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"Frivolous" claims by the attorney general.


In recent years, certain state attorneys general have charged that valuable time and money are being wasted by responding to frivolous lawsuits filed by prisoners (Burress and Carlson, 1995). This charge resonates with and fosters social, legislative, and judicial trends to toughen punishment and to close access to the courts. The dramatic increase in prisoner filings since the 1960s(1) is typically asserted to be proof that prisoner lawsuits are frivolous. However, "most arguments based on volume alone ignore the rising population in the nation's prisons" (Gillies, 1989: fn. 45).(2) In addition, the discussion about prisoner filings is usually held in isolation from the overall "dramatic rise in federal court filings in recent decades" (Galanter, 1986: 48) by the general population. Moreover, in contrast to the attention given to prisoner litigation, relatively little public attention is given to abusive or groundless litigation filed by attorneys despite both federal and state Rules of Civil Procedure developed to condemn frivolous litigation perpetuated by attorneys (Medin, 1987; Corum, 1992; Lowenstein, 1992; Kritzer and Zemans, 1993). It would seem that a prisoner who typically sues pro se (for himself) is an easy target for scorn and sanction.

In Missouri, the attorney general identified the "Top Ten Frivolous Inmate Lawsuits" and used them as a basis for reform legislation. Through a discussion of the attorney general's "Top Ten Frivolous Inmate Lawsuits," this article will examine the three perspectives defining frivolousness to investigate the merits of criticisms made by the attorney general of Missouri. Furthermore, this article will demonstrate how rhetorical strategies construct a social problem and a solution that is both politically motivated and inconsequential in results.

Conceptions of "Frivolous"

The debates about the problem of frivolous prisoner lawsuits make use of various definitions of frivolousness. At least three perspectives can be distinguished: the legal perspective, the prisoner perspective, and the public perspective.

The Legal Perspective

The legal perspective of "frivolousness" generally refers to definitions that pertain to the legal merit of a case, usually based on elements of procedural law rather than substantive law. Among federal district courts there is not agreement, however, on one definition.(3) To be dismissed as frivolous, as opposed to simply being dismissed, "the legal meaning of frivolousness connotes a value implying 'worthlessness,' even if there is a substantial grievance to be remedied" (Thomas et al., 1986: 778). Gillies states (1989: 187) that:

the difference between a meritorious complaint and a frivolous one is often due to their [the prisoners'] inexperience in framing an issue. For example, a complaint from a woman inmate that she asked for and did not get a brand of body lotion appears frivolous. It might, however, be a valid complaint if she was allergic to the regular institutional lotion, had developed a serious rash for which lotion was needed, a doctor had written her a prescription for a lotion to which she was not allergic, and the prison officials deliberately refuse to supply it. As a prisoner, she cannot simply go to the drugstore and buy it; she is dependent on the prison to supply the needed medication. Framed with the full facts, this claim might arguably meet the constitutional standard of deliberate indifference to serious medical needs. Unfortunately, it is unlikely that she will be able to frame the issue well enough to withstand summary dismissal.

Other legal reasons for rejecting a case as frivolous are found in technical errors:

A pro se prisoner might clearly present a claim for deliberate indifference to medical needs, yet the prisoner might mistakenly denominate the claim as one for equal protection instead of as one for cruel and unusual punishment. Also, a plaintiff might clearly set forth a legitimate claim but name the wrong party as the defendant (Feldman: 1985:431).

Unfortunately, there is no way of knowing how many prisoner complaints are dismissed that are potentially are meritorious.

The Prisoner's Perspective

The prisoner's perspective is formed within the social context of the totally controlled institution of the prison. There, all personal possessions are rationed; the prisoner is isolated and humiliated, constantly reminded of his vulnerable and dependent situation. In this light, most things that would be taken for granted outside prison walls are magnified in importance when denied on the inside. In fact, the more "minor" the denial, the greater the likelihood that an offense will be perceived by the prisoner.

Prisoner cases emerge from and are constructed in a manner which, while occasionally "frivolous" to the outsider, take on a quite different meaning to those working within the values, norms, constraints, and dangers of the setting intended to be changed (Thomas, 1988: 243).

Complaining when toilet paper is denied, for example, is never considered "frivolous" by the prisoner.

The Public Perspective

The public perspective of "frivolousness" is distinguished from the others in that it focuses on the content or the substance of the complaint from the perspective of the free world only. Thus, the public perspective is more likely to define a wide range of prisoner complaints as trivial and petty and/or to disregard procedural/legal requirements as no longer pertaining to the convicted lawbreaker. Milovanovic and Thomas (1989: 54) distinguish between legal and lay definitions of frivolousness:

There is a view among critics of litigation that it [the prisoner lawsuit] is frivolous, and only the exceptional suit entails any grievance of substance. Hence, litigation is seen not as rebellion but as abuse of the courts by those already "proven" to be antisocial. "Frivolousness," however, is embedded in a variety of social meanings and is not value-neutral. As a legal term, it means lacking judicial merit. But, the legal use is often translated into the lay meaning of "worthless," and a suit that is not adjudicable then becomes, in the lay view, one that totally lacks substance.

Thus, the public view depends upon ignoring or rejecting both the prisoner's view of significance as well as the legal perspective of merit.

In sum, the three perspectives of "frivolousness" are distinct and grounded in separate decision-making domains. The legal perspective is not dependent on the substantive merits of a complaint, whereas the public perspective evaluates the substantive merit based on a free-word standard. From the prisoner perspective, a frivolous lawsuit would be one in which the prisoner had no expectation for success, but only filed it for the purpose of hassling the prison administration. These "recreational litigators" are few, but are notorious as representatives of the entire prison population.

Conflict between the prisoners' perspective and the public perspective leads to public complaints of prisoner abuse of the courts. However, there is considerable evidence that prisoners file neither excessively nor frivolously (Ibid.). Research has shown that prisoners are not likely to be recreational litigators; rather, they tend to be intentional and sincere in filing lawsuits. Building on significant work, Thomas (Ibid.: 129) found that "none of the more experienced litigants (jailhouse lawyers) condone [filing frivolous lawsuits] because of its personal and legal costs." A review of the literature regarding prisoner litigation confirms that, particularly since the late 1960s, prisoners turn to litigation as an external vehicle for dealing with perceived internal mistreatment (Rideau and Sinclair, 1985; Thomas et al., 1986; Eastman, 1988; Thomas, 1989; Ross, 1995). In a study of all 42 U.S. Section 1983 complaints and habeas corpus petitions filed in the Federal District of Illinois between 1980 and 1986, Thomas (1989: 45) reports that"most prisoners are 'one-shot' players," filing one lawsuit to deal with their perceived problem. Although most prisoner lawsuits are quickly dismissed, typically they are not dismissed as "frivolous."

