Procedural Due Process Rights of Pro Se Civil Litigants
Procedural Due Process Rights of Pro Se Civil Litigants
Procedural Due Process Rights of Pro Se Civil Litigants
Civil Litigants
Julie M. Bradlowt
t B.A. 1985, Yale University; J.D. Candidate 1988, The University of Chicago.
1 422 U.S. 806, 835 n.46 (1975).
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2 See Donald H. Zeigler and Michele G. Hermann, The Invisible Litigant: An Inside
View of Pro Se Actions in the Federal Courts, 47 N.Y.U.L.Rev. 157, 160 (1972) (since pro se
litigants often are unable to comply with procedural rules, exceptions are carved out in
practice).
I Faretta, 422 U.S. at 819-20. For important cases developing the right-to-counsel juris-
prudence, see Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938);
Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972). See
also Comment, Constitutional Law: The Sixth Amendment Right of Self-Representation
and the Role of Standby Counsel, 24 Washburn L.J. 164 (1984); Michele Hermann and
19881 ProceduralDue ProcessRights
Shannon Donahue, Fathers Behind Bars: The Right to Counsel in Civil Contempt Proceed-
ings, 14 N.M.L.Rev. 275, 289-91 (1984).
4 1 Stat. 73, 92 (1789). Similar language is codified at 28 U.S.C. § 1654 (1982).
See Note, Legal Education for the Pro Se Litigant- A Step Towards a Meaningful
Right To Be Heard, 96 Yale L.J. 1641, 1641 n.2 (1987)(listing state statutes and constitu-
tional provisions).
' Faretta, 422 U.S. at 852 (Blackmun dissenting).
7 287 U.S. 45 (1932).
1 Id. at 69. Other courts have put it in even blunter fashion. See, e.g., United States v.
Dujanovic, 486 F.2d 182, 186 (9th Cir. 1973) (a pro se litigant ranges "from the misguided or
naive who just wants to tell the jury the truth, through the pressured one under the hard-
ships of the accusation of crime and the sophisticated person enamored with his own ability,
to the crafty courtroom experienced one who ruthlessly plays for the breaks. All eventually
play the part of the proverbial fool.").
I Ira P. Robbins and Susan N. Herman, Pro Se Litigation - Litigating Without Coun-
sel: Faretta or For Worse, 42 Brooklyn L.Rev. 629, 632 (1976).
10Id.
The University of Chicago Law Review [55:659
what is right.11 Yet others feel that they have a personal stake in
the outcome that an attorney will not.12 Some simply feel that jus-
tice has not been served in their case."3 Finally, many pro se liti-
gants choose this route for reasons of trial strategy. Some hope to
invoke the jury's sympathy by creating the plaintive image of the
"lone defendant against the mammoth state;"' 4 others hope that
by appearing without counsel, they will seem more credible be-
cause the jury will judge them as people. 5
Many pro se civil litigants doubtless represent themselves for
some of the reasons applicable to criminal defendants. Others ap-
pear pro se because they cannot afford counsel. Because the Su-
preme Court has held that there is no absolute due process right to
counsel in civil cases,16 indigent pro se civil litigants face not only
the unlikelihood of receiving court-appointed counsel, but other
obstacles as well.
Indigent civil litigants must file for leave to proceed without
liability for court costs under 28 U.S.C. § 1915(a).' 7 If this leave is
granted, they then can request appointment of counsel under 28
U.S.C. § 1915(d)."' Appointment of counsel in these cases is at the
court's discretion, however. Generally, it will occur only in excep-
tional circumstances.1 9 A court, however, may be more willing to
11Recent Development, The Role of Standby Counsel: The Road From Farettato Wig-
gins, 27 How.L.J. 1799, 1799 (1984).
12 Id.
13 Zeigler and Hermann, 47 N.Y.U.L.Rev. at 163 (cited in note 2).
"' Wiggins v. Estelle, 681 F.2d 266, 271 n.16 (5th Cir. 1982).
,5Recent Development, 27 How.L.J. at 1800 (cited in note 11).
