cell. Given the
firm’s work, Loevy has a deep interest in upholding the Seventh Amendment’s
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assistance to people who are incarcerated in the state of Pennsylvania when their
statutory and constitutional rights have been violated. Founded in 1981, PILP
and class action lawsuits. As a nonprofit legal aid organization, PILP not only
representation at trial to people who have previously litigated their prison conditions
claims pro se. In PILP’s experience, the barriers facing prisoners seeking redress
from the courts are incredibly high. To protect the constitutional rights of
incarcerated people and to ensure prison oversight, it is vital that favorable jury
represents prisoner-plaintiffs whose rights have been violated at the hands of state
actors. The right of prisoner-plaintiffs to have their claims heard by a jury of their
peers is paramount to the protection of their individual rights and liberties. Jury
have occurred and the appropriate remedies for such violations. As such, jury
verdicts are entitled to the utmost respect and deference by our federal courts.
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severely curtailed by state and federal law. This firm has a strong interest in ensuring
jury verdicts remedying violations of constitutional rights are respect by our courts.
public interest law firm founded in 1985 by the family of J. Roderick MacArthur to
advocate for human rights and social justice through litigation. RSMJC has offices
Law, in New Orleans, in St. Louis, and in Washington, D.C. RSMJC attorneys have
led civil rights battles in areas that include police misconduct, the rights of the
indigent in the criminal justice system, compensation for the wrongfully convicted,
and the treatment of incarcerated men and women. RSMJC litigates appeals related
to the civil rights of incarcerated men and women throughout the federal circuits.
Rosen Bien Galvan & Grunfeld LLP (“RBGG”) is a law firm in San
Francisco, California, founded in 1990 to practice both private and public interest
litigation. Throughout the firm’s history, RBGG has brought both individual and
prisons, as well as the exclusion of persons with disabilities from work, education,
and other programs in prisons and on parole that foster positive re-entry and
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injunctive relief, the firm has also represented survivors of abuse and neglect in
prisons and jails seeking compensation for their losses. RBGG and its clients have a
advocacy, and education for poor and working people in Chicago, and legal
UPLC has provided direct representation to over 100 persons confined in Illinois
prisons pertaining to their civil rights, including seven class-action or putative class-
action cases that are currently pending. UPLC has represented individuals in cases
Under Rule 29(a)(4)(E), amici certify that no party’s counsel authored this
brief in whole or in part, and that no person or entity other than amici and their
SUMMARY OF ARGUMENT
The United States was founded on the notion that every citizen bears the right
to participate in the democratic process. Our fundamental rights to vote and petition
our government for redress of grievances through the courts are at the core of our
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American identity. Yet there are more than 2.3 million people incarcerated every
day across the United States for whom the American democratic system is largely
out of reach. Simultaneously, prison systems across the country operate with few
measures of transparency and accountability for the conditions inside their facilities.
There is no national, independent oversight body to monitor prisons and jails, and
the people who are incarcerated are largely stripped of their ability to advocate for
nearly altogether from the political process due to their convictions. Without the
right to vote, incarcerated people are left with few tools but the right of access to the
they have suffered at the hands of the state. Indeed, this Court and others have held
a prisoner’s right of access to the judiciary is her most fundamental right. Much like
the right to vote, however, prisoners’ access to the judicial system is also sharply
curtailed. The Prison Litigation Reform Act and federal procedural hurdles, among
other requirements, make it nearly impossible for a prisoner-plaintiff with even the
most meritorious claim to advance to trial and obtain a judgment in her favor.
succeed in litigating their cases to trial, where they then have the right to present
their case to a jury of their peers. At that moment, the public is offered a brief glimpse
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into the otherwise opaque prison system and, through the jury, has the opportunity
to step forward and make a decision—one that favors the prisoner-plaintiff or one
that does not; one that imposes a measure of accountability on a system that is
difficult to hold accountable or one that does not. When juries do find in favor of
remedy, courts should—as they do in other cases—respect their voices and do all
possible to uphold their verdicts. Often, these are the only voices the system hears
in favor of incarcerated people, and they can serve as one of the sole means of citizen
the judicial process and honoring the deliberations of juries will, in part, ensure
of which they are still a part, despite living behind the walls.
