"Frivolous" Claims by the Attorney General

Introduction 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). …