Illiberal construction of pro se pleadings.

• Author: Schneider, Rory K.

INTRODUCTION I. PRO SE LITIGATION AND LIBERAL CONSTRUCTION A. The Right to Proceed Pro Se B. The Federal Pro Se Docket 1. Evidence of a Burgeoning Caseload 2. Reasons Litigants Represent Themselves 3. Challenges Facing Pro Se Litigants C. Liberal Construction 1. The Method by Which Courts Liberally Construe Pro Se Complaints 2. The Theory Behind Liberal Construction II. PLAUSIBILITY AND PRO SE PLEADINGS A. Ashcroft v. Iqbal 1. Background and Prior History 2. The Supreme Court's Two-Pronged Approach B. Iqbal's Impact on Pro Se Pleadings 1. The Minimal Assurance Provided Pro Se Litigants by Erickson v. Pardus 2. Iqbal's Exceptional Hostility Toward Pro Se Complaints 3. Explanations for the Disproportionate Increase in Pro Se Dismissals a. Necessarily Conclusory Allegations b. Biased Plausibility III. REFASHIONING LIBERAL CONSTRUCTION IN A POST-PLAUSIBILITY ERA A. Restraining Judicial Authority to Carve Complaints B. Making Inferences Transparent to Assist with Complaint Amendments C. Addressing Concerns Related to Neutrality, Caseload, and Abuse CONCLUSION INTRODUCTION

Both the right to proceed pro se and liberal pleading standards reflect the modern civil legal system's emphasis on protecting access to courts. (1) Self-representation has firm roots in the notion that all individuals, no matter their status or wealth, are entitled to air grievances for which they may be entitled to relief. (2) Access, then, must not be contingent upon retaining counsel, lest the entitlement become a mere privilege denied to certain segments of society. Similarly, because pleading is the gateway by which litigants access federal courts, the drafters of the Federal Rules of Civil Procedure purposefully eschewed strict sufficiency standards. (3) In their place, the drafters instituted a regime in which a complaint quite easily entitled its author to discovery in order to prevent dismissal of cases before litigants have had an adequate opportunity to demonstrate their merit. (4)

Far from just articulating a common systemic value, though, the right to prosecute one's own case without assistance of counsel in fact depends significantly upon liberal pleading standards. (5) The ability to file a "short and plain statement of the claim" (6) mitigates the impact that the choice to proceed pro se has on litigants' access to discovery by reducing the number of technicalities and requirements the satisfaction of which demands legal expertise. However, recognizing that transsubstantive pleading standards do not sufficiently account for the capability differential between represented and unrepresented litigants, the Supreme Court fashioned a rule of special solicitude for pro se pleadings. (7) Accordingly, "pro se complaint[s], 'however inartfully pleaded,' [are] held to 'less stringent standards than formal pleadings drafted by lawyers.'" (8)

Notably, however, the Court granted such leniency, or "liberal construction," to pro se pleadings against the backdrop of Conley v. Gibson's undemanding "no set of facts" standard. (9) The Court's failure to explain how pro se pleadings are to be liberally construed (10) indicates its belief that the standard was already lenient enough to render a detailed articulation of the practice unnecessary to prevent premature dismissal of meritorious cases. However, with Bell Atlantic Corp. v. Twombly (11) and Ashcroft v. Iqbal (12) retiring the "no set of facts" standard and ratifying the means by which lower courts dismissed more disfavored cases under Conley, (13) liberal construction as presently practiced is not--if it ever was--sufficient to protect pro se litigants' access to courts.

The new plausibility standard (14) with which courts now determine the adequacy of complaints disproportionately harms pro se litigants. (15) First, the Supreme Court's instruction that "conclusory" facts not be presumed true when determining a claim's plausibility (16) will affect those who (1) lack the resources to develop facts before discovery, (2) bring claims requiring them to plead information exclusively within the opposition's possession, or (3) rely on forms in drafting complaints. Pro se litigants typify the parties who demonstrate all three behaviors. Second, determining whether the remaining allegations permit a plausible inference of wrongdoing, as per the Supreme Court's instruction, (17) is a wildly subjective endeavor. Courts are likely--no doubt unintentionally--to draw inferences that disfavor pro se litigants because their "judicial common sense" judgments of what is plausible result from a drastically different set of background experiences and values. (18) The admixture of these two steps portends serious trouble for pro se litigants, who, even before the plausibility standard, did not fare well despite the leeway afforded their complaints. (19)