ARGUMENT
It is no secret that American prisons and jails can be cruel and degrading
places that dehumanize the people who are forced to live, and those who choose to
work, within their walls. With the current political and social interest in criminal law
reform, intrepid journalists are shedding some light on what goes on behind the walls
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of American prisons and jails.2 However, the indignities suffered each day by the
millions of people incarcerated in the United States occur largely out of the public’s
Often, exposure of prison conditions does not occur until years after the abuse
has been underway or long after incarcerated people have sustained harm. By way
of recent example, an April 2019 report by the Civil Rights Division of the U.S.
prison system that had been occurring for years, concluding “[t]here is reasonable
cause to believe that the Alabama Department of Corrections . . . has violated and is
2
See, e.g., Jennifer Gonnerman, Do Jails Kill People?, THE NEW YORKER (Feb. 20,
2019), available at https://www.newyorker.com/books/under-review/do-jails-kill-
people; Annie Correal, No Heat for Days at a Jail in Brooklyn Where Hundreds of
Inmates Are Sick and ‘Frantic,’ THE NEW YORK TIMES (Feb. 1, 2019), available at
https://www.nytimes.com/2019/02/01/nyregion/mdc-brooklyn-jail-heat.html;
Shane Bauer, My Four Months as a Private Prison Guard: A Mother Jones
Investigation, MOTHER JONES, July/August 2016, available at
https://www.motherjones.com/politics/2016/06/cca-private-prisons-corrections-
corporation-inmates-investigation-bauer/; Mark Binelli, Inside America’s Toughest
Federal Prison, THE NEW YORK TIMES MAGAZINE (Mar. 26, 2015), available at
https://www.nytimes.com/2015/03/29/magazine/inside-americas-toughest-federal-
prison.html.
3
Drew Kann, 5 facts behind America’s high incarceration rate, CNN (July 10,
2018), available at https://www.cnn.com/2018/06/28/us/mass-incarceration-five-
key-facts/index.html; Laura Rovner, On Litigating Constitutional Challenges to the
Federal Supermax: Improving Conditions and Shining a Light, 95 DENV. L. REV.
457, 460-64 (2018); Andrea Armstrong, No Prisoner Left Behind? Enhancing Public
Transparency of Penal Institutions, 25 STAN. J.L. & POL’Y 435, 462-66 (2014).
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prisoner sexual abuse, and by failing to provide safe conditions.”4 The Department
while perhaps atypical in volume and severity for a single system—are not unusual.6
advocates, religious leaders, and people who were formerly incarcerated, released a
report documenting the conditions inside prisons and jails across the United States.7
found, for instance, violence remains a serious problem in prisons and jails, noting
prisons, a lack of programming for prisoners, and housing and supervision decisions,
4
U.S. Dep’t of Justice, Civil Rights Division, Investigation of Alabama’s State
Prisons for Men at 1 (April 2, 2019), available at https://www.justice.gov/opa/press-
release/file/1150276/download.
5
Id. at 50-56.
6
See generally Confronting Confinement: A Report of the Commission on Safety
and Abuse in America’s Prisons at 21-22 (2006), available at https://bit.ly/2J8aji4.
7
Id. at 6-7.
8
Id. at 11-12.
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among other factors, and emphasized the violence is preventable.9 The Commission
also documented deficient medical and mental health care in some prisons and jails,
noting that during one month in 2005 one prisoner was dying needlessly from
The report outlined several broad areas where the Commission believed
change could occur, including conditions of confinement that directly impact the
safety, health, and well-being of prisoners and staff, and offered several “clear and
bold recommendations that have the potential to change the very nature of
monitoring on prison systems, and strengthen and make more use of internal
oversight mechanisms.12 The former has yet to be implemented, leaving much of the
and jails—needs and benefits from strong oversight. Perhaps more than other
9
Id.
