Publication Date

Winter 2011


The Federal Prison Litigation Reform Act precludes prisoners from filing lawsuits in forma pauperis and imposes significant limitations on the recovery of attorney’s fees. Many states have followed the lead of Congress by prohibiting their courts from waiving filing fees in prisoner cases. The federal fee provisions have withstood a barrage of constitutional challenges, with courts uniformly holding that the provisions are rationally related to a legitimate government interest in deterring frivolous inmate litigation. Many courts, however, apply these fee restrictions in a manner that cannot be justified by the analysis generally supporting the constitutionality of the provisions. In both state and federal courts, fee restrictions are applied to litigation collateral to prisoners’ incarceration, such as appeals of bankruptcy and divorce court rulings. The denial of in forma pauperis status to prisoners in these proceedings bears no relationship to the government interest in deterring frivolous inmate litigation, instead imposing a substantial burden on the ability of prisoners to pursue important matters that is not felt by other indigent litigants. To the extent that state and federal fee restrictions continue to be applied to certain collateral prisoner litigation, they are unconstitutional.



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