In a 3-2 decision, the Indiana Supreme Court struck down IC 34-58-2-1 which provides:
If an offender has filed at least three (3) civil actions in which a state court has dismissed the action or a claim under IC 34-58-1-2, the offender may not file a new complaint or petition unless a court determines that the offender is in immediate danger of serious bodily injury (as defined in IC 35-41-1-25).
This was designated the “Three Strikes Law.” (I find that to be confusing short hand, since I associate “three strikes laws” with criminal sentencing provisions that create life sentences for third felony convictions.) The court found that this law impermissibly infringed upon the prisoners’ rights under Art. 1, Sec. 12 of the Indiana Constitution which provides that “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”
In any event, the Court left standing the related statute, IC 34-58-1-2 which theoretically requires a state trial court to screen incoming prisoner lawsuits and dismiss them if they are frivolous on their face. The case, Smith v. Indiana Dept. of Correction, is here. Michael Hoskins has a story for the Indiana Daily Lawyer which also has links to three related cases that were decided in conjunction with the Smith case.
In practice, my experience has been that the trial courts do not screen these statutes. Instead, summons get issued and a burden is imposed on Defendants to respond in one way or another. For prisoner complaints that seem frivolous, my practice has been to file a Motion to Dismiss along with an additional paragraph or two suggesting that the court didn’t have jurisdiction because the summons should not have been issued before the screening had taken place. But, the damage has been done. My client has had to pay for me to draft a motion to dismiss and a memorandum of law explaining it. Any practical value of the so-called “frivolous claim law” has been eviscerated.
But, I can’t blame the trial courts too much on this score; a *lot* of paper gets filed in their courts. Expecting them to detect and screen the incoming prisoner lawsuits with the same diligence of a federal court with many fewer cases might be unrealistic. With prisoners who might file one or two lawsuits in the course of their incarceration, it’s probably just an unavoidable cost of doing business for the Defendants who deal with them to have to respond to their complaints. But, as Justice Shepard points out in his dissent, it’s something of an impressive feat for a prisoner to get three or more lawsuits dismissed as frivolous. Under Indiana’s liberal rules of pleading, if you have anything resembling a legitimate claim, it is pretty hard to get it thrown out. The people affected by this “three strikes rule” are people who are really working hard at making nuisances of themselves.
So, this morning, I was thinking about potential alternatives. In my opinion, the real resources are consumed not so much by cases that can be dismissed quickly just by reading the facts alleged in the complaint. Instead, more resources are consumed by those cases that make it beyond the initial review. If, hypothetically, I were serving a long sentence and had nothing to fear from perjury charges, I could cost governments untold millions in defense costs, simply through competent pleading and signing false affidavits. Even though I’d never be believed at trial and probably never win a case, I think I could hang in there through the summary judgment stage, make the government sweat a trial and force them to engage incur discovery expenses and other defense costs. Getting third parties to lie and risk perjury charges on my behalf, however, would not be so easy.
So, I wonder if the General Assembly would be wise to consider a response to this court case whereby frivolous litigants, such as the ones involved in the cases decided today, would have their affidavits and/or testimony barred when they try to resist summary judgment and/or go to trial. Just a thought if any legislators out there are listening.
[…] It probably isn’t a coincidence that the Court of Appeals issued all three of these opinions on the same day. I have to guess that there is at least a subtext expressing some unhappiness with the Supreme Court striking down the “three strikes” statute adopted by the General Assembly. That statute basically closed the door on frivolous inmate-litigants except in cases involving immediate danger of serious bodily injury. The Supreme Court struck down this effort to limit frivolous litigation in a case filed by none other than Mr. Smith in Smith v. Indiana Department of Correction, 883 N.E.2d 802 (Ind. 2008). (See my prior discussion here.) […]