10
Id. at 38; see also Brown v. Plata, 563 U.S. 493, 505 n.4 (2011) (noting in 2007,
there were 68 “preventable or possibly preventable” deaths in California prisons).
11
Confronting Confinement, supra note 7 at 7.
12
Id. at 15-16.
14
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powerful institutions, depriving millions of people each year of liberty and taking
responsibility for their security, yet are walled off from the public.”13 There is simply
others like it), change to prisons and jails has been difficult to come by—at least to
investigate state and local facilities as was done in Alabama, but the Department’s
reach and resources are limited.16 Only a few states and local jurisdictions have an
independent government body to inspect and monitor prisons and jails, and that body
systems across the country free to operate prisons and jails with few measures of
13
Id. at 77.
14
Id. at 16 (“Corrections leaders work hard to oversee their own institutions and hold
themselves accountable, but their vital efforts are not sufficient and cannot substitute
for external forms of oversight.”); id. at 79.
15
Human Rights Watch, No Equal Justice: The Prison Litigation Reform Act in the
United States at 3 (2009), available at
https://www.hrw.org/sites/default/files/reports/us0609web.pdf.
16
Confronting Confinement, supra note 7 at 82.
17
Id. at 79.
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self-police.19 Jack Cowley, a former warden with more than twenty years of
experience in the Oklahoma prison system told the Commission, “When we’re not
held accountable, the culture inside the prisons becomes a place that is so foreign to
the culture of the real world that we develop our own way of doing things.”20 Glenn
oversight of prisons and jails has fallen largely to the federal courts. Often, the only
ways in which prison conditions are exposed are through prisoners’ lawsuits. Some
prison systems, with increased accountability and improved conditions for the
18
Id. at 16.
19
Id. at 79.
20
Id.
21
Id. at 82.
22
Id. at 79.
23
Id. at 16; see also Alan Prendergast, Cowboy Justice, WESTWORD (June 26, 2003),
available at https://www.westword.com/news/cowboy-justice-5074962 (discussing
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For two-plus decades, however, the Prison Litigation Reform Act has
people in prisons and jails, the PLRA has markedly impacted courts’ role in prison
oversight, making it very difficult for prisoners to overcome the procedural hurdles
in the way of access to the courts, have their claims heard on the merits by a jury of
their peers, and obtain redress for past and ongoing harms sustained in prisons and
jails.24 This restricted access to the courts, combined with prisoners’ limited access
prisoners to a separate and unequal system of American democracy, where they have
few ways to participate meaningfully in the systems of which they are a part.
in the people and every citizen shall have equal and meaningful opportunity to
executive branches by the act of voting or through one’s right to petition her
federal prosecution after five-year investigation of seven former prison officers who
were “part of a sprawling conspiracy . . . to beat and abuse inmates”).
24
Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood,
5 U.C. IRVINE L. REV. 153, 168 (2015).
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government for redress of grievances through the courts, this notion of citizen
There are categories of Americans, however, for which equal access to justice
and democratic participation are not guaranteed. Among those are the nation’s 2.3
“preservative of all rights,”25 the United States stands out from other countries
around the world for depriving prisoners and former prisoners of the right to vote.
This practice is “in marked contrast to many other democracies, which either allow
all prisoners to vote (such as Austria, Germany, and Ireland) or disenfranchise only
a small proportion of prisoners (such as France, Norway, and Portugal).26 States like
Kentucky and Iowa impose lifetime disenfranchisement for people with any felony
25
Yick Wo v. Hopkins, 118 U.S. 356, 370-71 (1886).
26
No Equal Justice, supra note 16 at 6 (2009).
