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Abstract: In 2007, prisoners filed over twenty percent of the cases filed in
federal district courts nationwide. Some of these cases have merit, some do
not. Most of these filings are handwritten, and studies have shown that some
judges get aggravated at the filing of these complaints. This Note proposes a
new law school clinic to both ease the burden on the federal court system
while providing prisoner complaints with the fair look they deserve. This
Note will argue for a solution to this problem of prisoner litigation by
suggesting a new clinical program at law schools whereby all pro se prisoner
complaints are outsourced to participating law schools whose students will
separate meritorious claims from frivolous ones, and submit memoranda to
the participating courts regarding whether the claim should continue through
the court system. Hopefully, such a clinic will improve judicial economy by
giving the courts an added resourcelaw studentswhile at the same time
giving prisoners a more sympathetic screener, thus improving the judicial
system all around.
INTRODUCTION ..........................................................................................570
BACKGROUND ............................................................................................574
I. Shuffling the Deck.......................................................................574
A. You Gotta Know When to Hold Em, Know When to
Fold Em: A Prisoner Litigation Explosion .....................574
B. The Dead Mans Hand: Congressional Action in the
World of Prisoner Lawsuits ...............................................577
1. The Black Aces:.............................................................577
569
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INTRODUCTION
By one count, prisoner Jonathan Lee Riches (Riches) has filed over
300 civil lawsuits in federal district courts throughout the nation since his
incarceration in 2006. 1 By another, he has filed more than 1000. 2 By either
*Candidate for Juris Doctor, New England School of Law (2009). B.A., Political Science,
U.S. History, McGill University (2004). The author may be contacted at
geoffrey.d.petis@nesl.edu. In loving memory of my mother, Christina Ray, whose endless
love, support, and encouragement made all of this possible. I would like to thank Professor
Russel Engler, Professor John Fitzpatrick, my editor Brian Mahler, and Judge Christopher
Whitten, each of whom gave up their valuable time to read my proposal. Finally, I would
also like to thank my Uncle Jon Mellor and Jeff Macco for their suggestions. I owe all of
them a sincere thank you for forcing me to ask the tough questions.
1. See Riches v. Duncan, No. SA-07-CA-863-RF (NN), 2007 WL 3333103, at *1
(W.D. Tex. Nov. 8, 2007).
2. Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., No. 3:04CV7621,
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count, Riches has proven quite the prolific litigator. 3 His modus operandi
appears to be to sue whoever happens to have made yesterdays headlines,
as well as to sue those from yesteryear. 4 One judge has said that:
It is not clear whether these outlandish pleadings are products of
actual mental illness or simply a hobby akin to short story
writing. Whatever their origin, and though they are amusing to
the average reader, they do nothing more than clog the
machinery of justice, interfering with the courts ability to
address the needs of the genuinely aggrieved. It is time for them
to stop. 5
As Judge Nowak noted, it is not clear whether Riches is in need of
mental support, or if he is simply a comic savant. In either case, one thing
is clear: Riches frequent lawsuits gum up the courts dockets, and the
courts are feeling the strain. 6 Assuming that Riches needs mental
assistance, we law students and educators could help direct him to the
2008 WL 4925775, at *1 (N.D. Ohio Nov. 4, 2008) (noting that Riches has filed over 1,000
lawsuits since January 6, 2006). For an easy-to-read list of some of the more notable
defendants, see Jonathan Lee Riches Tagged Cases and Lawsuits, JUSTIA NEWS,
http://news.justia.com/cases/jonathan-lee-riches/ (last visited Nov. 6, 2008). Some of the
more notable defendants include: Puff Daddy; Brad Pitt; Dr. Kevorkian; George
Steinbrenner; Benazir Bhutto; Blackwater USA; NASA; the International Olympic
Committee; the I-35W Bridge in Minnesota; Elvis Presley; Viagra; American Idol; E Coli;
and Thanksgiving. Id.
3. After reading several of Mr. Riches complaints, it becomes evident that there is a
pattern. Indeed:
[Mr. Riches] suits conform to the following template: (1) Name as
plaintiff the first thing that comes to mind. (It need not be a juridical
person; an abstract concept will do.) (2) Using free association, string
together incoherent paragraphs to form a complaint. (3) Wait for the
inevitable dismissal of the complaint as frivolous or otherwise.
Riches v. Jena 6, No. 07-1656-A, 2007 WL 3146280, at *1 (W.D. La. Oct. 24, 2007).
4. See, e.g., Riches v. Karr, No. 07-2103, 2007 WL 3224327, at *1-2 (W.D. Ark. Oct.
29, 2007) (noting that Riches had chosen to sue fictional characters, including Cousin Itt
from The Adams Family as well as the rabid dog Cujo from the Stephen King novel of the
same name); Riches v. Guantanamo Bay, No. 07-13041, 2007 WL 2302425, at *1 (E.D.
Mich. Aug. 8, 2007) (noting that Riches filed a complaint against, among others, Auschwitz
Concentration Camp, The Geneva Convention, Cool Hand Luke (the character), and the
movie Shawshank Redemption).
5. Duncan, 2007 WL 3333103, at *1.
6. The joke, we must admit, is at first mildly amusing, but it grows tedious in the
retelling. It is too predictable and too tired; more important, it is a drain on the judicial
system. The time spent simply disposing of Mr. Riches frivolous complaints takes away
from other, more productive, work. Jena 6, 2007 WL 3146280, at *1.
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7. [O]ver one in every ten civil rights actions involv[e] some issue concerning the
litigants psychological status . . . . Jonathan D. Rosenbloom, Exploring Methods to
Improve Management and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the
Southern District of New York, 30 FORDHAM URB. L.J. 305, 346 (2002). See generally
Washington v. Glucksberg, 521 U.S. 702, 729 n.22 (1997) (quoting People v. Kevorkian,
527 N.W.2d 714, 732 (Mich. 1994)) (recognizing that all states provide for the involuntary
commitment of persons who may harm themselves as the result of mental illness).
8. Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1572 (2003).
9. Pro se is a Latin term that means [f]or oneself; on ones own behalf; without a
lawyer. BLACKS LAW DICTIONARY 1258 (8th ed. 2004).
10. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (recognizing that the pro
se inmates constitutional claim had merit, and that reason and reflection require us to
recognize that in our adversary system of criminal justice, any person haled into court, who
is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for
him).
11. JAMES C. DUFF, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE U.S.
COURTS: 2007 ANNUAL REPORT OF THE DIRECTOR 145-46 tbl.C-2 (2007), available at
http://www.uscourts.gov/judbus2007/appendices/C02Sep07.pdf. This translates into 20.95%
of the civil docket in 2007.
