Petis: Evening Out of A Stacked Deck

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EVENING OUT A STACKED DECK: A

SUGGESTION FOR IMPROVING
JUDICIAL ECONOMY AND
PROMOTING PRISONER ACCESS TO
JUSTICE
Geoffrey Donald Petis*
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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570 NEW ENGLAND LAW REVIEW [Vol. 43:569
a. The Ace of Spades: The Prisoner Litigation

Reform Act ...........................................................577
b. The Ace of Clubs: The Antiterrorism and
Effective Death Penalty Act .................................580
2. The Black Eights: Federal Magistrate Judges................581
a. The Eight of Clubs: The Federal Magistrate Act ....581
b. The Eight of Spades: The Federal Districts of
New York .............................................................583
C. The Pocket Pair: Dismissing Frivolous Cases Under
Supreme Court Precedent ..................................................585
1. The Queen of Hearts: Dismissal for Frivolousness .......586
2. The Queen of Diamonds: Dismissal for Failure to
State a Claim ...............................................................587
ANALYSIS ..................................................................................................589
II. The Pro Se Prisoner Clinic, or, the Ace in the Hole...................589
A. Laying the Cards on the Table: Putting the Pro Se Prisoner
Clinic in PlaceOutline of the Program.................................590
B. Going All in or Calling My Bluff? .....................................596
1. Law Students: One of a Kind, or a Royal Flush? ..........596
2. Prisoners Deserve Meaningful Judicial Access .............597
a. Spades: State vs. Federal Access.............................600
b. Diamonds: Cost of the Program ..............................602
c. Diamonds: Is this Program Duplicative?.................604
d. The River: Is There a Need for Such a Program? ...605
CONCLUSION ..............................................................................................607
APPENDIX I ................................................................................................610
APPENDIX II ...............................................................................................613
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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2009] PROMOTING PRISONER ACCESS TO JUSTICE 571
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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proper authorities. 7 On the other hand, if Riches is purposefully clogging

the court docket for his own amusement, the courts need assistance, and
this Note proposes that we law students and legal educators are in the best
position to provide that support to the courts.
It should be noted from the outset that simply because a complaint is
filed from behind prison walls does not mean it is without merit. After a
comprehensive study of prisoner litigation, Professor Margo Schlanger
concluded that despite the perception of persistent frivolous inmate
litigation in federal court, these prisoners suits mostly concern real
hardships inherent in prison life, not peanut butter. 8 Indeed, some pro se 9
prisoner complaints have changed the legal landscape. 10 Whether frivolous
or not, however, prison filings constitute a good chunk of a courts docket.
In 2007, prisoners filed 53,945 of the 257,507 civil cases that were filed in
federal district courts around the country. 11
In response to this flood of inmate litigation, Congress passed
legislation that was intended to make prisoner litigation more difficult. 12
By all accounts, the legislation was successful in its goal of curbing these
lawsuits. 13 Still, given the huge amount of filings, commentators have
observed that judges have grown apathetic towards prisoner complaints, as
they are often presented in an illogical, illegible, and rambling fashion. 14
Prisoners thus face several obstacles when filing lawsuits: an ornery
judiciary and vicious legislation. In this Note, I suggest a clinic whereby all
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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pro se prisoner complaints would be outsourced to participating law

schools, whose students would review the complaints for meritorious and
frivolous claims. The hope is that the clinic will improve judicial economy
by giving the courts an added resourcelaw studentswhile at the same
time giving prisoners a more sympathetic screener.
Part I will examine the high incidence of prisoner litigation, what is
meant by the word frivolous, and the steps taken by the courts and the
legislatures to combat the flood of prisoner lawsuits. 15 In particular, Part I
will examine the effect of legislation aimed at curbing prisoner litigation,
such as the Prisoner Litigation Reform Act, 16 the Antiterrorism and
Effective Death Penalty Act of 1996, 17 and the Magistrate Act. 18 Part II
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 under the supervision of licensed attorneyswill separate
meritorious claims from frivolous ones, and submit memoranda to the
participating courts regarding whether the claim should continue through
the court system. 19 Part II then concludes the analysis, and suggests a
guideline for schools who might wish to adopt such a program. 20
15. See infra Part I.

16. See Prisoner Litigation Reform Act, Pub. L. No. 104-134, 801-810, 110 Stat.
1321, 1321-77 (1996) (codified as amended in scattered sections of 11 U.S.C., 18 U.S.C.
and 42 U.S.C.) (PLRA); see also infra Part I.B.1.a.
17. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 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); see also infra Part I.B.1.b.
18. See 28 U.S.C. 631-639 (2000); see also infra Part I.B.2.a-b.
19. See infra Part II. For an example of the checklist students might use to guide them in
analyzing prisoner complaints, see infra Appendix I.
20. See infra Part II.
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BACKGROUND
I. Shuffling the Deck 21
A. You Gotta Know When to Hold Em, Know When to Fold

Em: A Prisoner Litigation Explosion 22
The pro se litigant has been a character in the judicial process since
ancient times. 23 In the United States, the right to represent oneself is
recognized by the Supreme Court 24 and is codified in the United States
Code. 25 In spite of the Supreme Courts warning that one who is his own
lawyer has a fool for a client, 26 prisoners often lack the resources to hire a
lawyer, and are thus forced to proceed on their own behalf. 27 Because of
this reality, a frequent concern of legislators and jurists has been what is
termed an overloaded court system, 28 particularly in the realm of pro se
prisoner complaints. 29 Between 1945 and 1989, the number of habeas
corpus petitionsthe federal mechanism by which prisoners challenge
their custody by the governmentrose 1800% nationwide. 30 On another
front, 42 U.S.C. 1983 casesthe method by which a party challenges an
act or actor of a state or federal government for violating the aggrieved
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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partys constitutional rights 31 increased between 1966 and 1992 as well: 32

Two hundred and eighteen 1983 cases were filed by inmates in 1966,
compared with 26,824 such actions in 1992, an increase of 123%. 33 In both
cases, somewhere around 96% of prisoners filing a complaint appear pro
se. 34 The number of state prisoner civil rights lawsuits filed in federal
court increased from 12,397 in 1980 to 40,569 in 1995a 227%
increase. 35 Last year, prisoners filed 53,945 cases, representing over 20%
of the federal courts dockets. 36
In addition to the sheer volume of cases, [t]he fact that the cases are
pro se complicates the task of the judge, the magistrate, the clerk, and other
court personnel and makes it more difficult for them to effectively and
efficiently identify the meritorious conditions-of-confinement case. 37 The
difficulties are compounded when one considers the fact that prisoners are
often not educated and have a tendency to present complaints in an
illogical, illegible, and rambling fashion. 38 Complicating this factor is that
pro se complaints are governed by less stringent standards than formal
pleadings drafted by lawyers. 39 The judge thus has to spend more time and
resources on these complaints. 40 Ultimately, the actual and perceived
assault on the judicial system by prisoner complaints has engendered a
sense of apathy in many courtrooms nationwide. 41 As Supreme Court
Justice Jackson noted, [i]t must prejudice the occasional meritorious
application to be buried in a flood of worthless ones. He who must search a
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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B. The Dead Mans Hand: Congressional Action in the World of

Prisoner Lawsuits 47
1. The Black Aces:
a. The Ace of Spades: The Prisoner Litigation