27
See Brennan Center for Justice, Criminal Disenfranchisement Laws Across the
United States (last updated May 30, 2019), available at
https://www.brennancenter.org/criminal-disenfranchisement-laws-across-united-
states.
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any voting restriction on people who are in prison or have a felony conviction.28
Today, at least 6.1 million Americans are banned from voting due to
of color.29 According to The Sentencing Project, one in every thirteen black adults
is prohibited from voting.30 By stripping them of their right to vote, the government
has cut off incarcerated citizens’ right to participate directly in the political process,
leaving them with few choices but to resort to the judicial branch to have their voices
Litigation is one of the few avenues for people who are in prison to seek relief
misconduct. Since at least the 1970s, federal court orders have been a primary source
of regulation of prisons and jails, “whether those orders entailed active judicial
28
The Sentencing Project, Felony Disenfranchisement: A Primer (last updated July
2018), available at https://www.sentencingproject.org/publications/felony-
disenfranchisement-a-primer/.
29
Id.
30
Id.
31
Darryl M. James, Reforming Prison Litigation Reform: Reclaiming Equal Access
to Justice for Incarcerated Persons in America, 12 LOY. J. PUB. INT. L. 465, 469-70
(2011).
32
Schlanger, supra note 25 at 168.
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prisons and jails has proven remarkably important, both in ensuring some measure
of protection for the people in the prisons and providing a means for prisoners to
curtailed the federal courts’ reach over prison conditions, and stifled prisoners’
voices and access to the judicial branch. Among those developments are (i) the
Few, if any, pieces of legislation have limited prisoners’ access to the courts
more than the PLRA. Congress passed the PLRA in 1996—not as a freestanding bill
support the proposed law and holding just one substantive hearing.33 And, in its two-
plus decades, the PLRA has limited in significant ways the ability of prisoners across
confinement. By many accounts, the PLRA had made it “nearly impossible for
33
Confronting Confinement, supra note 7 at 85; see also No Equal Justice, supra
note 27 at 9.
20
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prisoners to sue prisons.”34 According to a 2009 Human Rights Watch report titled
No Equal Justice: The Prison Litigation Reform Act in the United States, no other
country in the world has enacted national legislation to single out people who are in
prison “for a unique set of barriers to vindicating their legal rights in court.”35
This unique set of barriers has had a clear impact. Data since the PLRA’s
passage show a marked decrease in the volume of prisoner litigation, and a dramatic
incarceration. Correlated to the growing prison population, the national filing rate of
prisoners’ rights litigation declined steeply in the two years following the PLRA’s
enactment, and continued to drop for the next decade.36 The year before the law took
effect, the rate of filing was thirty-seven lawsuits for every 1,000 prisoners; five
years later the rate was nineteen lawsuits for every 1,000 prisoners.37 Since 2007,
the rates have dropped to an average of just over ten filings per 1,000 prisoners.38 As
34
Rachel Poser, Why It’s Nearly Impossible for Prisoners to Sue Prisons, New
Yorker (May 30, 2016), available at https://www.newyorker.com/news/news-
desk/why-its-nearly-impossible-for-prisoners-to-sue-prisons.
35
No Equal Justice, supra note 16 at 1-2.
36
Schlanger, supra note 25 at 155.
37
Confronting Confinement, supra note 7 at 85.
38
Schlanger, supra note 25 at 155-56.
39
Id. at 155.
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“This [evidence] strongly suggests that, rather than filtering out meritless lawsuits,
the PLRA has simply tilted the playing field against prisoners across the board.”40
unwaivable filing fee for indigent prisoners, and the three-strikes provision.41
heaviest burdens on prisoners. Before filing a federal lawsuit, the provision requires
a person to raise his complaint through all levels of the prison’s administrative
grievance system, complying with all deadlines and procedural rules.42 If that person
misses one deadline or makes a single mistake on a grievance form, he may have
lost his right to raise the issue in court.43 Many grievance processes are procedurally
complex and have short deadlines, making compliance with the requirements
Indeed, prisoners’ grievances have been rejected “for writing in red ink, for writing
on the back of a form, and for attaching medical records to their submissions.”45
40
No Equal Justice, supra note 16 at 35.