The Procedural Context

Many remedies have been proposed to deal with the alleged problem of frivolous prisoner lawsuits (Eastman, 1988; Gillies, 1989; Sturtz, 1995; DeWolf, 1996). Most lawyers would probably agree that access to courts is constitutionally protected and care must be taken not to limit unduly prisoner litigation. Others maintain that the ability to file suits is a nonviolent and legitimate vehicle to resolve grievances (Thomas et al., 1986) and can serve as a safety valve in a setting (the prison) that tends toward volatility (Eisenberg, 1993).

Most prisoner lawsuits are filed without legal assistance in federal court under the Federal Civil Rights Act 42 U.S.C. Section 1983 (Blaze, 1990: fn. 2).(4) Theoretically,

at the initial filing stage, the court is required to construe the pro se complaint very liberally, to take as true every factual assertion, and to dismiss for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that entitle him to relief (Eisenberg, 1993: 437-438).

Yet, when a prisoner files pro se,(5) or in forma pauperis,(6) "a preliminary screening on the merits eliminates most prisoner Section 1983 cases at the pleading stage before process is even served" (Turner, 1979: 611). No doubt district courts are using other, more intangible, criteria to clear prisoner litigation (Blaze, 1990). "You know a good claim when you see it" (Thomas, 1988: 129).

These prisoner cases are handled by U.S. Magistrates who are "the little-noticed and relatively invisible judicial officers who process prisoner litigation for the Federal courts" (Smith, 1988: 17). One of the categories available to the U.S. Magistrate to dispose of complaints is to declare them "frivolous." Another option, a sua sponte(7) dismissal prior to service has the same effect as a dismissal for frivolity. When such dismissals occur, the defendant (the state) is not required to make a reply to the complaint.(8)

Due to these federal procedures, most prisoner lawsuits dismissed as frivolous should not cost the state very much time or money because (1) the lawsuits would be quickly dismissed and (2) the attorney general would not be responding to them. Indeed, "studies show that since few of these suits ever get to the discovery stage, let alone to trial, the courts' resources are not overburdened by this alleged flood of frivolous prisoner suits" (Gillies, 1989: 188-189). Turner (1979: 618; 661-663) reported that more than two-thirds of prisoner civil rights complaints go unanswered by defendants. Furthermore, less than 10% of prisoner plaintiffs request discovery, cases are seldom tried, and less than 10% of these cases are appealed. In a study of all civil rights actions terminated in 1987 in the District of Arizona, Blaze concluded the burden distressing the attorney general is exaggerated.(9) "Courts and defendants have an abundance of procedural mechanisms, such as 28 U.S.C. section 1915 and summary judgment, that can directly and efficiently dispose of frivolous claims" (Blaze, 1990: 976). Others agree: "With the federal courts' power of summary dismissal and its power to enjoin those who abuse the process, charges that the courts are overburdened with frivolous lawsuits have a false ring" (Rideau and Sinclair, 1985: 1075).

The Missouri Context

Missouri is one of the states giving attention in the 1990s to the alleged problem of frivolous prisoner litigation. In Missouri, an internal grievance procedure was already in place to deal with prisoner complaints.(10) In addition, legislation(11) proposed by the attorney general was designed to reduce court filings by punishing prisoners for abuse of the courts. Time was to be added to the prisoner's eligibility for a parole hearing and/or money deducted from the prisoner's account.

In June 1994, the Missouri attorney general first charged that "Missouri spends millions of dollars a year to defend inmate lawsuits over such weighty matters as their constitutional right to weekend brunches, to have butter instead of margarine, or to have unlimited refills of Kool-Aid" (Lambe, 1994). This charge sounds as if indeed the state is being victimized by thousands of unwarranted prisoner lawsuits. However, in 1994 the number of prisoner lawsuits (excluding habeas corpus and class action cases) filed in Missouri was 691 (see Table 1 at the end of the article). It is difficult to judge whether that number of prisoner lawsuits is large or relatively modest. That year, the Litigation Division gave defense in 1,400 cases, closing 900 cases. The workload of other divisions of the attorney general's office was higher: the Criminal Division received 1,417 new cases, the Consumer Protection Division responded to 37,800 complaints and inquiries, the Governmental Affairs Division closed 1,000 cases, and the Labor Division closed 11,845 cases (Annual Report, 1995).

The evidence for the serious charge of prisoner abuse of litigation was presented in the 1994 Annual Report of the Office of Missouri Attorney General (1995), which published a list of the "Top Ten Frivolous Inmate Lawsuits" (see Figure 1 at the end of the article). Since such a list was not reported in the 1993 Annual Report, the reader is led to believe that these cases were all filed in 1994. However, of the top 10 cases listed in the 1994 Annual Report, only three were actually filed in 1994 (Tyler v. Carnahan, Crawford v. Carnahan, and Moore v. Bosely). According to copies of case briefs obtained from the state attorney general's office and from the U.S. District Court, Western District of Missouri, the cases listed were filed from 1989 to 1994, a six-year span averaging less than two cases per year. Three of the Top Ten lawsuits listed are actually from the same case (Foster v. Delo). Only three cases (Hodges v. Gill, Beverly v. Groose, and Mitchell v. Moore) were actually dismissed as frivolous. We will consider in detail these 10 "cases" in the order presented by the attorney general.

The Cases

1. No salad bars and brunches on weekends and holidays [Tyler v. Carnahan, filed January 26, 1994]. Out of the entire case, the attorney general deliberately chose this particular claim of no salad bars and brunches on weekends and holidays to illustrate his charge of frivolity. Such a selective presentation makes it sound as if: (1) salad bars and brunches are available on other days, (2) prisoners are requesting that they should get "treats" on special days, and (3) this was the only claim in the lawsuit. The context for this claim of no salad bars was that prisoners were not getting any vegetables or fresh fruits, while guards routinely received these foods, as did other institutions. Failure to provide vegetables or fruits was a violation of the state's own "Food Service Manual."