Reform Act
Congress passed the PLRA in an attempt to cut down on what many
saw as frivolous lawsuits. 48 As one Senator said, our courts are now being
flooded with inmate lawsuits . . . . [which] are filed for often the most
spurious of reasons. 49 The Senator continued, arguing that giving the
inmates the ability to file their claims with the aid of taxpayer-supported
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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law libraries . . . . is like an alcoholic locked inside a liquor store. 50

Language like this is expected when one considers that in 1995, inmates
filed nearly 40,000 new federal civil lawsuits[19%] of the federal civil
docket. 51 Of those suits filed, at least 19% of them were found to be
frivolous. 52
The PLRA sought to deter frivolous suits by improving judicial
efficiency. 53 In many respects, it succeeded. Since 1995, prisoner
litigation has dropped dramatically. 54 The PLRA succeeded because, as
enacted, the statute takes a multi-prong approach to limit prisoner
litigation: (1) the Act has a three strike rule, whereby any prisoner who
has had three suits dismissed as frivolous, dismissed for failing to state a
claim, or dismissed for maliciousness is precluded from filing any more
lawsuits unless he can show he is in imminent danger of serious physical
harm; 55 (2) a prisoner loses good time credits 56 if he files a frivolous
claim; 57 (3) judges are allowed to dismiss any claim sua sponte 58 that fails
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
59. 28 U.S.C. 1915(e)(2)(B)(ii).

60. Exhaustion of administrative remedies requires parties to avail themselves of all
potential solutions within the appropriate agency before asking the court to make a decision
on an adverse administrative determination. Danielle M. McGill, Note, To Exhaust or Not
Exhaust?: The Prisoner Litigation Reform Act Requires Prisoners to Exhaust All
Administrative Remedies Before Filing Excessive Force Claims in Federal Court, 50 CLEV.
ST. L. REV. 129, 139 (2003) (quoting 5 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW
49.01, at 49-3 (2001)).
61. 42 U.S.C. 1997e(a) (2000). Under this requirement, a prisoner must utilize all
available administrative procedures before he can file any complaints dealing with
conditions of confinement, even if the administrative system cannot grant the relief sought.
Woodford v. Ngo, 548 U.S. 81, 82-85 (2006). An oversight of an administrative avenue
irrespective of whether the administrative system can grant their relief soughtwill
oftentimes defeat the prisoners lawsuit under this section. See, e.g., Schlanger, supra note
8, at 1628. [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. Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). The PLRA does not
require a complainant to exhaust administrative appeals before she files a 1983 claim,
however. See Thornton v. Snyder, 428 F.3d 690, 696-97 (7th Cir. 2005), cert. denied, 547
U.S. 1192 (2006).
62. See 28 U.S.C. 1914 (2000).
63. See id. 1915(a)(1), (b)(1). In forma pauperis is Latin for in the manner of a
pauper, and refers to an indigent person who is permitted to disregard filing fees and court
costs. BLACKS LAW DICTIONARY 794 (8th ed. 2004).
64. See 28 U.S.C. 1915(b)(1)-(2).
65. Id. 1915(g).
66. See, e.g., Jones v. Bales, 58 F.R.D. 453, 463 (N.D. Ga. 1972), affd 480 F.2d 805
(5th Cir. 1973).
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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
b. The Ace of Clubs: The Antiterrorism and Effective

Death Penalty Act
The Antiterrorism and Effective Death Penalty Act (AEDPA), 74
passed simultaneously with the PLRA, was another measure Congress took
to combat frivolous prisoner lawsuits. 75 The procedures that AEDPA uses
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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to stifle prisoner lawsuits include a one-year statute of limitations on

prisoners seeking a habeas petition, the procedure by which prisoners
challenge the constitutionality of their post-conviction incarceration. 76
AEDPA also places a ban on filing a claim containing the same issue as a
previous claim, 77 and disallows filing claims on new issues unless the
prisoner can demonstrate a novel rule of constitutional law, such that if
their conviction was not a result of constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense. 78 Taken together, the PLRA and AEDPA appear to have done
well in their goals of combating prisoner litigation, as inmate filings were
down 43% in 2001, from their peak in 1995. 79
2. The Black Eights: Federal Magistrate Judges
a. The Eight of Clubs: The Federal Magistrate Act

Though not enacted specifically to combat frivolous prisoner
litigation, 80 the Federal Magistrate Act (FMA) 81 has also affected inmate
lawsuits. The FMA was enacted to help ease the swollen district court
docket by lending a hand to overburdened federal district court judges. 82
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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In each of these instances, a magistrate judge filed Findings and

Recommendations with both the plaintiff and the district court. 88 Under this
procedure, the district courts reviewed the file and recommendations de
novo, 89 and made a final decision as to whether to adopt the magistrates
Recommendation (they did in each case). 90 Although the magistrate judges
are authorized to review pro se complaints, it appears that the operation of
many of these offices is mostly ad hoc. 91 There are a few exceptions,
however, including the federal districts of New York.
b. The Eight of Spades: The Federal Districts of New

York
In response to the perceived flood of prisoner cases, some courts
around the countrymarshaled by magistrate judgeswere created
specifically to combat the incidence of frivolous prisoner litigation. The
Southern District of New York 92 and the Eastern District of New York are
such districts. 93 In these courts, the magistrate judge manages a staff of
clerks and attorneys in the Pro Se Office, who collectively screen all of the
pro se civil cases and, where necessary, write dismissal orders to the
presiding judge. 94 The magistrate judge draft[s] orders in cases that are
insufficiently pleaded but [are] appropriate for . . . dismissal, generally
4:07cv408-RH/WCS, 2007 WL 3378257, at *1 (N.D. Fla. Nov. 12, 2007); Riches v.

Duncan, No. SA-07-CA-863-RF (NN), 2007 WL 3333103, at *1 (W.D. Tex. Nov. 8, 2007);
Riches v. Karr, No. 07-2103, 2007 WL 3224327, at *1 (W.D. Ark. Oct. 29, 2007); Riches v.
Underwood, No. CIV-07-1066-F, 2007 WL 3128504, at *1 (W.D. Okla. Oct. 24, 2007);
Riches v. Rudolph, No. CIV S07-2182 GEB GGH P, 2007 WL 3053312, at *1 (E.D. Cal.
Oct. 19, 2007); Riches v. Kaczynski, No. CIV 5-07-1985 MCE KJM P, 2007 WL 2947582,
at *1 (E.D. Cal. Oct. 9, 2007).
88. See 28 U.S.C. 636(b)(1)(C).
89. De novo is a Latin term meaning anew. BLACKS LAW DICTIONARY 467 (8th ed.
2004).
90. See supra note 87.
91. See generally CAROLL SERON, THE FEDERAL JUDICIAL CENTER, THE ROLES OF
MAGISTRATES: NINE CASE STUDIES (1985).
92. See United States District Court, Southern District of New York, Representing
Yourself in Court (Pro Se) available at http://www1.nysd.uscourts.gov/courtrules_prose.php
(last visited Jan. 9, 2009).
93. In May 2001, the Eastern District of New York appointed a new, additional
magistrate judge with a specific mandate: to oversee the courts pro se docket. Bloom &
Hershkoff, supra note 29, at 495; see also US District Court, EDNY ProBono, Pro Se Staff,
http://www.nyed.uscourts.gov/probono/Pro_Se_Staff/pro_se_staff.html (last visited Jan. 9,
2009).
94. See Bloom & Hershkoff, supra note 29, at 496.
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directing the litigant to amend the complaint. 95 The goal is to streamline