18 Lassiter v. Department of Social Services, 452 U.S. 18, 26-27 (1981)(adopting a pre-
sumption that there is, absent a potential deprivation of the litigant's physical liberty, no
due process right to counsel; moreover, in civil cases, the other elements in the due process
decision must be weighed against this presumption when deciding whether to appoint coun-
sel). The "other elements" to which the Court refers in Lassiter are the factors incorporated
into the due process balancing test in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), dis-
cussed in section III.B.
17 28 U.S.C. § 1915(a) (1982) provides:
Any court of the United States may authorize the commencement, prosecution or de-
fense of any suit, action or proceeding, civil or criminal, or appeal therein, without
prepayment of fees and costs or security therefor, by a person who makes affidavit that
he is unable to pay such costs or give security therefor. Such affidavit shall state the
nature of the action, defense or appeal and affiant's belief that he is entitled to redress.
Is 28 U.S.C. § 1915(d) (1982) provides:
The court may request an attorney to represent any such person unable to employ
counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied
that the action is frivolous or malicious.
19 See, e.g., Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987); Wilborn v. Es-
calderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th
Cir. 1980). Some circuits have adopted less demanding tests. See, e.g., Hodge v. Police Of-
1988] ProceduralDue Process Rights
appoint counsel for the pro se defendant in a civil case than for the
pro se plaintiff. Whether the requisite circumstances exist in a
given instance depends on the complexity of the legal issues in-
volved and the perceived ability of the pro se litigant to prepare
and bring his case.2 ° Some courts have added a third requirement:
that a claim be "colorable," that is, have a likelihood of success on
the merits.2 '
Indigent civil litigants seeking to proceed under § 1915 also
must avoid having their actions dismissed under § 1915(d) as "friv-
olous or malicious. ' 22 Some commentators have argued that §
1915(d) review actually is separable from the merits of the case,
and not an additional stage of on-the-merits review before plead-
ings are filed and argument is heard-to which criminal defend-
ants and non pro se civil litigants are not subjected.2" Regardless of
the answer to this point of procedural arcana, it is clear that §
1915(d) review provides a potential opportunity for cursory treat-
ment of a meritorious pro se complaint. With § 1915(d) review, the
danger exists that courts will arbitrarily dismiss meritorious com-
plaints because judges do not read them with the tolerance due pro
se pleadings. Few jurisdictions require courts to state their reasons
for dismissal under § 1915(d).2 Moreover, courts tend erroneously
to consider the dismissal issue together with, instead of after, the
issue of whether the plaintiff has leave to proceed in forma
pauperis in the first place under 28 U.S.C. § 1915(a). This creates
the possibility that a court may dismiss a case without opinion
ficers, 802 F.2d 58, 60-61 (2d Cir. 1986)(factors that point in favor of appointing counsel:
likelihood of success on the merits, need for detailed investigation, presence of important
credibility issues, pro se litigant's ability, and complex legal issues); Maclin v. Freake, 650
F.2d 885, 887-88 (7th Cir. 1981)(same).
10See, e.g., Cookish v. Cunningham, 787 F.2d 1, 2-3 (1st Cir. 1986); Robbins v. Maggio,
750 F.2d 405, 412 (5th Cir. 1985); Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982).
21 See, e.g., United States v. 30.64 Acres of Land, 795 F.2d 796, 800 n.8 (9th Cir. 1986);
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984).
22 28 U.S.C. § 1915(d) (1982). Courts construing pleadings pursuant to this statute use
the same lenient standard applicable to construction of pro se pleadings in a fuller proceed-
ing on the merits. See Haines v. Kerner, 404 U.S. 519 (1972), discussed in section III.A.
22 See Robbins and Herman, 42 Brooklyn L.Rev. at 664-68 (cited in note 9) (§ 1915(d)
review is separable from the merits of the case). See also Note, Denial of a Pro Se Litigant's
Motion to Appoint Counsel: The Preclusive Effect of Refusing Immediate Review, 50 Ford-
ham L.Rev. 1399, 1411 (1982) (arguing that denial of motion to appoint counsel should be
immediately appealable).