More important, this claim was only a minor segment of a larger lawsuit that included complaints of double celling, renovating an old building filled with asbestos for housing prisoners, a ventilation system that (in violation of federal and state regulations and codes) has never worked, inadequate foods for regular and medical diets, no cleaning chemicals for eating utensils, and missing food. Although the salad bar section of this case was dismissed in March 1995 (though not as frivolous), the remaining complaint was pending into 1996. Therefore, this lawsuit is not legally frivolous. Only when read without the prisoners' perspective in the prison context would the public consider these matters to be frivolous.

2. Buchanan County jail too easy to escape from [Hodges v. Gill, filed in March 1989, dismissed as frivolous in April 1989]. This case begins when the plaintiff (while in custody) fell through a hole he had made in the wall behind showers on the third floor of the county jail, sustaining serious injuries. He faulted the jail and the building contractors for using poor building materials in the jail and with negligent security that permitted him to steal the tools and knock the hole in the wall. Later, he fell down a flight of stairs and complained that he had not been taken to the hospital until he opened the cast on his leg from his first fall and showed that his leg was not healing properly. During this time, he was also denied a visit from his pastor. After being transferred to another institution, another doctor there informed him that he had not been operated on properly.

This lawsuit complains of medical malpractice regarding his leg surgery, an issue far removed from the title presented by the attorney general, jail too easy to escape from. If Hodges had had a lawyer, he might have been able to make a proper constitutional claim of "deliberate indifference," rather than the nonjudiciable charge of medical malpractice. With adequate counsel, his complaint could have had legal and substantive merit rather than being summarily dismissed as frivolous. Notice, however, how quickly the legal system disposed of the case - within one month. As the lawsuit is presented, the public would certainly concur with the legal determination of frivolity.

3. Inmates not paid $26 a day in food allowance when traveling from prison to courthouse;

5. Inmates should be given sit-down service at restaurants when traveling from prison to courthouse;

7. Limit on refills of Kool-Aid is "cruel and unusual punishment" [Foster v. Delo, filed in 1991 and dismissed in 1992].

Although the attorney general listed these three issues were as if they were separate, they were all part of one class-action case that complained about food for prisoners in the administrative segregation unit. There were four counts listed in this lawsuit: (1) daily food for administrative segregation prisoners was only a peanut butter and jelly sandwich delivered in a brown paper bag; (2) food when travelling to trials and to court hearings was only a peanut butter and jelly sandwich in a brown paper bag (this while transportation officers ate in fast food restaurants); (3) food and drink available to general population prisoners are not comparable to administrative segregation prisoners; and (4) administrative segregation prisoners were not permitted to purchase food items from the prison store.

Nowhere in the complaint does Foster request $26 a day in food allowance when traveling from prison to courthouse as the attorney general highlights in item three. Foster does mention that the Department of Corrections appropriates $26 for daily nutrition for prisoners, but does not use that much when providing only peanut butter and jelly sandwiches.

Nowhere in the complaint does Foster request sit-down service at restaurants when traveling from prison to courthouse, as stated in item 5. The complaint about cruel and unusual punishment is not only about limits on refills of Kool-Aid (item 7), but also includes the entire context of disparity in nutrition between the general population and those in administrative segregation.

Interestingly, the judge who dismissed the complaint ignored the first count (daily food), which set the context for all the other counts and thus appeared to construe the complaint in its most trivial context. Nonetheless, the dismissal was not based on frivolousness. From the prisoner's perspective, the issues are clearly significant; perhaps with legal representation, Foster's complaints might have had more serious court attention.(12) The presentation of the complaints by the attorney general does not accurately reflect the prisoners' concerns. Additionally, the misrepresentation of these complaints as three separate cases suggests prisoners are swamping the courts with absurd petitions, thus reenforcing the public perception of abusive court filings, while masking a potential scandal in accounting for the $26 per day food expenditure.

4. Male inmate should be allowed to wear female apparel such as bras, lipstick, and artificial fingernails [Crawford v. Carnahan, filed in 1994 and dismissed in part in 1995]. The Judge Magistrate allowed the plaintiff Crawford to proceed against the defendant, Department of Corrections Director Schriro, on his equal protection claims relating to the denial of homosexual literature, videos, and posters and the denial of homosexual meetings and banquets. All other complaints were dismissed, but not as frivolous, despite an explicit discussion of federal provisions for doing so. This case is problematic from the prisoners' perspective. Clearly, for the prisoner-plaintiff the petition is genuine. Yet, most prisoners who enter prison with a heterosexual orientation could view these matters as superfluous. In the prison context, "physical and sexual relationships are condoned within the convict code" (Wooden and Parker, 1982: 73) and inmate homosexuals are likely to be tolerated in a "live and let live" attitude. The public perspective contrasts with the prisoner perspective only in degree. Since 1976, public attitudes toward homosexuality have become increasingly tolerant. Nonetheless, in 1994, 34% of college freshmen surveyed said that it was important to have laws prohibiting homosexual relations (U.S. Department of Justice, 1994: Table 2.104). By selecting these specific demands, the attorney general is tapping into the view that these demands are not essential for anyone and, when made by male prisoners, are absurd in the public's perspective. However, they are not legally frivolous.

6. Nicotine patches not provided free to inmates [McConnell v. Schoenen, filed in March 1992, summary judgment in September 1994]. Since the initial filing, and over the course of two and one-half years, 90 entries were made on this case, which concerned the adequacy of medical treatment. Although 90 motions were made in this case, giving ample opportunities for the case to be dismissed as frivolous, such a dismissal never occurred. Although McConnell received considerable medical treatment for headaches, tinnitus, gallbladder, and lymphoma, his complaint was that he should have had more and other medical treatments. Most of the 90 entries dealt with his other medical concerns. Only one request was for nicotine patches to enable him to quit smoking, which had been denied because McConnell apparently had not made a good faith effort to quit smoking on his own. Presumably, were he to make the effort and fail, the court would consider his request meritorious. However, the public overwhelmingly rejects rehabilitation as the major purpose of prisons. Only 13% of those questioned in a national survey believed that the main purpose of prisons is to rehabilitate criminals (U.S. Department of Justice, 1994: Table 2.47).