12. See infra Part I.B.1.a-b.
13. See infra text accompanying notes 30-36.
14. See Schlanger, supra note 8, at 1589.
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BACKGROUND
21. Throughout this Note, mention will be made to cases that courts have thrown out
due to their frivolous nature, in an effort to familiarize the reader with what constitutes a
frivolous action.
22. KENNY ROGERS, The Gambler, on THE GAMBLER (Dreamcatcher 1978). With
apologies to Kenny Rogers.
23. Hailey L. Scoville & Richard A. Bales, Pro Se Litigants and Summary Judgment,
214 F.R.D. 231, 234 (2003).
24. Hudson v. Palmer, 468 U.S. 517, 523 (1984) (Like others, prisoners have the
constitutional right to petition the Government for redress of their grievances, which
includes a reasonable right of access to the courts.).
25. See 28 U.S.C. 1654 (2000) (In all courts of the United States the parties may
plead and conduct their own cases personally . . . .).
26. Faretta v. California, 422 U.S. 806, 852 (1975) (Blackmun, J., dissenting) ([T]he
Court by its opinion today now bestows a constitutional right on one to make a fool of
himself.).
27. See JONA GOLDSCHMIDT ET AL., AMERICAN JUDICATURE SOCIETY, MEETING THE
CHALLENGE OF PRO SE LITIGATION: A REPORT AND GUIDEBOOK FOR JUDGES AND COURT
MANAGERS 11-13 (1998).
28. See generally BERNARD D. REAMS, JR. & WILLIAM H. MANZ, A LEGISLATIVE
HISTORY OF THE PRISON LITIGATION REFORM ACT OF 1996, PUB. L. NO. 104-134, 110 STAT.
1321 (1997).
29. See Lois Bloom & Helen Hershkoff, Federal Courts, Magistrate Judges, and the
Pro Se Plaintiff, 16 NOTRE DAME J.L. ETHICS & PUB. POLY 475, 476 (2002).
30. Id. at 479-80.
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31. See 42 U.S.C. 1983 (2000) (Every person who, under color of any statute . . .
subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges,
or immunities secured by the Constitution . . . shall be liable to the party injured . . . .).
32. See ROGER A. HANSON & HENRY W.K. DALEY, U.S. DEPT OF JUSTICE,
CHALLENGING THE CONDITIONS OF PRISONS AND JAILS: A REPORT ON SECTION 1983
LITIGATION 1-2 (1994), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ccopaj.pdf.
33. See id.
34. Bloom & Hershkoff, supra note 29, at 480.
35. Adam Slutsky, Note, Totally Exhausted: Why a Strict Interpretation of 42 U.S.C.
1997e(a) Unduly Burdens Courts and Prisoners, 73 FORDHAM L. REV. 2289, 2294 (2005).
36. See DUFF, supra note 11.
37. PRISONER CIVIL RIGHTS COMM., FED. JUD. CTR., RECOMMENDED PROCEDURES FOR
HANDLING PRISONER CIVIL RIGHTS CASES IN THE FEDERAL COURTS 3 (1980) [hereinafter
RECOMMENDED PROCEDURES].
38. Rosenbloom, supra note 7, at 308.
39. Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro se complaints are to be
construed more liberally than pleadings drafted by lawyers).
40. See generally Brenda Star Adams, Note, Unbundled Legal Services: A Solution to
the Problems Caused by Pro Se Litigation in Massachusettss Civil Courts, 40 NEW ENG. L.
REV. 303, 306-08 (2005) (footnote omitted).
41. See RECOMMENDED PROCEDURES, supra note 37, at 3.
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haystack for a needle is likely to end up with the attitude that the needle is
not worth the search. 42 Prisoners litigating their claims have thus faced a
judiciary that can be hostile to their claims.
With these statistics in mind, Congress took note of the explosion of
inmate litigation and passed several acts to stem the tide of prisoner
complaints. In 1996, the Republican Congress (with the support of a
Democrat president) passed the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) 43 and the Prisoner Litigation Reform Act
(PLRA) 44 as part of its Contract with America. 45 Although the
congressional efforts have reduced the federal docket of prisoner cases,
including frivolous cases, it has done so at a serious cost: the exclusion of
important meritorious lawsuits from the courts. 46 But first, a look at the
legislation that curbed the prisoner filings.
42. Brown v. Allen, 344 U.S. 443, 537 (1953) (Jackson, J., concurring in the result).
43. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-32,
106(b)(3)(E), 110 Stat. 1214, 1221 (1996) (codified as amended at 28 U.S.C. 2244(b)
(1994)); see also infra Part I.B.i.b.
44. See Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 801-10, 110
Stat. 1321, 1321-77 (1996) (codified as amended in scattered sections of 11 U.S.C., 18
U.S.C., 28 U.S.C. and 42 U.S.C.); see also infra Part I.B.i.a. The [Prisoner Litigation
Reform Act] focuses on . . . in forma pauperis suits, in light of the fact that the
overwhelming majority of prisoner cases are filed pro se and in forma pauperis. REAMS &
MANZ, supra note 28, at iii.
45. See Slutsky, supra note 35, at 2301-02.
46. Jessica Feierman, The Power of the Pen: Jailhouse Lawyers, Literacy and Civic
Engagement, 41 HARV. C.R.-C.L. L. REV. 369, 370 (2006) (footnote omitted).
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47. Famous law man Wild Bill Hickok was shot to death in 1876 while he was
playing poker. Legend has it that he was holding two black aces and two black eights when
he was shot, a hand known today as the Dead Mans Hand. See Poker: Dead Mans Hand,
BBC, Oct. 21, 2004, available at http://www.bbc.co.uk/dna/h2g2/A3094184. In this section,
each of the federal hurdles prisoners face when filing their complaints will be assigned a
card in the Dead Mans Hand. Such an analogy is appropriate, as various measures of
Congress have served to kill many prisoners hopes of having their day in court. The suit
assigned to a particular congressional measure has been chosen at random, and serves no
special significance.
48. See Save Coalition, Recent Congressional Testimony about the PLRA,
http://www.savecoalition.org/latestdev.html (last visited Nov. 18, 2008). In the case of
United States v. Bottoson, the defendantwho was convicted of federal firearms and postal
fraud violations, as well as state charges of kidnapping and murdersought post-conviction
habeas relief stating that:
This defendant (appellant) is accused of murder in the state of Florida,
this defendant goes to a church which believes in the raising of the dead,
which is the defendants [sic] right under the Constitution of the United
States. This defendant wrote a letter to District Court Judge John Reed,
Jr. in Orlando stating his religious belief that if the body of the deceased
were to be taken from the ground and brought into the defendants [sic]
church the Lord of life would bring back the deceased. Judge Reed
made the statement the only thing he would do with the request or
(letter) would be to file it away. The defendant feels his Religious
Freedom under the constitution [sic] were [sic] violated, anyone has
the right to his/her own belief under Freedom of Religion. Defendant
now asks this court to uphold his rights under the constitution [sic] of
the United States.
