Frederick Schrank of sneakingsuspicions.com recounts an interesting appellate tale about the application of a Congressional sanction against frivolous prison lawsuits. The Seventh Circuit, Judge Easterbrook writing, made a nicely reasoned judgment.

To recap briefly: a prisoner sued, claiming that a guard had wrongfully confiscated a back brace prescribed for the prisoner by the prison hospital. The judge, wrongly, dismissed the case, misunderstanding the prisoner’s claim. The prisoner filed a timely motion for reconsideration, pointing out the judge’s error. (The judge had said that delay in returning the brace didn’t amount to a “Constitutional tort”; but the prisoner was complaining about the original seizure, not the failure to return.) The judge, again wrongly, denied that motion. The prisoner failed to appeal. Five months later, the prisoner filed another suit on the same issue, which the same judge dismissed. The prisoner appealed the dismissal.

Two questions: (1) Was the prisoner now entitled to have his case heard on its merits?, and (2) If not, how many of the actions (two suits and an appeal) should be called “frivolous,” for the purposes of applying a rule that says that after a third frivolous filing a prisoner can’t get the normal fees waived, but must pay them (which most prisoners can’t)?

Held: The prisoner’s failure to appeal timely made the first, clearly erroneous, judgement final, and precluded any future filing on the same question. Ergo, the second filing, though not the first, was frivolous. However, the appeal itself was not frivolous. So the prisoner gets one strike and no back brace.

Legally, I have no reason to doubt that the finding is correct, and Judge Easterbrook’s characteristically clear prose makes the reasoning clear and compelling.

Still, step back for a moment. Clear your mind, if you can, of the prejudice that all prison lawsuits are frivolous, as most undoubtedly are, or the notion that prisoners deserve whatever suffering prison authorities can contrive to hand out. And assume — what we can’t know, since no hearing on the facts was, or ever will be, held — that in this case the prisoner is telling the truth, or most of it.

If he was prescribed a back brace by a prison hospital, he must have been in fairly bad shape. The result of not having a back brace if you need one is likely to be severe pain, and perhaps lasting injury. He made timely complaint, and a timely motion for reconsideration, both wrongly denied. He waited five months, at the end of which he still didn’t have a back brace. (We know that, because otherwise his suit would have been moot.) Then he tried again.

Now, because he failed to utter the proper mantra at the proper moment, the courts won’t hear his complaint at all. (Finality of judgement, you know.) And because he complained in the wrong form, he is now one-third of the way to having the courtroom door effectively shut against him permanently. And the prison authorities are now legally free to keep the prisoner in what may be quite severe pain (having had low back disease, I know what I’m talking about; my bout with cancer was a walk in the park by comparison) for as long as he’s a prisoner, because simply keeping someone in pain by witholding him a medically necessary treatment isn’t a “Constitutional tort.”

Let me be sure I’ve got this straight. The prisoner, who presumably didn’t go to law school, is severely sanctioned for a technical mistake. (Or maybe he knew the rules, and the authorities told him they’d give him his damned brace back if he didn’t appeal, and he believed them. Or maybe he was in too much pain, or just too discouraged, to try pushing the rock back up the hill again at that particular moment.) The judge, on the other hand, who did go to law school and who got the law grossly wrong, twice, isn’t sanctioned at all.

And nowhere does the opinion note that this outcome, however compelling legally, is simply (again, assuming facts not in evidence) morally wrong. Would it really have been too much of a stretch for Judge Easterbrook, as long as he was criticizing the judge below, to add, “If the allegations made in the complaint are true, the continuing denial of a medically necessary device by the prison authorities is inexcusable. That the federal courts are no longer in a position to remedy the situation does not make it any less the moral duty of the prison warden, the Corrections Commissioner, and if need be the Governor, to investigate this matter promptly and thoroughly and to act appropriately.” (Justice Frankfurter’s opinion in Gobitis, the first flag salute case, can serve as a model here.)

It may be the law, but I still say it’s disgusting.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com