Sunday, April 27, 2008

The invisible docket

Religion, medical care, treatment by guards -- prisoners bring a long list of complaints to the tens of thousands of federal lawsuits they file every year.

Sheril Carr filed a federal civil lawsuit against a jail guard she says molested her when she was incarcerated in Danville. Lawyer Tray Sibley of the Richmond office of Hunton & Williams is representing Carr in her upcoming civil case against a Pittsylvania County sheriff's deputy.

Stephanie Klein-Davis | The Roanoke Times

Sheril Carr filed a federal civil lawsuit against a jail guard she says molested her when she was incarcerated in Danville. Lawyer Tray Sibley of the Richmond office of Hunton & Williams is representing Carr in her upcoming civil case against a Pittsylvania County sheriff's deputy.

Sheril Carr filed a lawsuit alleging that a sheriff's deputy molested her while she was an inmate at the jail in Danville. The case goes to trial in July, a month after Carr is scheduled to be released 
from prison.

Stephanie Klein-Davis | The Roanoke Times

Sheril Carr filed a lawsuit alleging that a sheriff's deputy molested her while she was an inmate at the jail in Danville. The case goes to trial in July, a month after Carr is scheduled to be released from prison.



The case files below may contain graphic content.

Case files from Leroy Lovelace

Case files from Sheril Carr

Keen Mountain Correctional Center is guard towers and razor wire, massive metal doors that buzz when they open and echo when they close.

The Virginia Correctional Center for Women is frilly curtains in a conference room, garden sales and neatly kept grounds with no fence in sight.

Neither looks much like a law school.

But Leroy A. Lovelace and Sheril Ann Carr, like the tens of thousands of other inmates across the country who file federal lawsuits every year, had little choice in where to study. If they wanted to challenge conditions they thought went beyond the reasonable bounds of their punishment -- in Lovelace's case, restrictions on his Islamic beliefs; in Carr's, a claim of sexual assault by a guard -- they had to teach themselves the intricate workings of the federal courts.

Lovelace's highest education had been some electrician classes after high school. Carr took GED classes in prison. They had no illusions that it would be easy to learn to navigate a system that can confuse lawyers and judges.

But Lovelace had religious faith and Carr had discipline -- and both had anger. It might get them through.

A legal flood

In the popular mind, the image of the jailhouse lawyer is of someone clogging the courts with obnoxious, ridiculous lawsuits -- an unfortunate example of the extremes of society's tolerance and freedom.

Or it's of John Grisham's best-selling "The Innocent Man," of a prisoner struggling to overturn a wrongful conviction, a last defense against the worst sorts of injustice.

And both these images are sometimes true.

But there are many, many cases that fall in between.

In the Western District of Virginia, inmates' civil lawsuits outnumber the criminal cases brought by the government. Prisoners' civil suits accounted for a third of the 1,455 cases filed in the district's federal courts last year. The largest percentage of cases from inmates are civil rights cases that attempt to change something about inmates' treatment or about prison conditions.

The four federal judges who hear cases in Roanoke report that they deal with prisoner complaints every day. It takes four staff lawyers to handle the research and correspondence chores associated with prisoner cases.

"It's a bit like laundry sometimes," admitted U.S. Magistrate Judge Michael Urbanski, who oversees the initial review of prisoner filings. He keeps Grisham's book in mind as an example of the importance of giving careful consideration to even the most clumsily presented claim.

Prisoner cases take so much time partly because inmates, with no money for lawyers, nearly always represent themselves. This leads to a far greater involvement of judges and clerks in the workings of the case.

"You're ferreting out his claims for him without being his advocate," U.S. District Court Judge Samuel Wilson explained.

Because the overwhelming majority of prisoner lawsuits are dismissed or settled before they reach an actual trial, they don't appear on court schedules with the frequency of other types of cases. But their huge effect on the workings of the courts makes them "almost an invisible part of the docket," Wilson said.

The Ramadan list

The incident that brought Lovelace into federal court happened in 2002, 14 years after an Arlington jury convicted him of raping three women and sexually assaulting a fourth and sentenced him to six life terms plus 175 years.

After a decade in prison, Lovelace joined the Nation of Islam, one of several Muslim groups at Keen Mountain.

Muslims often encountered confusion about their beliefs in the Buchanan County facility, Lovelace found, and sometimes outright hostility, particularly after Sept. 11, 2001.