United States v. Bottoson, 644 F.2d 1174, 1175-76 (5th Cir. 1981) (quoting Defendants
Complaint Against a District Court Judge). The defendants claim was dismissed as
frivolous under 28 U.S.C. 1915(d), as it lacked substantive merit. Id. at 1176.
49. REAMS & MANZ, supra note 27, at S 10895 (July 28, 1995) (statement of Sen. Reid).
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50. Id.
51. Schlanger, supra note 8, at 1558 (footnote omitted).
52. HANSON & DALEY, supra note 32, at 20. It is perhaps worth noting that Mssrs.
Hanson and Daley defined frivolous as no arguable basis in law or fact. Id. As discussed
later, this is but one way to define frivolousness. See discussion infra Part I.C.
53. Slutsky, supra note 35, at 2298.
54. See generally Rosenbloom, supra note 7, at 321-22 (listing exhaustive statistics of
the effects of the PLRA).
55. 28 U.S.C. 1915(g) (2000). In yet another frivolous suit, a prisoner filed a 1983
habeas suit, claiming that his constitutional rights had been violated as a result of parole
denials and his continued incarceration. See Malek v. Brockbrader, 190 F. Appx 613, 614
(10th Cir. 2006). The court dismissed the prisoners complaint as legally frivolous, holding
that the Utah statute governing parole created neither a liberty interest . . . nor a legitimate
entitlement to parole. Id. at 616. The court further held that dismissal of a claim as
frivolous under 1915(e)(2)(B) counted as a strike under 1915(g); since this was the
complainants third strike, he would not be allowed to file any more in forma pauperis
claims unless he was in imminent danger of physical injury. Id. at 616-17.
56. See 18 U.S.C. 3624(a)-(b) (2000) (explaining how a prisoners sentence may be
reduced for periods of good behavior).
57. 28 U.S.C. 1932 (2000).
58. Sua sponte is Latin for of ones own accord; voluntarily. BLACKS LAW
DICTIONARY 1464 (8th ed. 2004).
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to state a cause of action; 59 and (4) the Act requires prisoners to exhaust all
administrative remedies 60 before petitioning the court regarding claims
related to prison conditions. 61
In addition to the foregoing, prisoners are required to pay a $350
filing fee, which can dissuade many income-challenged prisoners from
filing a complaint. 62 The PLRA does have a provision taking prisoners
limited financial status into account, however. If a prisoner can prove by
affidavit that he cannot front the court costs, the PLRA will allow him to
file in forma pauperis (IFP). 63 Once the complaint is filed, the prisoner
eventually has to repay the full filing fee, which usually occurs by
garnishing the prisoners account. 64 Should the prisoner run afoul of the
three-strike rule, he will no longer be allowed to file IFP unless he can
demonstrate that he is under imminent danger of serious physical
injury. 65 Courts notedeven prior to the passage of the PLRAthat
dismissal of an IFP complaint is and should be liberally granted, 66 due to
the fact that prisoners have nothing to lose and everything to gain.67 With
the passage of the PLRA, and the imposition of court costs, this has
changed, 68 but the standardbroad dismissal powerhas remained the
same.
The PLRA also requires that judges screen prisoner complaints before
they are docketed. 69 Under this section of the PLRA, prisoner complaints
are subject to immediate dismissal if the judge finds them to be frivolous,
malicious, or fail[] to state a claim upon which relief may be granted, 70 or
they seek[] monetary relief from a defendant who is immune from such
relief. 71
Without question, the PLRA has had the intended effect of curbing
inmate litigation: 2001 filings by inmates were down [43%] since their
peak in 1995, notwithstanding a simultaneous [23%] increase in the
number of people incarcerated nationwide. 72 As Professor Margo
Schlanger notes, however, while these optimistic numbers are useful for the
processing clerks, they do not seem to affect judicial apathy towards
prisoner complaints. 73
67. Id. (For convicted prisoners with much idle time and free paper, ink, law books,
and mailing privileges the temptation is especially strong.).
68. See 28 U.S.C. 1915(b)(1).
69. Id. 1915A.
70. Id. 1915A(b)(1). For a discussion of the difference between the standards of
frivolity and failure to state a claim, please see discussion infra Part I.C.1-2.
71. Id. 1915A(b)(2); see 42 U.S.C. 1983 (2000) (immunizing judges from suits
when they are acting in their official capacity); see also infra notes 164-65 and
accompanying text.
72. Schlanger, supra note 8, at 1559-60.
73. Id. at 1585, 1588-89.
74. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-32, 110 Stat.
1214 (1996) (amending 28 U.S.C. 2244, 2253-55 (1994) and adding 28 U.S.C. 2261-
66 (2000)). AEDPA was passed in response to the 1995 Oklahoma City bombing. See also
Thomas C. OBryant, The Great Unobtainable Writ: Indigent Pro Se Litigation After the
Antiterrorism and Effective Death Penalty Act of 1996, 41 HARV. C.R.-C.L. L. REV. 299,
304 (2006).
75. In another frivolous lawsuit, a pro se prisoner filed a 120-page complaint alleging a
vast Zionist conspiracy perpetrated by various health care providers and government
officials who discriminated against Plaintiffs and sought to retaliate against [her mother] in
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order to cover up their ongoing Medicare/Medicaid fraud. Rzayeva v. United States, 492 F.
Supp. 2d 60, 67-68 (D. Conn. 2007). The court found:
It would not be a stretch to conclude that many of Plaintiffs allegations
are factually baseless and the product of delusion. The Complaint is a
733-paragraph diatribe, rife with anti-Semitic slurs, which asserts that
the alleged conspirators were Jewish Zionists who murdered Ms.
Musayelova, among other reasons, in retaliation for Ms. Rzayevas
being an anti-Semite.
Id. at 71. The complaint was dismissed as factually baseless and thus frivolous under 28
U.S.C. 1915(e)(2)(B)(iii). Id. at 70-71.
76. See 28 U.S.C. 2244(d)(1) (2000); see also Dan Poulson, Note, Suspension for
Beginners: Ex Parte Bollman and the Unconstitutionality of the 1996 Antiterrorism and
Effective Death Penalty Act, 35 HASTINGS CONST. L.Q. 373, 373 (2008).
77. See 28 U.S.C. 2244(b)(1).
78. Id. 2244(b)(2).
79. See Schlanger, supra note 8, at 1559-60, 1632-33.
80. Another case that was dismissed as frivolous pursuant to 28 U.S.C. 1915(d)
involved a prisoner who brought a habeas petition claiming that, since he was the prophet
Muhammed, his incarceration was invalid because he [was] the authority of Islamic law.
Collins v. Henman, 676 F. Supp. 175, 175-76 (S.D. Ill. 1987). The court was unable to
discern any basis in law or fact that would support a claim for violation of the prisoners
rights, and dismissed the complaint as legally and factually frivolous. Id. at 176.