214Crisafi v. Holland, 655 F.2d 1305, 1310 (D.C.Cir. 1981). See also The Federal Judicial
Center's Prisoner Civil Rights Committee, Recommended Procedures for Handling Prisoner
Civil Rights Cases in the Federal Courts 7 (1980)("Recommended Procedures") (high vol-
ume of prisoner condition-of-confinement cases and the large number of frivolous com-
plaints makes it difficult to ensure that the meritorious case will be recognized).
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25 See Recommended Procedures at 57 (cited in note 24); Wayne T. Westling and Pa-
tricia Rasmussen, Prisoners' Access to the Courts: Legal Requirements and Practical Reali-
ties, 16 Loy.U.Chi.L.J. 273, 297-98 (1985).
26 While the Supreme Court has held that pro se pleadings should be viewed with spe-
cial care, see Haines v. Kerner, 404 U.S. 519 (1972), a litigant with counsel may allege cru-
cial facts a pro se litigant would not think to include in his pleadings. Moreover, pleadings
drafted by counsel not only may be phrased more artfully, but also may allege viable causes
of action which might not occur to the pro se litigant, or for that matter, to the court. See
Recommended Procedures at 13-14 (cited in note 24); Westling and Rasmussen, 16
Loy.U.Chi.L.J. at 309 (cited in note 25) (a good case can be lost by poor presentation).
27 See Robbins and Herman, 42 Brooklyn L.Rev. at 641 (cited in note 9) (issue is not
only whether a pro se litigant has claims of which he is unaware, but also whether it is the
court's responsibility to help him find them).
28 422 U.S. 806 (1975).
28 Id. at 835 n.46.
1988] ProceduralDue Process Rights
" Id. at 821-32. The Court discussed procedure in the seventeenth-century Star Cham-
ber, where counsel was required, and one could not answer an indictment without counsel's
signature, thus forcing an involuntary "confession" of sorts in some cases. It then discussed
The University of Chicago Law Review [55:659
the Treason Act of 1695, which, in contravention to the existing practice of self-representa-
tion permitted (but did not require) assistance of counsel in treason cases. Although all
felony defendants in England ultimately were given the right to counsel, lawyers were not
forced upon them. In the colonies, the right of self-representation was never questioned; if
anything, it was actively promoted, for many people distrusted lawyers. Many colonial char-
ters and early state laws meticulously preserved this right. Moreover, the Court in Faretta
noted the relationship of the Judiciary Act of 1789, which guarantees self-representation in
civil cases, to the sixth amendment.
34 Id. at 833-35.
35 Id. at 835-37.
36 Id. at 835 n.46. The test for whether counsel has been "ineffective" is whether or not
counsel gave reasonably effective assistance. For a discussion of the history of this stan-
dard's development and the Supreme Court's landmark holding in Strickland v. Washing-
ton, 466 U.S. 668 (1984), see Comment, Constitutional Law: The Sixth Amendment Right to
Effective Assistance of Counsel, 24 Washburn L.J. 360 (1985).
" Faretta, 422 U.S. at 835 n.46.
Id. at 852 (Blackmun dissenting).
1988] ProceduralDue ProcessRights
quent case dealing with the right to self representation, the Court
gave the Faretta dicta the status of settled law. In McKaskle v.
Wiggins, 9 the Court held that unsolicited participation of standby
counsel did not impair the defendant Wiggins' Farettarights, rea-
soning that standby counsel might provide the pro se litigant with
needed assistance since the pro se status of a criminal defendant
does not excuse the defendant from normal procedural rules:
Farettarights are also not infringed when standby counsel as-
sists the pro se defendant in overcoming routine procedural or
evidentiary obstacles to the completion of some specific task
. . . that the defendant has clearly shown he wishes to com-
plete. Nor are they infringed when counsel merely helps to
ensure the defendant's compliance with basic rules of court-
room protocol and procedure.. . . A defendant does not have
a constitutional right to receive personal instruction from the
trial judge on courtroom procedure. Nor does the Constitution
require judges to take over chores for a pro se defendant that
would normally be attended to by trained counsel as a matter
of course. Faretta recognized as much.' 0
In some instances, lower federal courts have, in both civil and
criminal cases, explicitly followed the Faretta standard.41 In other
cases, which do not cite Faretta,courts evidently have adhered to
its reasoning.42 Some commentators also have considered this ap-
4 See, e.g., Comment, Pro Se Defendants and Advisory Counsel, 14 Land & Water
L.Rev. 227, 247-48 (1979); Paul Marcus, The FarettaPrinciple: Self-Representation v. the
Right to Counsel, 30 Am.J.Comp.L. 551, 569-70 (1982 Supp.).