Lovelace became the Nation of Islam liaison with prison authorities, which meant that when Ramadan came along in November 2002, he met with kitchen supervisors to work out the dining restrictions associated with the monthlong observance.

During Ramadan, Muslims fast during daylight hours. As they had before, prison authorities agreed to serve prisoners whose names were on a "pass list" a meal before sunrise and another after sundown.

Six days into Ramadan, Muslim prisoners discovered that the milk served with their meals was past its expiration date. Lovelace went to the kitchen staff and after a discussion he later described as "contentious," fresh milk was sent out.

But that night, Lovelace was refused a meal. A guard reported he had seen Lovelace in the regular, daytime lunch line, disqualifying him from the pass list. For the rest of Ramadan, Lovelace had to eat during daylight if he wanted to eat at all. He was barred from the prayers Muslim prisoners held in the dining halls.

Grievances filed with prison officials brought no change, although Lovelace said he had more than 20 witnesses who could say he was not in the dining hall at lunch. He began spending time at the prison's law library and gathering legal guidebooks produced for prisoners.

In June 2003, Lovelace filed a federal lawsuit against Keen Mountain's warden, assistant warden and the guard who'd reported he was in the lunch line, alleging they'd deprived him of his rights to practice his religion.

It would take more than four years for the lawsuit to play out.

Sexual assault in jail

Like many prisoners contemplating a federal lawsuit, Carr had a problem she wanted to take before a judge but wasn't sure how to go about it.

Carr was serving several years for credit card fraud, larceny and firearms charges. She said she was molested by a guard at the jail in Danville on two occasions, including one that left her urinating blood.

She'd tried telling the Pittsylvania County Sheriff's Office, the Virginia State Police, even the FBI, but she wasn't satisfied with the response. The attorney who had represented her in state court told her she might be able to file a federal lawsuit.

"He said it would be called a '1983 action,' " Carr recalled during an interview last month at the Virginia Correctional Center for Women in Goochland.

"1983" was a reference to the section of law dealing with civil rights complaints, although Carr did not know that yet. A prison newspaper ad for the advocacy group Stop Prisoner Rape made her decide to pursue a lawsuit.

Carr was taking GED classes and asked her instructor to do some online searches and print out what he could find about 1983 lawsuits.

Then she went to the prison library and started reading.

In January 2007, she filed a lawsuit against Pittsylvania Deputy Hank Hazelwood and another officer, alleging that Hazelwood molested her in 2004 and 2006, and that the other officer slammed her fingers in a cell door hatch hard enough that she lost nails and needed medical care.

Hazelwood filed an answer to Carr's lawsuit in which he denied molesting her. His lawyer could not be contacted last week.

U.S. District Court Judge Jackson Kiser ruled it was too late to file a case related to anything that may have occurred in 2004, dropping the earlier molestation claim and the hand-slamming from the case.

But the second molestation claim remained, and it survived defense motions to dismiss and for summary judgment -- hurdles that the vast majority of prisoner lawsuits fail to clear.

Carr credited her success to diligence.

"I would write and write and write," she recalled.

Suing Captain Kirk

Prisoner civil rights lawsuits were uncommon until the 1970s, when they became a deluge, remembered U.S. District Court Judge Glen Conrad, who started on the bench in 1975 as a magistrate judge.

"Inmates were filing about everything. The famous example is their rice pudding didn't have enough raisins," Conrad said.

Such lawsuits prompt periodic waves of concern about the court system bogging down, but Conrad said that hasn't happened.

"Our experience was the frivolous ones could be disposed of fairly quickly," he said.

Take the recent example of Jonathan Riches, one of the best-known "frequent filers" of recent years, with his own Wikipedia page and name recognition that makes court personnel roll their eyes.

So far this year, Riches has filed more than 1,000 lawsuits in federal courts across the country, including more than 100 in the Western District of Virginia. Confined in a prison in South Carolina, he has sued Venus and Serena Williams, alleging "Tennis balls are electrons and neurons stolen from my head," and asked for a restraining order against the characters of "Star Trek."

Riches' lawsuits have been dismissed out of hand under a three-strikes rule that requires prepayment of filing fees -- a steep barrier to usually indigent prisoners -- after three lawsuits have been found to be without merit.

The three-strikes rule is just one of several laws Congress enacted since the 1980s to limit prisoner access to the courts. Other rules include stricter time limits for filings and requiring inmates to exhaust administrative remedies within the prison system.