81. 28 U.S.C. 631-39 (2000).
82. 12 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE 3066 (2d ed.
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The FMA gives magistrate judges 83 broad powers to hear all sorts of cases
and motions, except for eight enumerated motions that would result in a
definitive disposition of a case. 84 Although the magistrate judges power is
limited by these eight dispositive matters, a district judge may refer these
matters to the magistrate judge, who can conduct hearings, including
evidentiary hearings, and [can] submit to a judge of the court proposed
findings of fact and recommendations for the disposition. 85 Practically
speaking, this means that the magistrate judge may recommend an
outcome, which the district court judge can choose to adopt or not.
Magistrate judges are also authorized to conduct hearings to
determine whether in forma pauperis petitions under 28 U.S.C. 1915(d)
should be dismissed as frivolous. 86 And this power is frequently used;
indeed, Riches complaints are regularly outsourced to magistrate judges,
whose recommendations are repeatedly adopted by district court judges. 87
1997). For a thorough examination of the role of magistrate judges in the federal courts, see
Tim A. Baker, The Expanding Role of Magistrate Judges in the Federal Courts, 39 VAL. U.
L. REV. 661 (2005).
83. From the FMAs inception in 1968, magistrate judges were simply called
magistrates, but in 1990, Congress added the word judge to their title to reflect the
importance of their office. WRIGHT ET AL., supra note 82, at 307.
84. The eight enumerated motions are:
[A]ny pretrial matter pending before the court, except a motion for
injunctive relief, for judgment on the pleadings, for summary judgment,
to dismiss or quash an indictment or information made by the defendant,
to suppress evidence in a criminal case, to dismiss or to permit
maintenance of a class action, to dismiss for failure to state a claim upon
which relief can be granted, and to involuntarily dismiss an action.
28 U.S.C. 636(b)(1)(A) (2000).
85. Id. 636(b)(1)(B).
86. Baker, supra note 82, at 679 (citing Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir.
1990)). The Ogelsby court noted that:
In order to pierce the veil of allegations contained in prisoner IFP
complaints . . . which so frequently are filed pro se, district courts are
authorized under 28 U.S.C. 636(b) to refer such cases to a magistrate
to dig beneath the conclusional allegations; to reduce the level of
abstraction upon which the claims rest; to ascertain exactly what
scenario the prisoner claims occurred, as well as the legal basis for the
claim.
Oglesby, 910 F.2d at 281 (internal quotation omitted).
87. See, e.g., Riches v. Wade, No. 3-07-CV-1697-B, 2007 WL 4270772, at *1 (N.D.
Tex. Dec. 6, 2007); Riches v. Crandall Canyon Mine, No. 1:07CV130, 2007 WL 4302776,
at *1 (N.D. W. Va. Dec. 6, 2007); Riches v. Newdow, No. CIV 5-07-2093 WBS KJM P,
2007 WL 4180691, at *1 (E.D. Cal. Nov. 21, 2007); Riches v. Rather, No. 1:07cv1523 LJO
GSA, 2007 WL 3451279, at *1 (E.D. Cal. Nov. 15, 2007); Riches v. Simpson, No.
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95. Id.
96. See id.
97. Pro se lawclerks (called staff attorneys in some districts), whose jobs are nearly
entirely dedicated to processing inmate cases, became common [in 2003] district courts
around the country [had] over 130 such employees. Schlanger, supra note 8, at 1590.
98. See id.
99. Bloom & Hershkoff, supra note 29, at 496.
100. Id. at 497.
101. Id. at 499-500.
102. Id. at 500.
103. Id. at 500-01.
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risk of exhaustion from doing the same thing day-in and day-out. 104 The
argument is that this type of specialization aggravates the problem of
judicial apathy by concentrated exposure to inmate cases 105 that
ultimately leads to routinized decision making. 106
This Note aims to build on such a system, maintaininghopefully
more pros than cons. By implementing a clinic where the pro se prisoner
complaints are outsourced to law students, a specialized group of law
students will be able to aid the courts. 107 The students will become
proficient in these types of cases, and the hope is that the negative aspects
of the specialization argument will be minimized.
claims by prisoners. 114 The literature on this subject indicates that judges
unabashedly use every procedural tool at their disposal to get rid of these
cases. 115
This Part will examine the standards of dismissal of a case as legally
or factually frivolous. These standards of dismissal are important for two
reasons: (1) they are the standards by which district and magistrate judges
assess inmate complaints for dismissal; 116 and (2) they are the standards
that a law student would use in implementing this program. 117
114. Id.
115. See, e.g., id. (describing the use of summary judgment to dispose of pro se claims).
116. See supra Part I.B.2.a.
117. See infra Part II.
118. 28 U.S.C. 1915(e)(2)(B)(i) (2000). The standards for dismissing in forma pauperis
and other prisoner complaints are identical. See 28 U.S.C. 1915A(b)(1).
119. 28 U.S.C. 1915(e)(2)(B)(ii); see also FED. R. CIV. P. 12(b)(6).
120. Riches v. Peterson, No. C 07-4539, 2007 WL 2900401, at *1 (N.D. Cal. Oct. 3,
2007) (internal citation omitted).
121. As with any other practice area of law, students will have to be aware of the
governing standard in their respective jurisdictions if the suggestions in this Note are
followed.
122. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke v. Williams, 490
U.S. 319, 325, 327-28 (1989)) (internal citations omitted).
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malicious. 135 Today, a court can dismiss a case as frivolous under either of
those standards, in addition to instances where the complaint fails to state a
claim. 136 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court may dismiss a complaint where the complainant fail[s] to state a
claim upon which relief may be granted . . . . 137 The Supreme Court has
interpreted this Rule to mean that a complaint should not be dismissed
unless it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief. 138 Dismissal for
frivolity under 1915, then, was understood to be distinct from the
standard of dismissal under Rule 12(b)(6). 139
In Neitzke v. Williams, the trial court reviewing an IFP complaint
conflated the failure to state a claim standard of 12(b)(6) with the standard
for frivolousness under 1915(d). 140 The Supreme Court noted that
The failure-to-state-a-claim standard of Rule 12(b)(6) and the
frivolousness standard of 1915(d) were devised to serve
distinctive goals, and that while the overlap between these two
standards is considerable, it does not follow that a complaint
which falls afoul of the former standard will invariably fall afoul
of the latter. 141
In other words, Rule 12 of the Federal Rules of Civil Procedure used
to have no bearing on the issue of whether an IFP complaint was
frivolous. 142
ANALYSIS
II. The Pro Se Prisoner Clinic, or, the Ace in the Hole 148
In spite of Congress best efforts, individuals like Riches prove that
the legislation aimed at curbing prisoner complaints has not been
completely successful. 149 Granted, the Acts listed above have had some
effect, 150 but Riches and other prisoner complaints keep coming. 151 The
143. See Pub. L. No. 104-34, 804(e)(2)(B), 110 Stat. 1321, 1321-73 (1996) (amending
28 U.S.C. 1915(d) (1994)). Section 1915(e) replaced former section 1915(d), which
provided that a district court may dismiss the case if the allegation of poverty is untrue, or
if satisfied that the action is frivolous or malicious. Lopez v. Smith, 203 F.3d 1122,
1126 (9th Cir. 2000).
