Lawsuits as information: prisons, courts, and a troika model of petition harms.

• Author: Doran, Marissa C.M.
• Position: Introduction through III. Harm to the Public: Impairing the Information Function of Lawsuits, p. 1024-1065

NOTE CONTENTS INTRODUCTION I. BACKGROUND A. Bringing the Prison to Court B. Passing the PLRA C. A Mismatched Solution for a Misunderstood Problem II. HARM TO PLAINTIFFS: IMPEDING ACCESS TO THE COURTS A. The Circuit Split B. Doctrinal Incoherence C. Blocking Individual Rights: The Individual and Cascade Mechanisms III. HARM TO THE PUBLIC: IMPAIRING THE INFORMATION FUNCTION OF LAWSUITS A. The Role of Prison Litigation: Information Poverty and Public Awareness B. The (First) Rise and Fall of Petitioning: Information and Limited Infrastructure C. The Information Function of Lawsuits IV. HARM TO THE COURTS: INTERFERING WITH THE SEPARATION OF POWERS V. CONSTITUTIONAL IMPLICATIONS: TOWARD A THEORY OF PETITIONING DISTINCT FROM SPEECH A. Petitioning and the Modern Court: The Residue of Speech B. Losing Access to Courts in "Speech": Guarnieri and a Petition Jurisprudence on the Verge of Misstep C. Toward a Theory of Petitioning Distinct from Speech CONCLUSION INTRODUCTION

The degree of civilization in a society is revealed by entering its prisons.

--Fyodor Dostoyevsky (1)

Does [your law] say that, before presenting a petition, you shall look into it, and see whether it comes from the virtuous, and the great and the mighty? No, sir, it says no such thing; the right of petition belongs to all.

--John Quincy Adams, on petitions from slaves, 1837 (2)

The prison guards at Iowa were not fans of Jeffery Royal. (3) Between his arrest and eventual imprisonment, Royal sustained a spinal cord injury in a farm accident. When he arrived in prison, he found himself unable to turn his wheelchair in his cell, unable to obtain medical assistance, and unable to extract himself from his prison jumpsuit without throwing himself to the floor. His repeated requests for pants were denied, and prison officials confiscated his wheelchair, forcing Royal to crawl on the floor. Rather than return the chair, the Security Director issued a directive "stating that any inmate seen crawling on the floor would be subject to discipline." (4) Royal submitted seventeen grievances and ultimately filed a motion in court seeking return of the wheelchair. (5) When the Director "tired of Royal's behavior," he put Royal in solitary confinement for sixty days. (6)

Royal filed a civil action for retaliation, alleging a violation of his constitutional right to access the courts, secured for prisoners by the Petition Clause of the First Amendment. (7) The district court found that the prison director had "unconstitutionally retaliated against Royal by placing him in segregation because [he] filed numerous grievances," (8) but held that Royal was ineligible for compensatory or punitive damages, citing language from the Prison Litigation Reform Act (PLRA), which specifies that prisoners may not recover for "mental or emotional injury" without a "prior showing of physical injury," (9) and holding that the bar applied to First Amendment claims. (10)

This Note is about the practice, employed by about half of the federal circuits, of conditioning recovery for retaliation claims brought by prisoners on a prior showing of physical injury. It argues that the portion of the PLRA that gives rise to this practice is unconstitutional as applied to claims, like retaliation, arising under the Petition Clause, because it arbitrarily impairs prisoners' right to access the courts and, in doing so, enables retaliation against prisoner litigants to go unchecked.

American prisons are beset by a culture of retaliation. (11) In the prison context, this translates to a pattern in which officials punish prisoners who file grievances protesting the conditions of their confinement or exposing the behaviors of their jailors. (12) Retaliation against prisoners can take many forms: officials might send prisoners to solitary confinement, deny essential services, construct false weapons charges, or subject prisoners to beatings, verbal abuse, or rape, all as punishment for attempting to communicate with the world outside the prison. (13) Indeed, retaliation in prisons is a pattern so "deeply engrained in the correctional officer subculture" that "[c]orrectional officers who retaliate against prisoners cannot be regarded as rogue actors." (14) By some estimates, a majority of prisoners have experienced retaliation by guards for filing, or attempting to file, an administrative grievance or a complaint in court, and a majority of prison staff report that their colleagues have retaliated against prisoners for such actions. (15)

