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Marissa C.M. Doran

Abstracted from: Marissa C.M. Doran, Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms, 122 Yale Law Journal 1024 (January, 2013) (321 Footnotes) (Student Note)


       The degree of civilization in a society is revealed by entering its prisons.
             -- Fyodor Dostoyevsky

       Does [your law] say that, before presenting a petition, you shall look into it, and see whether it comes from the virtuous, and the great and the mighty? No, sir, it says no such thing; the right of petition belongs to all.
             -- John Quincy Adams, on petitions from slaves, 1837

      The prison guards at Iowa were not fans of Jeffery Royal. Between his arrest and eventual imprisonment, Royal sustained a spinal cord injury in a farm accident. When he arrived in prison, he found himself unable to turn his wheelchair in his cell, unable to obtain medical assistance, and unable to extract himself from his prison jumpsuit without throwing himself to the floor. His repeated requests for pants were denied, and prison officials confiscated his wheelchair, forcing Royal to crawl on the floor. Rather than return the chair, the Security Director issued a directive “stating that any inmate seen crawling on the floor would be subject to discipline.” Royal submitted seventeen grievances and ultimately filed a motion in court seeking return of the wheelchair. When the Director “tired of Royal's behavior,” he put Royal in solitary confinement for sixty days.

      Royal filed a civil action for retaliation, alleging a violation of his constitutional right to access the courts, secured for prisoners by the Petition Clause of the First Amendment. The district court found that the prison director had “unconstitutionally retaliated against Royal by placing him in segregation because [he] filed numerous grievances,” but held that Royal was ineligible for compensatory or punitive damages, citing language from the Prison Litigation Reform Act (PLRA), which specifies that prisoners may not recover for “mental or emotional injury” without a “prior showing of physical injury,” and holding that the bar applied to First Amendment claims.

      This Note is about the practice, employed by about half of the federal circuits, of conditioning recovery for retaliation claims brought by prisoners on a prior showing of physical injury. It argues that the portion of the PLRA that gives rise to this practice is unconstitutional as applied to claims, like retaliation, arising under the Petition Clause, because it arbitrarily impairs prisoners' right to access the courts and, in doing so, enables retaliation against prisoner litigants to go unchecked.

      American prisons are beset by a culture of retaliation. In the prison context, this translates to a pattern in which officials punish prisoners who file grievances protesting the conditions of their confinement or exposing the behaviors of their jailors. Retaliation against prisoners can take many forms: officials might send prisoners to solitary confinement, deny essential services, construct false weapons charges, or subject prisoners to beatings, verbal abuse, or rape, all as punishment for attempting to communicate with the world outside the prison. Indeed, retaliation in prisons is a pattern so “deeply engrained in the correctional officer subculture” that “[c]orrectional officers who retaliate against prisoners cannot be regarded as rogue actors.” By some estimates, a majority of prisoners have experienced retaliation by guards for filing, or attempting to file, an administrative grievance or a complaint in court, and a majority of prison staff report that their colleagues have retaliated against prisoners for such actions.

      The PLRA, passed in a triptych of jurisdiction-stripping statutes in the mid-1990s, imposes a procedural formality that facilitates institutional retaliation against prisoners who attempt to exercise the “fundamental political right” of access to the courts by making it difficult for prisoners to recover against guards who abuse them. The Act specifies, in relevant part, that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.”

      Roughly half of the federal circuits read the prior physical injury requirement to bar claims for First Amendment injuries, like retaliation for an attempt to access the courts, an injury, for prisoners, to the First Amendment right to “petition the government for redress of grievances.” The other half object to placing First Amendment claims within the physical/mental taxonomy, holding that the prior physical injury requirement does not apply to claims for violations of “intangible” rights. They argue, as did the dissent in Royal, that applying the requirement to First Amendment violations would block legitimate claims and that doing so misunderstands the nature of violations of “intangible” constitutional rights, which “occur at the time of the deprivation, not at a later time when the physical or emotional harm manifests.”

      In doctrinal terms, the split amongst the federal circuits turns on whether to award compensatory damages for constitutional torts recognized, in the days before the PLRA, as capable of monetization. In theoretical terms, the split reflects disputes about hierarchies of injury and the nature of First Amendment harms, both in general and in the context of the PLRA. And in broader terms, the split reflects confusion about the interlocking harms that stem from denial of access to the courts. This confusion, as will be argued later, has translated into harms that transcend injuries to individual litigants.

