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Pro Se Tips and Tactics: Limiting the Burdens of Pro Se Inmate Litigation
Review of Limiting The Burdens Of Pro Se Inmate Litigation: A Technical Assistance Manual For Courts, Correctional Officials, And Attorneys General , by Lynn S. Branham (American Bar Association, 1997).
Given all the anti-prisoner publicity that usually surrounds discussions of pro se prisoner litigation, the use of the phrase "limiting the burdens" in the title of this manual might suggest that it, too, is all about how to keep prisoners out of court. But this book is nothing like that. Instead, Branham, a Senior Research Scientist in the Institute of Government and Public Affairs at the University of Illinois, has written a balanced, fair account of the reality of prisoner litigation. And even more importantly for prisoners, Branham strongly emphasizes both prevention of litigation through establishing decent prison conditions and rapid, just resolution of prisoners' legitimate grievances.
Branham covers in detail many of the usual issues that are discussed when prisoner litigation is being considered: The role access to courts/legal services programs in prisons can play; how recent court decisions on access to courts will play out; a discussion of the filing-fee provisions of the Prison Litigation Reform Act; and what federal courts can and should be doing to enhance processing of prisoner civil rights lawsuits to reduce delay and expeditiously determine which cases can and should move toward trial. But Branham goes much further than these standard subjects and delves deeply into strategies to prevent litigation through early problem-resolution programs (in her chapter entitled "Steps Correctional Officials and Attorneys General Can Take To Avert Litigation"), and the responsibilities of states' attorneys to help resolve issues and contribute to the just resolution of real problems.
In other words, Branham includes, along with the "burdens" of prisoner litigation that many others have detailed, the often-omitted burdens on prisoners of having to endure conditions that lead to legitimate complaints, the burdens of inadequate responses to complaints by correctional administrators, and the burdens of inappropriate actions by some states' attorneys. She makes clear that "running a well-managed correctional facility with a professional and well-trained staff committed to solving, rather than ignoring, problems is the first and most fundamental step that correctional officials can take to avert the filing of civil-rights suits by prisoners." Manual, pp. 81-82. She even has a section entitled "Benefits of Pro Se Prisoners' Civil Rights Litigation," among which she lists calling attention to problems in the prison, the enforcement of constitutional rights, and keeping the government accountable, and others.
The Manual is far too long and detailed for me to comment in this space on all of the scores of issues Branham raises, but three sections are worth highlighting.
1. Factual Background Of Prison Litigation : Branham brings together the known statistical facts about prisoner litigation, many of which tend to refute the usual mythology about scores of frivolous, "recreational" lawsuits. For example, according to Branham, while it is true that the number of state prisoner cases filed in federal court has risen dramatically in recent years, the number has not increased faster than the number of people put into state prisons over the years 1980-1995. (The number of filings did increase a little more quickly than the increase in incarceration over a more recent and shorter span, 1990-1995). The so-called "explosion" in prison litigation is thus, at least in large part, another symptom of the explosion of incarceration. Similarly, it is sometimes suggested that a few prisoners file most of the lawsuits, but a study in one federal district showed that of prisoners who filed one or more cases in a six-year period, 80% filed only one. Branham makes clear also, however, that there are some number of prisoners who "file a disproportionate number of the lawsuits." Manual, p. 28. Although frequent filing doesn't always equate with frivolous filing, there are, even the strongest prisoner advocate must concede, some prisoners who file many lawsuits that are baseless and make it difficult for more scrupulous prisoners to have their legitimate cases heard.
One set of statistics that stands out demonstrates the vast differences in the number of filings per 1000 prisoners from state to state. In 1995, Iowa had by far the most per capita filings, with 145.4 suits per 1000 prisoners; Arkansas was next with 105.1; and the low was 12.7 per 1000 in Massachusetts. The average was 39.4 per 1000 prisoners. As Branham points out, this huge difference between states needs much more study to see whether there are differences among state prison systems in conditions, provision of legal services, grievance procedures, court processes, etc. that could explain the disparities.
Branham also raises important issues about the highly-charged subject of so-called "frivolous" lawsuits by prisoners. Branham wants to know how many cases filed by prisoners represent legitimate grievances even though they are dismissed at an early stage. In order to focus on this, Branham distinguishes between cases that are "legally" frivolous -- those that do not meet technical legal requirements for stating a claim -- and cases that are "substantively" frivolous -- those that do not represent a legitimate grievance. An example of a case that is legally, but not substantively, without merit in federal court is a complaint about prison officials losing a prisoner's property through negligence. Such a case may well represent a valid complaint by the prisoner who has really lost his or her property, but the assertion that prison officials were negligent in losing the property will not support a federal constitutional claim.