the pro se litigation process, while at the same time giving the pro se
litigant reasonable access to the courts. 96
A magistrate judges staff 97 provides advice to these litigants on
matters of procedure, in addition to supplying the pro se litigants with the
appropriate forms for pleadings and motions. 98 The staff will also return
insufficiently pleaded complaints to the complainant, asking him to make
amendments where necessary. 99 One commentator has noted that:
One goal of this approach is to ensure early identification of
those pro se cases that should be quickly terminated; those that
need to be repleaded; and those that need to be transferred to
another district. . . . The courts goal is to terminate frivolous
cases quickly, so it can expend greater attention on the
meritorious cases . . . . 100
This type of system essentially sets up a specialized pro se court.
Like most things in life, such a system has its pros and cons. The argument
for judicial specialization in these types of cases is that the decisonmakers
become experts in the field, thereby promoting judicial efficiency. 101
Moreover, proponents maintain that specialization also:
Encourage[s] high quality decisionmaking, as specialist judges
become expert in arcane or technical areas of law; redu[ces]
docket backlog, as generalist judges are relieved of the presumed
tedium and weight of the specialists caseload; and
exped[ites] . . . decision[s], as specialist judges develop
customized procedures and direct attention to issues that might
otherwise be relegated to the margins of the courts docket. 102
Not everyone supports such a specialized system, however.
Opponents state that while generalist judges can focus on a wider array of
legal fields, specialist judges risk being isolated from the mainstream of
legal thought. 103 Another argument against specialized courts includes the
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.
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.
C. The Pocket Pair: 108 Dismissing Frivolous Cases Under

Supreme Court Precedent
Now it is time to discuss what exactly Congress tried to do with the
passage of the legislation referred to in Part I.B, above. Most people have
an idea (misplaced as it may be) of what constitutes a frivolous lawsuit.
Perhaps the infamous McDonalds lawsuit jumps to mind. 109 Ms.
Leibeck, however, had a lawyer; 110 most prisoners do not. 111 Moreover,
many prisoners are indigent and have low levels of literacy. 112 This means
that the cases pro se litigants bring require more attention by judges due to
their lack of literacy and legal knowledge. 113 This, in turn, generates
judicial hostility . . . in part from annoyance created by the increased
burden on judges and the high prevalence of petty and often meritless
104. Id. at 501.

105. Schlanger, supra note 8, at 1590.
107. See infra Part II.A.
108. In the poker game Texas Hold Em, a pocket pair is when a player is dealt two
cards of the same rank, such as a pair of Kings. Poker T!ps, Poker Glossary,
http://www.pokertips.org/glossary/w/POCKET+PAIR (last visited Jan. 7, 2009). The pocket
pair chosen for this section was chosen at random; I chose the Queens of Hearts and
Diamonds.
109. See Liebeck v. McDonalds Restaurants, P.T.S., Inc., No. CV-93-02419, 1995 WL
360309, at *1 (D.N.M. Aug. 18, 1994). Interestingly, this case was not frivolous at all:
McDonalds was knowingly heating up its coffee to around 200 degrees Fahrenheit
hotter than the customary 140 degrees Fahrenheit, which made the coffee hot enough to
cause third degree burns. See Corporate Reform, The Truth About the McDonalds Coffee
Case, http://www.corpreform.com/corpreform/2003/10/the_truth_about/comments/page/2/
(last visited Jan. 7, 2009).
110. See Liebeck, 1995 WL 360309, at *1.
112. Feierman, supra note 46, at 369.
113. See Scoville & Bales, supra note 23, at 235.
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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
1. The Queen of Hearts: Dismissal for Frivolousness

The standards the courts use in dismissing cases for frivolity are
grounded in statute: Actions will be dismissed where they are either
frivolous or malicious 118 or fail to state a claim on which relief may be
granted. 119 Procedurally, in federal courts:
A federal court must conduct a preliminary screening in any case
in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity. In its review, the
court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim upon
which relief may be granted or seek monetary relief from a
defendant who is immune from such relief. 120
Different jurisdictions have different standards for determining
whether a case is frivolous. 121 Nevertheless, the Supreme Court has laid out
some guidelines over the years: The Court has deemed a factually frivolous
complaint subject to dismissal where the facts alleged are clearly
baseless, a category encompassing allegations that are fanciful,
fantastic, and delusional. 122 The Supreme Court has also said that an
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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IFP complaint is frivolous when the claim is based on an indisputably

meritless legal theory. 123 Some courts have held that a case may be
dismissed as frivolous if it has little-to-no chance of success at trial. 124
Many courts, following the Supreme Court, will dismiss a complaint as
frivolous if it lacks an arguable basis either in law or fact. 125 Other courts
will dismiss a complaint as frivolous if the complaint fails to state a claim
for which relief could be granted. 126 Still other courts have said that the
test of the right to prosecute an action in forma pauperis is not whether the
action has merit, but whether applicant for leave [to do so] can make a
rational argument on the law or facts in support of his claim for relief. 127
In addition to the cases that have approached factual ridiculousness
alluded to already in this Note, legally frivolous actions include situations
where: the court lacks subject-matter jurisdiction; 128 the statute of
limitations has passed; 129 the plaintiff sues defendants who are immune
from suit; 130 the complaint does not conform to the Federal Rules of Civil
Procedure; 131 a party tries to petition a federal district court to compel a
state court to take or refrain from doing something; 132 or the plaintiff
neglects to exhaust all administrative remedies prior to filing suit. 133 Courts
may also dismiss a complaint as frivolous where the complaint fails to state
a claim where relief can be granted. 134
2. The Queen of Diamonds: Dismissal for Failure to State a

Claim
Prior to 1996, the statute dealing with in forma pauperis lawsuits
allowed claims to be dismissed only where they were frivolous or
123. Neitzke, 490 U.S. at 327.

124. See Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989).
125. Mack v. Massachusetts, 204 F. Supp. 2d 163, 166 (D. Mass. 2002) (quoting Neitzke,
490 U.S. at 325).
126. See Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976). It is worth noting that the
Ault court would have allowed the prisoner to cure his deficient complaint. Id.; see also
infra text accompanying notes 174-178, 208-209 (discussing the propriety of allowing
prisoners to amend their complaints where confusing).
127. Tidmore v. Taylor, 323 F.2d 88, 90 (10th Cir. 1963), cert. denied, 376 U.S. 954
(1964).
128. See Mack, 204 F. Supp. 2d at 166.
129. See Myers v. Vogal, 960 F.2d 750, 750-51 (8th Cir. 1992).
130. See Pugh v. Parish of St. Tammany, 875 F.2d 436, 437-38 (5th Cir. 1989).
131. See Harris v. U.S. Dept of Justice, 680 F.2d 1109, 1110-11 (5th Cir. 1982), cert.
denied, 459 U.S. 1212 (1983).
132. See Sully v. Lungren, 842 F. Supp. 1230, 1232 (N.D. Cal. 1994).
133. See Brewer v. Cleveland Mun. Sch. Dist., 84 F. Appx 570 (6th Cir. 2003).
134. 28 U.S.C. 1915(e)(2)(B)(iii) (2000).
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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
135. See 28 U.S.C. 1915 (1979-1994).