      The pages to follow argue that interpreting the prior physical injury requirement to bar recovery for retaliation against prisoner litigants violates the Petition Clause. Before proceeding further, two notes on scope. First, this Note is not about whether prisoners have a constitutional right to access the courts to protest the conditions of their confinement. That has been established. The argument here is that by denying recovery for retaliatory violations of that right, courts are validating the extrajudicial adjudication of claims in a way that hampers prisoners' constitutional rights, eliminates the flow of critical information to the public, and abdicates the judiciary's responsibility to check governmental excess. Second, under the prior physical injury requirement, prisoners may encounter petition violations at three distinct chronological points: when a prisoner files an underlying claim and is denied recovery because the claim is for a nonphysical injury; when the prisoner is retaliated against for filing that claim; and when the court denies recovery for the retaliation. Only the latter two cases are addressed here. The devaluing of what this Note will call classically emotional claims, like psychological trauma or distress--as distinguished from what it will call intangible or abstract claims, like speech, religion, or due process --is problematic, and, as has been argued elsewhere, may itself produce petition violations. But injuries of this first type are beyond the scope of this discussion. Without a retaliatory component, the first violation may block a damages award, but it does not itself bar access to the courts. By contrast, the second violation punishes the suit itself, and the third validates and legitimizes that punishment, implicating the judiciary in the arbitrary denial of a constitutional right. Because the discussion to follow is concerned with the informational character of prisoner suits, it focuses on the latter two forms of injury.

      This Note intersects with two strands in the academic literature, the first dealing with the prior physical injury requirement and the second dealing with the right to petition. Scholarly attention to the prior physical injury requirement has been limited, despite the provision's reach. The few academic treatments to consider the requirement have been confined to doctrinal exegesis, outlining the mechanisms by which the PLRA stifles prisoner access to the courts; arguing that judicial interpretation of the provision likely misinterprets congressional intent; describing the circuit split over the applicability of § 1997e(e) to First Amendment and other intangible constitutional claims; and arguing that barring recovery for litigants based on their status as prisoners violates the Equal Protection Clause. Few have attempted to explain why subjecting petition claims to the physical/mental dyad is problematic, beyond making the circular claim that restrictions on access to the courts infringe upon the right to access the courts. And all have focused on the individual-rights aspects of barring recovery for First Amendment violations, missing entirely the broader structural implications of predicating access to the courts on the ability to satisfy a physical predicate unrelated to the right itself.

      Nor has the literature on petitioning produced a defense of petition sufficient to shield it from the prior physical injury requirement or even from the doctrinal shifts presaged by the Court's recent petition holding, described below. The First Amendment literature, as a general matter, has neglected petitioning, and major casebooks skip the Petition Clause entirely. A small number of academic treatments have provided detailed histories of the distinctive origins of petition and speech, of petitioning in colonial America and the early Republic, and of the collapse of petition into speech during debates over slavery, illustrating that petitioning once enjoyed protections superior to those afforded speech, press, or assembly. Through these works emerge scattered snapshots of the various roles of petitioning in furthering individual rights, “keeping the government informed,” and “reaffirming the judicial role.” At a normative level, contemporary treatments of petitioning have argued that, in light of historical evidence, the courts are correct to hold that the right to petition “must include a substantive right of access to courts” and that the failure to differentiate between speech and petition has “placed an inappropriate limitation on the right to petition.” But none has linked these various roles into a unified portrait of petitioning and its role in the constitutional order. Petitioning remains, despite several discrete historiographical advances, almost entirely untheorized.

      This is the first academic treatment to offer a theoretical view of petition harms and the first to join the scattered narratives of the various roles of petitioning to form a theory of petitioning as a threefold structural protection. It is the first in the literature specific to the physical injury requirement to transcend doctrinal exegesis or to illustrate why taxonomizing petition violations within the physical/mental injury dyad is inappropriate as a matter of theory, independent of historical claims about the role of petitioning or normative claims about prisoners' rights to access the courts. In addition to making a claim about the unconstitutionality of the prior physical injury requirement, this Note intervenes in two debates about First Amendment theory, both made urgent by the Court's holding in Borough of Duryea v. Guarnieri, discussed below.

      This Note argues that the prior physical injury requirement is unconstitutional as applied to violations of prisoners' First Amendment rights to access the courts. Rather than understanding petition violations as injuries to individual rights alone, it argues that petition violations, including retaliation, create three layers of harm: to individuals, to the public, and to the courts as institutions. But the prior physical injury requirement, at least under the restrictive interpretation, ignores the latter two types of harm by forcing petition violations into the mold of private torts, miscasting court-access barriers as individual rather than structural wrongs.