144. See, e.g., Christiansen v. Clarke, 147 F.3d 655, 658 (8th Cir. 1998) (recognizing that
Congress amended the statute in 1996, and that this amendment displaced the Neitzke ruling
that 12(b)(6) and 1915 are not on equal footing); Fridman v. City of New York, 195 F.
Supp. 2d 534, 538 (S.D.N.Y. 2002) (The standard for dismissal of an action or appeal
taken in forma pauperis is identical to the standard for dismissal on a motion made pursuant
to Fed. R. Civ. P. 12(b)(6).).
145. Nagy v. FMC Butner, 376 F.3d 252, 256 (4th Cir. 2004) (emphasis added).
146. See 28 U.S.C. 1915(e)(2)(B)(i)-(ii) (2000).
147. See infra text accompanying notes 160-163.
148. In poker, an Ace in the Hole is when a person is dealt an ace face-down. See
PokerZone, Poker Dictionary, http://dictionary.pokerzone.com/Ace+in+the+Hole (last
visited Jan. 7, 2008).
149. See supra notes 1-5 and accompanying text.
150. See Slutsky, supra note 35, at 2294. Between 1995 (a year before the [PLRA] was
passed) and 2000, for example, the number of civil rights petitions was reduced by [39%],
from 41,679 to 25,504. . . . The numbers, however, never do tell the whole story. Id. at
2302.
151. See supra notes 1-5 and accompanying text.
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A. Laying the Cards on the Table: Putting the Pro Se Prisoner Clinic
in PlaceOutline of the Program 155
My proposal calls for the outsourcing of all pro se prisoner
complaints to a participating law school, whose studentsunder the
supervision of practicing attorneyswill review the pro se prisoner
lawsuits for meritorious claims and legally or factually frivolous subject
matter. The students would draft memoranda to the judgein conformity
with the standards outlined above 156 indicating to the court whether a
claim could or should proceed through the court. Similar to a magistrate
judges recommendation, 157 the district court would review the
recommendation de novo, 158 and could accept or deny the students
proposal. The need for, utility of, and practicality of such a program is
discussed below. 159
Assuming that a law school and a state or federal court partner up to
try the program, the following includes a suggestion as to how the program
would operate. Prisoners send their complaints to the court. The clerk who
receives and sorts mail would forward pro se prisoner complaints to the
participating law school. Upon receipt, the law students would review the
complaint, following a form checklist that incorporates the standards
discussed above. 160 Court personnel reviewing pro se pleadings are
charged with the responsibility of deciphering why the submission was
filed, what the litigant is seeking, and what claims she may be making. 161
Students would be doing the same thing. From the get-go, the student
would read the complaint with a dual purpose in mind: (1) to screen the
case for frivolity, using the standards articulated by the courts; 162 and (2) to
ferret out meritorious claims. 163
The first task of the student may be to determine what type of claim is
involved: Is the claim a habeas claim or a 1983 claim? 164 These claims
should be fairly easy to separate, as the former claim challenges the
underlying basis of conviction, 165 while the latter claim alleges (1) that
some person has deprived plaintiff of a federal right and (2) that the
person who has deprived him of that right acted under color of state or
territorial law. 166 For the 1983 claim, the student would be instructed
that failure to satisfy either requirement would nullify a valid claim. 167 In
either casehabeas or 1983 claimsif both questions are answered
affirmatively, the student should consider any defensewhich has to be
pleaded affirmativelyof qualified immunity. 168 Qualified immunity
shields public officials performing discretionary functions from suit for
civil rights violations as long as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known. 169
1728, 2007 WL 283832 (6th Cir. Feb. 2, 2007), 120 HARV. L. REV. 2238, 2238 (2007); see
also 42 U.S.C. 1983 (2000) (immunizing judges from suits when they were acting in their
official capacity).
170. Rosenbloom, supra note 7, at 308.
171. Although their homework might be a jealous mistress.
172. Rosenbloom, supra note 7, at 308-09.
173. [A] strong passion for any object will ensure success, for the desire of the end will
point out the means. WILLIAM HAZLITT, On Manner, in 1 THE COLLECTED WORKS OF
WILLIAM HAZLETT 45 (A. R. Waller et al. eds., J.M. Dent & Co. 1902).
174. See supra notes 38-39 and accompanying text.
175. See Hudson v. McKeesport Police Chief, 182 F. Appx 124, 126 (3d Cir. 2006)
(Even if the District Court is correct and the complaint is so confusing that no party could
possibly understand or reply to it, the proper remedy is . . . [to] give the plaintiff an
opportunity to amend his pleading to cure the defect unless such an amendment would be
futile or prejudicial.); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (holding that a pro se,
in forma pauperis prisoner should be given an opportunity to further develop his allegations
by a questionnaire if allegations might yield a nonfrivolous 1983 claim).
176. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1979) (holding that
interviewing plaintiff prisoner to flesh out claims is not only proper but necessary for the
orderly consideration of the issues in this case and in other cases of this nature).
177. See Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976) (noting that the use of a
questionnaire, developed by the Federal Judicial Center, is appropriate to determine the
legal and factual basis of a prisoners claim). For an example of the questionnaireobtained
from the appendix of the Watson caseplease see infra Appendix II.
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203. See REAMS, supra note 28. Frequent filers are inmates like Riches who repeatedly
file complaint after complaint. See Rosenbloom, supra note 7, at n.145.
204. The issues of claim and issue preclusion are especially important given PLRAs
requirement of exhausting administrative avenues. See RICHARD H. FALLON, JR. ET AL.,
HART & WECHSLERS THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1498 (4th ed. 1996)
(citing Univ. of Tenn. v. Elliott, 478 U.S. 788, 789 (1986) ([W]hen a state agency act[s] in
a judicial capacity . . . federal courts . . . must give the agencys factfinding the same
preclusive effect to which it would be entitled in the States courts.)).
205. See 42 U.S.C. 1997e(a) (2000).
206. See, e.g., Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) ([A] prisoner
who does not properly take each step within the administrative process has failed to exhaust
state remedies, and thus is foreclosed by 1997e(a) from litigating. Failure to do what the
state requires bars, and does not just postpone, suit under 1983.).
207. Id. This is of particular concern because in these jurisdictions, dismissal for failure
to exhaust counts as a strike under the PLRA.
