Academic journal article Notre Dame Law Review


Academic journal article Notre Dame Law Review


Article excerpt


Prisoners in the United States can sue their jailers. (1) Prisoners have a right to sue wardens, guards, medical staff, and any other governmental entity they encounter while incarcerated. (2) Prisoner suits are referred to as "prisoner civil rights case[s]," and they comprise a significant portion of the federal docket. (3) The American prison population is notoriously high. (4) Given the high prison population, and that a single inmate may file dozens of lawsuits, (5) courts struggle to keep up with overburdened dockets. (6) Few prisoners can afford representation, (7) but, under 28 U.S.C. [section] 1915(e)(1), district judges "may request an attorney to represent any person unable to afford counsel." (8)

The circuit courts are split as to what factors district courts may consider when deciding whether to appoint counsel under [section] 1915(e)(1). (9) Most circuits permit courts to evaluate, among other things, the merit of a prisoner's claim. (10) In these circuits, district judges may not provide counsel to prisoners who file meritless claims. Other circuits exclude merit as a factor for district judges. (11) Instead, these circuits only allow district judges to consider more general factors, such as the complexity of the case, the competence of the plaintiff, or whether the case constitutes an exceptional circumstance. (12)

Prohibiting district courts from considering merit when deciding whether to appoint counsel in prisoner suits is problematic. This prohibition unduly limits discretion and leads district courts to provide counsel in cases where the plaintiff has virtually no chance of winning or the cost of litigation heavily outweighs the remedy sought. This Note considers why some circuits withhold merit as a factor, and whether circuits should continue to do so. This Note argues that all district judges should consider merit when deciding whether to appoint counsel under [section] 1915(e)(1). Furthermore, this Note argues that district courts should consider what is at stake in the litigation--referred to herein as the "substance." The substance describes what the plaintiff is seeking as a remedy, such as money damages for past pain and suffering, money damages for a permanent injury, or injunctive relief. Merit and substance should be considered because Congress intended to grant district courts wide discretion with [section] 1915(e) (1), and without allowing consideration of merit and substance, prisoners are gratuitously provided counsel. The gratuitous provision of counsel unduly burdens courts, lawyers, and defendants, and results in an inefficient distribution of pro bono legal work.

This Note evaluates the circuit split regarding the provision of counsel in prisoner civil rights cases and proposes a uniform test. Part I describes the historical background of the right to counsel and prisoner litigation in the United States. Part II outlines the current circuit split regarding [section] 1915(e)(1). Part III explains why all district courts should consider merit and substance, using a case study to illustrate the deficiencies of non-merit-based tests. Part IV demonstrates why merit and substance are the best metrics for deciding when to provide counsel. Ultimately, this Note asserts that all district judges should consider: (1) the merit of the claim; (2) what is at stake in the litigation; (3) whether the plaintiff has made a reasonable attempt to secure counsel on his own; and (4) whether the plaintiff appears competent to litigate the matter himself given the difficulty of the case.


Before discussing how judges should exercise discretion when providing counsel to indigent prisoners, this Note addresses where judges derive such power, and when counsel is a matter of judicial discretion versus a constitutional right. Additionally, this Note discusses the volume of prisoner litigation to illuminate the force of the competing interests at play in construing [section] 1915(e)(1) tests. …

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