Prisoners' lawsuits on own legal track
Lawyers screen deluge of filings

By Dennis Wagner
The Arizona Republic
Dec. 2, 2002

Filing a lawsuit in U.S. District Court is such a momentous act that it long ago spawned the expression, "Why don't you make a federal case out of it?"

But for inmates in county jails and prisons across Arizona, the cliche is a reality.

Each year, about 1,300 prisoners file civil complaints - some are deadly serious, others downright loony - at the giant glass courthouse in downtown Phoenix.

The suits, mostly prepared without legal counsel and scrawled in cursive, complain about green baloney sandwiches at Maricopa County Sheriff Joe Arpaio's jails. They argue that state prisons should provide sweat lodges for Native Americans. They complain of wrongful convictions, cruel punishment and unfair deportations.

The torrent of paper comprises one-third of all federal suits filed in the Arizona district. It generates such a workload that Congress and the courts have created a sidetrack in the justice system where inmate complaints are screened and, in many cases, dismissed outright on the recommendation of specialist lawyers.

The result: About six out of 10 prisoner lawsuits get thrown out by magistrates before they begin the normal legal process.

James McKay, senior staff attorney who oversees the screening, said he and five other lawyers spend every workday reviewing inmate legal claims. "The role really is to separate the wheat from the chaff," he noted.

That means identifying frivolous lawsuits to toss, and spotting legal defects in the paperwork.

Civil libertarians may question whether prisoners are getting equal justice when their constitutional claims are shunted aside. But magistrates or judges always make the final call about whether to dismiss a case, McKay noted.

"The reason they're being treated differently is statutory," he said. "Congress approved it. And the courts have said it's constitutional."

In some ways, McKay said, the special treatment ensures the legal rights of inmates. Prisoners are not required to submit cases in the same form as other litigants. And, when their suits contain errors, dismissal typically comes with a stipulation that they can refile a corrected version.

In the mid-1990s, prisoner filings overwhelmed the District Court and accounted for half of all federal lawsuits. Jailhouse lawyers helped cellmates churn out claims, and inmates were not required to pay the $150 filing fee.

In 1996, Congress adopted a law that removed the fee waiver. At the same time, the state Department of Corrections replaced inmate law clerks with paralegals.

As a result, McKay said, prisoner legal filings dropped 39 percent in the past six years.

Still, they remain a burden on the system, and a last hope for inmates who have been wronged. A 1998 evaluation found that 57 percent of the prisoner complaints were dismissed outright because of legal defects.

McKay declined to discuss specific cases, but admitted that the logic and language of prisoner suits can be challenging. One example was the prisoner who meant to ask a judge to issue a subpoena deuces tecum, ordering the government to produce documents. Instead, the motion was titled, Subpoena Dukem and Takem.

"We get some odd pleadings," McKay said. "Often, they are talking about wrongs. The frustration is that not every wrong is a constitutional violation."