Forms that prisoners must use to lodge federal complaints are subject to legal burdens that are both unique and inconsistent with existing law, Professor Richard Frankel has found.

In an article, Frankel and his co-author, U.S. Magistrate Judge Alistair Newbern lay out numerous and unique hurdles that prisoners must clear when filing complaints.

“Prisoners and Pleading,” which appeared in Washington University Law Review, identifies three distinct features of complaint forms required by district courts receiving prisoners’ claims that stray from the law and increase the odds that legitimate claims will be dismissed.

The article affirms the importance of the pro se complaint process, since a number of cases that established groundbreaking prison reforms resulted from prisoners’ pro se complaints. Notably, Johnson v. California successfully challenged double-celling of prisoners based on race and Estelle v. Gamble applied the prohibition of cruel or unusual punishment to deliberate indifference toward prisoners’ medical needs.

Yet, with prisoners’ lawsuits making up nearly 10 percent of the civil docket in the federal courts, Frankel and Newbern concur with the need for forms to guide the process. District courts began utilizing form complaints in the 1970s to create efficiencies, the article notes.

Surveying form complaints used in 92 federal districts, the researchers found that 76 require prisoners to indicate that they have exhausted administrative remedies for addressing their concerns, in spite of a 2007 U.S. Supreme Court ruling that prisoners need not plead facts regarding exhaustion of their complaints. The survey also found that 79 form complaints require prisoners to provide information about prior lawsuits they have filed, a unique pleading burden inconsistent with the Federal Rules of Civil Procedure.

More than 70 of the form complaints make it difficult for pro se prisoners to adequately describe their claims. Some forms give prisoners only limited space to state their allegations, and others prohibit the use of additional pages or attachments that may be needed to effectively document a violation.

Finally, Frankel and Newbern found numerous form complaints that feature legal terminology with which prisoners may be unfamiliar, hindering their ability to succeed with meritorious claims. In some instances, forms require prisoners to indicate if and how defendants were acting “under color of law” or whether they are being sued in their individual or official capacity—legal distinctions that carry risks for untrained pro se litigants, Frankel and Newbern note.

The co-authors suggest various reforms and provide a model form complaint designed to address the needs of both the courts tasked with handling pro se prisoner civil rights claims.