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Not All Prisoner Lawsuits Are Frivolous

by Chief Judge Jon O. Newman, Second Circuit Court of Appeals

[Editor's Note: The following article is reprinted from the January, 1996, issue of The Corrections Professional. Judge Newman is the chief judge of the U.S. Second Circuit Court of Appeals. The article is based on his commencement speech to the graduating class of the Brooklyn Law School. The letter to the New York Times which Judge Newman refers to was sent by the Attorney Generals of four states: Washington, New York, Indiana and Nevada. Needless to say, the NYT printed the letter without checking the underlying facts behind it, as Judge Newman did. But the facts are immaterial. The concerted effort by the National Association of Attorney Generals to push legislation eliminating prisoners' ability to access the courts relies on lies, half-truths and misrepresentations. They are silent about the many cases where their prison official clients are found guilty of violating prisoner rights. After all, if responsibility were a concern of theirs then losing defendants would pay damage awards and their defense fees from their own pockets. Instead taxpayers get stuck with the tab for damage awards and defense fees; and the defendants keep their jobs to boot! We extend our thanks to Judge Newman for granting us permission to reprint his article.]

There exists today in this country a concerted effort to disparage the vindication of prisoner rights and to limit opportunities for legal redress. Many in the legal, political, law enforcement and corrections fields are calling for restrictions on prisoner lawsuits. However, the accounts are often misleading.

Individuals and groups throughout this nation are desperately in need of legal representation but cannot afford it. They have important legal rights, but unless a lawyer steps forward to assert their rights, there will be no vindication. One example of such a group are the inmates of our prisons, a group that is understandably not too popular with the public and frequently the object of either neglect or abuse.

Please do not misunderstand. I have no general objection to their confinement. Perhaps a rare few are innocent, and, if so, appropriate avenues of redress should be pursued. Rather, my concern is for the prison population as a whole, nearly all of whom, I accept, have committed crimes for which they must be punished.

But while serving their prison sentences, they retain legal rights, fundamentally the right not to be victims of abuse, as many of them are, and the right to minimum standards of sanitation and habitation, and ancillary rights to practice their religion and maintain access to courts.

A bill is pending in Congress to curtail prisoner litigation and the need for effective representation of prisoners was forcefully illustrated earlier this year by an endorsement of this bill by the attorneys general of four states, including New York. They sent a joint letter which appeared in the New York Times which cited three prisoner suits and contended that these are 'typical' of prisoner suits. Here is the way they described these three suits:

"Typical of such suits is the case where an inmate sued, claiming cruel and unusual punishment because he received one jar of chunky and one jar of creamy peanut butter after ordering two jars of chunky from the prison canteen. Or the inmate who sued because there were no salad bars or brunches on weekends and holidays. Or the case where a prisoner is suing New York because his prison towels are white instead of his preferred beige."

I wondered about the characterization of these suits, because, though I have seen many prisoner suits that lacked merit, it has not been my experience in 23 years as a federal Judge that what the attorneys general described was at all 'typical" of prisoner litigation.

New York Attorney General Dennis Vacco was kind enough to respond to my request for copies of the complaints in these three cases. Here is what I learned:

In the peanut butter case, the prisoner did order two jars of peanut butter from the canteen and one was the wrong kind. But he did not sue because he received the wrong product. He sued because, after the correctional officer quite willingly took back the wrong product and assured him that the item he had ordered would be sent the next day, the authorities transferred the prisoner that night to another prison, and his account remained charged $2.50 for the item that he ordered but never received. Maybe $2.50 doesn't seem like much money, but out of a prisoner's commissary account, it is not a trivial loss, and it was for loss of those funds that the prisoner sued.

As for the case of the beige and white towels, the suit was not brought just because of a color preference. The core of the prisoner's claim was that the prison confiscated the towels and a jacket that the prisoner's family had sent him, and disciplined him with loss of privileges. In the case, the prisoner stated, the confiscation, "cause[d] a burden on my family who work hard and had to make sacrifices to buy me the items mention[ed] in this claim."

Lastly, the salad bar claim allegation turns out to be a minor aspect of a 27-page complaint alleging major prison deficiencies including overcrowding, lack of proper ventilation, lack of sufficient food, confinement of prisoners with contagious diseases and food contamination by rodents. The inmate's reference to the food was to point out that basic nutritional needs are not being met. The claim mentioned that the salad bar was available to corrections officers and to prisoners in other state prisons. It is hardly a suit about lack of a salad bar.

I do not mention these cases and the letter of the four attorneys general to pass judgment on their merits, but to remind you that while there are many frivolous claims, those in responsible positions ought not to ridicule all prisoner lawsuits by perpetuating myths about them.

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