8. Cost of junk food in prison commissary too high [Moore v. Bosley, filed in May 1994 and closed October 23, 1996]. This case deals with the St. Louis Municipal Jail, not a prison. It therefore technically does not fall under the jurisdiction of the attorney general. Notice the misuse of the term "prison" in the rifle. It is a popular misunderstanding that those in jail are guilty whether they have been convicted or not. Just as the public's concern for fair and humane treatment for prisoners is very low, those who are arrested, but not yet convicted, are perceived to be guilty and as undeserving of fair and humane treatment. Although the complaint includes the issue that commissary prices are too high, the larger concern deals with junk food that is stale, opened, and out of date. The commissary food could be poor quality products that are being "dumped" on consumers who have no alternative source to shop. This case may represent an argument against the food contractors for fraud. However, framing the case to ridicule prisoners' rights, the rhetoric shifts attention away from a substantive issue for taxpayers to one that subverts the prisoner claims.

9. Inmates working in prison law library should be paid same rate as attorneys [Beverly v. Groose, filed in 1991 and dismissed as frivolous in 1992]. The second case to be dismissed as frivolous, the court determined that the plaintiff engaged in "recreational litigation." However, the attorney general again misstates the complaint. The plaintiff was employed in the prison as a paralegal and earned $7.50 a month. His complaint was that he spent one year in paralegal training and the pay at his institution was not commensurate with that paid at five other Missouri prison institutions for paralegals. According to the Department of Corrections, an inmate's pay shall not be less than $7.50 or more than $100 a month. Beverly was requesting the maximum prison pay allowed, not equivalency with free-world attorneys, as implied by the attorney general's caption. It was actually an issue of equal pay for equal work. Clearly, the attorney general's phrase misrepresents the issue so as to ridicule the inmate concern. The public perspective would never justify paying inmates the same rate attorneys receive. Therefore, the complaint appears to be a fantastic idea that takes advantage of blurring the walls between the free and the prison world.

10. Prisoners should be served butter, not just margarine, with meals [Mitchell v. Moore, filed in November 1991 and dismissed as frivolous in 1992]. This is the third case dismissed pursuant to 28 U.S.C. Section 1915(d) as frivolous, basically within two month's time. The U.S. Magistrate recommended the case be dismissed on January 6, 1992, without sending it to the defendants. Although the presenting issue was withholding of butter at meals, the complaint was situated within two more serious complaints that the magistrate did not entertain: (1) the inmate grievance procedure is futile, and (2) misappropriation of funds for food service should be investigated. Here, too, legal assistance might have been able to strengthen the lawsuit in favor of the prisoner. The case indicates problems with prison administration that could have potentially wide ramifications. Nonetheless, the public perspective would quickly apply the label of frivolous to this case.

At least two of the three cases dismissed as frivolous response (see Figure 2 at the end of the article) were never taken to the attorney general's office. "Frivolous" cases by law are typically dismissed before the state is involved as a respondent. Therefore, contrary to the attorney general's allegations, these cases could not have used state taxpayer dollars. The other seven "cases" identified as frivolous by the attorney general did not fit the legal definition of "frivolous." Therefore, from the legal perspective, there is little or no substance to the attorney general's charge of frivolity. These cases are not frivolous from the prisoners' perspective either. Instead, the attorney general excerpted certain phrases from each case, ridiculed the inmate requests, and labeled them frivolous, in a popular sense, with no apparent attention to the legal merits of the cases. That all three legally frivolous cases were taken from 1989 and 1991 suggests the attorney general could not find examples of such cases in 1994. Instead, he invoked the public's perspective of frivolousness when he complains of widespread abuse by prisoners.

A Political Solution to the Problem: Missouri Legislation

Although the attorney general's list of "Top Ten Frivolous Inmate Lawsuits" is not comprised of 10 different lawsuits from one year and presents only three legally frivolous cases, it became the basis for legislative action requested by the attorney general in 1995 (Associated Press, 1995). In late 1994, House Bill 361 (see note 11) was prefiled at the request of the attorney general (Ibid.). It proposed that punishments be imposed on prisoners who file frivolous lawsuits. The bill, voted out of committee, was approved by the House by a vote of 141 to [1.sup.13] and passed to the Senate. Since it did not move through the Senate, the bill was attached to House Bill 424 - the Omnibus Crime Bill - and passed by the entire legislature in the 1995 session.

The statute added 60 days to an offender's eligibility for parole or deducted money from the offender's account if the offender filed a "false, frivolous, or malicious action or claim with the court." Although none of those categories of claims are defined in the statute,(14) presumably the court would define what offender action is "false, frivolous, or malicious." Most problematic is the category of "false" claim, which is so broad that any losing claim could be equated with a false claim, regardless of the motivation of the "recreational litigator." Since cases are seldom dismissed as frivolous (Turner, 1979; Gillies, 1989; Blaze, 1990), this statute will be very rarely implemented unless the authorities rely on the falsity aspect of an offender's claim. Indeed, as of January 1998, no prisoners have been sanctioned under this statute.

How, then, did a bill so inconsequential in likely results come to be passed by the Missouri legislature? A brief 30-minute hearing was held to discuss the bill in committee. One speaker (from the American Civil Liberties Union) opposed the bill and three people spoke in favor (the sponsor and representatives from the Department of Corrections and the attorney general's office). The ACLU representative indicated(15) that her testimony was less than effective because she was unable to do sufficient research to rebut the proponents. The gist of her testimony was that: (1) when the cases cited as frivolous are examined, one discovers that there is substance to the complaints; (2) many cases filed by prisoners are already dismissed without need for additional legislation; and (3)judges already have the option to declare cases frivolous. Her impression was that the legislators "were going to pass the law, no matter what evidence to the contrary was presented - because they were determined to make political mileage appearing tough on crime by restricting prisoners' rights."

In this sole hearing on the legislation, the attorney general's office stated that each year $2.4 million is spent on frivolous lawsuits to deal with over 1,000 cases. These were clearly inflated numbers. No statistics were presented to document this statement (Warrick, 1995). Information obtained from the attorney general's office indicates that 691 cases were filed in 1994 (see Table 1). Such numbers suggest that the average cost to the state of each case would be about $3,000. Yet, on another occasion, the attorney general stated that $1.9 million dollars is budgeted to handle prisoner lawsuits (Petterson, 1995). Statistics from the Administrative Office of the Courts 16 record 2,108 prisoner petitions filed in 1994 out of a total of 9,886 civil cases filed in Missouri U.S. district courts. These prisoner petitions represent 21% of the total caseload, while prisoner petitions nationally represent 25 % of the total civil caseload in district courts.