Branham reports some limited studies that suggest that most dismissed prisoner cases represent claims that are legally but not substantively frivolous. Branham suggests more study, and the point of the studies would be better policy: "If most prisoners are bringing legally frivolous claims because they do not understand the law and/or because, in their opinion, they have no other place to turn for fair consideration of their claims, [policy] efforts would be concentrated on developing alternative relief mechanisms for prisoners and cost-effective methods to advise prisoners about the requirements of the law." Manual, p. 42.
2. Examples of Prevention And Processing Models : Branham identifies many ideas and programs that are being used in some prison systems or court systems that either address underlying problems before they reach litigation or make it more likely that legitimate claims that do go to court are processed and resolved in an adequate and fair manner. I will mention only a few of the many examples she cites.
One program Branham endorses as a prevention measure is the Missouri prison system's Office of Constituent Services, which is designed to discover and respond to problems quickly and at least in theory keep conditions from deteriorating and prevent litigation. This Office reports directly to the head of the prison system and is told to monitor complaints with the goal of getting at the root causes of real problems that are occurring. According to Branham, the Office's employees regularly visit all prisons; talk with prisoners (individually and in groups), prison officials, legislators and others; and try to resolve problems soon after they come up. Branham recounts successes in, for example, setting up a task force that made visiting practices more uniform between different prisons and increased the clarity of information about what visitors are permitted to do. The basic ideas underlying the Missouri Office of Constituent Services, as Branham presents them, certainly are laudable and worth emulating in other systems.
Many prisoners representing themselves have trouble properly conducting discovery, which is a quite technical area of litigation. Prisoners often have inadequate educations and have a hard time drafting adequate discovery requests, and even when their requests are proper, it is often difficult to get the state to give up the information to which the prisoner is entitled. Branham details programs in a few federal districts in which this problem is addressed, either through "mandatory disclosures" -- simple rules that both sides must disclose specified material by a date set by the court -- or sets of interrogatories that the court drafts and then includes with the forms sent to prisoners along with instructions about when and how they will be permitted to serve them on the defendants. As Branham points out, these proactive judicial steps aid both the prisoner, who gets the discovery to which he or she is entitled and the defendants, who are spared the burden of trying to respond to sometimes inartfully drafted discovery requests. These courts also are helping themselves by recognizing the value of early and accurate discovery in making clear what the issues are, making early settlement more likely, and assisting in the expeditious and just resolution of cases.
Branham also discusses many other mechanisms that can help to prevent litigation, expedite prisoner cases, or provide adequate legal information to prisoners, including: comprehensive training of prison staff about prisoners' constitutional rights; alternative dispute resolution programs; grievance systems (including a discussion of the value of review of grievances by persons independent of the prison); court programs for appointment of counsel (including limited appointments in some courts to, for example, just conduct discovery or only conduct the trial); special forms and handbooks that explain law and process to prisoners acting pro se; early status and case management conferences conducted by judges; audits by correctional administrators to make sure their prisons are constitutional; and other ideas on which there is not space here to comment. The Manual is worth reviewing just for this wealth of ideas on how systems can be improved.
3. Responsibilities of Lawyers for the State : Branham gingerly but accurately reports on not only the problems that prisoners can cause in the litigation process, but also on the issues raised by the actions of some states' attorneys, whose behavior can prevent the speedy and just resolution of claims. Although several examples are given, the two most prominent are delay and "no settlement" policies. Branham points out that several federal district court judges complained that the lack of training and competence of, or lack of cooperation by, some states' attorneys increases the burdens of litigation on the courts. Branham also reports on the "no settlement with prisoners" policies that some states' attorneys have adopted, and appropriately sees little to recommend these policies. Branham contrasts these policies with the statement of a Corrections Corporation of America (CCA) vice president for legal affairs: "If a prisoner establishes that due to our negligence, his tennis shoes were lost, we will spend $40 to buy him a new pair...And we should because it was our fault. By contrast, an attorney who represents a Department of Corrections will spend $4000 of the taxpayers' money to avoid paying the prisoner $40." Manual, p. 233. Whether or not CCA follows through on this in every valid case, the difference in attitude from at least some states' attorneys is striking.
