Wake Forest Law Review
24Oct

Striking Out of Federal Court: Heck Dismissals are now PLRA Strikes in the Fourth Circuit

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By Alex Gracia

As of September 16, 2024, indigent prisoner-plaintiffs in North Carolina must be weary when their civil rights claims are dismissed.[1] The failure to do so could result in the loss of important financial protections afforded to them.[2]

Background

The Federal Reserve reports that 37% of all adults would not be able to cover a $400 emergency expense with cash or its equivalent.[3] While some of those people could pay using another method, 13% of all adults cannot afford the emergency expense “by any means.”[4] To initiate a lawsuit in a federal district court, prospective plaintiffs must pay fees totaling $402,[5] which can pose an insurmountable financial burden to filing suit in federal court. This $402 fee is made up of a $350 statutory filing fee,[6] and an additional $52 miscellaneous fee “[f]or filing any document that is not related to a pending case or proceeding.”[7] With these conditions in place, it can be difficult for indigent plaintiffs to seek justice for their injuries.[8] This is especially true for prisoners who want to bring claims against prison officials. Among prisoners, 57% of men and 72% of women were considered in poverty before they were arrested.[9]

Luckily, the common law has a rich history of allowing indigent plaintiffs to bring their claims in forma pauperis (IFP), which allows them to avoid prepaying court fees.[10] The IFP doctrine was formalized by Congress in 1892,[11] and is today codified as 28 U.S.C. § 1915.[12] The statute permits a federal court to authorize proceeding IFP when a litigant offers a good faith affidavit stating “that the person is unable to pay” prefiling fees.[13]

However, Congress noticed that there were too many meritless suits being brought IFP by prisoners in the federal courts.[14] As stated by the Supreme Court, “[w]hat this country needs, Congress decided, is fewer and better prisoner suits.”[15] To meet that end, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA).[16] Among other things, the PLRA sought to reduce frivolous prisoner litigation by introducing a “three-strike rule,” which bars a prisoner from proceeding IFP if they have “on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal . . . that was dismissed on the grounds that it [was] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted . . . .”[17] Thus, after three “strikes,” a prisoner loses their ability to proceed IFP, which could mean that they are “out” of federal court.[18]

Heck Dismissals

When a prisoner believes that their rights have been violated by a prison official, they may choose to bring a “civil action for deprivation of rights,” under 42 U.S.C. § 1983.[19] If their § 1983 suit is successful, a prisoner can secure monetary damages or other equitable relief.[20]

There is a wrinkle, however. Sometimes, prisoners bring claims that, if successful, would undermine the legality of their imprisonment in the first place.[21] The Supreme Court dealt with this problem in Heck v. Humphrey.[22] In Heck, a prisoner brought a § 1983 claim against prosecutors and investigators for unlawful investigation, destroying exculpatory evidence, and using illegal voice identification procedures at trial.[23] The district court found that the prisoner’s claim called into question the validity of his imprisonment, so it dismissed his complaint without prejudice.[24] The Seventh Circuit affirmed the district court’s decision by finding that a § 1983 action that calls into question the legality of the conviction is more properly characterized as an application for habeas corpus, which requires all state remedies to be exhausted before it can be heard.[25]

When Heck reached the Supreme Court, the Court held that for a § 1983 claim to be cognizable, the plaintiff must show that his or her conviction has been reversed, expunged, invalidated, or questioned.[26] The Court found that, when evaluating a prisoner’s §1983 claims, courts must “consider whether a judgment in favor of the plaintiff would necessarily imply the validity of his conviction or sentence; if it would, the complaint must be dismissed . . . .”[27] This requirement became known as the “favorable termination” requirement.[28]

Heck Dismissals and PLRA Strikes

Does a dismissal under Heck give a prisoner-plaintiff a PLRA strike? The Supreme Court has declined to specify,[29] and the circuit courts are now split on the question.[30] The Third, Fifth, Tenth, and D.C. Circuits have held that a Heck dismissal qualifies as a dismissal for failure to state a claim because the favorable termination requirement is effectively an element of a § 1983 claim.[31] On the other hand, the Second, Seventh, and Ninth Circuits have taken the alternate position that a Heck dismissal is sometimes, but not always, a strike.[32]

Relevant for North Carolinian prisoners, the Fourth Circuit picked a side of the split in September 2024.[33] In Brunson v. Stein, Brunson was imprisoned after being convicted of a sexual-abuse offense.[34] He had “previously filed four § 1983 suits that were all dismissed under Heck.”[35] The district court concluded that the Heck dismissals were for failure to state a claim upon which relief can be granted, so Brunson had more than three PLRA strikes on his record.[36] Thus, it did not authorize Brunson to proceed IFP.[37] After paying the $402, Brunson’s case proceeded as normal and the district court dismissed his claim.[38] When Brunson appealed his claim, he applied to forgo prepaying fees by arguing that Heck dismissals were not strikes under the PLRA.[39]