136. 28 U.S.C. 1915(e)(2)(B)(i)-(ii) (2000).
137. FED. R. CIV. P. 12(b)(6).
138. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Recently, this familiar interpretation
of 12(b)(6) has been called into question. See Bell Atl. Co. v. Twombly, 127 S. Ct. 1955,
1960 (2007) (Conley described the breadth of opportunity to prove what an adequate
complaint claims, not the minimum standard of adequate pleading to govern a complaints
survival.). Twombly was an antitrust case, and so it remains to be seen whether Twombly
changed the Rule 12(b)(6) landscape or whether Twombly will be limited to the facts of that
case. At least one state has adopted the new federal standard in its entirety. See Iannacchino
v. Ford Motor Co., 888 N.E.2d 879, 890 (Mass. 2008) (holding that we take the
opportunity to adopt the refinement of [the Conley] standard that was recently articulated by
the United States Supreme Court in Twombly).
139. See generally Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989) (In effect, the
district court equated the standard for 1915(d) dismissal with the standard for Rule
12(b)(6) dismissal. Neitzke clearly states that this is incorrect.).
140. See Neitzke v. Williams, 490 U.S. 319, 322-23 (1989).
141. Id. at 326.
142. See id.
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In 1996, the statute was amended to allow dismissal of a prisoners

complaint for frivolity and/or if the complaint failed to state a claim upon
which relief could be granted, 143 thus giving the courts yet another
opportunity to dismiss prisoner complaints. Courts have recognized and
applied this new standard. 144 [W]hile the old statute merely permitted
dismissal when the district court was satisfied that a suit was frivolous,
the new language requires dismissal in similar circumstances. . . . Indeed,
[the amendments] were designed to strengthen, not vitiate, the role of
district courts. 145 Thus, a complaint may be dismissed as frivolous where
it is either frivolous or where it fails to state a claim. 146 This Note proposes
that students reviewing prisoner complaints would take both of these
standards into account when evaluating the litigants case. 147
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.
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Pro Se Offices set up in New York were designed specifically to combat

this problem. One presumes that they have been effective in their goal, as
they have been operating for over seven years. 152 As with anything else,
however, the system could get better. 153 With that framework in mind, this
Part will conclude the Note with an examination of my proposal, which is
aimed at reducing the economic and work-related burdens on the courts as
a result of frivolous lawsuits, while at the same time providing inmate pro
se complainants with an added resource: law students who are interested in
helping the courts as well as the individuals who are generating the
work. 154
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

153. The biggest room in the world is the room for improvement. Japanese Proverb,
quoted in RICHARD A. SINGER, EASTERN WISDOM FOR YOUR SOUL: 111 MEDITATIONS FOR
EVERYDAY ENLIGHTENMENT 58 (2007); see also supra Part I.
154. See discussion infra Part II.A-B.
155. Implementing the program would likely require three phases, each of which would
take place under the supervision of the professors and participating judges: Phase I would
entail developing a checklist, utilizing local rules and jurisdictional precedent, viz. standards
of frivolity and meritoriousness. For a suggested outline of a checklist, please see Appendix
I. Phase II would involve drafting brochures that would explain the post-complaint trial
process to pro se litigants. For a suggested outline of a brochure, please see Appendix II.
Phase III would involve taking complaints. Phase II could be skipped altogether, but it could
work well with the program.
156. See supra Part I.C.
157. See 28 U.S.C. 636(b)(1)(C) (2000).
158. See id. 636(b)(1).
159. See infra Part II.B.
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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
160. 28 U.S.C. 1915(e)(2)(b)(i)-(ii) (failure to state a claim, frivolousness or

malicious); see supra Part I.C.1-2. For an example of the form checklist, see infra Appendix
I.
162. See supra Part I.C.1-2.
163. Note that it would be explained to the students that they could not make up claims
for the prisoner, but they would be reminded that very important interests might be at stake,
and they should thus read the complaint with great care.
164. One of the tasks of the clinic would be indoctrinating and reinforcing the students
understanding of applicable law and dusting off their civil procedure skills. See supra text
accompanying notes 160-63.
165. See Poulson, supra note 76, at 373.
166. Gomez v. Toledo, 446 U.S. 635, 640 (1980).
167. See id.
168. Id.
169. Federal Courts Qualified Immunity Sixth Circuit Denies Qualified Immunity to
Police Officer for Arrest for Speech at Public Meeting. Leonard v. Robinson, No. 05-
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According to some scholars, deciphering the complaint can be tricky,

as the submission may be rambling and illogical, if not completely
illegible. 170 Law students are in a unique position to address this concern:
students would be more willing to spend time deciphering the complaint
because students do not have a docket demanding their time, 171 and their
interest in such a program is further proof of their willingness to work on
such a matter. [I]t is essential and fundamental that the court reviews each
complaint for any possible claim. . . . The reality is that an overburdened
court does not always have the time and patience to fully weigh each
allegation and to review every claim no matter how meritorious. 172 I
maintain that interested students are in the best possible position to ensure
that these complaints receive the attention they deserve. 173
The limited literacy and knowledge of legal matters of prisoners
makes it likely that their complaint will be deficient in some regard. 174
Some courts have stated that an inmate should be given an opportunity to
amend his complaint if it is confusing. 175 This investigatory process could
be done through further questioning, 176 or with the aid of a
questionnaire. 177 Students would easily be able to carry out either task; if a
trip to the prison would not be feasible (i.e., if they are not in the same state
or jurisdiction where the prisoner is located), a form questionnaire could be
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).
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).
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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mailed to the prisoner, asking him to clarify points of ambiguity. 178

Once the student and her supervisor are satisfied that enough
information is available from which to determine whether or not a
cognizable claim exists, the student would draft a memorandum to the
judge, indicating whether she thought the complaint was meritorious. The
recommendation to the judge would be written using the guidelines set
forth in the student-written and court-approved boilerplate checklist. 179
Perhaps first on the list would be to check the filtering mechanisms of the
PLRA for 1983, 180 and of the AEDPA for habeas claims. 181 Frivolous
claims would be tested against Supreme Court jurisprudence and local
standards. 182 The memorandum would also include information regarding
the propriety of jurisdictionpersonal, subject matter, and
supplemental. 183 Mention must also be made regarding venue, the
defendant(s), 184 and statutes of limitations.
The checklist would provide guidance to the student writing the
memorandum by listing some of the most common claims. 185 Examples of
frequent prison suits under 1983 claims include inmate-on-inmate/duty-
178. See Watson, 525 F.2d at 892.

179. For an example of what the form checklist might look like, please see Appendix I,
infra.
180. Has the filing fee been paid? Is the case frivolous given local standards? Have all
administrative remedies been exhausted? Is the litigant a repeat-filer for the purposes of the
three-strike rule? On the last point, if he is a prolific litigator, the standards of review would
change, and should also raise flags of claim, issue, and interjurisdictional preclusion. If,
however, he is not a prolific litigator, the complaint would be viewed liberally. See 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).
181. Has the one-year statute of limitations passed? Have successive petitions been filed?
See supra Part I.B.2.a-b.
182. See supra Part I.C.1-2.
183. Some courts have held that it is improper to dismiss a complaint as frivolous solely
on the ground that the court lacks personal jurisdiction over the defendants. Anger v.
Revco Drug Co., 791 F.2d 956, 958 (D.C. Cir. 1986).
184. Pertinent questions here involve: Is there a state actor involved? Is the right person
being sued? Is the person sued in the right capacity, i.e., official versus individual capacity?
Are all the parties listed, joined, and liable?
185. At this point, professorial supervision would become paramount. Since the
complaints may be illegible and rambling, the student will have to be especially attentive to
possible claims aside from the examples listed. Clients reveal critical self-information in
their opening words. Failure to hear and see this affects the interviewers ability . . . to
comprehend the full range of information the client needs to share, and to collaborate with
the client to tell a story in legally and emotionally effective language. KENNEY F.
HEGLAND, TRIAL AND CLINICAL SKILLS IN A NUTSHELL 269 (4th ed. 1994).
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to-protect claims; 186 guard-on-inmate assaults/excessive force; 187 lack of

