I have the pleasure of actually litigating these cases on behalf of various government entities. Many such cases can be dismissed through summary judgment, but many are not, and they are a never-ending source of irritation to lawyers, not to mention a financial burden on the taxpayers who foot our legal bills.

Why? If they were really frivolous, couldn't they be dismissed under R. 11 or 12?

Since you say that they are not dismissed under R. 56, let me ask you, how many full-blown trials have you done on one of these issues? 20? 50? Even 1?

There is a lot of legitimate prison litigation out there: many prisoners are sodomized (this is illegal, even in Virginia, where many people think that sodomy is acceptable for prisoners); many guards beat people up (illegal); many prisoners are denied access to various constitutionally-mandated things (libraries, lawyers, etc.). Many people (most of them girls) believe that it is okay to punish prisoners (or pretrial detainees) by injuring them in jail. Unfortunately, the courts disagree with these girls.

You might be able to sell the evil idiot lay people that prisoner litigation is frivolous, but the definition of “frivolous” is a heck of a lot different than the definition of “non-meritorious” or “disagreeing with what the AG thinks the legislature wants.” The government can, should, and will continue to pay to defend wardens who encourage prison rape or open the wrong mail.

As to the "false lien" thing. Show me one instance where one of them went to trial. If you can't then your claim that they are not all dismissed on summary judgment is incorrect and because you have considerable experience in this area you know that it is incorrect.

First, I never used the word "frivolous" to describe the kinds of cases I was referring to. Frivolous claims, which constitute the majority of prisoner pro se claims I have come into contact with (as a litigator and also as a federal law clerk), are ordinarily dismissed under Rule 12 or as summary judgments as you observed.

Some claims are meritorious enough to get past summary judgment, even though they don't pass the "give me a flippin' break" standard. If a prisoner gets into a fight with a prison guard and the guard wins, for example, the prisoner's subsequent lawsuit is clearly not appropriate for summary judgment because there are too many fact issues at stake, no matter how ridiculous the prisoner's story. That claim, if the pro se prisoner persists and has a basic understanding of civil procedure (and all the hurdles imposed by sovereign immunity et al), will make it to a jury. And they often do make it to a jury. And they often are tossed out by the jury after 20 minutes of deliberation.

Cost to the taxpayers: anywhere from $50,000 to $100,000 per lawsuit, and that's being conservative.

"how many full-blown trials have you done on one of these issues? 20? 50? Even 1?"

I didn't intend to seem like I was bragging that I MYSELF have tried dozens of such cases. I'm a 4th yr associate at a big firm, so do the math. I enjoy good litigation experience for my level at this firm but I'm far from a trial veteran.

As for the number of trials the partners I work for have taken to a jury, I couldn't begin to tell you. One of them concluded one just last week (defense verdict), and finished an earlier one about 2 months ago (another defense verdict). Most pro se prisoner cases are tried by the government attorneys themselves, but enough obviously saturate the docket that they have to be outsourced to law firms like ours.

Although the PLRA and pre-screening of prisoner lawsuits is a godsend, I'm always a little leery when people bring up the idea of "additional reform." In my experience, save for a few cases like what UCL describes, there is ample opportunity to dispose of the frivolous cases without a large investment of resources by the court or the defendant(s).

My concern is that the procedural burdens placed on prisoners, and the continued advancement of defenses like "qualified immunity," are denying some the rightful chance to present their cases and are, in effect, under-protecting important rights.

The Federal District Court judge for whom I clerk was invoiced for about $20 million by a tax protestor who asserted that his name was copyrighted. Eventually, the protestor's unwillingness to comply with Court orders to appear resulted in an arrest warrant. After a scuffle with federal marshalls and two days in lockup, the man had a change of heart and issued a heartfelt apology to the Court and promised to fully cooperate with the IRS.

He's responsible for his own actions, but I also blame the crackpots who peddle these inane theories to the public.

Jim, Well, the industry of “tax bullshit” is something that disturbs me as well. Unlike other forms of frivolous complaints and legal actions, these thing seem to have a wide appeal to even fairly sophisticated people – like doctors. Most of the sophisticated people are not daring enough to be complete jerks – their jerkiness stops when they get a stat notice.

Simon, I agree. The system places enough constraints on prisoners, and a few wacky things are a small price to pay for some judicial supervision of the prison system.

Anyway, in general, if a state asserts a qualified immunity defense, I think that they are admitting that the complaint is NOT frivolous. Therefore, UCL’s if the state is asserting that only the cop/guard/whatever was acting as a reasonable one would do, it is quite possible that it would go to trial. And why should it not? Maybe the state should be required to prove that what they did was reasonable under the circumstances.

The fact that a jury decides a qualified immunity defense in 20 minutes is a good thing! However, people are also brutally tortured from time to time, and they get to have their facts aired in front of the men and women in the box as well. So it costs $100,000! That is about 1.5 law clerk-years; a few judge-months; and maybe 4 prisoner-years. These lawsuits might be a necessary deterrent to really bad behavior.