4" Powell v. Alabama, 287 U.S. 45, 61 (1932).
45 Jacobsen, 790 F.2d at 1365-66; Pinkey, 548 F.2d at 311 ("[T]he trial court is under no
obligation to become an 'advocate' for or to assist and guide the pro se layman through the
trial thicket"); United States ex rel. Smith v. Pavich, 568 F.2d 33, 40 (7th Cir. 1978)(same).
See also Robbins and Herman, 42 Brooklyn L.Rev. at 681-82 (cited in note 9) (judge not
proper party to represent the pro se litigant); Westling and Rasmussen, 16 Loy.U.Chi.L.J. at
310 (cited in note 25) (same).
"' Wiggins, 465 U.S. at 178-79.
19881 ProceduralDue Process Rights
11 This comment will confine itself to a discussion of pro se litigation in federal court.
Similar problems exist in state court as well. See Note, 96 Yale L.J. at 1641 n.2 (cited in
note 5) (citing state laws on the right to self-representation).
"' Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979).
"' "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assis-
tance of Counsel for his defence."
U.S.Const. amend. VI.
10 Lassiter v. Department of Social Services, 452 U.S. 18, 26-27 (1981).
51 See, e.g., Ake v. Oklahoma, 470 U.S. 68, 78 (1985) ("The private interest in the accu-
racy of a criminal proceeding that places an individual's life or liberty at risk is almost
uniquely compelling"); Lassiter, 452 U.S. at 27 (recognizing a rebuttable presumption in
every civil case that no due process right to counsel exists absent a potential deprivation of
personal freedom). See also Note, Expanding the Due Process Rights of Indigent Litigants:
Will Texaco Trickle Down?, 61 N.Y.U.L.Rev. 463, 496 (1986).
52 Note, 61 N.Y.U.L.Rev. at 496-97. As discussed above, the Supreme Court held in
Lassiter that a civil litigant's due process rights must be weighed against the presumption
that, absent a potential deprivation of the litigant's personal freedom, there is no due pro-
cess right to counsel.
" Jacobsen, 790 F.2d at 1367-68 (Reinhardt dissenting). See generally Note, An Exten-
sion of the Right bf Access: The Pro Se Litigant's Right to Notification of the Requirements
of the Summary Judgment Rule, 55 Fordham L.Rev. 1109, 1132-35 (1987).
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not voluntary but rather result because pro se litigants cannot af-
ford attorneys to represent them." Some litigants, of course, will
be able to get an attorney to take their case on a contingent fee
basis. Many pro se civil cases, however, are civil rights cases or
habeas corpus actions for injunctive relief which would not gener-
ate money judgments.5 5 Thus, we cannot do in this instance what
Judge Richard Posner would have us do: subject the merits of
every case to "the test of the market,"' 6 and assume that a civil
litigant who cannot retain counsel does not have a meritorious
57
case.
The effects of holding a pro se civil litigant to strict compli-
ance with procedural rules under the Fardtta approach are mani-
fold. First, not only will this deter civil litigants from proceeding
pro se, it also will deter those with meritorious claims who cannot
get counsel from suing in the first place. If they do sue, their
chances of winning are decreased." The result is to place in jeop-
ardy the one due process right that pro se litigants clearly have:
the right to a meaningful opportunity to be heard.5 9
The second problem is that the judge who denies the pro se
civil litigant's request for counsel under 28 U.S.C. § 1915(d) is also
the judge who will enforce that litigant's obligation to comply
strictly with procedural rules. Like "cunning old Fury," 60 the judge
will in a sense both specify and carry out the procedural program
confronting the pro se litigant. Is it inequitable for a judge to deny
a pro se civil litigant assistance of counsel and then refuse to ex-
hibit some sort of leniency toward the pro se litigant in these
matters?6 1
" Note, 55 Fordham L.Rev. at 1132, n.149; Robbins and Herman, 42 Brooklyn L.Rev.
at 663 (cited in note 9).