adequate medical care; 188 mental health/suicide; 189 lack of access to the
courts; 190 prison transfers; 191 retaliation; 192 claims involving visitation;193
claims involving freedom of religion/speech; 194 claims involving due
process; 195 searches; 196 testing of bodily fluids; 197 claims challenging terms
of confinement; 198 racial discrimination; 199 and claims involving
disabilities. 200 Final considerations for the student would be to determine if
the litigant demanded a jury trial, 201 and if a jury trial has been demanded,
asking whether it is a proper demand. 202
Students will also have to work closely with the clerk of the court to
check on the status of how many strikes are against the prisoner. In
addition to weeding out frivolous litigation, the PLRA sought to ground
frequent filersinmates like Riches who repeatedly file complaint after
186. See Farmer v. Brennan, 511 U.S. 825 (1994).

187. See Hudson v. McMillian, 503 U.S. 1 (1992).
188. See Estelle v. Gamble, 429 U.S. 97 (1976).
189. See Hudson, 503 U.S. 1.
190. See Lewis v. Casey, 518 U.S. 343 (1996). It is worth noting that this case also
changed the legal landscape viz. pro se prisoner filings.
191. See Olim v. Wakinekona, 461 U.S. 238 (1983).
192. See Lawrence v. Goord, 238 F.3d 182 (2d Cir. 2001), vacated, 531 U.S. 901 (2002).
193. See Sandin v. Conner, 515 U.S. 472 (1995).
194. See OLone v. Estate of Shabazz, 482 U.S. 342 (1987).
195. The due process claims may be further subdivided into:
(1) Parole eligibility and revocation, pardons and commutation, and work release. See, e.g.,
Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) (clemency); Conn. Bd. of
Pardons v. Dumschat, 452 U.S. 458 (1981) (commutation); Greenholtz v. Neb. Penal
Inmates, 442 U.S. 1 (1979) (parole); (2) Disciplinary proceedings; see, e.g., Sandin v.
Conner, 515 U.S. 472 (1995); and (3) Forced administration of medication; see, e.g.,
Washington v. Harper, 494 U.S. 210 (1990).
196. See, e.g., Bell v. Wolfish, 441 U.S. 520 (1979).
197. See Block v. Rutherford, 468 U.S. 576 (1984).
198. See, e.g., Wilson v. Seiter, 501 U.S. 294 (1991).
199. See, e.g., Johnson v. California, 545 U.S. 162 (2005).
200. See, e.g., Pa. Dept of Corr. v. Yeskey, 524 U.S. 206 (1998).
201. See FED. R. CIV. P. 38(b).
202. Here, notice should be paid to whether the prisoner is seeking legal or equitable
relief. If he is seeking the latter, a jury trial might not be proper. See, e.g., Chauffeurs v.
Terry, 494 U.S. 558 (1990) (holding that whether a jury trial is properly demanded turns on
among other things whether the relief sought is legal or equitable in nature).
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complaint. 203 For this reason, attention should be paid to issues of

preclusionclaim, issue, and interjurisdictionalbefore any claim is
allowed to proceed. 204
Students will have to pay particular attention to the districts
exhaustion requirements as well. 205 In some jurisdictions, courts are
unwilling to allow a prisoner to correct their filing if administrative
avenues have not been exhausted. 206 In these jurisdictions, the matter will
end there. 207 Other jurisdictions, however, are more lenient and will allow a
prisoner to cure procedural deficiencies related to exhaustion. 208 In these
jurisdictions, students should be given the opportunity to point the
complainant in the right direction, 209 and remind the complainant about the
requirements of the PLRA.
At this point, with all of the checklist questions answered and the
written memorandum, the student would submit the recommendation to the
judge, who, as discussed, could adopt the recommendations or not. 210
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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B. Going All in or Calling My Bluff? 211

The foregoing contained an outline of my proposal. In speaking with
people about my proposal, several concerns have been raised, such as the
relative lack of knowledge and expertise of law students; prisoner access to
justice; costs of setting up another clinical program; whether this program
is duplicative of other programs, and if not, whether there is actually a need
for such a program. I address each of these concerns in the sections that
follow.
1. Law Students: One of a Kind, or a Royal Flush? 212

One possible criticism of my proposal is that law students are
inexperienced, and that people without legal degrees reviewing complaints
pales in comparison to judges skilled in this area. 213 Competency and legal
proficiency are certainly a concern, and it would be tough to argue that a
second-year law student could outdraw 214 a judge who (hopefully)
carries the qualities of competency and proficiency in spades. Moreover,
experience is a worry that is equally applicable to all law school clinics.
Indeed, the American Bar Association has pushed for clinics that
strengthen lawyering skills and promote justice, fairness and
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
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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morality . . . . 215 This cliniclike other law school clinicswould get

students familiar with the court system, as well as hone their skills in civil
procedure.
Time is another concern of law students: there never seems to be
enough of it. But things get done. Students manage to juggle full course
loads, journals, moot court, and any other number of clinic, extracurricular,
or work obligations. It has been my experience that students who do
clinical work often come into cases in media res, and leave the clinic
before other cases are completed. This clinic would be no different in that
regard. A student could get a complaint that is half-finished, and leave
before others are completed. During the summer months, there would
certainly be lag time, and perhaps the supervising clinical instructor would
have to slow the applications preceding and during those months.
Ultimately, this is a pilot program that might experience some growing
pains (not unlike any other clinic), but I do not think that these concerns
regarding law students would prejudice the plaintiffs any more than if my
proposal did not exist.
2. Prisoners Deserve Meaningful Judicial Access

Some people have asked me if this proposal sidesteps the judicial
process and thus impairs prisoners right of meaningful access to the
courts. The concern is a valid one. 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. 216
This program is designed to enhance prisoner access to the courts, not
diminish it. Students who have signed up to participate in the clinic would,
one hopes, lack the judicial apathy that some commentators have discussed
(indeed, the students active involvement suggests as much). 217 And while
a student may lack legal expertise in analyzing cognizable claims, the
student has the aid of supervising attorneys, and ultimately, review by
someone with plenty of experience in judicial review: the judge. Judge
Christopher Whitten told me: One of the major complaints that you will
hear is that the role of judge will be subsumed by law students who dont
have a degree. This is not a valid argument, though, because it is the judge
who would look at the idea and conclusions. 218 As discussed, a memo
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
An interested student who is enrolled in this clinical placement would

review each complaint for any possible claim, understanding from the
outset that the complaint could be rambling and illogical, if not
completely illegible. 221 The hope here is that with these understandings
already in mind, the student will take the time to review the complaint
carefully, and present it to the judge in a manner that is coherent, logical,
and readable.
Assuming that a prisoners complaint survives the congressional
hurdles posed by the PLRA and AEDPA, 222 the prisoner has a right to
judicial review. 223 This right is hampered when one considers the
possibility of judicial apathy, burnout, and routinized decision making.224
This program would hopefully not suffer from these problems, as many
students who do clinical work are interested and energetic. If the clinic ran
for only one semester, student burnout and apathy related to these
complaints would be highly unlikely, and routinized decisionmaking would
be minimized. 225 Viewed this way, it would be unfair to characterize this
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).
222. See discussion supra Part I.B.1.a-b.
223. See supra text accompanying notes 23-25.
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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program as an end-run around that constitutional right, given the goals of