The Fourth Circuit held that “a dismissal under Heck is necessarily a dismissal for ‘failure to state a claim upon which relief may be granted’ and qualifies as a PLRA strike.”[40] It considered the language of Heck’s holding: “a § 1983 plaintiff must prove that the conviction or sentence has been . . . invalidated.”[41] If a prisoner-plaintiff’s claim invokes Heck, they must show that their conviction has been invalidated or face dismissal.[42] Without showing favorable termination, the court reasoned, an element of the claim must be missing.[43] In other words, the complaint has failed to state a claim upon which relief can be granted.[44] Because this type of dismissal is a PLRA strike,[45] Brunson’s four previous Heck dismissals disqualified him from proceeding IFP.[46]

The consequences of Brunson could be drastic for indigent prisoners in North Carolina and the greater Fourth Circuit. What could be perceived as a “flood of nonmeritorious claims,”[47] from prisoners could also reasonably be perceived as the natural effect of the high quantity of pro se plaintiffs in prisons. For more than twenty years, over 90% of prisoner civil rights or conditions claims were brought by prisoners pro se.[48] With very little legal training or experience, many indigent prisoners may bring claims when they perceive a violation of their rights without understanding the procedural intricacies of habeas corpus petitions or 42. U.S.C. § 1983 claims.[49] After repeated attempts, they may be forced to pay or strike themselves out of federal court.[50]

Interestingly, a solution may already be found within the text of the federal IFP statute.[51] It states that “[t]he court may request an attorney to represent any person unable to afford counsel.”[52] With court-appointed counsel, prisoner-plaintiffs may have better luck proceeding IFP in their attempts to redress their grievances with prison and state officials. Still, for whatever reason, most prisoners proceed pro se.[53] With that being the case, indigent prisoner-plaintiffs in North Carolina must tread carefully around the new IFP landscape established by Brunson.

[1] See Brunson v. Stein, 116 F.4th 301 (4th Cir. 2024).

[2] Id.

[3] Bd. of Governors of the Fed. Rsrv. Sys., Economic Well-Being of U.S. Households in 2023 33 (2024), https://www.federalreserve.gov/publications/files/2023-report-economic-well-being-us-households-202405.pdf.

[4] Id. at 32.

[5] See Brunson, 116 F.4th at 305.

[6] 28 U.S.C. § 1914(a).

[7] District Court Miscellaneous Fee Schedule, U.S. Cts., (Dec. 1, 2023), https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.

[8] See Rosa v. Doe, 86 F.4th 1001, 1003–4 (2d Cir. 2023) (noting that these conditions existed in 2022).

[9] Bernadette Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the Pre-incarceration Incomes of the Imprisoned, Prison Policy Initiative (July 9, 2015), https://www.prisonpolicy.org/reports/income.html.

[10] See Rosa, 86 F.4th at 1004 (describing the in forma pauperis tradition existing as early as 1295 in English ecclesiastical courts).

[11] Act of July 20, 1892, ch. 209, 27 Stat. 252.

[12] See Rosa, 86 F.4th at 1005.

[13] 28 U.S.C. § 1915(a).

[14] See Jones v. Bock, 549 U.S. 199, 203 (2007).

[15] Id. (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)).

[16] Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321.

[17] 28 U.S.C. § 1915(g).

[18] See id.

[19] 42 U.S.C. § 1983.

[20] See id. (“Every person who . . . subjects, or causes to be subjected, any citizen of the United States or other person . . . to the deprivation of any rights . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”).

[21] See Heck v. Humphrey, 512 U.S. 477, 483 (1994).

[22] Id.

[23] See id. at 479.

[24] See id.

[25] See id. at 479–80.

[26] See id. at 486–87.

[27] Id. at 487.

[28] Id. at 492 (Souter, J., concurring).

[29] See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724 n.2 (2020) (declining to address the question).

[30] See Brunson v. Stein, 116 F.4th 301, 305–06 (discussing the “entrenched circuit split” on the issue).

[31] See, e.g., Garrett v. Murphy, 17 F.4th 419, 427 (3d Cir. 2021); Colvin v. LeBlanc, 2 F.4th 494, 499 (5th Cir. 2021); Smith v. Veterans Admin., 636 F.3d 1306, 1311–12 (10th Cir. 2011); In re Jones, 652 F.3d 36, 38 (D.C. Cir. 2011).