"' Note, Pro Se Appeals in the Fifth Circuit: The Gradual Demise of the Notice Excep-
tion to Federal Rule of Appellate Procedure 4(a) and An Argument for Its Resurrection, 4
Rev. Litigation 71, 73 (1983).
11 Merritt v. Faulkner, 697 F.2d 761, 769-70 (7th Cir. 1983) (Posner concurring and
dissenting).
57 In civil rights cases brought under 42 U.S.C. § 1983, attorney's fees are available to
the plaintiff's attorney under 42 U.S.C. § 1988 if the plaintiff prevails on the merits. The
vast majority of § 1983 cases are, however, dismissed before trial. Hence, this is not, as
Posner suggests, an added incentive for attorneys to take civil pro se cases. Merritt, 697
F.2d at 770; Note, 55 Fordham L.Rev. at 1133-35, nn.162, 173-77 (cited in note 53).
58See text at note 24-26.
" Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982). See also Little v. Streater,
452 U.S. 1, 5-6 (1981). See section III.B.1.
10 Lewis Carroll, Alice's Adventures in Wonderland 40, in The Complete Works of
Lewis Carroll (Modern Library ed. 1936).
61 Merritt, 697 F.2d at 769 (Posner concurring and dissenting) ("It is unfair to deny a
1988] ProceduralDue Process Rights
This section first will explore some of the ways in which courts
have treated pro se civil litigants. The vast number of pro se cases
makes it necessary to cite only a few exemplary cases. Second, this
section will discuss what judicial process should be due the pro se
civil litigant in light of current due process jurisprudence. As it
turns out, courts that deal with this problem on a case-by-case ba-
sis are on the right track. It is the spirit with which they now ap-
proach the due process inquiry that is sometimes wanting.
67 Id.
68 See, e.g., Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C.Cir. 1968); Garaux v. Pulley,
739 F.2d 437, 439 (9th Cir. 1984); Moore v. State of Fla., 703 F.2d 516, 520-21 (11th Cir.
1983); Ham v. Smith, 653 F.2d 628, 630 (D.C.Cir. 1981); Barker v. Norman, 651 F.2d 1107,
1128-30 (5th Cir. 1981); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975); Mitchell v.
Inman, 682 F.2d 886, 887 (11th Cir. 1982).
69 412 F.2d 1091 (D.C.Cir. 1968).
10 Id. at 1092-94. See also cases cited in note 68.
71 Hudson, 412 F.2d at 1094. See also Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.
1979); Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
2 Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982).
73 Jacobsen v. Filler, 790 F.2d 1362, 1368 (9th Cir. 1986) (Reinhardt dissenting); Zeigler
and Hermann, 47 N.Y.U.L.Rev. at 202 (cited in note 2).
19881 ProceduralDue Process Rights
7' Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C.Cir. 1983) (refusing
to allow
plaintiff to refile his complaint to comply with the amount in controversy requirement).
'1 Burgs v. Sissel, 745 F.2d 526 (8th Cir. 1984) (pro se plaintiff's § 1983 complaint prop-
erly dismissed under Fed. R.Civ.Proc. 41(b) for failure to amend flawed pre-trial statement
after three opportunities to comply with the district court's pretrial order).
"I Hepperle v. Johnston, 590 F.2d 609 (5th Cir. 1979) (pro se plaintiff's repeated failure
to appear for deposition justified dismissal under Fed.R.Civ.Proc. 41(b) after warning of
possible dismissal).
82 Martinez-McBean v. Government of Virgin Islands, 562 F.2d 908 (3d Cir. 1977) (if
pro se plaintiff understood appeal procedures, district court may not grant relief from ear-
lier order of dismissal).
"8 Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985) (pro se plaintiff
cannot
be exempted from requirements of Fed.R.Evid. 103(a)(2), which forbids the predication of
error on evidence not actually offered at trial).