the program, which include having the courts use a more favorable eye
when reviewing prisoner complaints. 226
Another variation on the concern regarding the right to access the
courts is that once word gets out among prisoners about the program, the
floodgates will open. 227 Writing about the court in the Eastern District of
New York, Professor Bloom noted that it is possible that these specialized
courts create perverse incentives for the filing of frivolous claims and so
increase the workload of the Article III system overall. 228 I believe this
argument is misplaced. For one, prisoner litigation has been on the decline
since the passage of the PLRA, meaning that the PLRA is weeding out
complaintsfrivolous or notand may have grounded some of the
frequent filers. 229 But even assuming that the argument proved true, the
suggestions in this Note would still serve to ease the courts burden, as the
judiciary would have yet another tool at its disposal.
In the same vein, yet another worrylobbied at specialized courts,
but equally applicable hereis that the filtering of a case through a single
individual in a central office does tend to reduce the likelihood that the case
will receive a full, fresh look in the chambers of each judge on the
panel. 230 The argument is that reviews prepared by law clerks and staff
attorneys are dangerous because judges are likely to rubberstamp the
students or attorneys recommendations. 231 I am not sure how such a claim
can be empirically validated, but it has common sense. In any case, given
the dangers related to possible judicial apathy already discussed, I would
posit that the risk of a rubberstamp is worth it. 232
From an intake perspective, prisoners access to the courts can also be
hampered by the fact that court clerks can provide procedural, but not
226. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

228. Id.
229. See Rosenbloom, supra note 7, at 352-53 ([W]hile the PLRA may have reduced the
number of complaints overall, and has a specific provision to address repeat filers, it did not
specifically affect those who may be most prone to repeat filing.).
230. Jeffery O. Cooper & Douglas A. Berman, Passive Virtues and Casual Vices in the
Federal Courts of Appeals, 66 BROOK. L. REV. 685, 699 (2001).
231. See id. at 698.
232. Far better it is to dare mighty things, to win glorious triumphs, even though
checkered by failure, than to take rank with those poor spirits who neither enjoy much nor
suffer much, because they live in the gray twilight that knows not victory nor defeat.
Theodore Roosevelt, quoted in BARTLETTS FAMILIAR QUOTATIONS 614-15 (Justin Kaplan
ed., Little, Brown & Co. 2002).
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substantive advice. 233 Throughout their litigation, pro se litigants are

confronted with numerous difficulties including complying with procedural
rules, understanding substantive legal concepts, articulating relevant factual
allegations, and simply knowing how to proceed with their action. 234 A
law studentwhile admittedly not expert in all areas of lawis in a
position to give legal advice 235 and can understand and explain complicated
legal concepts and the arcane rules of civil procedure. In this way, the
student performs a dual function: easing the courts burden, while at the
same time providing prisoners with meaningful judicial access by
streamlining their complaints.
a. Spades: State vs. Federal Access

As Professor Schlanger notes, the PLRA has deterred many prisoners
from filing their claims in federal court, who instead choose to seek redress
in state courts. 236 Judge Christopher Whittens experience bears this out:
There is no judge that you will talk to who wont say that
prisoner pro se defendants claims are, relative to their merits, not
disproportionally time consuming. To have this kind of
assistance would be welcomed by all, in both criminal and civil
cases (especially 1983 cases, of which there are more and more
in state court). 237
I see no reason why this program could not work on a state (as opposed to a
federal) level; in fact, this program might even be better suited for such
fora.
The Supreme Judicial Court of Massachusetts, for example, has a rule
that allows law students who have completed a course in trial practice or
evidence to appear on behalf of either the government or indigent parties in
civil or criminal proceedings in any division of the District Court, Juvenile
Court or Housing Court Departments or in the Boston Municipal Court
Department, provided the student is supervised by a licensed attorney. 238
Practically speaking, this means that states which have a rule that parallels
the Massachusetts Rule are perfectly poised to hit the ground running in
terms of implementing such a program, as students can get certified and
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
237. Judge Whitten Interview, supra note 218.
238. MASS. SUP. JUD. CT. R. 3:03.
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can begin reviewing the complaints almost immediately. 239

Many states enacted a state-level analogue to the PLRA after its
passage in 1996. 240 In Massachusetts, prisoners may file IFP provided they
are challenging conditions of their confinement; habeas petitions are
excluded from the IFP applications. 241 While the Massachusetts counterpart
to the PLRA does not have an exhaustion requirement or a three-strike rule,
if the application is filed in bad faith or is found to be frivolous, good time
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
b. Diamonds: Cost of the Program

Another concern about implementing this program would be the
costs, both financial and personnel. 245 In terms of financial cost, there is no
set standard for how much law school clinical programs cost, as finances
for clinics are determined by the size of a schools faculty. 246 Whatever the
size of the faculty, where would the money come from? As Professor
Engler asked me:
Whose resources? Trust mewe get lots of pressure to put our
scarce clinic resources in one direction or anotherit often feels
like robbing Peter to pay Paul. If there is no net increase in
resources, what other worthy cause loses resources? If there is an
increase, from where? From the schools? Sounds like they are
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.
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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raising tuition further. 247
Adding to the limited financial constraints, Congress has eliminated

funding to legal service programs that provide aid to inmates for whatever
reason. 248 As I am not personally familiar with how clinics are funded at
law schoolsand given that clinic funding is notoriously secretthis
prohibition may well affect some schools funding. 249 Then again, it might
not. Harvards Prison Legal Assistance Project provides legal services to
inmates on all types of claimsincluding civil litigation 250 so I have to
assume that there are schools for which this congressional limitation would
not apply. 251
Regarding costs to personnel, Professor Engler continued: From the
courts? Well, if the courts are coughing up resources, will they want to
fund outside screeners, or beef up their clerks offices? 252 Professor
Schlanger echoed Professor Engler:
Costs to courts, by contrast, are substantial. They include the
compensation and overhead costs of district courts and appellate
judges and their chambers staff (law clerks and secretaries), as
well as magistrate judges, pro se law clerks and staff attorneys at
both the district and appellate level, and court clerks. 253
Overhead for an on-campus placement would be lower. Space is already
taken care of, if space is a concern. Office hours for the students could be
scheduled for the weekend, which is when students do much of their
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).
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.
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.
In terms of cost to personnel, another potential cost of the system

would be impacting the already up-and-running specialized pro se courts
referred to above (or any court, for that matter). 254 Intuitively, it seems like
a question of shifting resources; as Professor Engler asked me: If more
(wo)manpower is added at a law school, would that reduce the need for
(wo)manpower elsewhere? Perhaps, but given the volume of cases coming
through the federal docket, it seems like the help would be welcome. I
cannot be sure, but I doubt this program would put anybodys job at risk.
Indeed, given the current economic crisis and its impact on the courts, the
timing could not be better.
c. Diamonds: Is this Program Duplicative?