      To contextualize this argument and the ferocity of the barriers imposed by the PLRA, Part I provides background on prisoner access to courts and on the genesis, intent, and consequences of the Act. Parts II, III, and IV argue that petitioning implicates a troika of constitutional interests transcending those of individual litigants. Part II argues that interpreting the PLRA to bar substantive recovery creates harms to individual plaintiffs, threatening both the right to access the courts and the realization of underlying individual rights. Part III argues that the prior physical injury requirement harms the public by impairing what this Note will call the “information function” of lawsuits: the critical role played by lawsuits in pushing information about prison life to the outside world, a role enshrined in both the original right to “petition the Government for a redress of grievances” and in contemporary norms about open courts and public participation in the judicial process. Part IV argues that the requirement undermines the courts as institutions both by destabilizing the structural division between the branches of government and by interfering with “the duty and authority of the Judiciary to call the jailer to account.”

      Constitutional norms of due process, open access, expression, and the separation of powers intersect in the First Amendment right to petition the government, a structural recognition not only of the individual right to seek remedy, but of the importance of facilitating the flow of information to the public, particularly in the context of closed institutions, and of enabling courts to exercise effective oversight. Petitioning, in other words, must be understood not as an individual “emotional” right, but as the underpinning of an informational system in which, particularly in the absence of press and the franchise, prisoners' own communications with courts are the critical element. Understanding the Petition Clause as a point of overlap suggests that the First Amendment has an answer to the question of what harm comes from limiting access to the courts: a structural answer, privileging the importance of information to democratic governance.

      Part V argues that understanding the right to petition in this way suggests that contemporary petition holdings are misguided, and uses the theory of petitioning that emerges through the prison setting to intervene in a broader doctrinal debate over the nature of the right. A combination of historical accident, doctrinal confusion, and judicial inertia has led the Court to conflate speech and petition, culminating in last Term's holding in Borough of Duryea v. Guarnieri that although speech and petition are distinct protections, certain doctrinal tests could be transposed from speech to petition. This holding reflects the understanding that speech and petition are not only textually but theoretically proximate. But the lawsuits-as-information model suggests that although petition and speech share concerns for expressive freedom and public deliberation, petitioning implicates a set of constitutional concerns distinct from those encompassed in protections for speech. Petitioning protects, among others, the individual's right to invoke the state's adjudicatory capabilities and the state's interest in delivering them. As such, the petition guarantee protects the act of reaching to the government for redress, rather than the content of the grievance itself.

      Understanding petitioning in this way illustrates the theoretical incoherence of looking to speech frameworks to resolve petition claims, and suggests that Guarnieri was wrongly decided, or in the alternative, that further transposition of the Guarnieri principle would threaten the core protections of the right to petition. Outlining the theoretical underpinnings of the petition right is a project of some urgency. After Guarnieri, the Court is on the verge of further doctrinal mistake, and the circuit split over the prior physical injury requirement may push the Court to elaborate on prisoners' right to petition. Part V thus closes by offering a framework for petitioning distinct from speech.

* * *

      Applying the prior physical injury requirement to bar recovery for violations of the right to access the courts runs afoul of the Petition Clause and misunderstands petition violations as injuries to the individual alone. Rather, petition violations create three interlocking harms: to the plaintiff, by interfering with the ability to realize constitutional rights; to the public, by impairing the flow of information about closed institutions; and to the courts, by impeding the separation of powers, and in turn, the “duty and authority of the Judiciary to call the jailer to account.” Understanding petition as a threefold structural protection illustrates the error inherent in predicating recovery for access-to-courts violations on physical injury.

      But the troika model does more. It illustrates the problems with the practice, unjustified by theory or history, of conflating speech and petition. And it illustrates the incoherence--and indeed, the constitutional infirmity-- of subjecting petition claims to rules designed to help prison guards regulate prison conduct. The model presented in this Note points to the need for a thorough disaggregation of petition and speech, and a petition jurisprudence that enshrines protections for access, information, and review. Contemplating the balance of equities at the core of the petition guarantee could move the law toward a model that prioritizes the rights of individuals to be heard, and the rights of the public and the government to hear.

AUTHOR. Yale Law School, J.D. 2013; University of Oxford, M.Sc. 2006, M.St. 2007; Williams College, B.A. 2005.