July 2008 Nevada Lawyer
A NEW PRO BONO OPPORTUNITY WITH THE DISTRICT COURT OF NEVADA:
MEDIATION OF PRISONERS’ §1983 CIVIL RIGHTS ACTIONS
BY: JOHN F. MURTHA, ESQ. and BRETT BITZER
INTRODUCTION
This article introduces Nevada lawyers to a new pilot program adopted for implementation in the unofficial Northern Division of the Nevada District Court to assist it with its large caseload of prisoner §1983 actions. As will be discussed later, the volume of §1983 actions filed with the United States District Court for the District of Nevada (district court), especially those filed by persons incarcerated in Nevada state prisons, places a tremendous burden on the court’s docket. In addition to helping relieve this burden, the program will provide participating lawyers with a new and exciting way to meet their pro bono obligations to the community.
Section 1983 of Title 42, United States Code, provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
28 U.S.C. §1343(a)(3) gives Federal District Courts jurisdiction over suits alleging violations of civil rights under the provisions of 42 U.S.C §1983.
PRO BONO SERVICE IN NEVADA
The phrase “pro bono” is derived from the Latin phrase “pro bono publico” which means “for the public good.” In the legal arena, the concept of “pro bono publico” is more specifically defined as “involving uncompensated legal service performed especially for the public good.” (fn1) Pro bono work can be traced back to the ancient times of Rome where “jurisconsults were patricians – men of rank, wealth, and distinction – who gave legal advice without charge.” (fn2) A lawyer is a public servant and historically the image was one of a person “who always answers the call of service, both because it is morally right to do so and because it is professionally required.” (fn3) Historically the requirement to work pro bono was derived from the fundamental notion that lawyers were charged with the duty to “do justice” along with the recognition that they have been provided a monopoly over the practice of law. (fn4) This monopoly comes with obligations.
It has also been said that pro bono programs serve as “democracies guarantor." (fn5) Justice is a part of democracy and an American’s access to justice and the legal system must not be linked primarily to “income, class, or status." (fn6) The argument follows that because lawyers have received special training that is not easily available to the general public, “the lawyer is under an obligation to help those without that knowledge, regardless of their ability to pay." (fn7) This argument is strengthened by the fact that because the procedures by which individual rights “are adjudicated are complex and binding, lawyers are necessary to navigate the process." (fn8)
In Nevada, every lawyer has the professional responsibility to “provide legal services to those unable to pay." (fn9) Nevada lawyers are given a charge to “aspire to render at least 20 hours of pro bono publico legal services per year." (fn10) The Nevada Supreme Court has underscored the stated aspirational goal of 20 hours per year by mandating that all Nevada attorneys complete and file an Annual Pro Bono Reporting Form (fn11). Attorneys who are unable to complete 20 hours of pro bono service may contribute at least $500 to an organization that provides pro bono legal services as an alternative to providing the services directly (12).
§1983 ACTIONS IN THE DISTRICT COURT
One of the challenges faced by the district court is a steady flow of §1983 actions filed by prisoner litigants. Nevada’s magistrate judges are devoting a disproportionate amount of their time to dealing with inmate §1983 cases. The most difficult challenges typically arise in inmate pro se filings. The inmates are usually unfamiliar with the rules of procedure which, in turn, increases the demands on the magistrate judges’ time. For example, in one case the plaintiff prisoner submitted a request for admission containing 1,900 requests, and in another case there were eight motions and counter-motions for summary judgment, all of which had to be disposed by a magistrate judge. In a recent interview, Magistrate Judge Valerie Cooke noted that her law clerks spend a majority of their time on inmate cases, which leaves little to no time for researching complex legal issues which may be neglected, or at least delayed, because of the number of prisoner pro se filings.