Such confusion did not seem to bother anyone. Statements contradicting the seriousness of the problem and yet confirming the impression of frivolousness were made when the attorney general boasted that more than 95 % of inmate filings are quickly dismissed. That a majority of the complaints filed are quickly dismissed does not mean that the inmates' lawsuits are frivolous.

That many claims were inarticulate and therefore dismissed does not mean that a constitutional violation has not occurred or that the violation had a de minimis effect. In a penal system where an individual's rights, even though reduced to a bare minimum, are regularly ignored, it is unreasonable to use the volume of cases filed as proof of the frivolousness of those cases. It may well be proof of the prevalence of serious problems in that stratum of society (Gillies, 1989: 185-186).

Unfortunately, the attorney general's statement about the percentage of speedy dispositions cannot be verified through official reports. However, data from the Eighth Circuit Court (which includes Missouri)(17) indicate that significantly fewer prisoner cases were terminated (29%) in 1994 as procedural terminations than in prisoner cases in all U.S. circuits (47%) and 71% of the prisoner cases (but 53% of all U.S. circuit cases) were terminated on the merits of the case.(18) In other words, cases from the Eighth Circuit were more likely to be tried on their merits than in all other circuit courts. Although this observation implies that Missouri cases might take longer to close than in other jurisdictions, the data is only suggestive.

It appears, then, that the attorney general used exaggeration without documentation to attract press attention and legislative support. With virtually no advocates for prisoners, logic and careful attention seem to be missing from the political process. Therefore, why did the attorney general, who certainly should be aware of the unsoundness of what he proposed, advocate legislation to stifle prisoner litigation?

Rhetoric and Claims-Making in Social Problem Construction

The attorney general of Missouri misled the citizenry in the 1994 "Annual Report" by labeling as "frivolous" cases that either did not originate in 1994 or would not be legally determined to be frivolous. He thereby made a political issue for a public that had insufficient information to make such an evaluation. Why would the attorney general do this? One possibility is that the Missouri case exemplifies "the creation of a spectacle" (Edelman, 1988) - that is, creation of a problem that does not exist, thus providing an opportunity to suggest a solution to a supposed threat. By giving the appearance of being a problem-solver, one is portrayed as a leader who has the public's best interest at heart.

Definitions and Examples

Joel Best (1987: 104) identifies the "most fundamental form of claims-making" to be defining a problem. In this case, the attorney general first articulated the "problem" through the media. "It" was a problem for the attorney general's office and, by extension, for the state taxpayers. The problem, however, was never defined. In crafting the legislation and in presenting the list of offending lawsuits, no effort was made to define "frivolous." Intended to be ridiculous in the extreme, the seven actual lawsuits selected for the "Top Ten" list represent few legally frivolous cases. Counting one lawsuit as three was a disingenuous effort to create images that arouse the public, despite the facts. Of the competing perspectives when considering frivolousness, the attorney general invoked the public definition, with no attention given to the potential conflicts with other definitions. By virtue of his office, the public would believe that the attorney general is using a legal definition of frivolousness.

When legislators are concerned with actual implementation of a statute, definitions of terms in the proposed legislation are explicit. Such definitions were never provided. Instead, the "Top Ten" list offered examples of the "problem." The news media most often repeated inmate Tyler's claim to a constitutional right to salad bars and weekend brunches. The number one case on the "Top Ten" list had not been dismissed as frivolous, however. Evidently, Tyler had filed as many as 220 lawsuits in his career. The implication is that all prisoners are equally prolific. Moreover, the press repeats the attorney general's complaint, giving the impression that these cases are costly to Missouri taxpayers: "Tyler's lawsuits, usually tossed out by courts as frivolous, still cost Missouri thousands of dollars in attorney fees and court costs" (Associated Press, 1995). Yet, even if all 220 cases were terminated with the designation frivolous, it is unlikely that many state dollars were expended. The only other examples of frivolity in the "Top Ten" list are number seven (Kool-Aid) and number 10 (butter). "The Attorney General's office said Missouri inmates filed nearly 3,000 lawsuits during 1991 to 1993, including ones with demands for unlimited refills on Kool-Aid or the alleged right to have butter instead of margarine" (Ibid.). based on 1994 data, that number of lawsuits for the two-year period is likely to be exaggerated. Like these two examples, it is implied, all prisoner lawsuits are without merit. Unfortunately, the media simply repeat the official version of these cases, which fails to distinguish between legal or public frivolity. What appears to be specific information obscures the definition of the problem.

In identifying the problem, very little attention is given to its cause. This is a common omission by claims-makers (Best, 1987:110). Edelman (1988:24) states that the resulting proposed solution is commonly a mere gesture, which strengthens the spectacle: "the enactment of a law that promises to solve or ameliorate the problem even if there is little likelihood it will accomplish its perennially effective in achieving quiescence from the discontented and legitimation for the regime." Here, poorly framed legislation is unquestioned and unsupported by workload statistics. Instead, the rhetoric constantly repeats one or two examples, reenforcing the claim as truth. The only cause of frivolous prisoner lawsuits to which the media allude is the accessibility to in-house law libraries at the prisons. "Missouri has about 17,400 inmates in 15 facilities, each of which has an in-house law library" (Associated Press, 1995).

Size of the Problem

Most claims-makers emphasize a problem's size (Best, 1987: 106). In the legislative hearing and in the media, the money spent and the number of frivolous cases were asserted without support. Not only were the numbers contradictory, they were also given out of context. Particularly absent in the media reports was any sense of what proportion of the attorney general's budget the numbers represented. Reports to which the attorney general referred were not available. "One study shows Missouri ranks third nationally in the number of lawsuits filed by inmates, the attorney general said" (Associated Press, 1995).