208. See, e.g., Camp v. Brennan, 219 F.3d 279, 280-81 (3d Cir. 2000) (refusing to
dismiss a suit for failure to exhaust administrative remedies under a prison grievance system
when the prisoner had instead sent a complaint to the state Office of Professional
Responsibility that nonetheless led to a Department of Corrections investigation); Graham v.
Perez, 121 F. Supp. 2d 317, 322 (S.D.N.Y. 2000) (holding that the court must decide
whether mitigating circumstances excuse non-exhaustion, even if the grievance body
decided they did not).
209. For example, practitioners in Massachusetts would look to 103 MASS. CODE REGS.
491.08 (2008) (listing the general requirements for grievance procedures for inmates). The
Code of Massachusetts Regulations policies dealing with the Department of Corrections
directs inmates with certain types of claims to follow a certain agencys grievance
procedure. 103 MASS. CODE REGS. 491.08(1) (directing claimants with complaints about
food and diet to follow grievance procedure related to diets, and directing claimants with
complaints about physical or mental health to follow the institutions medical policy).
210. See supra Part I.B.2.a.
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211. In poker, to go all in is to wager the entirety of ones chips; to call a bluff is to
successfully challenge a player who is betting aggressively, even though that player has
weak cards in her hand. PokerZone, Poker Dictionary, http://dictionary.pokerzone.com/ (last
visited Jan. 7, 2009).
212. The royal flush is the best hand in poker, and refers to having ten through ace, all
in the same suit. See Swen A. Larsen, The Vocabulary of Poker, 26 AM. SPEECH 96, 96
(May 1951), available at http://www.jstor.org/stable/453392?seq=1. I am using royal flush
in a sarcastic sense here.
213. John Fitzpatrick, clinical instructor at the Harvard Prison Legal Assistance Project,
said:
I admit to being initially skeptical about your proposal:
Would inexperienced law students really be able to tell the difference
between a meritorious complaint and incoherent dreck? On further
reflection I realized this work is often assigned to law clerks, and
usually the only difference(s) between a law clerk and a 3L is one
year, a pay check and the bar exam.
E-mail from John Fitzpatrick, Clinical Instructor, Harvard University, to Geoffrey Petis,
Student, New England School of Law (Aug. 15, 2008, 8:55 EST) (on file with author).
214. To continue with the poker analogies, to outdraw means [t]o be dealt cards that
complete ones hand or improve the hand enough to win even though the hand was
previously an underdog. See PokerZone, Poker Dictionary, http://dictionary.pokerzone.com
/Outdraw (last visited Jan. 7, 2008).
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215. Russell Engler, The MacCrate Report Turns 10: Assessing its Impact and Identifying
Gaps We Should Seek to Narrow, 8 CLINICAL L. REV. 109, 169 (2001).
216. Hudson v. Palmer, 468 U.S. 517, 523 (1984) (citing Johnson v. Avery, 393 U.S.
483, 498 n.24 (1969)).
217. See supra text accompanying notes 73, 104-05.
218. Interview with Judge Christopher T. Whitten, Super. Ct., Maricopa County, Ariz.
(Sept. 25, 2008) [hereinafter Judge Whitten Interview].
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would arrive at the judges desk one day, cleaned up and easily readable.
[T]he first thing that makes a good case is good spelling, good typing,
good grammar. You dont see a lot of that in prisoner cases . . . . If I can
read it, I take the time to read it. If its illegible, I dont take the time to
translate it. I just cant. I dont have the time. 219 But a student does. The
Supreme Court noted:
As [we] unanimously held in Haines v. Kerner, a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers
and can only be dismissed for failure to state a claim if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. 220
219. Schlanger, supra note 8, at 1589 (quoting a federal district court judge).
220. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S.
519, 520-21 (1972)) (citation omitted).
221. Rosenbloom, supra note 7, at 308.
222. See discussion supra Part I.B.1.a-b.
223. See supra text accompanying notes 23-25.
224. See supra text accompanying notes 103-106.
225. As Professor Engler has taught us at the New England School of Law, in the client-
centered model the client is treated as a unique individualdifferent from the clients who
came before and those who will come after. . . . One client seeking a divorce is not treated
the same as any other client seeking a divorce. DAVID F. CHAVKIN, CLINICAL LEGAL
EDUCATION: A TEXTBOOK FOR LAW SCHOOL CLINICAL PROGRAMS 53 (2002). As stated, the
students would not be representing the prisoners; the philosophy, however, is the same.
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233. See GOLDSCHMIDT ET AL., supra note 27, at 3 (noting that in many jurisdictions, court
staff turn away pro se parties asking for explanations with the words, [w]e cannot assist
you because we cannot give legal advice).
234. Rosenbloom, supra note 7, at 305-06.
235. See infra text accompanying notes 238-239
236. Schlanger, supra note 8, at 1634.
237. Judge Whitten Interview, supra note 218.
238. MASS. SUP. JUD. CT. R. 3:03.
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239. The student would not be representing the pro se plaintiff, but lest the review of
complaints be construed as such, a state rule that parallels the Massachusetts Rule would
allay these concerns. See id. States that have a rule that allows a law student to appear in
court include at least the following: R. ALA. SUP. CT. APPX. A.II. (Alabama, state court); D.
ALASKA LOC. R. 83.2 (Alaska, federal court); ARIZ. R. SUP. CT. 38 (Arizona, state court);
ARK. R. ADMIS. R. 15 (Arkansas, state court); CAL. R. CT. 9.42 (California, state court);
LOC. R. PRAC. U.S. DIST. CT. COLO. Order 2005-3 (Colorado, federal court); U.S. DIST. CT.
CONN. R. 83.9 (Connecticut, federal court); DEL. SUP. CT. R. 56 (Delaware, state court);
REG. FLA. BAR R. 11-1.2 (Florida, state court); LOC. R. M.D. FLA. 2.05 (Florida, federal
court); HAW. SUP. CT. R. 7 (Hawaii, state court); R. U.S. DIST. CT. HAW. 83.7 (Hawaii,
federal court); IOWA CODE 31.15 (Iowa, state court); LOC. R. U.S. DIST. CT. IOWA 83.1
(Iowa, federal court); LA. SUP. CT. R. 20 (Louisiana, state court); ME. R. CIV. P. 90 (Maine,
state court); ME. R. CRIM. P. 56 (Maine, state court); R. U.S. DIST. CT. ME. 83.4 (Maine,
federal court); R. GOV. ADMIS. BAR MD. 16 (Maryland, state court); R. U.S. DIST. CT. MD
.702 (Maryland, federal court); LOC. R. U.S. DIST. CT. MASS. 83.5.1(b) (Massachusetts,
federal court); MICH. ADMIS. R. CT. 8.120 (Michigan, state court); LOC. R. CRIM. PRAC. & P.
