Prisoners' lawsuits burden federal civil courts.

Almost unnoticed amid congressional calls for tort reform to ease the burden on the nation's civil justice system, the U.S. Department of Justice recently published an enlightening report on prisoners' lawsuits. More than 1 in 10 civil lawsuits now in the federal courts is a prisoner's case.

Roger Hanson and Henry Daley, researchers at the National Center for State Courts in Williamsburg, Virginia, examined more than 2,700 cases disposed of in 1992 in nine states (Alabama, California, Florida, Indiana, Louisiana, Missouri, New York, Pennsylvania, and Texas). These states account for about half of all prisoner lawsuits. The results are reported in Challenging the Conditions of Prisons and Jails. A Report on Section 1983 Litigation, published in January by the Bureau of Justice Statistics (BJS).

The 48-page discussion paper says that prisoners' lawsuits have been steadily increasing in all states since the U.S. Supreme Court in 1964 interpreted Section 1983 of the U.S. Code to permit prisoners to sue state correctional officials when conditions of confinement failed to meet constitutional standards.

What the Supreme Court had in mind were complaints involving excessive force, physical security, inadequate medical treatment, and freedom of religious expression. What many states are facing, however, are suits that claim

* cruel and unusual punishment because the inmate was served two cold lunches and one hot meal rather than the usual two hot meals and one cold (Adams v. Prunty, No. CIV-S-92-1416 (S.D. Cal. 1992));

* the inmate had a right to practice martial arts while in prison (Sullivan v. Borg, No. CIV-S-89-1577 (E.D. Cal. 1989)); or

* the inmate suffered cruel and unusual punishment because the prison chili gave him a stomach ache (Burton v. Kernan, No. CIV-S-93-0729 (E.D. Cal. 1993)).

In California, death row inmate Rodney Alcala sued 15 times for such things as prescription dandruff shampoo, a low-cholesterol diet, and access to the typewriter he used to prepare lawsuits. (Michael Checchio, Frivolous Suits by Inmates Said to Cost State Millions, L.A. Daily J., Mar. 9, 1995, at 1.)

According to Hanson and Daley, there is a serious debate among judges, attorneys, and other experts about how to handle these lawsuits.

On one side are former U.S. Supreme Court Chief Justice Warren Burger, the Federal Courts Study Committee, and some state correctional officials who contend that the lawsuits are a waste of scarce resources. They say the cases should be transferred to state courts or at least be required to exhaust all state administrative remedies before being considered in federal court.

The opposite position is taken by former U.S. Supreme Court Associate Justice Harry Blackmun, some federal judges, and advocates of prisoners' rights. They contend that court workloads are overstated because most Section 1983 cases are disposed of quickly. They say that because the merits of a case cannot be foreseen, the federal courts must leave their doors open to state prisoners. They also are skeptical of the ability of state courts to be totally independent when prisoners take the state to court.

Prisoners are not entitled to legal counsel in Section 1983 cases even if they are indigent, because there is no constitutional right to counsel in civil cases with the exception of proceedings to terminate parental rights. Courts will only request counsel to represent a litigant when circumstances warrant it (such as a claim of excessive force).

Thus, many prisoner lawsuits are dismissed for reasons that presumably would be anticipated by counsel, such as

* failure to file required reports,

* no evidence of a constitutional rights violation (ordinary negligence is not a cognizable cause of action under Section 1983),

* the suit is frivolous, or

* the defendant (for example, a state trial judge) has immunity.

Only 3 percent of all cases involve evidentiary hearings, and prisoners rarely win anything. According to the BJS report, 75 percent of the issues are dismissed on the court's initiative and 20 percent end in a grant of the state's motion to dismiss. Only about 2 percent result in trial verdicts, and less than half result in a favorable verdict for the prisoner.

When a prisoner does win, the dollar amounts of settlements and verdicts are signicantly smaller than average awards. One reason is that prisoners' wages are nonexistent or very limited. Therefore, there is little or no compensation for lost wages due to hospitalization, convalescent care, or permanent injuries.

On the other hand, the researchers report, "the significance of even a small number of successful suits by prisoners goes beyond the dollar amount of the award.... The settlements and verdicts indicate that some plaintiffs are not only credible but correct in their allegations of civil rights violations."

The researchers suggest that "approximately half of all prisoners' grievances that now enter the federal court system concern matters that could and probably should be handled through state administrative procedures rather than be dismissed on procedural grounds in federal courts."

Also, prisoners' grievances "need to be channeled to other forms of relief, such as habeas corpus, state torts, family mediation, and dispute resolution processes within prisons and jails."

To obtain a copy of the report (NCJ-15162), call the publications center of the Bureau of Justice Statistics at [phone].