41
See generally 42 U.S.C. § 1997e.
42
No Equal Justice, supra note 16 at 2.
43
Id.
44
Id. at 11-12.
45
Poser, supra note 35 at 2; see also No Equal Justice, supra note 27 at 14-15.
22
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suggest the PLRA has achieved its goal of eliminating prisoners’ frivolous filings.
The Commission on Safety and Abuse in America’s Prisons noted in its 2006 report,
“If success in litigation is a measure of case quality, the PLRA has failed: The
proportion of successful suits went down after its enactment.”46 Since 1996, data
show government defendants are winning more cases pre-trial and parties are
settling fewer and fewer cases.47 Strikingly, in 2012 only 1.3 percent of prisoners’
civil rights cases filed in federal district court made it to trial.48 Of that 1.3 percent,
just over one out of ten trial judgments were in the prisoner-plaintiff’s favor.49 In
civil rights claims, in sixty percent of civil rights employment claims, and in over
seventy percent of general civil claims.50 The only category of litigant that comes
close to the slim success rate of prisoners bringing civil rights claims are prisoners
seeking relief through the habeas statute and in other quasi-criminal matters.51
46
Confronting Confinement, supra note 7 at 85; see also No Equal Justice, supra
note 16 at 35.
47
Schlanger, supra note 25 at 162; id. at 164.
48
Id.
49
Id.
50
Id. at 165.
51
Id.
23
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for the entry of injunctions and duration limits on monitoring, “[the PLRA] has
crippled the federal judiciary’s ability to act as a watchdog over prison conditions,”53
and sharply limited prisoners’ ability to seek redress for harms resulting from
Federal procedural barriers make it difficult for any civil plaintiff to make it
to trial, but the disparities in information and power between prisoners and prison
systems amplify those barriers for prisoner-plaintiffs. One of the most significant
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009). This standard requires plaintiffs to plead sufficient facts in their
52
Confronting Confinement, supra note 7 at 85.
53
Poser, supra note 35 at 1.
54
Confronting Confinement, supra note 7 at 16.
55
Richard H. Frankel and Alistair E. Newbern, Prisoners and Pleading, 94 WASH.
U.L. REV. 899, 905 (2017).
24
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has had the greatest impact on civil rights plaintiffs, including prisoner-plaintiffs,
face additional hurdles obtaining the evidence necessary to survive the summary-
judgment stage. For example, because prison systems retain custody and control of
prisoner-plaintiffs throughout the lawsuit, officials can transfer the plaintiff multiple
necessary to his case.”57 Moreover, plaintiffs who are incarcerated and proceeding
pro se often find it difficult to obtain the evidence necessary to prove nuanced legal
claims, particularly where a defendant’s state of mind is at issue.58 Thus, in the rare
56
Id.
57
Pennewell v. Parish, 923 F.3d 486, 491 (7th Cir. 2019) (citing James v. Eli, 889
F.3d 320, 327 (7th Cir. 2018)).
58
James, 889 F.3d at 327-28 (7th Cir. 2018).
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sacrosanct role of the jury in determining the validity of the prisoner’s claim must
be respected.59
A panel of this Court has held, “An inmate’s right of access to the courts is
the most fundamental right he or she holds. ‘All other rights of an inmate are illusory
without it, being entirely dependent for their existence on the whim or caprice of the
right, some prisoner-plaintiffs do make their way through the courts to the point at
which they are afforded the right to present their claim to a jury of their peers. In this
its peak: She is asking the jurors to do what she is largely not permitted to do—speak
out against government abuses, impose some measure of accountability on the prison
system or official accused of wrongdoing, and acknowledge that she retains certain
rights that cannot be violated. The civil jury, “one of our most cherished democratic
59
See, e.g., Prager v. Campbell County Memorial Hosp., 731 F.3d 1046, 1061 (10th
Cir. 2013) (“Trial by jury is the bedrock of our legal system”).