Based on my research, there is no clinical program in the country that
offers the services I propose. As discussed, the Prison Legal Assistance
Project at Harvard offers representation to inmates for civil claims. My
proposal, however, offers assistance to the courtsin terms of simplifying
a prisoners complaintas well as to prisonersin terms of explaining
procedural deficiencies and asking for clarification on their concerns, as
well as offering information regarding what to expect as the case proceeds
(if at all). 255
While there does not appear to be a clinical program of the same kind,
a colleague of mine worked for a magistrate judge in an Honors Judicial
Internship program, doing work similar to what I am suggesting here
(reviewing prisoner complaints). The Honors Judicial Internship program
places students with a state or federal judge, where the student engages in
legal research and writing for the assigned judge. 256 The difference, I
think, is that my colleague was assigned to a magistrate judge who did this
type of work, while other students might not have had this opportunity.
Also, students would staff this clinic and would do this prisoner review
work for perhaps several judges at a time. Given the 53,000 some odd suits
prisoners filed last year, the numbers suggest the help would be
appreciated. 257
On a related note is also the concern that in this clinic, students would
254. See discussion supra Part I.B.2.b.

256. New England School of Law, Course Descriptions, Honors Judicial Internship
(JC900), available at http://www.nesl.edu/students/registrar_courses.cfm.
257. See supra text accompanying note 11.
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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
d. The River: 259 Is There a Need for Such a Program?

As discussed above, although congressional and judicial efforts have
been made to curb the incidence of frivolous prisoner lawsuits, these
lawsuits still plague the courts docket. 260 The goal of the PLRA was to
reduce litigation, but with the avowed constraint that meritorious cases
should remain viable. 261 Whether or not the meritorious claims are shining
through is open to debate. 262 The decrease in federal prisoner filings
between 1995 and 1997 was 33%. 263 These statistics beg the question:
What effect has the reduced filings had on the actual or perceived strain on
the judicial system? According to Professor Schlanger, [t]here is little
reason to think that a reduction in inmate filings is inducing judges and
judicial personnel . . . to increase the care with which they do that job. 264
In fact, if the complaints are getting weeded out due to judicial apathy, they
are not being viewed with the care they deserve, in direct contravention to
Supreme Court mandate. 265
Moreover, although most prisoners are not as prolific as Jonathan Lee
Riches, Riches is but a microcosm of a larger institutional problem, from
the perspective of both the prisoners and the courts. 266 Prisoners lack of
rudimentary literacy skills and legal training contributes to the filing of
suits that are not well written, that ignore court filing procedures, or [that]
fail to state legal issues. 267 Those complaints that do make it to a judge or
258. See supra Part II.A.

259. The river is the final card that is revealed in poker. PokerZone, Poker Dictionary,
http://dictionary.pokerzone.com/River (last visited Jan. 8, 2009).
262. Id. at 1634.
263. Id.
264. Id. at 1644.
265. See 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); see also supra text
accompanying notes 37-42.
267. Feierman, supra note 46, at 382.
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magistrate judges desk are handicapped by the judicial apathy alluded to

earlier. 268 Where the complaints are not met by apathy, however, much
energy must be expended in reviewing the complaints for meritorious
claims. 269 This is energy that the courts are not willing to spend. 270 A
student whose appointment serves to review these claims minimizes this
risk.
Prisoners are not getting help from lawyers, either. This is due in part
to the fact that the PLRA places a cap on the amount of fees attorneys can
make representing pro se complainants. 271 This portion of the PLRA curbs
attorney fee recovery to the lesser of 150% of an award or 150% of the
institutionalized amount set for appointed criminal defense attorneys.272
The PLRAs fee limit thus leaves lawyers unable to afford to take almost
any inmate case except as a more-or-less pro bono activity. 273 While the
program I suggest does not aim to provide direct representation for
prisoner-litigants, it could work well in conjunction with another program
that is designed to represent pro se prisoner litigants. 274 Instead, this Note
suggests that prisoner complaints should start off on the right foot and
make the judges jobs easier in assessing their claims. Indeed, [a]ttorneys
are ordinarily good screeners of cases, but not in inmate cases, because
there are so few chances for inmates to access lawyers. It would be good to
harness this screening ability . . . . 275 This Note proposes that law schools
harness the budding screening ability of lawyers-to-be. 276
There is also a need to satisfy the prisoners constitutional right of due
process, which requires that the litigant be given an opportunity to be
heard. 277 A hearing is required if a fundamental right is at stake, and this

269. 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. Schlanger, supra note 8, at 1589 (quoting a
federal district court judge).
270. See id.
271. See 42 U.S.C. 1997e(d) (2000).
272. See id. 1997e(d)(2)-(3). The amount set for criminal defense attorneys is usually
$60 per hour for time spent in front of a judge, $40 per hour outside of court, but in no case
can the fee exceed $75 per hour. See 18 U.S.C. 3006A(d)(1). Depending on the type of
case, the maximum award an attorney could receive is between $1500 and $7000. 42 U.S.C.
1997e(d)(2). The compensation is so low for attorneys as to create a financial disincentive
for attorneys to take on these pro se cases. Students, however, work for free.
274. See Harvard Legal Aid Bureau, http://www.law.harvard.edu/students/orgs/hlab/ (last
276. See supra Part II.A.
277. See Grannis v. Ordean, 234 U.S. 385, 394 (1914) (The fundamental requisite of due
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constitutional requirement is not satisfied if a prisoners complaint arrives

at the desk of an apathetic judge. 278 And the topic of discussion thus far
constitutional claims brought under 1983 and condition-of-confinement
caseshas an aura of fundamentality: they are claims brought under color
of constitutional questions. 279
In analyzing due process claims, the Supreme Court has said that:
[O]ur prior decisions indicate that identification of the specific
dictates of due process generally requires consideration of three
distinct factors: First, the private interest that will be affected by
the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;
and finally, the Governments interest, including the function
involved and the fiscal and administrative burdens that the
280
additional or substitute procedural requirement would entail.
From the prisoners perspective, my proposal would satisfy the
Mathews v. Eldridge test: (1) the private interest affected by the official
action (of ignoring prisoners constitutional claims) is the due process
demand for an opportunity to be heard; (2) the risk, as discussed above, of
an erroneous deprivation of such interest is great when one considers the
apathy that many commentators have noted; 281 and (3) the governments
interest (of allowing people to exercise their constitutional rights) is high
(especially when one considers that this program puts little-to-no
administrative or financial burden on the government). 282
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
process of law is the opportunity to be heard.).

278. See supra text accompanying notes 38-42, 112-115.
279. In seeking to curtail frivolous lawsuits, we cannot deprive individuals of their basic
civil rights. We must find the proper balance. 142 CONG. REC. S2261, S2297 (Mar. 19,
1996) (statement of Sen. Simon).
280. Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).
282. See id.
283. Perhaps trying to boost my confidence, Judge Whitten encouragingly stated:
Ultimately the pros outweigh the cons, no question. Judge Whitten Interview, supra note
218.
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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
284. See Schlanger, supra note 8, at 1559-60.

285. DUFF, supra note 11, at 145-46.
286. See Stephen M. Feldman, Indigents in the Federal Courts: The In Forma Pauperis
StatuteEquality and Frivolity, 54 FORDHAM L. REV. 413, 419 (1985).
288. See id.
289. Id. at 1589 (If I can read it, I take the time to read it. If its illegible, I dont take the
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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)
a. Prolific Litigator (Yes / No circle one)

i. Yes Standard of review changes
ii. No Viewed liberally
b. (To be completed if 3(a) answered in affirmative)
i. Prior cases: (docket number, court)
1. ______________________________________
2. ______________________________________
3. ______________________________________
ii. Any strikes for purposes of 28 USC 1915A?