UCL, I think that, in theory, all frivolous claims could be dealt with under R. 12 (and 11, for that matter). But, maybe I have missed something being dismissed as frivolous as a MSJ.

The issue is not so much "prison litigation" because the tax dodgers are not all in prison, and their arguments have been employed if not created by other headcases, and followed impressionable and vulnerable persons.

In my civil practice, I have run across several members of the militia movement/republic of texas. They have engaged in everything from the funny name spellings (complete with punctuation), reliance on the "private law", filing fraudulent liens on property of *all* the attorneys (scores of them) in the case as well as the judge and his staff, contesting jurisdiction of the Court beacause they are "individual sovereigns, and citizens of the earth," etc.

As with the typical prisoner litigant -- who wins when you respond to him at all and believes that even a dismissal of a frivolous action indicates it had merit (otherwise, why bother dismissing it) -- the real costs of extraction in terms of time, fees, expenses, and ire are largely invisible and mostly borne by innocents.

If you have run up against these types, a good resource is the online casebook on "Idiot Legal Arguments", hosted by the Anti-Defamation League, and available at http://www.adl.org/mwd/suss1.asp.

Watch what you wish for in terms of more prison reform litigation. In my experience, the PLRA has only added to the drain on judicial resources, as judges need to determine the increasingly tricky question of what constitutes "exhaustion," rather than dismissing meritless claims with prejudice. More reform may well keep meritorious claims from being decided on their merits, while exacerbating pointless procedural exercises for the remainder of cases.

I never thought I'd say this, but Taint, I think I agree with you on this one.... Well said.

I also agree with SDNYclerk,

Almost every pro se action is called frivolous, until it wins (or wins a settlement). In fact, on my website is a character named Mizz Oozem, who is a dunce who argues that Younger Abstention applies in cases where none of the three prongs exist. This character was based on an actual AAG (who found other employment after the spoofing), and actual witnessed incidents. Her idiotic and frivolous arguments were used to dismiss meritorious pro se cases, by judges and law clerks too lazy to enquire a) whether or not a state lawsuit was pending before the federal suit, b) whether or not the same parties were involved (including the state claiming the Younger Abstention), and more.

The laziness and incompentence of attorneys who generally proceed against pro se's makes me highly sceptical of their assessments. They win against pro se's using invalid procedural tricks, outright lies, and sometimes, because lazy judges and law clerks are looking for an easy way to reduce their docket by cheating someone powerless to retaliate.

As for frivolous nonsense law, what I find is that the courts treat these arguments with more respect than real arguments (like countering Younger Abstention). A cynic would wonder why so many valid arguments, taught in law school, are ignored when presented pro se, while silly nonsense law is given greater respect? Perhaps the bar's way of keeping non-lawyers from effectively representing themselves.

Don't believe me? Try filing suit as a non-lawyer pro se in the SDNY. Use all of your standard forms of pleading that have succeeded numerous times before, and submit them pro se (do this for a family member). Observe how the pleadings, fine before and actually in Benders, suddenly are "insufficient". Then you realize why so many pro se's file 900 page complaints, those are the only ones that can survive 12(b)6 motions in the pro se context.

This of course validates nonsense law tenets. Nonsense law (a/k/a wacky BS arguments) are the direct result of the bench and bar's willfull mistreatment of valid pro se arguments.

In the example above regarding Younger Abstention, it took the Second Circuit (or rather a panel of alert, non-idiot circuit judges) to say, "but the state proceedings were dismissed." Talk about waste of resources. Should it take circuit judges to decide something that every law student learns in the first year??? Why should a pro se litigant have to fight every inference? I mean is Judge Calabresi's scholarship really needed for such a thing? The problem is that there is no punishment for lazy judges who make glaring errors in pro se cases.

But really, advise a pro se litigant (without identifying yourself to the court) in the filing and prosecution (or defense) of a pro se case. See for yourself the way the law magically changes into "no matter what you cant win" (Note- a few rare judges give all litigants equal treatment- with some leeway for pro se unfamiliarity- but these are extremely rare and it takes a lot more work than "wink wink pro se lose" rubberstamping).

In one case, a SLAPP suit, a real estate developer sued two activists for passing out flyers saying "Save Our Homes" claiming damages to the real estate project. The judge bullies and harassed the activists, threatening them with jail, until Cardozo Law School stepped in. Suddenly, in the face of bad publicity, the judge miraculously saw the relevence of the NY Anti-SLAPP statute. Judicial dishonesty like that is eroding our society, and wackyBS arguments are gaining ground because of it. The blame for wackyBS spreading is on the judges who ignore valid law when presented by pro ses.

But it's not just trial judges. In the Second Cicuit a panel of Cabranes, Oakes, and Kearse did something so moronic that Mizz Oozem would be proud. I will spoof it.... Maybe they have all gone senile- the only explanation other than laziness. Raw stupidity. The first I've seen from that court (sigh). I had once thought the Second Circuit was immune to such nonsense.

Ronin