The PLRA, passed in a triptych of jurisdiction-stripping statutes in the mid-1990s, imposes a procedural formality that facilitates institutional retaliation against prisoners who attempt to exercise the "fundamental political right" (16) of access to the courts by making it difficult for prisoners to recover against guards who abuse them. The Act specifies, in relevant part, that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." (17)

Roughly half of the federal circuits read the prior physical injury requirement to bar claims for First Amendment injuries, like retaliation for an attempt to access the courts, an injury, for prisoners, to the First Amendment right to "petition the government for redress of grievances." (18) The other half object to placing First Amendment claims within the physical/mental taxonomy, holding that the prior physical injury requirement does not apply to claims for violations of "intangible" rights. (19) They argue, as did the dissent in Royal, that applying the requirement to First Amendment violations would block legitimate claims (20) and that doing so misunderstands the nature of violations of "intangible" constitutional rights, (21) which "occur at the time of the deprivation, not at a later time when the physical or emotional harm manifests." (22)

In doctrinal terms, the split amongst the federal circuits turns on whether to award compensatory damages for constitutional torts recognized, in the days before the PLRA, as capable of monetization. (23) In theoretical terms, the split reflects disputes about hierarchies of injury and the nature of First Amendment harms, both in general and in the context of the PLRA. And in broader terms, the split reflects confusion about the interlocking harms that stem from denial of access to the courts. This confusion, as will be argued later, has translated into harms that transcend injuries to individual litigants.

The pages to follow argue that interpreting the prior physical injury requirement to bar recovery for retaliation against prisoner litigants violates the Petition Clause. Before proceeding further, two notes on scope. First, this Note is not about whether prisoners have a constitutional right to access the courts to protest the conditions of their confinement. That has been established. (24) The argument here is that by denying recovery for retaliatory violations of that right, courts are validating the extrajudicial adjudication of claims in a way that hampers prisoners' constitutional rights, eliminates the flow of critical information to the public, and abdicates the judiciary's responsibility to check governmental excess. (25) Second, under the prior physical injury requirement, prisoners may encounter petition violations at three distinct chronological points: when a prisoner files an underlying claim and is denied recovery because the claim is for a nonphysical injury; when the prisoner is retaliated against for filing that claim; and when the court denies recovery for the retaliation. Only the latter two cases are addressed here. The devaluing of what this Note will call classically emotional claims, like psychological trauma or distress-as distinguished from what it will call intangible or abstract claims, like speech, religion, or due process (26)--is problematic, and, as has been argued elsewhere, (27) may itself produce petition violations. But injuries of this first type are beyond the scope of this discussion. Without a retaliatory component, the first violation may block a damages award, but it does not itself bar access to the courts. (28) By contrast, the second violation punishes the suit itself, and the third validates and legitimizes that punishment, implicating the judiciary in the arbitrary denial of a constitutional right. Because the discussion to follow is concerned with the informational character of prisoner suits, it focuses on the latter two forms of injury.

This Note intersects with two strands in the academic literature, the first dealing with the prior physical injury requirement and the second dealing with the right to petition. Scholarly attention to the prior physical injury requirement has been limited, despite the provision's reach. The few academic treatments to consider the requirement have been confined to doctrinal exegesis, outlining the mechanisms by which the PLRA stifles prisoner access to the courts; (29) arguing that judicial interpretation of the provision likely misinterprets congressional intent; (30) describing the circuit split over the applicability of [section] 1997e(e) to First Amendment and other intangible constitutional claims; (31) and arguing that barring recovery for litigants based on their status as prisoners violates the Equal Protection Clause. (32) Few have attempted to explain why subjecting petition claims to the physical/mental dyad is problematic, beyond making the circular claim that restrictions on access to the courts infringe upon the right to access the courts. And all have focused on the individual-rights aspects of barring recovery for First Amendment violations, missing entirely the broader structural implications of predicating access to the courts on the ability to satisfy a physical predicate unrelated to the right itself.

Nor has the...