1. ______________________________________
2. ______________________________________
3. ______________________________________
4. Even if there are three strikes, does the
complainant allege imminent physical harm?
(Yes / No circle one)
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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_____________________________________________________
8. Claim (state the nature)

_____________________________________________________
_____________________________________________________
9. 1983 (deprived of federal right / state actor) (check all that apply)
Inmate-on-inmate assaults / duty to protect: Farmer v. Brennan, 511 U.S.

825 (1994)
Guard-on-inmate assaults, excessive force: Hudson v. McMillian, 503 U.S.
1 (1992)
Medical Care: Estelle v. Gamble, 429 U.S. 97 (1976)
Mental Health / Medical Care: Helling v. McKinney, 509 U.S. 25 (1993)
Access to the Courts: Lewis v. Casey, 518 U.S. 343 (1996)
Transfers: Olim v. Wakinekona, 461 U.S. 238 (1983)
Retaliation: Lawrence v. Goord, 238 F.3d 182 (2d Cir. 2001), vacated by,
535 U.S. 901 (2002)
Segregated Confinement: Sandin v. Conner, 515 U.S. 472 (1995)
Freedom of Religion: OLone v. Estate of Shabazz, 482 U.S. 342 (1987)
Due Process:
Parole Eligibility and Revocation, Pardons/Commutation, and Work
Release:
Clemency: Ohio Adult Parole Authority v. Woodard, 523
U.S. 272 (1998)
Commutation: Connecticut Board of Pardons v. Dumschat,
452 U.S. 458 (1981)
Parole: Greenholtz v. Inmates of the Nebraska Penal and
Correctional Complex, 442 U.S. 1 (1979);
Disciplinary Proceedings: Sandin v. Conner, 515 U.S. 472 (1995)
Forced Administration of Medication: Washington. v. Harper, 494
U.S. 210 (1990)
Searches:
Block v. Rutherford, 468 U.S. 576 (1984)
Hudson v. Palmer, 468 U.S. 517 (1984)
Bell v. Wolfish, 441 U.S. 520 (1979)
Testing of Bodily Fluids
Conditions of Confinement: 294 Wilson v. Seiter, 501 U.S. 294 (1991)
Racial Discrimination
294. Examples include cigarette smoking, privacy, showering, food, water, prison tools.
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Disabled Prisoners: Pennsylvania Department of Corrections v. Yeskey,

524 U.S. 206 (1998)
10. Habeas (challenging continued confinement) (Yes / No circle one)
11. Demand for Judgment?

___________________________________________________________
___________________________________________________________
Statute of Limitations
12. Bivens suit

13. Federal Tort Claims Act
Defendant(s)
14. __________________________________________
(right person to be sued?)
15. __________________________________________
(all parties listed? If not, who else need be joined?)
16. __________________________________________
(all parties liable?)
17. Civil rights / inmate suit:

a. Is the defendant immune from suit?
b. Is the defendant a state actor?
c. Is defendant personally involved with the alleged constitutional
deprivation?
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)
To be Completed if Case Approved by Judge

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22. Referral to another clinic for representation?

23. If yes, which 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).
PETIS FINALV2 1/4/2010 11:06:49 AM
public or other officer authorized to administer an oath.

You will note that you are required to give facts. THIS COMPLAINT
SHOULD NOT CONTAIN LEGAL ARGUMENTS OR CITATIONS.

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PETIS FINALV2 1/4/2010 11:06:49 AM

EVENING OUT A STACKED DECK: A

Geoffrey Donald Petis*

570 NEW ENGLAND LAW REVIEW [Vol. 43:569

a. The Ace of Spades: The Prisoner Litigation

2009] PROMOTING PRISONER ACCESS TO JUSTICE 571

572 NEW ENGLAND LAW REVIEW [Vol. 43:569

proper authorities. 7 On the other hand, if Riches is purposefully clogging

2009] PROMOTING PRISONER ACCESS TO JUSTICE 573

pro se prisoner complaints would be outsourced to participating law

15. See infra Part I.

574 NEW ENGLAND LAW REVIEW [Vol. 43:569

I. Shuffling the Deck 21

A. You Gotta Know When to Hold Em, Know When to Fold

2009] PROMOTING PRISONER ACCESS TO JUSTICE 575

partys constitutional rights 31 increased between 1966 and 1992 as well: 32

576 NEW ENGLAND LAW REVIEW [Vol. 43:569

2009] PROMOTING PRISONER ACCESS TO JUSTICE 577

B. The Dead Mans Hand: Congressional Action in the World of

1. The Black Aces:

a. The Ace of Spades: The Prisoner Litigation

578 NEW ENGLAND LAW REVIEW [Vol. 43:569

law libraries . . . . is like an alcoholic locked inside a liquor store. 50

2009] PROMOTING PRISONER ACCESS TO JUSTICE 579

59. 28 U.S.C. 1915(e)(2)(B)(ii).

580 NEW ENGLAND LAW REVIEW [Vol. 43:569

b. The Ace of Clubs: The Antiterrorism and Effective

2009] PROMOTING PRISONER ACCESS TO JUSTICE 581

to stifle prisoner lawsuits include a one-year statute of limitations on

2. The Black Eights: Federal Magistrate Judges

a. The Eight of Clubs: The Federal Magistrate Act

582 NEW ENGLAND LAW REVIEW [Vol. 43:569

2009] PROMOTING PRISONER ACCESS TO JUSTICE 583

In each of these instances, a magistrate judge filed Findings and

b. The Eight of Spades: The Federal Districts of New

4:07cv408-RH/WCS, 2007 WL 3378257, at *1 (N.D. Fla. Nov. 12, 2007); Riches v.

584 NEW ENGLAND LAW REVIEW [Vol. 43:569

directing the litigant to amend the complaint. 95 The goal is to streamline

2009] PROMOTING PRISONER ACCESS TO JUSTICE 585

C. The Pocket Pair: 108 Dismissing Frivolous Cases Under

104. Id. at 501.

586 NEW ENGLAND LAW REVIEW [Vol. 43:569

1. The Queen of Hearts: Dismissal for Frivolousness

2009] PROMOTING PRISONER ACCESS TO JUSTICE 587

IFP complaint is frivolous when the claim is based on an indisputably

2. The Queen of Diamonds: Dismissal for Failure to State a

123. Neitzke, 490 U.S. at 327.

588 NEW ENGLAND LAW REVIEW [Vol. 43:569

135. See 28 U.S.C. 1915 (1979-1994).

2009] PROMOTING PRISONER ACCESS TO JUSTICE 589

In 1996, the statute was amended to allow dismissal of a prisoners

590 NEW ENGLAND LAW REVIEW [Vol. 43:569

Pro Se Offices set up in New York were designed specifically to combat

152. See Bloom & Hershkoff, supra note 28, at 493.

2009] PROMOTING PRISONER ACCESS TO JUSTICE 591

160. 28 U.S.C. 1915(e)(2)(b)(i)-(ii) (failure to state a claim, frivolousness or

592 NEW ENGLAND LAW REVIEW [Vol. 43:569

According to some scholars, deciphering the complaint can be tricky,

2009] PROMOTING PRISONER ACCESS TO JUSTICE 593

mailed to the prisoner, asking him to clarify points of ambiguity. 178

178. See Watson, 525 F.2d at 892.

594 NEW ENGLAND LAW REVIEW [Vol. 43:569

to-protect claims; 186 guard-on-inmate assaults/excessive force; 187 lack of