[32] See, e.g., Cotton v. Noeth, 96 F.4th 249, 257 (2d Cir. 2024); Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011); Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1056 (9th Cir. 2016).

[33] See Brunson v. Stein, 116 F.4th 301 (4th Cir. 2024).

[34] See id. at 304.

[35] Id.

[36] See id. at 304–05.

[37] See id.

[38] See id. at 305.

[39] See id.

[40] Id. at 306.

[41] Id. (quoting Heck v. Humphrey, 512 U.S. 477, 486–87 (1994)).

[42]See Heck, 512 U.S. at 486–87.

[43]See Brunson, 116 F.4th at 307.

[44]See id.

[45]See 28 U.S.C. § 1915(g).

[46]See id. at 309.

[47] Jones v. Bock, 549 U.S. 199, 203 (2007).

[48] Margo Schlanger, Prison and Jail Civil Rights/Conditions Cases: Longitudinal Statistics, 1970-2021, U. of Mich. L. Sch., Pub. L. & Legal Theory Research Paper Series, April 2022 4, https://ssrn.com/abstract=4085142.

[49] See Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5 U.C. Irvine L. rev. 153, 153–54 (2015) (“The PLRA conditioned court access on prisoners’ meticulously correct prior use of onerous and error-inviting prison grievance procedures.”).

[50] See id. at 155.

[51] 28 U.S.C. § 1915(e)(1).

[52] Id.

[53] See Schlanger, supra note 48, at 4.

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22Nov

Misplacement, Mistreatment and Abuse of Transgender Women in our City’s Jails

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Free Illuminated Wall Lamp on a Concrete Wall Near Steel Bars Stock Photo

Julia Guarneri

In 2018, Alyssa Rodriguez was brought to Rikers Island (“Rikers”), New York City’s main jail complex, to be “held for pretrial detention”.[1] Although a transgender woman, she was placed in the all-male Anna M. Kross Center and housed in an open sleeping area with male detainees.[2] Corrections employees expressed confusion as to why she was being housed there.[3] Still, inmates and corrections officers subjected her to “relentless harassment,” culminating in a “male detainee sexually assault[ing] [her] in the shower.[4]

After being sent to Bellevue Hospital for her injuries, the Department of Correction sent her back to the same facility where she was attacked.[5] Unfortunately, “four days later she was sexually assault again in her holding cell.”[6] In the account of her experience submitted to the city’s Board of Correction, Rodrigeuz wrote that she “will never forget the loneliness, pain [and] destruction” the attacks caused her.[7] Unfortunately, Rodrigeuz passed away in the course of litigation “from unrelated health complications,” but the New York City government agreed to pay $1.4 million as part of a settlement agreement in early November.[8] 

In 2019, Layleen Polanco, another transgender woman, died from a seizure while being held in solitary confinement after corrections officers failed to check on her for forty-seven minutes.[9] She was placed “in punitive confinement for assaulting an officer,” despite having a pre-existing health condition that caused her to have seizures.[10] Corrections policy requires checks on prisoners in solitary confinement every fifteen minutes,[11] and, more importantly, requires “[a]nyone put into Rikers solitary units must first be cleared by medical staff.”[12] New York City settled with Polanco’s family for $5.9 million, “the largest settlement in the city’s history for a death in jail . . . .”[13]

Yet again, this past year, Latee Brockington was similarly placed at the Anna M. Cross Center.[14] Brockinton was on suicide side watch after becoming depressed because she was being housed in a men’s jail, even though she identified as female.[15] A “corrections officer let an inmate into her cell, who then choked her unconscious and sexually assaulted her.”[16] After this attack she was finally transferred to the women’s jail. [17] Despite this, six months later the Department sent her back to a men’s dormitory at the same center where she was sexually assaulted, “citing unspecified ‘security concerns.’”[18] “Only five days later Brockington was sexually assaulted for a second time by two inmates in the shower,” one of whom “threatened her with a knife.”[19] Brockington’s trauma doesn’t end there– just one week later, she was sexually assaulted in a holding pen. [20]

After each of the attacks, Brockington reported the incidents to the Correction Department, was taken to the hospital for a rape kit, and each time “semen was found.”[21] She explains in her suit against the city that she “was denied housing at the women’s jail when she arrived . . . because she was not on hormone replacement therapy, which she quickly started taking.” [22] Medical staffers “weren’t sure why [she] was moved back to the men’s lockup.” [23] Brockington “remains at the Anna M. Kross Center” and “lives in constant fear.” [24]

