PRISONERS AND PLEADING.

• Author: Frankel, Richard H.

ABSTRACT

Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than 92 percent of those actions were filed pro se. Pro se prisoners frequently use--and in many districts are required to use-standardized complaint forms provided by the federal judiciary. These standard forms were created in the 1970s at the recommendation of a committee of federal judges seeking to more effectively manage prisoner litigation and reduce its burdens on the federal courts. Although complaint forms have been in use for nearly forty years and are now commonplace in almost every federal district, no one, until now, has recognized the extent to which these forms may diverge from or misrepresent the law.

In this paper, we collect and analyze every form complaint used by the federal district courts. Our results indicate that, while form complaints can be helpful to pro se prisoners and the courts, many impose requirements that are inconsistent with governing law. First, many complaints direct prisoners to plead facts that the law does not require them to plead. Second, many complaints prohibit or discourage prisoners from pleading facts necessary to survive a motion to dismiss. Third, some complaints require plaintiffs to plead legal conclusions, using language that may confuse unsophisticated prisoners and cause them to make inadvertent but significant legal errors.

These flaws can impose serious unintended consequences on prisoners, including unwarranted dismissal of their complaints. They can also impose additional work on judges and court staff who must reconcile discrepancies between the court-provided forms and governing law. To address the concerns raised by our study, we provide a model form complaint that accurately reflects governing law and helps courts more efficiently review pro se prisoner complaints and recognize potentially meritorious claims.

INTRODUCTION

Courts have long struggled with the challenge of prisoner litigation. The volume of federal civil rights actions filed by prisoners regarding the conditions of their confinement is enormous. (1) Last year, prisoners filed more than 27,000 civil rights and prison conditions cases in federal district courts, accounting for nearly 10 percent of the district courts' civil docket. (2)

More than 92 percent of prisoner actions are brought pro se. (3) Cases involving pro se parties present unique challenges to the courts, whether or not the pro se litigant is imprisoned. Parties not trained in the law must navigate an unfamiliar system to bring or defend against claims, often against a represented opposing party whose counsel knows the lay of the land. (4) Opposing counsel must negotiate directly with the unrepresented party. Court administrators must fit anomalous filings into established protocols. And judges must find the balance between remaining neutral arbiters and giving the required solicitude to pro se litigants' potentially meritorious claims. (5) The greatest difficulty is often in simply discerning what those claims are. (6) The extra time judges spend doing so further taxes court resources. Meritorious claims risk being overlooked simply because of poor drafting.

These burdens are almost always compounded in prisoner litigation. The fact of incarceration raises additional hurdles for pro se plaintiffs. Many prisons have drastically curtailed or eliminated their law libraries, removing resources that could help prisoners navigate the legal system. (7) Even where such resources are available, they are often still inaccessible to prisoners, whose literacy and language skill levels fall well below those of the general population. (8) Prisoners also suffer from a higher-than-average rate of intellectual and mental disabilities. (9)

Pro se prisoner litigation is notoriously described as frivolous and a burden on the federal courts. (10) Every prisoner faces the challenge of competing for judicial attention against the many thousands of complaints filed by fellow inmates. Inmate civil rights claims often receive no more than an "hour of judge time, from filing to disposition." (11) As Justice Robert Jackson wrote in 1953, it "must prejudice the occasional meritorious application to be buried in a flood of worthless ones" and "[h]e who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search." (12)

But ensuring that pro se prisoners can file complaints, and ensuring that those complaints are meaningfully reviewed, is important. "[P]ro se inmateinitiated civil rights litigation has historically accounted for many of the important improvements in prison conditions during the last three decades." (13) Many cases that established groundbreaking prison reforms or identified important constitutional principles--such as Johnson v. California's successful challenge to double-celling prisoners based on race and Estelle v. Gamble's recognition that the Eighth Amendment's prohibition of cruel or unusual punishment applies to deliberate indifference to prisoners' medical needs--began as pro se complaints. (14) But, as Justice Jackson recognized, if the potential merit of a prisoner's claim is not readily apparent on the face of his complaint, it likely will not be discovered.

In an early effort to address these issues, a committee of federal judges took on the task of making recommendations for "the more effective handling" of pro se prisoner litigation (15) while also ensuring the ability "to give prompt relief to meritorious prisoner cases." (16) The committee's response included a model form complaint to be used by prisoners filing civil rights cases. (17) The committee believed that providing a standardized pleading form would help direct pro se prisoner plaintiffs to the legally relevant aspects of their claims and, by instructing prisoners to state their case "as briefly as possible," reduce the risk of relevant allegations getting lost in a sea of unnecessary information. (18)

The form complaint has been very popular with courts. Today, ninety-two of the ninety-four federal districts use a variation of it. (19) Form complaints are widely regarded by judges, court personnel, and academics as a helpful and important access-to-justice reform. (20) But despite the forms' prevalence and the enormous volume of pro se prisoner litigation that employs them, there has not been a systemic academic review of the districts' complaint forms since their adoption.

This Article undertakes that task. We examined every form complaint for pro se prisoners used by the federal district courts. Our research found that, although well-intentioned, the form complaints employed in many districts may actually impede the proper and efficient review of prisoner claims and exacerbate other burdens that are unique to prisoner litigation. For example, the Prison Litigation Reform Act, (21) which (like form complaints) seeks to streamline prisoner litigation, imposes additional procedures for filing prisoner civil rights claims and on the courts that must review them, and disincentives for lawyers to take such cases.

The form complaints' problematic aspects fall into three categories. First, numerous form complaints require pro se prisoner plaintiffs to plead information the law does not require them to plead. For example, 77 percent of form complaints require prisoners to answer a series of questions about whether they have exhausted their administrative remedies, even though the Supreme Court has explicitly held that exhaustion is not a pleading requirement. (22) More than 85 percent of form complaints require inmates to provide information about other lawsuits they have filed, although that also is not required. (23)

Second, form complaints may impede plaintiffs from pleading sufficient facts to make out their claim. Seventy-three percent of current form complaints instruct prisoners to state the facts "briefly" or "as briefly as possible," and discourage them from providing detailed factual allegations. (24) Some go a step further by discouraging or limiting prisoners from including additional pages if the space provided on the complaint form is not sufficient. Others limit the number of attachments a plaintiff can include or prohibit attachments altogether, even though courts regularly consider documents attached to a complaint when evaluating a complaint's sufficiency and attached documents can clarify a pro se plaintiffs allegations. (25) Finally, many forms prohibit prisoners from referring to any cases or legal authority, which also can help illuminate a pro se plaintiffs allegations. Notably, these restrictions apply almost exclusively to prisoner litigation.

At the time the original form complaint was developed--in the era of notice pleading--the courts' concern was that many prisoner complaints were too long and hard to decipher, with facts giving rise to a claim getting lost in a sea of irrelevant information. (26) But today, the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly (27) and Ashcroft v. Iqbal (28) have tightened pleading standards to require that a plaintiff plead sufficient facts to establish a plausible, rather than a possible, entitlement to relief. (29) A plaintiff who tries to state facts "as briefly as possible" may be more likely to produce the kind of conclusory allegations that Twombly and Iqbal found insufficient. In their wake, a complaint that errs on the side of omitting facts for the sake of brevity may be more susceptible to dismissal than one that errs on the side of including too much detail. Pro se prisoners who dutifully follow the form's instructions may find that they have not given enough detail to state a plausible claim, and judges may be left to puzzle over an unnecessarily lacking complaint.

Third, some complaints use technical legal terms that may confuse unsophisticated prisoner litigants and lead to unintentional pleading errors. For example...