Perhaps this is the portion of the Manual that caused controversy, given that there are states' attorneys (as Branham reports) who strongly believe that "no settlement" policies and other "us versus them" tactics are justified. Branham stated in a letter to PLN co-editor Paul Wright that the American Bar Association had to pay for printing "because federal officials would not print the manual unless I either made changes demanded by the National Association of Attorneys General or included a dissenting letter from NAAG at the front of the manual." Branham and the ABA deserve credit for refusing to change their work, which fairly discusses the responsibility of all actors involved in prison litigation to make the process work better.
Although there is little to criticize in this comprehensive manual, Branham does err once in a while. She cites with apparent approval a policy in Illinois to routinely shackle prisoners during face-to-face status hearings with judges and magistrates. Unless specific security issues demand drastic measures with regard to specific prisoners, shackling is inappropriate (as many federal cases hold, at least with regard to shackling during trials); this general policy strikes me as quite overbroad and prejudicial to the many prisoners who are not dangerous.
Branham also seems very approving of a prison legal assistance system run by CCA in which a single lawyer gives advice on drafting complaints and provides some litigation advice, but does little else. I think there is a value to the kind of help this person provides: Helping prisoners to write coherent pleadings, with the result that legitimate claims are more likely to go further in the litigation process. However, Branham underplays the dangers of such systems: They leave prisoners at the mercy of one attorney who determines what is meritorious and what is not, and leave the prisoner to do most of the difficult part of litigation on his or her own. In case the lawyer is wrong or more help is needed, there should be some alternative way for prisoners to conduct their cases.
But apart from a few minor points such as this on which I would take issue with Branham, there is little to fault in this volume. With an emphasis on facts instead of horror stories, and an insistence that correctional officials and states' attorneys have crucial roles in preventing unnecessary prisoner litigation through positive problem-solving, Branham has written a manual that should be in every prison law library. Try to get it and suggest to your local prison officials, courts, and states' attorneys that it contains some very positive ideas about the just resolution of prisoners' legitimate complaints. The Manual can be obtained from ABA Publications, P.O. Box 10892, Chicago, IL 60610-0892. Cost is $21.00 plus $3.95 for shipping.
John Midgley is an attorney with Columbia Legal Services in the State of Washington. The views expressed in this review are those of the author only and not of his employer.
Given all the anti-prisoner publicity that usually surrounds discussions of pro se prisoner litigation, the use of the phrase "limiting the burdens" in the title of this manual might suggest that it, too, is all about how to keep prisoners out of court. But this book is nothing like that. Instead, Branham, a Senior Research Scientist in the Institute of Government and Public Affairs at the University of Illinois, has written a balanced, fair account of the reality of prisoner litigation. And even more importantly for prisoners, Branham strongly emphasizes both prevention of litigation through establishing decent prison conditions and rapid, just resolution of prisoners' legitimate grievances.
Branham covers in detail many of the usual issues that are discussed when prisoner litigation is being considered: The role access to courts/legal services programs in prisons can play; how recent court decisions on access to courts will play out; a discussion of the filing-fee provisions of the Prison Litigation Reform Act; and what federal courts can and should be doing to enhance processing of prisoner civil rights lawsuits to reduce delay and expeditiously determine which cases can and should move toward trial. But Branham goes much further than these standard subjects and delves deeply into strategies to prevent litigation through early problem-resolution programs (in her chapter entitled "Steps Correctional Officials and Attorneys General Can Take To Avert Litigation"), and the responsibilities of states' attorneys to help resolve issues and contribute to the just resolution of real problems.
In other words, Branham includes, along with the "burdens" of prisoner litigation that many others have detailed, the often-omitted burdens on prisoners of having to endure conditions that lead to legitimate complaints, the burdens of inadequate responses to complaints by correctional administrators, and the burdens of inappropriate actions by some states' attorneys. She makes clear that "running a well-managed correctional facility with a professional and well-trained staff committed to solving, rather than ignoring, problems is the first and most fundamental step that correctional officials can take to avert the filing of civil-rights suits by prisoners." Manual, pp. 81-82. She even has a section entitled "Benefits of Pro Se Prisoners' Civil Rights Litigation," among which she lists calling attention to problems in the prison, the enforcement of constitutional rights, and keeping the government accountable, and others.
The Manual is far too long and detailed for me to comment in this space on all of the scores of issues Branham raises, but three sections are worth highlighting.