The attorney general here cast prisoners as the cause of the problem, reenforcing the dominant ideology that criminals do not play by the same rules as the rest of society. Criminals are already perceived to be antisocial and the public easily views them as the source of the precariousness of their lives. Thus, the Missouri attorney general's charge appeals to the public's fear of crime and the resulting "get tough" mentality, undercutting the persuasiveness of any counter-evidence. "People who are anxious, fearful, and discouraged about the conditions of their lives respond with hope and enthusiasm to unambiguous promises to improve those conditions and also to clear definitions of enemies responsible for their deprivations" (Edelman, 1988: 59). In prisoner and crime issues, this technique is less likely to be questioned by facts because prisoners behind walls are invisible, vulnerable, and powerless; moreover, the public's general attitude is that prisoners deserve harshness for violating the social contract. In this example, an attorney general is "telling people what they want to hear in a context that makes the message credible" (Ibid.: 113), even though the number of legally frivolous prisoner lawsuits is so small that state resources will not be squandered in any way.


Publication of the "Top Ten Frivolous Inmate Lawsuits" is best understood as a political strategy by the attorney general designed to establish a social problem and to discount prisoner voices. The remedy created by the Missouri statute will rarely be used,(19) since it depends on the court's determination of frivolousness, which is a far narrower definition than that loosely used by the attorney general for public consumption.

Another consequence of the "Top Ten" list, as well as of the ensuing public denunciation of the lawsuits, is that prisoners are discredited as a legitimate and reliable source of information about the conditions under which they live. This reproof in turn strengthens the state's power to act as it will with respect to prisoners. The state is thus less exposed to public opinion that might demand a costly and intrusive restructuring of the penal system. Discrediting prisoners' voices strengthens the state's power and influence. Efforts to tighten social control can boomerang, further isolating and frustrating prisoners by denying due process rather than focusing on the unjust conditions within prison institutions. Given that the attorney general determined these cases to be the most extreme examples of frivolity, this research strongly suggests that the remaining prisoner complaints have substantive merit.

The function of legitimate prisoner lawsuits is generally perceived to be constructive for the institution, as well as society (Thomas et al., 1986: 794; Thomas, 1989: 46). This research shows that from the legal perspective, frivolous prisoner lawsuits are rare, despite the public's impression to the contrary. When prisoners learn to problem-solve by taking complaints to a legitimate legal system, the potential for improving prisoner behavior is increased. However, if an attorney general treats prisoner lawsuits cynically, further alienating prisoners, the likelihood of violence escalates. Discounting complaints contributes to deeper cynicism, rejection of legal dispute resolution processes, and a rise in the number of violent incidents when prisoners are released. Although the Missouri statute has constitutional problems with vagueness and few of the lawsuits on the "Top Ten" list are legally frivolous, the threat of enforcement could reduce legitimate prisoner lawsuit filings. Should the new statute have a chilling effect on legitimate prisoner lawsuits,(20) in the long term, society will reap more serious problems.

Reducing the number of prisoner lawsuits seems best dealt with by ensuring justice or fairness in institutional operations. To the degree that correctional facilities, staff, and/or leadership are inadequate, lawsuits will increase, if only as an expression of frustration. By misrepresenting the legitimate function of prisoner lawsuits, the Missouri attorney general has misrepresented the problem, contributed to the public's fears, and offered a solution that may actually aggravate the conflicts with which prisons and society must deal. "If our free and democratic society is to remain committed to protecting the rights of all its people, then there must be judicial tolerance for some apparently frivolous litigation" (Rideau and Sinclair, 1985: 1075).
Table 1: Frequency of Prisoner-Filed Cases in 1994

Case Issue(*) Cases Percent

Inmate Lawsuit - pending 2 0
Mail 4 1
Religion 13 2
Access to Court 20 3
Medical Care 145 21
Failure to Protect 24 3
Excessive Force 45 7
Conditions - General 46 7
Property 30 4
Conduct Violation 85 12
Probation and Parole 30 4
Visitation 4 1
Public Defender 6 1
Due Process 11 2
Miscellaneous 12 2
Classification 1 0
Conditions - Smoking 4 1
Equal Protection 10 1
Industries 7 1
Jail Time 3 0
Judges/Court Personnel 5 1
Medical Care - Dental 12 2
Medical Care - TB 4 1
Personal Injury - State Tort 10 1
Privacy 4 1
Protective Custody 5 1
Religion - Hair 5 1
Retaliation 34 5
Segregation 25 4
AIDS 2 0
Inmate - opened and closed 76 11
Total 691 102%

* Excludes state habeas, class actions, inmate lawsuit: stayed.
Source: Missouri attorney general's office.


Missouri Attorney General Jay Nixon has compiled his list of the most frivolous lawsuits filed by Missouri prisoners who claim their constitutional rights have been violated:

10 Prisoners should be served butter, not just margarine, with meals (Mitchell v. Moore)

9 Inmates working in prison law library should be paid same rate as attorneys (Beverly v. Groose)

8 Cost of junk food in prison commissary too high (Moore v. Bosley)

7 Limit on refills of Kool-Aid is "cruel and unusual punishment" (Foster v. Delo)

6 Nicotine patches not provided free to inmates (McConnell v. Schoenen)

5 Inmates should be given sitdown service at restaurants when traveling from prison to courthouse (Foster v. Delo)

4 Male inmate should be allowed to wear female apparel such as bras, panties, lipstick and artificial fingernails (Crawford v. Carnahan)

3 Inmates not paid $26 a day in food allowance when traveling from prison to courthouse (Foster v. Delo)

2 Buchanan County jail too easy to escape from (Hodges v. Gill)

1 No salad bars and brunches on weekends and holidays (Tyler v. Carnahan)

Source: Missouri Office of the Attorney General


1. For example, Howard Eisenberg (1993: 435) reports that "the number of state prisoner section 1983 actions has grown from little more than 3,000 in 1972, to more than 26,000 in 1991, representing roughly an eighffold increase in less than 20 years."

2. The number of adults in custody of state or federal prisons or local jails in 1980 was 501,886. In 1994, the number was 1,475,329, a 195.6% increase (U.S. Department of Justice, Sourcebook of Criminal Justice Statistics, 1995: Table 6.11; p. 548). Statistics showing a rapidly increasing volume of civil rights actions generally look at the early 1960s for comparison. "As Eisenberg points out, very few civil rights actions - either 1983 or tide VII - were brought at that time, and it is therefore inappropriate to use that period as a base" (Gillies, 1989: fn. 45).