60
Beville v. Ednie, 74 F.3d 210, 212 (10th Cir. 1996) (quoting DeMallory v. Cullen,
855 F.2d 442, 446 (7th Cir. 1988)), overruled on other grounds as recognized in
Tucker v. Graves, 107 F.3d 881 (10th Cir. 1997).
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institutions,”61 expresses and amplifies the voice of the prisoner when its members
conclude she has been wronged, speaking through the system from which the
For those reasons, honoring and upholding jury verdicts in favor of prisoner-
systems and their officials. Indeed, ensuring respect for the decisions of civil juries
system maintains its checks and balances on branches of government that operate
outside the purview of the public’s critical eye. The public rarely hears accounts of
unbiased group constituting a jury—conclude those conditions are wrong and should
not be tolerated, those statements must be respected. There are few more direct ways
for Americans to engage in public discourse and citizen governance: “The founders
of our Nation considered the right of trial by jury in civil cases an important bulwark
against tyranny and corruption, a safeguard too precious to be left to the whim of the
61
Stanley E. Sacks, Preservation of the Civil Jury System, 22 WASH. & LEE. L.R.
76, 76 (1965).
62
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 343 (1979) (footnote omitted).
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CONCLUSION
file a court action might be said to be his remaining most ‘fundamental political
right, because [it is] preservative of all rights.’”63 And, even that fundamental right—
The number of barriers prisoners face when attempting to obtain relief for harms
they allege they have suffered is enormous. Yet some do advance to where they have
the opportunity to present their case to a federal jury. When they do—and when they
succeed in proving to a jury of their peers that they were wronged and deserve
relief—federal courts should honor those jurors’ voices and uphold their verdicts,
just as in other cases. Doing so ensures incarcerated citizens retain the right to some
on prison systems and officials for violating the law. As the Commission on Safety
and Abuse in America’s Prisons reminds us, “We must remember that our prisons
and jails are part of the justice system, not apart from it.”64
63
McCarthy v. Madigan, 503 U.S. 140, 153 (1992) (quoting Yick Wo, 118 U.S. at
370, superseded by statute as stated in Garrett v. Hawk, 127 F.3d 1263, 1264-66
(10th Cir. 1997).
64
Confronting Confinement, supra note 7 at 11.
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Respectfully submitted,
s/ Danielle C. Jefferis
Danielle C. Jefferis
Nicole B. Godfrey
Laura Rovner
University of Denver College of Law
2255 East Evans Avenue, Suite 335
Denver, CO 80208
Tel: 303.871.6155
Fax: 303.871.6847
Email: djefferis@law.du.edu
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CERTIFICATE OF COMPLIANCE
excluding the parts of the brief exempt by Federal Rule of Appellate Procedure 32(f).
This document complies also with the typeface requirements of Federal Rule of
proportionally spaced typeface using Times New Roman in font size 14.
s/ Danielle C. Jefferis
Danielle C. Jefferis
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CERTIFICATE OF SERVICE
I hereby certify that on June 27, 2019, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit
by using the CM/ECF system. I certify that all participants in the case are registered
CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Danielle C. Jefferis
Danielle C. Jefferis
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Appellate Case: 19-1000 Document: 010110189047 Date Filed: 06/27/2019 Page: 38
(1) all required privacy redactions have been made per 10th Circuit Rule 25.5;
(2) if required to file additional hard copies, that the ECF submission is an exact
(3) the digital submission has been scanned for viruses with the most recent version
s/ Danielle C. Jefferis
Danielle C. Jefferis
32