U.S. DIST. CT. W.D. MICH. 57(h) (Michigan, federal court); LOC. R. CIV. PRAC. & P. U.S.
DIST. CT. W.D. MICH. 83(h) (Michigan, federal court); LOC. R. CIV. U.S. DIST. CT. E.D.
MICH. 83.21 (Michigan, federal court); LOC. R. U.S. DIST. CT. MINN. 83.8 (Minnesota,
federal court); R. GOV. MO. BAR & JUD. 13 (Missouri, state court); CIV. R. U.S. DIST. CT.
W.D. MO. 83.3 (Missouri, federal court); R. PRAC. U.S. DIST. CT. MONT. 83.6 (Montana,
federal court); NEV. SUP. CT. R. 49.5 (Nevada, state court); LOC. R. PRAC. U.S. DIST. CT.
NEV. IA 10-5 (Nevada, federal court); N.H. SUP. CT. R. 36 (New Hampshire, state court);
N.J. GEN. APPLICATION R. 1:21-3 (New Jersey, state court); R. U.S. DIST. CT. N.J. R.
101.1(h) (New Jersey, federal court); N.M.R.A. CIV. P. DIST. CT. 1-094, 1-094.1 (New
Mexico, state court); LOC. R. U.S. DIST. CT. W.D. N.Y. 83.6 (New York, federal court);
N.D. LTD. PRAC. R. II (North Dakota, state court); OR. R. ADMIS. 13.10 (Oregon, state
court); R. U.S. DIST. CT. OR. 83.5 (Oregon, federal court); R.I. SUP. CT. ADMIS. Art. II. R.
9(c)(1) (Rhode Island, state court); S.C. R. APP. CT. 401 (South Carolina, state court); R.
U.S. DIST. CT. S.C. 83.I.09 (South Carolina, federal court); TENN. SUP. CT. R. 7, 10.03
(Tennessee, state court); TEX. R. STUDENT PRAC. IV (Texas, state court); UTAH SUP. CT.
PROFL PRAC. R. 14-807 (Utah, state court); VA. SUP. CT. R. pt. 6 4 para. 15 (Virginia,
state court); VA. ADMIS. PRAC. LAW R. 10 (Virginia, state court); LOC. R. U.S. DIST. CT. E.D.
VA. App. A (Virginia, federal court); LOC. R. U.S. DIST. CT. W.D. VA. Third Year Prac. R.
(Virginia, federal court); WYO. SUP. CT. R. BAR 12 (Wyoming, state court).
240. For an outline of PLRA state counterparts, see Lynn S. Branham, Of Mice and
Prisoners: The Constitutionality of Extending Prisoners Confinement for Filing Frivolous
Lawsuits, 75 S. CAL. L. REV. 1021, 1029-33 (2002).
241. See MASS. GEN. LAWS ch. 261, 29(a), (c) (2006).
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credits will be deducted from the prisoners release date. 242 Interestingly,
the Massachusetts counterpart allows the court reviewing the application
for indigency to appoint a master to review inmate claims of indigency
and make recommendations to the court [regarding indigent status]. 243
The program I have suggested could fit into this framework quite
nicely: At the same time that a student was reviewing a prisoners claim of
indigency, the student could review the complaint for frivolous and
meritorious claims, and ask the prisoner to clarify any points of ambiguity
or clear up procedural deficiencies which appear in the original
submission. 244
242. See id. 29(f). The good time credit system deducts days from the prisoners term
of confinement for periods of good behavior. E.g., id. ch. 127, 129C (deducting time from
sentence in prison camp for good behavior); MASS. GEN. LAWS ANN. ch. 127, 129D (2008)
(granting good time credits for periods of good behavior in a correctional institution).
243. MASS. GEN. LAWS ch. 261, 29(e). This is interesting because it is similar to the
federal magistrate/judge dichotomy discussed abovethe same dichotomy I am suggesting
for this clinic. See supra Part I.B.2.
244. See supra text accompanying notes 174-178.
245. Judge Whitten noted:
Starting a program like this would be hard in state courts, because of
funding. This is true of all new programs in state courts: the status quo
is firmly entrenched. Everything is a funding issue. Administratively
setting it up would require funding. This is an insignificant problem,
however, because in the long run, it would be a money-saver.
Judge Whitten Interview, supra note 218.
246. E-mail from Russell Engler, Clinical Director, New England School of Law, to
Geoffrey Petis, Student, New England School of Law (Feb. 4, 2008, 12:38 EST) (on file
with author).
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247. Id.
248. See 42 U.S.C. 2996f (b)(3) (2000) (habeas claims); 45 C.F.R. 1637.3 (2008)
(barring federal funds to any legal services that provide any civil representation to
prisoners).
249. E-mail from Russell Engler, Clinical Director, New England School of Law, to
Geoffrey Petis, Student, New England School of Law (Mar. 10, 2008, 9:08 EST) (on file
with author).
250. See Harvard Legal Assistance Project, http://www.law.harvard.edu/academics/
clinical/plap/index.php (last visited Mar. 16, 2008).
251. At over $35 billion, Harvard has the largest endowment of any school in the world,
so a school like Harvard could probably afford to forego federal funds to pursue clinics
where other schools might otherwise be precluded from federal funding if they chose to
participate. See Reuters, Harvard Endowment Picks a Steward, N.Y. TIMES, Nov. 10, 2007,
available at 2007 WLNR 22240462.
252. E-mail from Russell Engler, Clinical Director, New England School of Law, to
Geoffrey Petis, Student, New England School of Law (Feb. 4, 2008, 12:38 EST) (on file
with author).
253. Schlanger, supra note 8, at 1624. Professor Schlanger suggests that inmate filings
cost courts roughly $51 million in 1995. Id.
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studying, anyway.
be working at the school under the supervision of the clinical attorney, and
not at the courthouse working under the judge. While the students would
not be at the courthouse, they would have at least some interaction with the
judge, as the judge would review the students proposals, and accept or
deny them as previously discussed. 258
CONCLUSION
Since I have no direct knowledge of the bureaucratic difficulties
involved with starting a new clinic, my suggestion is exactly that: a
suggestion. There are very likely some kinks that need to be worked out,
and almost certainly, there are issues I have not thought of. 283 All the same,
the problem of prisoner litigation still exists. Although civil filings by
prisoners are down, 284 in 2007, prisoners filed 53,945 of the 257,507 civil
complaints filed in federal courts, over 20% of the filings that year. 285 That
is still an enormous amount. Couple that number with the judicial apathy
that greets pro se prisoner complaints, and it is a fair assumption that many
meritorious cases are not getting their fair look. Granted, this is
understandable given that prisoners often submit awkward and confusing
complaints that run afoul of the procedural requirements in federal
courts. 286 On that point:
Justice Jackson had it right in Brown v. Allen; judges and other
court personnel often prove not to be good screeners of inmate
cases, because they lose interest in the buried needles. To state a
related point economically, screeners judges, magistrate
judges, pro se clerks, and law clerks find each false positive
(or Type I error) costly, reputationally or otherwise, when the
should-have-been-screened-out case takes many other people
time and effort to deal with. But false negatives (Type II
errors) are less costly for screeners; they essentially disappear
forever. The result is an institutional tilt against inmate cases.
