Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, December 27, 1994 TAG: 9412270049
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: MICHAEL STOWE STAFF WRITER
DATELINE: LENGTH: Long
Mark A. Fountain, a state prisoner from Pulaski County, filed a federal lawsuit in September claiming that he was subjected to cruel and unusual living conditions at the Dillwyn Correctional Unit.
His complaint?
Fountain, who is serving a five-year sentence for cocaine possession, said his constitutional rights were violated because the prison did not have a food warmer to transport inmate meals from the kitchen to the cell blocks. As a result, he said in the suit, prisoners' meals were arriving at different temperatures.
Sore fingernails led Anthony Adkins, an inmate from Bedford County, to file a $2.25 million federal lawsuit claiming prison officials had subjected him to cruel and unusual punishment.
Adkins, serving a 79-year-sentence for arson, assault, forcible sodomy and aggravated sexual assault, claimed that he didn't receive proper medical treatment for a condition that causes his fingernails to tear easily. He alleged the problem caused him pain, in part because other inmates made fun of him.
Those two suits, both ultimately dismissed as frivolous, are among the thousands of prisoner lawsuits that are flooding the federal courts and costing taxpayers hundreds of thousands of dollars a year.
Prisoner suits nationwide have risen from a few hundred in the 1960s to more than 33,000 last year, and few courts have a higher concentration of prisoner litigation than the U.S. District Court office in Roanoke.
Nearly 70 percent of all the civil cases filed in Roanoke's federal court are complaints filed by prisoners. Three deputy court clerks and two law clerks in Roanoke work full time processing prisoner cases that include both civil rights complaints and prisoner appeals.
Prisoners filed 1,470 civil rights lawsuits in Virginia last year, compared with 1,189 in North Carolina and 1,004 in Tennessee.
"I don't know why it is, but the inmates in Virginia seem to file more than in a lot of states," U.S. Magistrate Glen Conrad said.
While those numbers include some valid civil rights complaints, the bulk of the cases are groundless lawsuits.
"Most of the cases are frivolous," Conrad said. "While the inmates may be serious about their claim, they don't understand what it takes to reach the level of constitutional violation."
As magistrate, Conrad handles the preliminary motions on nearly every prisoner case filed. District judges, however, ultimately make the decision to try or dismiss the prisoner petitions.
In his 18 years on the federal bench, Conrad has seen more than his share of quirky lawsuits. One was filed several years ago by an inmate upset because there were no raisins in his rice pudding. Conrad also has received prisoner complaints written on toilet paper and on the backs of envelopes.
"It's interesting," he said. "You think you have seen them all, then something else comes in."
Most dismissed
Prisoner Alan Wayne Shelor filed a $4,000 suit earlier this year against Henry County Sheriff Frank Cassell because jail officials, on four separate occasions over a nine-month period, delivered his mail one day late.
Shelor's complaint, like most prisoner lawsuits, never made it into a courtroom.
Nationally, more than 95 percent are dismissed before they get to trial; and of those that remain, only a few are ruled in favor of the prisoner.
"You can count on two hands the number of favorable decisions given to inmates in any given year," Conrad said of the suits filed in the Western District of Virginia.
A 1961 Supreme Court case involving police abuse opened the floodgates on federal civil rights complaints. Although it didn't deal directly with prisoners, Monroe vs. Pape gave individuals direct access to the federal courts and broadened the scope of claims that could be made against government officials.
Since then, numerous civil rights rulings by the U.S. Supreme Court forced prisons to provide better medical treatment to inmates, increase access to legal materials and improve disciplinary methods.
Inmates in Southwest Virginia won a victory in 1977 when a federal district judge ruled that conditions at the Bland Correctional Center violated their constitutional rights. Judge Glen Williams ordered center officials to stop using drugs as a method to control behavior, to construct a hospital facility and to establish a law library.
Alongside those important cases have come the multitude of groundless claims.
"They file lawsuits over the most ridiculous things I've ever heard of, but that's their right, and we don't deny it," said Karen Polinsky, an assistant warden at the Bland Correctional Center.
Michael Fulcher, an inmate from Roanoke, is the head clerk at the law library at the Bland Correctional Center. He, too, gets irritated when he sees fellow inmates filing silly lawsuits.
"All these inmates filing these frivolous cases are messing it up for the rest of us," he said. "Because of them, the legitimate complaints won't be taken as seriously."
Fulcher said many of the inmates simply file suits to release anger that has built up over a dispute with another prisoner or a guard.
A few do it to educate themselves about the law, he said. Others, hoping they will get to go to court and present their case, see it as a free day out of jail.