In Nevada there are approximately 13,000 prison inmates split between northern and southern Nevada (5,903 in southern Nevada and 6,460 in northern Nevada) and the district court is being overloaded with pro se prisoner cases alleging §1983 violations. Cooke noted that “as the number of pro se §1983 actions increase, the judges of the district court must take a fresh look at how they can most effectively and efficiently handle the cases.” If a more efficient method of resolving prisoner §1983 actions can be developed, the district court will be better able to serve the rest of the citizenry.
In the summer of 2007, the district court formed the Pro Se Litigation Committee (committee) whose charge was to evaluate the need for alternative dispute resolution processes for pro se matters and, if possible, propose appropriate processes to the district court judges for review. The committee was composed of district court judges, magistrate judges and lawyer representatives for the Ninth Circuit. Cooke chaired the committee. Among other things, the committee conducted an analysis of all of the pro se cases filed with the district court for a one-year period commencing on March 1, 2006 and ending February 28, 2007. The analysis placed the cases into three classes:
1) Type of plaintiff (prisoner or non-prisoner);
2) Place of filing (Reno or Las Vegas); and
3) Nature of the actions.
The analysis revealed that, during the test period, 874 cases had at least one pro se party. Of the total, 387 of those cases were filed in Reno and 369 were filed in Las Vegas. In Las Vegas, just over half of the pro se lawsuits involved prisoner litigants (192 cases representing 52 percent) and almost half of those prisoner cases involved §1983 claims (42.5 percent). In Reno, nearly 82 percent of the pro se cases (318 out of 387 cases) involved prisoner litigants. Of the 318 prisoner cases, 40 percent were §1983 claims. The reality is that both the northern and southern divisions of the district court must be prepared to handle numerous prisoner pro se cases claiming §1983 violations.
A POSSIBLE SOLUTION – AND A NEW PRO BONO OPPORTUNITY
In 1996, Congress passed the Prison Litigation Reform Act of 1995 (PLRA) which made it procedurally more difficult for prisoners to file lawsuits in federal court. The PLRA mandated that before a prisoner could file a lawsuit in federal court, he had to exhaust all of his administrative remedies within the prison system first. (fn13) The act also gave district court judges the power to dismiss a case if the court “is satisfied that the action is frivolous, malicious, or fails to state a claim upon which relief can be granted." (fn14) Unfortunately the PLRA has not been overly successful in reducing prisoner lawsuits in Nevada, as evidenced by the statistics presented above. The district court needs an alternative dispute resolution program that will resolve the multitude of prisoner §1983 actions more efficiently than is possible under the standard litigation model.
The committee recently proposed such a program to the judges of the district court. The program, known as the §1983 Prisoner Early Mediation Program (program), was adopted by the district court on a one-year trial basis for cases filed in the Northern Division of the Court. All prisoner pro se §1983 actions will be eligible for diversion to the program. Essentially, all prisoner pro se §1983 actions will be screened by the magistrate judges. If a case is not dismissed on the basis that it is frivolous or malicious or fails to state a claim upon which relief can be granted as allowed by the PLRA, it will automatically be diverted to the program. The heart of the program is an early mediation conference. As cases are diverted to the program, an early mediation order will be entered. The mediation order will direct that an early mediation conference be held. According to the program, the purposes of the early mediation conference will be to:
1. Discuss early resolution of the case, if possible;
2. Discuss the claims and defenses to enable the parties to better understand the issues in the case;
3. Allow the mediator to provide an evaluation of the parties’ positions in the event the case does not settle at the conference; and
4. Provide an opportunity for the parties and the mediator to discuss a plan for discovery and case management for submission and approval by the court.
The time for the defendant to answer or otherwise respond to the complaint for all cases diverted to the program will be stayed until 20 days after the conclusion of the mediation.
A CALL FOR HELP
While the heart of the program is the early mediation conference, the lifeblood of the early mediation conferences will be a panel of qualified and trained mediators willing to devote some volunteer time to the program. For the pilot program, it is anticipated that a pool of seven to 10 mediators may be necessary to handle the case load without overburdening the mediators with too many cases. As cases are earmarked for diversion to the program, the panel mediators will be provided with a description of the case and asked to volunteer to serve as the mediator. The name of the mediator will be included in the early mediation order. All panel mediators will be given training on §1983 civil rights actions and how to conduct mediations. Part of that training likely will include sitting in on one or more mediation sessions conducted by one of the magistrate judges.