3. An action has been defined as frivolous in at least six different ways by federal circuit courts of appeals (Feldman, 1985: 415): (1) if it is "beyond doubt" and under any "arguable" construction, "both in law and in fact" of the substance of the plaintiff's claim that he would not be entitled to relief; (2) if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief; (3) if it has no arguable substance either in law or fact; (4) if the plaintiff's realistic chances of ultimate success are slight; (5) if it cannot be supported by a rational argument on the law; or (6) if it has failed to state a claim.

4. The federal Civil Rights Act, 42 U.S.C. section 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

5. A lawsuit filed by the prisoner himself, literally means for himself.

6. A lawsuit filed by the prisoner to proceed without liability for court fees or costs. Literally means in the character or manner of a pauper.

7. A dismissal made by the magistrate voluntarily, without prompting or suggestion.

8. Verified in conversation with Judith Carter, Pro Se Clerk for the U.S. District Court, Western District of Missouri.

9. "More than one-third of the complaints in the 758 cases reviewed were never served on the defendants. Discovery occurred in slightly more than ten percent of the actions (but 7.5% of prisoner suits). Almost one-half of the cases were terminated by the grant of a dispositive motion, such as a motion to dismiss or a motion for summary judgment. Only three percent of the cases proceeded to trial and less than one percent in the case of prisoner suits" (Blaze, 1990: 976).

10. In Missouri, each correctional institution has a grievance procedure that is certified by the U.S. Department of Justice. When a prisoner first files a complaint, it is an informal request within the housing unit at the institution. If the prisoner is not satisfied with the outcome of his request to the manager of the housing unit, he then may file a formal grievance with the local institution. After the superintendent's response, the dissatisfied prisoner may make his first appeal to the Assistant Director of Adult Institutions. A second appeal, if made, would go either to the Citizen's Advisory Committee, or directly to the federal court The Citizen's Advisory Committee is a group of 12 persons appointed by the governor to serve for three years. Besides handling complaints from inmates, this group meets at each prison and tours the facility, making recommendations if they see any violations of standards. The Citizen's Advisory Committee has no authority to order damages to prisoners and tends to take the institution's perspective in resolving disputes. At least some inmates do not view this committee as effective or as providing them with a fair hearing. "It's a farce, sham, and mockery" (Tyler v. Carnahan, 1994). Turner (1988) also found similar denunciations of prison grievance procedures.

11. House Bill 361 in part stated:

217.262. 1. An additional sixty days shall be added to the time that an offender is first eligible for parole consideration hearing or a sum of up to fifty percent of the average balance of the offender's account for any portion of the preceding 12 months during which the offender's account had a positive balance, shall be deducted from an offender's account for each instance that a court finds that the offender has done any of the following while in the custody of the department:

1. Filed a false, frivolous, or malicious action or claim with the court....

3. The maximum term of imprisonment of an offender as imposed by the sentencing court shall not be extended by the provisions of subsection 1 of this section.

4. In no instance shall the balance of an offender's account be reduced to an amount less than ten dollars pursuant to this section. The amount due pursuant to subsection 1 of this section may be deducted from any compensation payable or later paid to the offender, or from any other property belonging to the offender in the custody and control of the department (House Bill 424 [p. 17] section 217.262.88th General Assembly of Missouri, First session [1995]).

12. Even as he was executed in 1995, Foster had no effective legal representation.

13. The one vote against the bill was a misreading. The Representative was adamantly supportive of the intention to reduce frivolous inmate lawsuits.

14. In contrast to this statute, Ohio's remedy (DeWolf, 1996: 274) defines frivolous conduct as:

Conduct of a party to a civil action or of the party's counsel of record that satisfies either of the following: (i) It obviously serves merely to harass or maliciously injure another party in the civil action. (ii) It is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law.

Ohio also states that a "prisoner engages in frivolous conduct when (1) the claim that is the basis of the civil action fails to state a claim; (2) it is clear that the inmate cannot prove material facts in support of the claim; or (3) the claim brought by the inmate is substantially similar to a claim previously brought by the inmate because the previous and current claims involve the same parties or arise from the same operative facts" (DeWolf, 1996: 274).

15. Telephone interview with Marsha Richardson, the American Civil Liberties Union lobbyist, Jefferson City, Missouri (January 2, 1996).

16. Table C-3. U.S. District Courts Civil Cases Commenced, by Nature of Suit and District During the Twelve-Month Period Ended December 31, 1994. Federal Judicial Caseload Statistics. The Administrative Office of the United States Courts. Washington, D.C. 20544.

17. The Eighth Circuit is made up of U.S. District Courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

18. Table B-1. U.S. Courts of Appeals Cases Commenced, Terminated, and Pending by Circuit, During the Twelve-Month Period Ended December 31, 1994. Federal Judicial Caseload Statistics. The Administrative Office of the United States Courts. Washington, D.C. 20544.

19. From Press Release September 1, 1995, from Office of Missouri Attorney General:

If Attorney General Jay Nixon has his way, at least 16 Missouri inmates will be penalized under a new law targeting frivolous inmate lawsuits that went into effect this week. Nixon sent letters to the inmates, notifying them of his intention to apply the law to suits they currently have on file.... "I will request that the judge in each case use the full power of the new law to extend the time each inmate serves behind bars and to sanction their prison accounts." Nixon estimates that frivolous inmate lawsuits cost the state at least $1.9 million annually.... "In addition to wasting valuable resources of time and money, these lawsuits contribute to the growing cynicism people feel toward government and the judicial system," Nixon said.

20. Indeed, the Oversight Division of the Committee on Legislative Research assumed "a 20% reduction in the number of inmate lawsuits filed" (Committee on Legislative Research, 1995) as a result of this legislation.


Associated Press

1995 "Legislation Attempts to Squelch Prison Inmates' Frivolous Lawsuits. Delayed Parole and Fines Would Be Penalties for Pointless Litigation." Kansas City Star (January 29).

Best, Joel

1987 "Rhetoric in Claims-Making: Constructing the Missing Children Problem." Social Problems 34: 101-121.

Blaze, Douglas

1990 "Presumed Frivolous: Application of Stringent Pleading Requirements in Civil Rights Litigation." William and Mary Law Review 31: 935-990.