Rodrigeuz, Polanco and Brockington are not alone. They have become part of a “pattern by the city of failing to protect transgender people in its custody,” by refusing to place these individuals in appropriate housing and failing to follow the most basic policies to ensure their protection while under care of the Department of Corrections.[25] Transgender women are repeatedly placed in male detention centers despite numerous incidents of sexual assault, rules against it, and even confusion of some of corrections employees.[26] And New York City is not unique in its dismissal of the objections of the individuals and their lawyers. Reports have sprung up from all over the United States, resulting from transgender individuals not being placed in centers aligned with their gender.[27]

Law enforcement in New York City overall, as well as much of the country, has had trouble adjusting its culture to one that respects and acknowledges the transgender community.  It was only in 2021 that New York repealed the 1976 penal statute know as  the “walking while trans” ban, that was “aimed at prohibiting loitering for the purpose of prostitution, but which ultimately led to years of law enforcement discrimination against trans people of color.”[28] The law “allowed [officers] to ‘stop-and-frisk trans women of color and other marginalized groups for simply walking down the street,’” and officers were “trained to look for women with dams apples, big hands, and big feet” when patrolling.[29] More specifically, in relation to the Depart of Corrections, a report from this past summer from the Task Force on Issues Faced by Transgender Gender Non-Conforming, Non-Binary, and Intersex (“TGNCNBI”) People in Custody, among other things, found that the “ need for transformative culture change within the Department of Correction is evident” in regards to treatment of TGNCBI individuals.[30] In part this comes from lack of enforcement, accountability, and investigations into use of “unnecessary and excessive force.”[31] Further, it is evident that TGNCNBI people “encounter sexually aggressive violence in custody at very high rates.”[32] TGNCNBI people are also frequently verbally assaulted and harassed with slurs, are misgendered, and experience emotional and physical abuse from both corrections officers and inmates.[33] Depart of Corrections, Board of Corrections, and City Counsel had created “multiple committees, coalitions, and task forces dedicated to culture change. . . yet [the Department of Corrections] remains unable to create a culture that reflects the dignity and safety of all people in custody, in particular for the TGNCNBI population.”[34]

The violence and harassment that these women face in prison is not without remedy, and in fact there is a fairly simple one. In 1979, New York City took a big step towards protecting gay and transgender prisoners incarcerated in Rikers.[35] The city created a wing for gay men and transgender women to “quell the verbal and physical abuse those prisoners had endured.”[36] Deputy Warden Henry Bernsen made comments to a reporter in May of that year explaining these individuals were “the easiest inmates in th[e] institution to deal with.”[37] He also praised their behavior as “beautiful,” commenting that “[a]s far as [he’s] concerned, [he’d] take a whole prison full of homosexuals any day.”[38] Further, being placed in this wing was a fairly simple process. Officers simply asked whether they “wanted to be part of general population or to be segregated . . . and in turn, [those that wanted to be segregated] were brought before a committee.”[39] They would be “asked if [they] were out-and-out” gay or transgender, whether they wanted to be segregated, “and the reasons why.” [40] “[T]hose who wanted to be segergated were given a form to sign” and moved to the special wing.[41]

At the time the wing opened, Deputy Bersen expressed only concern that as word spread about the special wing, “phonies” would try to sneak their way in and harass those who actually deserved to be there.[42] However, as noted by Brockington’s lawyer, this is “ultimately not a very large percentage of the overall inmate population,”[43] making it an easily fixable problem as it can be easily regulated. Further, most members of this population have either experienced violence, assault and constant harassment or are living in fear waiting for it to happen to them,[44] supporting the idea that if there is a simple fix, it should be implemented. Yet, the city and many cities across the country have yet to effectively address the issue. In particular, after Rikers Island saw at least eighteen deaths in 2022 and a drastic increase in violence since the COVID-19 pandemic, it has been suggested that a federal receivership be implemented over the jail to enact reforms.[45] Even returning to the special segregated unit for gay and transgender inmates, would be a fairly simple plan to implement and, based on its success in the past, greatly reduce violence against this population.[46] The city needs to at least try to protect transgender women, and all TGNCNBI people under its care while in city jails. As so perfectly explained by Naomi Waters, “another transgender woman who spent time in a male facility earlier this year, . . . [a]t the end of the day, I’m still human, . . . It’s a God-given right, that I have [basic necessities and protection while] under [the city’s] care, and by law it says you have to provide these things.” [47]

[1] Andrew Denney, NYC Settles Suit Filed on Behalf of Transgender Woman Raped While Held in Male Jail on Rikers Island, ALM (Nov. 8, 2022), https://www.law.com/newyorklawjournal/2022/11/08/nyc-settles-suit-filed-on-behalf-of-transgender-woman-raped-while-held-in-all-male-jail-on-rikers-island/#:~:text=The%20New%20York%20City%20government,a%20facility%20for%20male%20detainees.

