Do frivolous inmate lawsuits need to be curtailed through some kind of tort reform?

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Answered by: Dan, An Expert in the Penal System Category
In early 1995 the National Association of Attorneys General (NAAG) had a conference wherein they developed a blueprint for a campaign to limit frivolous inmate lawsuits. It was basically a two-prong plan. The first prong consisted of a well-orchestrated and coordinated PR campaign to "educate" the American public about the evils of prisoner litigation. The second prong was the development of model legislation designed to codify the needed "reforms" into law.

The PR campaign was highlighted by packaging "Top Ten" lists of "frivolous inmate lawsuits" which were then spoon-fed to the corporate media. Does this ring a bell now? You probably read one of these "Top Ten" press releases in USA Today or another major media outlet.

Perhaps the poster boy of the campaign was the prisoner who sued because he ordered chunky peanut butter from the prison canteen and they sent him creamy peanut butter instead. Sounds frivolous, doesn't it? In the April 1995 Prison Legal News an article written by Chief Judge Jon O. Newman, Second Circuit Court of Appeals. Judge Newman had read one such "Top Ten" article in the New York Times.

"I wondered about the characterization of these suits," writes Judge Newman, "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."

The judge had a researcher provide him with copies of the cases mentioned in the Times article. Here's what he found out:

"In the peanut butter case," the judge wrote, "the prisoner did order two jars of peanut butter from the canteen and one was the wrong kind. 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 the loss of these funds that the prisoner sued."

The judge wrote about several other of the supposed frivolous inmate lawsuits and revealed similar deception in the NAAG characterization of them in the corporate press. For instance, another suit was about a prisoner who complained that his prison didn't have a salad bar in the mess hall. Judge Newman revealed that "the salad bar claim 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 contaminated by rodents. The inmates' 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 states. It is hardly a suit about lack of a salad bar."

The NAAG press releases often cite statistics to bolster their claims that frivolous inmate lawsuits need to be curtailed, such as the following: "In 1986 the Administrative Office of the US Courts counted 22,000 [civil rights] lawsuits filed by prisoners. In 1992 the number of prisoner [civil rights] lawsuits was approximately 26,800 - a 22 percent increase in just six years! The NAAG press releases provide no further statistical analysis, implying that none is warranted. Consider, however, the following:

In that same six-year period (1986-1992), the number of prisoners increased 62 percent. In 1986 there was a lawsuit filed by one in every 23 prisoners. In 1992 that rate decreased (by 30 percent) to one in every 33 prisoners.

Another NAAG-propagated myth is that prisoners are more litigious than the rest of Americans. Not true. The National Center for the State Courts recorded 14.8 million civil lawsuits filed by the general public in 1993. That means the public filed one civil lawsuit for every 17 Americans. That is nearly twice the rate at which prisoners litigate.

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