Burress, David and Juanita Carlson

1995 "'Frivolous' Lawsuits a Spurious Issue." The Advocate (October): 2. Committee on Legislative Research 1995 Fiscal Note. Oversight Division, Missouri Legislature (March 8).

Corum, William

1992 "Sanctions Under Missouri Rule 55.03: Problems and Promises." UMKC Law Review 61: 381-397.

DeWolf, Gail Bakaitis

1996 "Protecting the Courts from the Barrage of Frivolous Prisoner Litigation: A Look at Judicial Remedies and Ohio's Legislative Remedy." Ohio State Law Journal 57: 257-290.

Eastman, Herbert A.

1988 "Draining the Swamp: An Examination of Judicial and Congressional Policies Designed to Limit Prisoner Litigation." Columbia Human Rights Law Review 20: 61-105.

Edelman, Murray

1988 Constructing the Political Spectacle. Chicago: University of Chicago Press.

Eisenberg, Howard

1993 "Rethinking Prisoner Civil Rights Cases and the Provision of Counsel." Southern Illinois Law Journal 17: 417-490.

Feldman, Stephen

1985 "Indigents in the Federal Courts: The In Forma Pauperis Statute - Equality and Frivolity." Fordham Law Review 54: 413-437.

Galanter, Marc

1986 "Is There a Law Explosion? NO." M. Ethan Katsh (ed.), Taking Sides. Guilford, CT: Dushkin: 45-57.

Gillies, Donalda

1989 "Who's Afraid of the Sanction Wolf: Imposing Sanctions on Pro Se Litigants."

Cardozo Law Review 11: 173-234.

Kritzer, Herbert and Frances Zemans

1993 "Local Legal Culture and the Control of Litigation." Law & Society Review 27: 535-557.

Lambe, Joe

1994 "State Shoots Down Inmate Suits." Kansas City Star (June 1).

Levy, Tracey

1993 "Mandatory Disclosure: A Methodology for Reducing the Burden of Pro Se Prisoner Litigation." Albany Law Review 57: 487-525.

Lowenstein, Harold

1992 "Frivolous Appeals, Not Frivolously Granted: A Practical Analysis." UMKC Law Review 60: 491-496.

Medin, Ronald

1987 "Rule 55.03: Good Intentions No Longer Good Enough in Missouri Courts?" Missouri Law Review 52: 417-444.

Milovanovic, Dragan and Jim Thomas

1989 "Overcoming the Absurd: Prisoner Litigation as Primitive Rebellion." Social Problems 36: 48-60.

Murphy, Kevin Q.

1995 "Attorney General Seeks to Expand His Payroll Again. Nixon Farming Out Less Work to Private Lawyers, He Points Out." Kansas City Star (January 26).

Office of the Missouri Attorney General

1995 1994 Annual Report 2.

Petterson, John

1995 "States Want to Stop Lockup Legal Eagles." The Kansas City Star (August 3): 1.

Rideau, Wilbert and Billy Sinclair

1985 "Prisoner Litigation: How It Began in Louisiana." Louisiana Law Review 45: 1061-1087.

Ross, Darrell

1995 "A Twenty-Five Year Content Analysis of Section 1983 Prisoner Litigation in Jails: 1970-1994." Presented at the 1995 the American Society of Criminology annual meetings.

Smith, Christopher

1988 "United States Magistrates and the Processing of Prisoner Litigation." Federal Probation 52,4: 13-18.

Stortz, Jody

1995 "A Prisoner's Privilege to File In Forma Pauperis Proceedings: May It Be Numerically Restricted?" Law Review 4: 1348-1377.

Thomas, Jim

1989 "the 'Reality' of Prisoner Litigation: Repackaging the Data." Criminal and Civil Confinement 15: 27-53.

1988 Prisoner Litigation: The Paradox of the Jailhouse Lawyer. Totowa, NJ: Rowman and Littlefield.

Thomas, Jim, Devin Keeler, and Kathy Harris

1986 "Issues and Misconceptions in Prisoner Litigation: A Critical Review." Criminology 24: 775-797.

Turner, William B.

1979 "When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts." Harvard Law Review 92: 610-663.

U.S. Department of Justice

1996 Sourcebook on Criminal Justice Statistics. Washington, D.C.: Bureau of Justice Statistics (Table 6.11, at 548).

1995 Prisoners in 1994. Washington, D.C.: Bureau of Justice Statistics.

1994 Sourcebook on Criminal Justice Statistics. Washington, D.C.: Bureau of Justice Statistics (Tables 2.47, 2.104).

1991 Sourcebook on Criminal Justice Statistics. Washington, D.C.: Bureau of Justice Statistics (Table 6.73, at 638).

Warrick, Michael

1995 Telephone interview with Michael Warrick, Staff Researcher (November). Wooden, Wayne and Jay Parker

1982 Men Behind Bars. New York: Plenum Press.


Beverly v. Groose

1991 No. 91-4440-CV-C-5 (U.S. District Court, Western District of Missouri).

Crawford v. Carnahan

1994 No. 94-4532-CV-C-5 (U.S. District Court, Western District of Missouri).

Foster v. Delo

1991 No. 4-92-CV00228CSC (U.S. District Court, Eastern District of Missouri).

Hodges v. Gill

1989 No. 89-6019 (Buchanan County, MO).

McConnell v. Schoenen

1992 No. 92-4142-CV-C-5 (U.S. District Court Western District - Jefferson City, MO).

Mitchell v. Moore

1991 No. 92-1520WMJC (U.S. Court of Appeals for the 8th Circuit).

Moore v. Bosley

1994 (U.S. District Court Eastern District of Missouri).

Tyler v. Carnahan

1994 No. 4-94-CV-17-WSB (U.S. District Court Eastern District of Missouri).

CATHLEEN BURNETT, Ph.D. (Department of Sociology, University of Missouri-Kansas City, Kansas City, Missouri 64110; e-mail: is Associate Professor of Sociology and Administration of Justice at University of Missouri-KC. Her current research focuses on death penalty issues. She has published in the Journal of Crime and Justice, Legal Studies Forum, and the Criminal Law Bulletin.
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Title Annotation:frivolous lawsuits filed by prisoners
Author:Burnett, Cathleen
Publication:Social Justice
Date:Jun 22, 1998
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