Accordingly, this Comment reevaluates the effectiveness of liberal construction as a bulwark against premature dismissal of pro se complaints. Part I discusses pro se litigation generally. It documents the rise of the federal pro se docket, the reasons individuals choose to proceed pro se, and the unique challenges they face as a result of that choice. Because courts established liberal construction in response to those challenges, Part I ends by considering how this leniency operates in practice. Part II examines in detail the new plausibility standard articulated by the Supreme Court in Iqbal Particularly, it dissects the Court's two-pronged approach to demonstrate how each step is uniquely hostile to pro se litigants. This hostility explains the disproportionate impact that the decision has had and will continue to have on their complaints. Part III suggests a way to reinvigorate the leeway afforded pro se litigants and bring self-representation closer to epitomizing our system's goal of providing equal court access. Specifically, Part III advocates for (1) limiting disregard of "conclusory" factual allegations in pro se pleadings and (2) increasing transparency with respect to the inferences drawn against pro se litigants.

1. PRO SE LITIGATION AND LIBERAL CONSTRUCTION

   To evaluate liberal construction effectively, it is vital to understand the origins and characteristics of pro se litigation generally. Recounting the roots from which the right to proceed pro se developed and the current prevalence of pro se cases in federal court demonstrates the importance of maintaining formidable protections against early dismissal. Moreover, dispelling common assumptions about why individuals proceed pro se shows that their rate of dismissal may be disproportionately greater than the rate at which they file unmeritorious claims. Thus, liberal construction has earned a reevaluation to ensure that it properly accomplishes the goals for which it was originally established.

   1. The Right to Proceed Pro Se

      Like many elements of the American legal system, the ability to civilly prosecute one's own case has its origins in British common law. (20) Historically, these ties were so strong, in fact, that "[t]he Founders believed that self-representation was a basic right of a free people." (21) As such, our early legal regimes heavily guarded the ability to proceed pro se; their commitment demonstrates both egalitarian and democratic ideals.

      First, a fundamental precept of American law is that financial status should neither determine access to courts nor substantially alter the outcomes of cases. (22) Individuals who are unable to afford attorneys should not be denied a forum in which to air their grievances. (23) To ensure that they are not, any party to a case has long been able to proceed without a lawyer. Importantly, however, considerable "anti-lawyer sentiment" also firmly ingrained the right to self-representation into the American system. (24) This sentiment emphasizes that self-representation safeguards were not solely intended to protect the poor's access to courts; they also empowered citizens of all types to have their own voices heard, rather than speaking exclusively through their lawyers.

      The Sixth Amendment protects the constitutional right to represent oneself as a criminal defendant. (25) By contrast, however, the Supreme Court has not deemed the right to proceed pro se as a civil litigant to be constitutionally guaranteed, despite its longstanding recognition in the Anglo-American legal tradition. (26) Nevertheless, Congress codified the right to proceed pro se in federal civil suits by statute, even prior to the ratification of the Sixth Amendment. The Judiciary Act of 1789, the right's earliest statutory expression, pronounced "[t]hat in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules of the said courts respectively." (27) And Congress has, up to the present, continually codified the statutory right to proceed pro se in the United States Code using substantially similar language. (28)

   2. The Federal Pro Se Docket

      1. Evidence of a Burgeoning Caseload

         Although pro se litigation has been welcomed since the country's founding, federal courts have recently experienced a staggering increase in the proportion of pro se cases on their dockets. (29) The trend is restricted neither to particular courts nor to certain types of suits. Rather, it has taken hold in both district and appellate courts, in cases involving prisoners and nonprisoners, and in claims ranging from civil rights to social security. (30)

         Presently, pro se litigants appear in approximately thirty-seven percent of all federal court cases. (31) Specifically, in 2008, there were over 70,000 pro se cases in federal district court, as compared to approximately 200,000 represented cases. (32) Unsurprisingly, prisoners account for a significant part of the federal pro se docket. However, nonprisoners still appeared pro se in a significant number of district court cases in...