The problem is, however, a solvable one. If, for example, the
screening process were done in two stages and by two different
people, the first screener would likely be less nervous about
mistakes made in screening in cases. And the second screener
would have a far more evenly divided pool, which would be
287
cognitively easier to manage.
This Note has attempted to provide a framework that would avoid
both Type I and Type II errors, while at the same time setting up a system
of several screeners (law students, professors, judges). My hope is that law
students would not lose interest in the buried needles. 288 Moreover, the
Type I error should not harm the law student as much as a professional, due
to the fact that (1) the law student has signed up for the clinic, meaning she
has the time and will put forth the effort; and (2) the reputation is
something that is being built for the student, as the clinic is a place to learn.
I would hope that this Note suggests a remedy for the Type II false
negatives as well: If a judge does not look at a case because it is poorly
written, the case is lost forever. 289 My expectation is that the student will
read the complaint with the attention it deserves. 290 At the end of the day,
the prisoners complainthopefullyis given a fair and hard look, and
thenassuming it passes the hurdles of Congressional legislation and
Supreme Court jurisprudencethe judge will receive a more coherent,
logical, and legible complaint for his or her review. 291
To be sure, I must have left some things out, failed to consider some
drawbacks, and perhaps placed my idea on a pedestal too high for its own
good. I hope, however, that I have also provided a soundboard for
discussion for a school that has the interest, time, (wo)manpower, and
funds to implement such a program. If a school is in a position to devote
these resources, law students can help [c]ourt staff, already
overburdened . . . [who] are faced with increasing numbers of pro se
litigants . . . . 292 Assistance to the pro se litigant is essential, because:
Lest the citizenry lose faith in the substance of the system and
the procedures we use to administer it, we can ill afford to
confront them with a government dominated by forms and
time to translate it. I just cant. I dont have the time.) (quoting a federal district court
judge).
290. One person suggested to me that some students may have a negative attitude
towards prisoner complaints and might sign up for this program with the hopes that they can
torpedo the prisoner complaint process. While this is a very real possibility, my experience
with clinics is that they imbue a student with a sense of moral rightness in helping out the
disadvantaged. Professor Englers empirical studies bear out my speculation:
[D]ata from the clinics confirmed my impression that clinical
placements in poverty law might be as good or better settings for
instilling a pro bono ethic than the performing of volunteer work. I
asked students whether their clinical course made them more likely to
do pro bono work after they graduate, less likely, or had no effect. The
most striking comparison was not the variation from clinic to clinic, but
from setting to setting: 73% of students in legal services setting
answered that the work made them more likely to do pro bono work,
compared to only 31% of the students in government settings, and 31%
of the students in private settings. Paralleling similar studies of attorneys
performing pro bono work, students explained their answers by referring
to the learning of skills, contact with clients, awareness of unmet legal
needs, and gratification from helping others.
Engler, supra note 215, at 137.
291. According to Attorney Fitzpatrick, [This is an] important and recurrent
problem. It [is] challenging to balance the compelling need to ensure access to courts to
the most marginalized and vulnerable among us against the need to have a reasonably
efficient court system. E-mail from John Fitzpatrick, Clinical Instructor, Harvard
University, to Geoffrey Petis, Student, New England School of Law (Aug. 15, 2008, 9:17
EST) (on file with author).
292. GOLDSCHMIDT, supra note 27, at 3.
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mysterious rituals and then tell them they lose because they did
not know how to play the game or should not have taken us at
our word. 293
APPENDIX I
COMPLAINANT INTAKE SHEET
General Information
1. ________________________________________
(name/plaintiff)
2. _______________________________________
(prison)
3. _______________________________________
(court)
Jurisdiction
4. Personal (Yes / No circle one)
5. Subject Matter (Yes / No circle one)
6. Supplemental (Yes / No circle one)
7. Venue
_____________________________________________________
293. Moore v. Price, 914 S.W.2d 318, 323 (Ark. Ct. App. 1996) (Mayfield, J.,
dissenting).
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_____________________________________________________
9. 1983 (deprived of federal right / state actor) (check all that apply)
294. Examples include cigarette smoking, privacy, showering, food, water, prison tools.
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Statute of Limitations
Defendant(s)
14. __________________________________________
(right person to be sued?)
15. __________________________________________
(all parties listed? If not, who else need be joined?)
16. __________________________________________
(all parties liable?)
Administrative Outlets
18. Has prisoner exhausted all administrative outlets? (Yes / No circle one)
19. What other outlets remain?
Jury Trial
20. Demanded?
21. Proper? (Yes / No circle one)
APPENDIX II
MODEL FORM FOR PRISONER CIVIL RIGHTS COMPLAINTS RECOMMENDED
BY THE FEDERAL JUDICIAL CENTER COMMITTEE 295
Instructions for Filing Complaint by Prisoners under the Civil Rights Act,
42 U.S.C. 1983
This packet includes four copies of a complaint form and two copies
of a forma pauperis petition [defined below]. To start an action you must
file an original and one copy of your complaint for each defendant you
name and one copy for the court. For example, if you name two defendants
you must file the original and three copies of the complaint. You should
also keep an additional copy of the complaint for your own records. All
copies of the complaint must be identical to the original.
The clerk will not file your complaint unless it conforms to these
instructions and to these forms.
Your complaint must be legibly handwritten or preferably
typewritten. The plaintiff or plaintiffs must sign and swear to the
complaint. If you need additional space to answer a question, you may use
the reverse side of the form or an additional blank page.
Your complaint can be brought in this court only if one or more of the
named defendants is located within this district. Further, it is necessary for
you to file a separate complaint for each claim that you have unless they
are all related to the same incident or issue.
In order for this complaint to be filed, it must be accompanied by the
filing fee of $15. In addition, the United States Marshal will require you to
pay the cost of serving the complaint on each of the defendants.
If you are unable to pay the filing fee and service costs for this action,
you may petition the court to proceed in forma pauperis [meaning that you
do not have enough money to file the complaint; the court will consider
whether to allow you to file the complaint anyway. Note, however, that you
will eventually be responsible for paying the entire cost of filing the
complaint]. Two blank petitions for this purpose are included in this packet.
One copy should be filed with your complaint; the other copy is for your
records. After filling in the petition, you must have it notarized by a notary
295. Watson v. Ault, 525 F.2d 886, 892-94 (5th Cir. 1976).
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