[2] Id. 

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Kate Sosin, New video reveals Layleen Polanco’s death at Rikers was preventable, family says, NBC News (June 13, 2022, 5:05 AM), https://www.nbcnews.com/feature/nbc-out/new-video-reveals-layleen-polanco-s-death-rikers-was-preventable-n1230951.

[10] Id.

[11] Id.

[12] Rosa Goldensohn and Reuven Blau, Layleen Polanco Died of Epileptic Seizure in Solitary, Autopsy Reveals, The City (Jul. 30, 2019), https://www.thecity.nyc/2019/7/30/21210880/layleen-polanco-died-of-epileptic-seizure-in-solitary-autopsy-reveals.

[13] Rosa Goldensohn, NYC to Pay Layleen Polanco’s Family Record $5.9M Over Rikers Island Solitary Death, The City (Aug. 30, 2020), https://www.thecity.nyc/2020/8/30/21407833/layleen-polancos-nyc-record-lawsuit-settlement-rikers-island-solitary-death#:~:text=Her%20case%20ultimately%20spurred%20Mayor,to%20solitary%20in%20city%20jails.&text=The%20family%20of%20Layleen%20Polanco,jail%2C%20THE%20CITY%20has%20learned. .

[14] Noah Goldberg, Transgender woman held at Rikers Island sexually assaulted in men’s jail three times: suit, Daily News (Feb. 6, 2022.), https://www.nydailynews.com/new-york/ny-transgender-rikers-island-inmate-sexually-assaulted-three-times-mens-jail-20220207-de36tmakqvhv5oxfp2vtv3ugbe-story.html. 

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Denny, supra note 1.

[26] See id.; Goldberg, supra note 14.

[27] See Transgender Woman Continues Fight for Transfer from Male Prison Where She Faces Repeated Sexual Assault, Center for Constitutional Rights (Feb. 23. 2022), https://ccrjustice.org/home/press-center/press-releases/transgender-woman-continues-fight-transfer-male-prison-where-she ; California Transgender prisoner lawsuit alleges rape, abuse, The Sacramento Bee (Jan. 8, 2019), https://www.sacbee.com/news/politics-government/the-state-worker/article224037370.html ; Tresa Baldas, Transgender female inmate sues MDOC: I was forced to bunk with rapist, then got raped, Detroit Free Press (Mar. 3, 2021), https://www.freep.com/story/news/local/michigan/detroit/2021/03/03/transgender-female-prisoner-forced-bunk-rapist-and-got-raped/6894034002/. 

[28] Lauren del Valle, New York governor signs bill to repeal ‘walking while trans’ ban, CNN (Feb. 2, 2021). https://www.cnn.com/2021/02/02/us/new-york-trans-ban-prostitution-law-repeal/index.html.

[29] Id.

[30] Rachel Holliday Smith, First Report of the Task Force on Issues Faced by TGNCNBI People in Custody, 1, 82 (2022), https://www.documentcloud.org/documents/22136076-first-report-of-the-task-force-on-issues-faced-by-tgncnbi-people-in-custody-08152022.

[31] Id.

[32] Id.

[33] Id. at 82, giving “examples describing experiences of TGNCNBI people represented by The Bronx Defenders in recent years demonstrating the violence that TGNCNBI people incarcerated at DOC regularly endure.”

[34] Id. at 83.

[35] Jason Villemez, In 1979, Rikers Island gave gay prisoners hope, Philedelphia Gay News (Mar. 4, 2020), https://epgn.com/2020/03/04/our-history-our-future-in-1979-rikers-island-gave-gay-prisoners-hope/.

[36] Id. 

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Goldberg, supra note 14.

[44] Smith, supra note 25. 

[45] Reuven Blau & George Joseph, City Jails Fail to Protect or Properly Identify Transgender People, Task Force Finds, The City, (Aug. 15, 2022), https://gothamist.com/news/city-jails-fail-to-protect-or-properly-identify-transgender-people-task-force-finds; Reuven Blau, Federal Judge Kicks Rikers Receivership Question Down Road, The City (Nov. 17, 2022), https://www.thecity.nyc/2022/11/17/23465436/federal-judge-jails-receivership-decision  (unfortunately the issue of a federal receivership has been pushed to April to give the city “more time to implement its own plan for action.”).

[46] Blau & Joseph, supra note 45. 

[47]Villmez, supra note 35.

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