Pro Bono Sembiar November 16, 2005 Sponsored by Eastern District of Michigan Chapter The United States District Court The Federal Bar Association Eastern District ofMichi~an Eastern District ofMichz~an UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN AND THE FEDERAL BAR ASSOCIATION PRO BONO TRAINING SEMINAR November 16, 2005 PROGRAM 8:30 a.m. Registration and Continental Breakfast 9:00 a.m. Welcome and Introduction Denise Page Hood, U.S. District Judge and Julia Pidgeon, President, FBA 9:15 a.m. “Overview ofPrison Litigation Reform Act” (Tab 1) Wallace Capel, Jr., U.S. Magistrate Judge 9:40 a.m. “The Elements ofa Prisoner’s Civil Rights Claim” (Tab 2~) Erica M. Eisinger, Clinical Director, Wayne State University Law School 10:00 a.m. “Proving Your Case” - Patricia Streeter, Civil Rights Attorney (Tab 3) 10:20 a.m. ‘Magistrate Judges’ Involvement in Prison Cases” (Tab 4~) Steven Pepe, U.S. Magistrate Judge 10:30a.m. BREAK 10:50 a.rn. “Federal Judges’ Involvement in Prison Cases” (Tab 5) Avern Cohn, U.S. District Judge 11:10 a.m. “The Learning Experience ofPrison Cases” (Tab 6) Arthur Tarnow, U.S. District Judge 11:25 a.m. “Reimbursement ofExpenses and Other Things to Know” (Tab 7,) David J. Weaver, Court Administrator 11:35 a.m. “Dealing with Defendants’ (‘ounsel and the Michigan Depart. of (‘orrections” Leo Friedman, Assistant Attorney General, Corrections Division (Tab 8) 11:55 a.m. “Establishing a Relationshz:p with Your Client” (Tab 9,) Daniel Manville, Clinical Staff Attorney, Wayne State University Law School 12:10 p.m. Panel Discussion: “Living Proofthat Prison Cases are Fun” (Tab 10) Panelists: Thomas W. Cranmer, President, State Bar of Michigan; Matthew F. Leitman, Miller Canfield; John S. LeRoy and Matthew Jakubowski, Brooks & Kushman; Stephen Boehringer and Laura Sagolla, Dykema Gossett. 12:30 p.m. Wrap Up - Denise Page Hood, U.S. District Judge 12:45p.m. LUNCH Acknowledgments United States District Court, Eastern District of Michigan The Honorable Bernard A. Friedman, Chief Judge The Honorable Denise Page Hood, The Honorable Arthur J. Tarnow, The Honorable Victoria A. Roberts, U.S. District Court, Pro Bono Committee Federal Bar Association, Detroit Chapter Julia Pidgeon, President The Honorable Mark Goldsmith and Daniel Manville, Pro Bon Committee Co-Chairs Special Thanks Ilene and Michael Shaw Grant Fund The Honorable Julian Abele Cook, Jr., U.S. District Judge The Honorable Robert H. Cleland, U.S. District Judge David J. Weaver, Court Administrator, U.S. District Court, Eastern District of Michigan William F. Lewis, Case Manager, U.S. District Court Charlene R. Gill, Judicial Assistant, U.S. District Court Stephanie Miszkowski, Assistant, Court Administrator’s Office Thomas M. Schehr and Anthony Marion, Dykema Gossett, PLLC Kelly Rimmer and Maya Watson, Wayne State University Law School Students “Overview of Prison Litigation Reform Act” “The Elements of a Prisoner’s 1~1~ights Claim” “Proving Your Case” - -- “Magistrate Judges’ Involvement in Prison Cases” j “Federal Judges’ Involvement in Prison Cases” “The Learning Experience of Prison Cases” “Reimbursement of Expenses and Other Things to Know” “Dealing with Defendants’ Counsel and the Michigan Department of Corrections” Client” Panel Discussion: “Living Proof That Prison Cases are Fun” EXHIBIT 1 “Overview of Prison Litigation Reform Act” Wallace Capel, Jr. United States Magistrate Judge Prison Litigation Reform Act: Overview Purpose: The Prison Litigation Reform Act [PLRA] was enacted in 1996 to prevent frivolous lawsuits. II. Provisions: 42 U.S.C. § 1997e, 42 U.S.C. § 807 and 808, 28 U.S.C. § 1915, 28 U.S.C. § 1915A, and 18 U.S.C. § 3626.1 A. Filing • Exhaustion under 42 U.S.C. § 1997e(a): Prisoners must exhaust all available administrative remedies prior to filing in federal court. • Physical Injury Requirement under 42 U.S.C. § 1 997e(e): There is no remedy in the PLRA for mental or emotional injury without a pre-existing physical injury. • Three Strikes under 28 U.S.C. § 19 15(g): Where a prisoner has brought three or more claims that were determined to be either “frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted,” he or she may not bring 2mother action “unless the prisoner is under imminent danger of serious physical injury.” B. Mandatory Review and Dismissal • Pre-docketing Review under 28 U.S.C. § 1915A: The Court is required to review a claim under PLRA as soon as possible and specifically look to whether it is: “(1) is frivolous, malicious, or fails to state a claim upon which reliefmay be granted; or (2) seeks monetary relieffrom a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b) • Factors to be considered under 42 U.S.C. § 1997e(c): The Court may dismiss a case, or claims within, without looking first at administrative remedies when the “claim is, on its face, frivolous, malicious, fails to state a claim upon which reliefcan be granted, or seeks monetary relief from a defendant who is immune from such relief.” • Timing of Dismissal under 28 U.S.C. § 1915(e)(2): Notwithstanding any filing fee, or any portion thereof that may have been paid, the court shall dismiss the case at any time if the court tThis Outline of Provisions was gathered from the Resource Guide for Managing Prisoner Civil Rights Litigation published by the Federal Judicial Center and the provisions and issues discussed can be found in more detail within same. RESOURCE GUIDE FOR MANAGING PRisoNER CIvIL RIGHTS LITIGATION (1996) available at http://www.f]c.gov/public/pdf.nsf/ lookup/prisoner.pdf/$File/prisoner.pdf. determines that— (A) the allegation of poverty is untrue; or (B) the action or appeal— (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. C. Requirements for Achieving In Forma Pauperis [IFP1 Status •Statement of assets under 28 U.S.C. § 1915(a): Requires “an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress,” as well as “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.” • Filing Fee under 28 U.S.C. § 1915 (b)( 1 )-(2): This section explains the partial initial filing fee and the subsequent monthly payments due. Additionally, under 28 U.S.C. § 191 5(b)(4), “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” • Payment of Costs under 28 U.S.C. § 1915(f): In the event that judgement is against the prisoner, he or she may make payments in the same fashion outlined by 28 U.S.C. § 1915(b)(1)-(2). D. Provisions Affecting Management of Cases • Waiver ofDefendant’s Right to Reply under 42 U.S.C. § 1 997e(g): Defendant may waive the right to reply and same will not be treated as an admission; however, the court may order a reply where “it finds that the Plaintiffhas a reasonable opportunity to prevail on the merits,” and no relief will be granted to a Plaintiff unless there is a reply. • Use of Telecommunications Technologies under 42 U.S.C. § 1997e(f): Allows certain communications during pretrial proceedings and hearings “by telephone, video conference, or other telecommunications technology.” E. Limits on Relief & Sanctions • Limits under 18 U.S.C. § 3626: 2 Among other things, the amendments to section 3626 • limit the prospective relief, including preliminary injunctive relief; that the court may grant; • limit the court’s authority to release or prohibit admission of prisoners, or require that three-judge courts issue such orders; • add provisions speeding the termination ofprospective relief orders; and • limit and govern the court’s authority to appoint special masters to conduct hearings and prepare findings of fact. RESOURCE GUIDE FOR MANAGri’~G PRIsoNER CIVIL RIGHTS LITIGATION 4 (1996) available at http://www.fjc.gov/public/ pdf.nsf/ lookup/prisoner.pdf/$File/prisoner.pdf. • Limits under 28 U.S.C. § 1932: The Court may on its own motion or that of a party “order the revocation of such earned good time credit. that has not yet vested,” if: “(1) the claim was filed for a malicious purpose; (2) the claim was filed solely to harass the party against which it was filed; or (3) the claimant testifies falsely or otherwise knowingly presents false evidence or information to the court.” • Sanctions under 42 U.S.C. § 807 and 808: Requires satisfaction of outstanding restitution orders to any award of compensatory damages to a prisoner, including making “reasonable efforts” to notify victims eligible for such restitution. F. Attorneys’ Fees under 42 U.S.C. § 1997e(d): • Attorney fees are not to be awarded in prisoner civil rights litigation unless: (A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiffs rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and (B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.