Fulcher proudly shows off the tiny law library he's in charge of at Bland. The walls are lined with up-to-date legal books and the file cabinet stocked full of fill-in-the-blank forms prisoners can use to file a civil rights lawsuit.
The prison doesn't just provide the forms. Inmates also are allowed $2.90 a week in free postage for legal mail and three copies a day for legal correspondence. Most inmates can claim "pauper status" and avoid paying the $120 federal court filing fee.
Some inmates file lawsuits in state court, Fulcher said, but most hope for relief from federal judges.
"Most of the time inmates don't sue in the state courts, because it's a waste of time," he said. "If you are fighting the state, then you are fighting the people who put you in here."
Frank Altizer, a 48-year-old prisoner at the Keen Mountain Correctional Center in Buchanan County, has battled the system like no other inmate. He has filed 90 lawsuits since 1973, when he was sentenced to two life terms plus 10 years for abduction and sexual molestation.
"He's filed suits about everything under the sun." said Alan Katz, a senior assistant attorney general in charge of the state's prisoner litigation section.
Altizer has sued the state over jail conditions and inadequate medical treatment. He has asserted that prison officials haven't protected him from enemies in the jail and that some of his transfers from prison to prison were a violation of his rights. Earlier this year, Altizer filed a suit claiming the state retaliates against prisoners who file lawsuits.
Every one of the suits has been dismissed before getting to trial, yet Altizer contends none of his claims was frivolous.
In a telephone interview from Keen Mountain, Altizer said he has several suits pending and that he has no plans to quit filing litigation.
"That's part of the game, isn't it?'' he said.
Katz said the attorney general's office has eight attorneys, four legal assistants and three secretaries who defend the cases filed against the state.
In 1993, the state's attorneys worked 18,599 hours on prisoner litigation, including death penalty appeals and other criminal cases. At $100 an hour, a low rate for an attorney, that's a cost of $1.8 million. That doesn't include legal assistants' or secretaries' time.
Don Harrison, a spokesman with the attorney general's office, said the office spent 220 hours this year preparing for a civil rights trial in which the prisoner claimed he had been raped because the guards had failed to protect him.
Two days before the trial was scheduled, Harrison said, the inmate admitted that he had made up the story.
``Same old garbage''
Roanoke Sheriff Alvin Hudson, the defendant in dozens of lawsuits during the past two decades, says the frivolous lawsuits are a waste of his department's time and money.
"It's the same old garbage over and over again," he said. "It's the taxpayers who are paying for this. ... We need something to improve the system we are under now."
City jail officials have been sued 63 times - almost half claiming inadequate medical treatment - in 1993 and 1994; the total amount of damages sought was $110.7 million. All but 10 of those have been dismissed.
"We have never lost one, never paid a penny in settlement," said Kevin Blair, a Roanoke attorney who defends the jail's workers. "It is to a large extent a tremendous abuse of the system. ... Jail is not a fun place to be, and prisoners have to realize they are there for a reason - and punishment is part of it."
The sheriff estimates that it costs an average of $5,000 to defend each suit, although the legal bills are paid from the department's risk management insurance policy through the state.
Despite the high number of suits, Morgan Scott, clerk of the Western District court, said they don't bog down his office.
While some districts handle prisoner cases when they have time between other criminal and civil cases, Conrad said he and other federal court officials in Roanoke strive to promptly dispose of prisoner cases.
"We don't get backlogged like many districts," he said.
The key to moving the cases quickly, Conrad said, is a screening process that immediately rids the court of frivolous cases.
Two law clerks review every prisoner suit that comes in, and frivolous cases are filed and dismissed in one order that is written by the law clerk and approved by a district judge.
Under federal law, complaints filed under pauper status can be dismissed if they are based on "indisputably meritless legal theories" or "clearly baseless" facts.
Last year, 155 suits in the Western District were dismissed without requiring a response from the defendant. Some of those, like Adkins' fingernail suit, don't disappear, because the prisoner appeals the decision to the 4th U.S. Circuit Court of Appeals.
Conrad said the court also controls the number of lawsuits by checking savings account balances of prisoners who file suits. Even thought the inmates may not have the money to pay the entire $120 filing fee, judges sometimes require them to pay 15 percent of their savings.
Some of the complaints filed do make it to court, and it's for that reason that Conrad believes in the system that gives the inmates ready access to the federal courts.
The judge said the issues that most often make it to trial deal with religious beliefs - many inmates file suits over the right to have kosher diets - and the prisoners' First Amendment rights to purchase and receive pornographic reading material in prison and the immates' right to privacy.
Even though most of the suits have no merit, Conrad doesn't think most prisoners are purposely trying to burden the system.
"Most of the inmates, I believe, are sincere," he said. "They are simply mistaken about the things they can litigate."
by CNB