Opposing The Confirmation of Charles W. Pickering, Sr. to The United States Court Of Appeals For The Fifth Circuit

Pickering's Disturbing Record Regarding Access to Justice for Some Litigants

As the prior discussion of Judge Pickering's reversed decisions shows, he has a troubling propensity to make it more difficult for some litigants to obtain access to justice. This is particularly true with respect to less powerful litigants, such as plaintiffs raising civil liberties or civil rights claims and prisoners. For example, as previously noted, Pickering has misused the ultimate sanction of dismissal, literally throwing cases out of court before exploring lesser sanctions, he has enforced a burdensome order requiring plaintiffs to file separate suits against the same defendant arising out of the same circumstances, and he has narrowly construed a court rule in an "unfair" (in the words of the Fifth Circuit) manner resulting in a notice of appeal being time-barred.

Similarly disturbing concerns about Judge Pickering's denial of access to justice arise from other rulings. As a number of the cases discussed above demonstrate, Pickering appears to have a particular hostility toward cases brought by prisoners, including habeas corpus cases. Indeed, in dicta, Pickering has stated his belief that "the scope of habeas corpus is entirely too broad." Barnes v. Mississippi Dept. of Corrections, 907 F. Supp. 972, 982 (S.D. Miss. 1995). Moreover, he believes that the courts are drowning in "frivolous prisoner complaints," and has suggested that prisoners file complaints merely to "get a trip out of the penitentiary for a court hearing." Rudd v. Jones, 879 F. Supp. 621, 622 (S.D. Miss. 1995).

These views are reflected in the harshness with which Judge Pickering has handled a number of prisoner cases. For example, in Rudd v. Jones, 879 F. Supp. 621 (S.D. Miss. 1995), Pickering was faced with a pro se complaint by a prisoner concerning the conditions of his confinement and an application by the inmate to proceed in forma pauperis. After reviewing the complaint and the in forma pauperis application, Pickering issued a ruling consisting in large measure of a diatribe against the filing of what he called "frivolous" lawsuits by prison inmates. He issued this diatribe despite acknowledging that, under Supreme Court precedent, "[t]he complaint now before this Court could be construed to state a cause of action under the premise that a pro se plaintiff is entitled to have his complaint liberally construed." 879 F. Supp. at 623. Despite that acknowledgement, Pickering proceeded, apparently on his own, to order the inmate to amend his complaint within 20 days to provide specific allegations as to who had violated his constitutional rights and when. He held that "the defendants should not be compelled to defend this action and neither should this Court be expected to conduct a hearing" until such specificity had been provided. Id. "Until that is done," Pickering ruled, "this Court will not allow this proceeding to go any further." Id. Pickering warned the inmate that failure to comply timely with the order that he amend his complaint would result in the case "being dismissed with prejudice without further written notice." Id. He further warned the inmate that "[p]arties who file frivolous actions are subject to sanction by this Court." Id.

In Holtzclaw v. United States, 1995 U.S. Dist. LEXIS 14632 (Sept. 22, 1995), denial of habeas aff'd, 96 F.3d 1441 (5th Cir. 1996), cert. denied, 1997 U.S. LEXIS 966 (1997), Pickering was dealing with what he called the first habeas corpus petition filed by the prisoner. The inmate's claims pertained to the Speedy Trial Act, the suppression of evidence, and the ineffective assistance of counsel. Pickering held that the petition was "frivolous" because he had rejected the petitioner's claims during the trial and the court of appeals had affirmed. Pickering launched into a diatribe against "frivolous" prisoner litigation similar to the one he had issued in Rudd, and went on to state that, "in the future, this Court will give serious consideration to requiring prison authorities to restrict rights and privileges of prison inmates who file frivolous petitions before this Court." 1995 U.S. Dist. LEXIS 14632, *5. Addressing this inmate specifically, Pickering then stated:

[T]his Court gives notice to Roger Franklin Holtzclaw that should he file another frivolous petition for habeas corpus in the future, that the Court will seriously consider and very likely order the appropriate prison officials to restrict and limit the privileges and rights of Petitioner for a period of from three to six months and/or that the Court will also consider appropriate sanctions. Petitioner Roger Franklin Holtzclaw is instructed not to file further frivolous petitions.Id. (emphasis added).

It is not disputed that the filing of "frivolous" litigation needlessly burdens the judiciary and opposing litigants and is a legitimate concern of a federal judge. For that reason, District Court judges have the authority (as under Fed. R. Civ. P. 11) to sanction litigants who file frivolous lawsuits. But they have no authority to order correctional officials to penalize an inmate who may have filed a "frivolous" lawsuit and no authority to dictate the conditions of such an inmate's confinement. This type of threat by Judge Pickering plainly overstepped the bounds of his judicial authority.

In Washington v. Hargett, 889 F. Supp. 260 (S.D. Miss. 1995), Judge Pickering denied the plaintiff's petition for a writ of habeas corpus. The plaintiff had been convicted in state court thirteen years earlier of rape. In his petition, he claimed that he was innocent and asked that a DNA test be performed and that he be given a new trial. At the plaintiff's original trial, the state's forensic serologist had testified that his tests did not establish that the plaintiff was the rapist, only that he was not excluded from that portion of the population who could have committed the rape. The victim identified the plaintiff as the rapist, and other witnesses disputed the plaintiff's alibi defense. Judge Pickering, after reviewing the trial transcript, concluded that the plaintiff had not demonstrated "a fair probability that the trier of fact would or should have entertained a reasonable doubt as to his guilt," adding that no jurist could read the transcript "and say that no 'rational juror' could have found the Plaintiff guilty." 889 F. Supp. at 265. Although Judge Pickering used this case as another opportunity to criticize habeas corpus review and state his opinion that such review should be available only, with respect to claims of "actual innocence," id. at 261, he placed the plaintiff in a virtual Catch-22 by denying his request for DNA testing -- the very testing that can actually establish innocence in a rape case.

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