"It's not as wide open as it used to be," Conrad said. "And I have to say I miss that. It was fun. You never knew what was going to come in."

The pen as a weapon

As one filing followed another, Lovelace gained confidence in the power of the dozens and dozens of sometimes-handwritten, sometimes-typed pages he mailed off to the court clerk's office.

He became cellmates with William Couch, the prison's law clerk and the liaison for Keen Mountain's Sunni Muslim group. Couch lent his considerable research and writing talents to Lovelace's filings. In 2005, Couch filed a dovetailing lawsuit whose claims included that the prison's Ramadan diet didn't contain sufficient calories because it omitted lunch, the prison's largest meal of the day, and that the Eid al-Fitr meal and prayer service that ends Ramadan observances was not held at the proper time.

Couch began writing to law firms asking for help, but no one was willing to take on cases that promised little or no payment.

As the case ground along, the guard who reported seeing Lovelace in the lunch line filed an affidavit saying he'd confused Lovelace with someone else.

When a district court judge ruled in favor of a defense motion to kill Lovelace's case before it reached trial, he and Couch appealed to the 4th Circuit. There, the law required legal representation, and a lawyer was appointed to present the arguments Lovelace and Couch had crafted during the years the lawsuit had already run. A divided court reinstated Lovelace's case in a decision that won notice from legal commentators.

"A win like this would be a credit to any lawyer, let alone a non-lawyer working under the most difficult circumstances imaginable," David Fathi of the ACLU wrote to Couch.

In a column on the FindLaw Web site, Marci Hamilton, a law professor at Yeshiva University, accused a "misguided majority" on the court of micromanaging the prison.

Regardless of the hubbub, when the case returned to federal district court, Lovelace and Couch were on their own again, preparing for trial and negotiating for settlements.

Last year, the state settled.

Couch's settlement changed the Ramadan diet for Sunni prisoners and the scheduling of Eid al-Fitr observances. It also gained him $2,250.

Lovelace's settlement included an agreement to put in place a procedure to immediately verify the identity of any prisoner about to be removed from a Ramadan meals list. The model is to be the new policy at Keen Mountain.

Lovelace got $750 to cover his legal filing fees.

In dollar terms, it was a tiny settlement compared with those regularly agreed to in civil cases in the non-prison world.

But the money wasn't what he was after.

"I think these lawsuits have helped a little bit," Lovelace said during a recent interview at Keen Mountain. "I think most of the officers have heard about it. ... I think they're seeing Islam a little differently."

Now 59 and imprisoned for 20 years, Lovelace has another lawsuit pending against the prison. It is over the same Ramadan diet issue that Couch explored, a step Lovelace said was necessary because his cellmate's settlement dealt with the Sunni Muslim group, but not necessarily with Nation of Islam members. Although the prison adjusted the diet for all Muslim prisoners after Couch won an injunction, Lovelace wants to "put it in writing."

When inmates ask Lovelace for advice, he tells them to study the law books and write clearly.

"That's what I tell the young guys: The pen is your only weapon," Lovelace said.

An awesome opportunity

Carr's first court filings read like chatty letters -- albeit letters describing a grotesque abuse of power. But as the case continued, Carr began to cite other cases and to refer to specific sections of law, a development she credited to her ongoing reading in the library.

Her case is set for a jury trial in federal court in Danville on July 10, the month after she is scheduled to be released from prison.

And after pursuing her case alone for a year, Carr will have assistance when she gets to court.

Hers was the first case selected under a new program set up by Urbanski and Kimberly Emery, assistant dean for pro bono and public interest at the University of Virginia School of Law. Urbanski had long worried that valid complaints from prisoners might be ignored because they were not presented properly.

Tray Sibley, a lawyer with the Richmond office of Hunton & Williams, has taken on Carr's case for free -- though with the option of asking the defendant for fees if she wins.

Emery said she anticipates the new program will be able to handle four to six cases per year, finding pro bono legal counsel and assigning students to help with research.

"I am always on the lookout for good projects for my students. This was an awesome opportunity," Emery said. "These are very compelling cases that are desperately in need" of legal assistance.

Whether she wins or loses in July, Carr said she's found an issue she'll pursue beyond the jury's verdict.

"I'm going to fight for women's rights, for all those women out there. You don't know how many of them there are."

Staff researcher Belinda Harris contributed to this report.

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