1. Factual Background Of Prison Litigation : Branham brings together the known statistical facts about prisoner litigation, many of which tend to refute the usual mythology about scores of frivolous, "recreational" lawsuits. For example, according to Branham, while it is true that the number of state prisoner cases filed in federal court has risen dramatically in recent years, the number has not increased faster than the number of people put into state prisons over the years 1980-1995. (The number of filings did increase a little more quickly than the increase in incarceration over a more recent and shorter span, 1990-1995). The so-called "explosion" in prison litigation is thus, at least in large part, another symptom of the explosion of incarceration. Similarly, it is sometimes suggested that a few prisoners file most of the lawsuits, but a study in one federal district showed that of prisoners who filed one or more cases in a six-year period, 80% filed only one. Branham makes clear also, however, that there are some number of prisoners who "file a disproportionate number of the lawsuits." Manual, p. 28. Although frequent filing doesn't always equate with frivolous filing, there are, even the strongest prisoner advocate must concede, some prisoners who file many lawsuits that are baseless and make it difficult for more scrupulous prisoners to have their legitimate cases heard.
One set of statistics that stands out demonstrates the vast differences in the number of filings per 1000 prisoners from state to state. In 1995, Iowa had by far the most per capita filings, with 145.4 suits per 1000 prisoners; Arkansas was next with 105.1; and the low was 12.7 per 1000 in Massachusetts. The average was 39.4 per 1000 prisoners. As Branham points out, this huge difference between states needs much more study to see whether there are differences among state prison systems in conditions, provision of legal services, grievance procedures, court processes, etc. that could explain the disparities.
Branham also raises important issues about the highly-charged subject of so-called "frivolous" lawsuits by prisoners. Branham wants to know how many cases filed by prisoners represent legitimate grievances even though they are dismissed at an early stage. In order to focus on this, Branham distinguishes between cases that are "legally" frivolous -- those that do not meet technical legal requirements for stating a claim -- and cases that are "substantively" frivolous -- those that do not represent a legitimate grievance. An example of a case that is legally, but not substantively, without merit in federal court is a complaint about prison officials losing a prisoner's property through negligence. Such a case may well represent a valid complaint by the prisoner who has really lost his or her property, but the assertion that prison officials were negligent in losing the property will not support a federal constitutional claim.
Branham reports some limited studies that suggest that most dismissed prisoner cases represent claims that are legally but not substantively frivolous. Branham suggests more study, and the point of the studies would be better policy: "If most prisoners are bringing legally frivolous claims because they do not understand the law and/or because, in their opinion, they have no other place to turn for fair consideration of their claims, [policy] efforts would be concentrated on developing alternative relief mechanisms for prisoners and cost-effective methods to advise prisoners about the requirements of the law." Manual, p. 42.
2. Examples of Prevention And Processing Models : Branham identifies many ideas and programs that are being used in some prison systems or court systems that either address underlying problems before they reach litigation or make it more likely that legitimate claims that do go to court are processed and resolved in an adequate and fair manner. I will mention only a few of the many examples she cites.
One program Branham endorses as a prevention measure is the Missouri prison system's Office of Constituent Services, which is designed to discover and respond to problems quickly and at least in theory keep conditions from deteriorating and prevent litigation. This Office reports directly to the head of the prison system and is told to monitor complaints with the goal of getting at the root causes of real problems that are occurring. According to Branham, the Office's employees regularly visit all prisons; talk with prisoners (individually and in groups), prison officials, legislators and others; and try to resolve problems soon after they come up. Branham recounts successes in, for example, setting up a task force that made visiting practices more uniform between different prisons and increased the clarity of information about what visitors are permitted to do. The basic ideas underlying the Missouri Office of Constituent Services, as Branham presents them, certainly are laudable and worth emulating in other systems.
Many prisoners representing themselves have trouble properly conducting discovery, which is a quite technical area of litigation. Prisoners often have inadequate educations and have a hard time drafting adequate discovery requests, and even when their requests are proper, it is often difficult to get the state to give up the information to which the prisoner is entitled. Branham details programs in a few federal districts in which this problem is addressed, either through "mandatory disclosures" -- simple rules that both sides must disclose specified material by a date set by the court -- or sets of interrogatories that the court drafts and then includes with the forms sent to prisoners along with instructions about when and how they will be permitted to serve them on the defendants. As Branham points out, these proactive judicial steps aid both the prisoner, who gets the discovery to which he or she is entitled and the defendants, who are spared the burden of trying to respond to sometimes inartfully drafted discovery requests. These courts also are helping themselves by recognizing the value of early and accurate discovery in making clear what the issues are, making early settlement more likely, and assisting in the expeditious and just resolution of cases.