Cooke has volunteered to be the program coordinator. She recently noted that “it has been demonstrated in other district courts that early mediation of §1983 claims allows plaintiff inmates an opportunity to be heard and results in a significant number of cases being resolved prior to the initiating of discovery and filing of dispositive motions.” Cooke hopes to have the program staffed and ready for implementation by September 2008. This article is a call for help. If you are interested in fulfilling your pro bono obligations by working on matters at the federal level and if you are interested in learning mediation skills, this may be your opportunity. Any questions about the program can be directed to Cooke or any of the following lawyer representatives:
Ø John Krieger, Esq.
Ø Kathleen Paustain, Esq.
Ø Robert Eisenberg, Esq.
Ø John F. Murtha, Esq.
Ø Fred “Pete” Gibson III, Esq.
Ø Gloria J. Sturman, Esq.
Ø Nancy Koppe, Esq.
Supreme Court Justice Anthony M. Kennedy once wrote regarding lawyers and pro bono service that “[l]awyers, like all those who practice a profession, have obligations to their calling which exceed their obligations to the state. Lawyers also have obligations by virtue of their special status as officers of the court. Accepting a court's request… [to work pro bono] is one of those traditional obligations." (fn15) Volunteering to serve as one of the §1983 mediators could be a unique and rewarding way to perform those “traditional obligations.” Those who volunteer for this opportunity will benefit. They will be able to meet their pro bono obligations to their community, they will get first-hand experience as mediators and they will gain more exposure to the federal court system. Most importantly, however, the volunteers will be assisting the district court in the administration of justice in Nevada. Heed the district court’s call for help and make a difference for your community.
John F. Murtha is the president and managing shareholder of Woodburn and Wedge. A member of the State Bar of Nevada since 1980, Mr. Murtha concentrates his practice on bankruptcy law and commercial litigation. Mr. Murtha currently serves as a Lawyer Representative to the Ninth Circuit Judicial Conference for the District of Nevada.
Brett Bitzer is a student at the McGeorge School of Law in Sacramento, California, and is working for Woodburn and Wedge as a summer clerk. Mr. Bitzer is a member of the McGeorge Law Review and is scheduled to graduate in May, 2009.
ProBono Footnotes
1 Black’s Law Dictionary (8th ed. 2004).
2 Judith L. Maute, Changing Conceptions of Lawyers’ Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations, 77 Tul. L. Rev. 91, 97 (2002).
3 Michelle S. Jacobs, Pro Bono Work and Access to Justice for the Poor: Real Change or Imagined Change?, 48 Fla. L. Rev. 509, 512 (1996).
4 See Id. See also, e.g., Nev. Rev. Stat. § 7.285 (West 2000).
5 Barbara Jordan, Pro Bono Programs: Democracy’s Guarantor, 5 Utah B.J. 30, 30 (1992).
7 Erika Martin-Doyle, Massachusetts Rule of Professional conduct 6.1: One Small, But Needed, Step for Lawyers, an Even Smaller Step for the Commonwealth’s Poor, 9 B.U. Pub. Int. L.J. 53, 60 (1999).
9 Nevada Rules of Professional Conduct, Rule 6.1(a) (2006).
10 Nevada Rules of Professional Conduct, Rule 6.1(a) (2006).
11 See Nevada Rules of Professional Conduct, Rule 6.1 (b)(1) (2006).
12 Nevada Rules of Professional Conduct, Rule 6.1(a)(3)(ii) (2006).
13 42 U.S.C. § 1997e (a) (2006).
14 42 U.S.C. § 1997e (c)(1) (2006).
15 Mallard v. U.S. Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 310-311 (1989) (Kennedy, J., concurring).