Branham also discusses many other mechanisms that can help to prevent litigation, expedite prisoner cases, or provide adequate legal information to prisoners, including: comprehensive training of prison staff about prisoners' constitutional rights; alternative dispute resolution programs; grievance systems (including a discussion of the value of review of grievances by persons independent of the prison); court programs for appointment of counsel (including limited appointments in some courts to, for example, just conduct discovery or only conduct the trial); special forms and handbooks that explain law and process to prisoners acting pro se; early status and case management conferences conducted by judges; audits by correctional administrators to make sure their prisons are constitutional; and other ideas on which there is not space here to comment. The Manual is worth reviewing just for this wealth of ideas on how systems can be improved.
3. Responsibilities of Lawyers for the State : Branham gingerly but accurately reports on not only the problems that prisoners can cause in the litigation process, but also on the issues raised by the actions of some states' attorneys, whose behavior can prevent the speedy and just resolution of claims. Although several examples are given, the two most prominent are delay and "no settlement" policies. Branham points out that several federal district court judges complained that the lack of training and competence of, or lack of cooperation by, some states' attorneys increases the burdens of litigation on the courts. Branham also reports on the "no settlement with prisoners" policies that some states' attorneys have adopted, and appropriately sees little to recommend these policies. Branham contrasts these policies with the statement of a Corrections Corporation of America (CCA) vice president for legal affairs: "If a prisoner establishes that due to our negligence, his tennis shoes were lost, we will spend $40 to buy him a new pair...And we should because it was our fault. By contrast, an attorney who represents a Department of Corrections will spend $4000 of the taxpayers' money to avoid paying the prisoner $40." Manual, p. 233. Whether or not CCA follows through on this in every valid case, the difference in attitude from at least some states' attorneys is striking.
Perhaps this is the portion of the Manual that caused controversy, given that there are states' attorneys (as Branham reports) who strongly believe that "no settlement" policies and other "us versus them" tactics are justified. Branham stated in a letter to PLN co-editor Paul Wright that the American Bar Association had to pay for printing "because federal officials would not print the manual unless I either made changes demanded by the National Association of Attorneys General or included a dissenting letter from NAAG at the front of the manual." Branham and the ABA deserve credit for refusing to change their work, which fairly discusses the responsibility of all actors involved in prison litigation to make the process work better.
Although there is little to criticize in this comprehensive manual, Branham does err once in a while. She cites with apparent approval a policy in Illinois to routinely shackle prisoners during face-to-face status hearings with judges and magistrates. Unless specific security issues demand drastic measures with regard to specific prisoners, shackling is inappropriate (as many federal cases hold, at least with regard to shackling during trials); this general policy strikes me as quite overbroad and prejudicial to the many prisoners who are not dangerous.
Branham also seems very approving of a prison legal assistance system run by CCA in which a single lawyer gives advice on drafting complaints and provides some litigation advice, but does little else. I think there is a value to the kind of help this person provides: Helping prisoners to write coherent pleadings, with the result that legitimate claims are more likely to go further in the litigation process. However, Branham underplays the dangers of such systems: They leave prisoners at the mercy of one attorney who determines what is meritorious and what is not, and leave the prisoner to do most of the difficult part of litigation on his or her own. In case the lawyer is wrong or more help is needed, there should be some alternative way for prisoners to conduct their cases.
But apart from a few minor points such as this on which I would take issue with Branham, there is little to fault in this volume. With an emphasis on facts instead of horror stories, and an insistence that correctional officials and states' attorneys have crucial roles in preventing unnecessary prisoner litigation through positive problem-solving, Branham has written a manual that should be in every prison law library. Try to get it and suggest to your local prison officials, courts, and states' attorneys that it contains some very positive ideas about the just resolution of prisoners' legitimate complaints. The Manual can be obtained from ABA Publications, P.O. Box 10892, Chicago, IL 60610-0892. Cost is $21.00 plus $3.95 for shipping.
John Midgley is an attorney with Columbia Legal Services in the State of Washington. The views expressed in this review are those of the author only and not of his employer.
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