51 See, e.g., Ham v. Smith, 653 F.2d 628, 630 (D.C. Cir. 1981); Hudson v. Hardy, 412
F.2d 1091, 1094-95 (D.C.Cir. 1968); Phillips v. United States Board of Parole, 352 F.2d 711,
714 (D.C.Cir. 1965); Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982); Wilborn v. Es-
calderon, 789 F.2d 1328, 1332 (9th Cir. 1986); Smart v. Villar, 547 F.2d 112, 114 (10th Cir.
1976); Moore v. State of Fla., 703 F.2d 516, 521 (11th Cir. 1983).
" Hudson, 412 F.2d at 1094.
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86 But see Jacobsen, 790 F.2d at 1367 (Reinhardt dissenting) (distinguishing between
poor and imprisoned and those who merely are poor "creates two classes of indigent liti-
gants, those who are poor and law abiding and those who are poor and not. It then affords
lesser rights and protections to the former [class]."); Note, 55 Fordham L.Rev. at 1123 n.80
(cited in note 53) (calling this distinction "curious").
11 Moore v. State of Fla., 703 F.2d 516, 520 (11th Cir. 1983).
11 Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C.Cir. 1968).
69 Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C.Cir. 1983).
90 See Note, 55 Fordham L.Rev. at 1115 (cited in note 53).
9' Mitchell v. Beaubouef, 581 F.2d 412, 415-16 (5th Cir. 1978).
92 Zeigler and Hermann, 47 N.Y.U.L.Rev. at 176-202, 239 and n.345 (cited in note
2)(Second, Third, Fourth, Fifth, Sixth, Seventh, and Tenth Circuits employ pro se law
clerks on appeal).
93 See, e.g., Rules of the United States Courts in New York 110, 142 (2d Cir.); 159, 188,
207, 227 (S.D.N.Y. and E.D.N.Y.); 548, 585 (W.D.N.Y.) (2d ed. 1987); Rules of the United
States Court of Appeals for the Fourth Circuit 6 (1982); Practitioner's Handbook For Ap-
peals to the United States Court of Appeals for the Seventh Circuit 21-23, 115 (1981 ed.).
See also 28 U.S.C. § 1915(d) (1982); Fed.R.App.Proc. 24 (both dealing with litigation in
forma pauperis). But see Rules of the United States Court of Appeals for the Fifth Circuit
111-12 (1983) (discussing Local Rule 42 pertaining to dismissal of cases).
1988] ProceduralDue Process Rights
20' Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982), quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965). See also Little v. Streater, 452 U.S. 1, 5-6 (1981).
102 See Note, 61 N.Y.U.L.Rev. at 483 and n.166-72 (cited in note 51).
103 455 U.S. 422, 437 (1982).
14 Wolff v. McDonnell, 418 U.S. 539, 560 (1974), quoting Cafeteria Workers v. McEl-
roy, 367 U.S. 886, 895 (1961).
10I Little, 452 U.S. at 5, quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341
U.S. 123, 162 (1951), and Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
104 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
1988] ProceduralDue Process Rights
denied to those who could not pay the $50 filing fee because alternatives, such as settling
one's debts out of court, exist); Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 n.5 (1982)
("having made access to the courts an entitlement or a necessity, the State may not deprive
someone of that access unless the balance of state and private interests favors the govern-
ment scheme"). For an example of a fundamental right requiring access to the state court
system, see Boddie v. Connecticut, 401 U.S. 371 (1971) (filing fee required to initiate a di-
vorce action could not constitutionally be applied to indigents to keep them out of court
because of freedom of choice in marital decisions).
113 See, e.g., Evitts v. Lucey, 469 U.S. 387, 393 (1985) (states are not constitutionally
required to grant an appeal as of right to a criminal defendant, but if the state has created
appellate courts as an integral part of its justice system, the procedures in deciding appeals
The University of Chicago Law Review [55:659
must comport with due process); Nowak, Rotunda, Young, Constitutional Law § 13.10 at
518 n.8 (cited in note 110).
114Tribe, American Constitutional Law § 10-18 at 756 (cited in note 109), discussing
Martinez v. California, 444 U.S. 277 (1980) (statute granting immunity from suit to state
parole officials did not violate due process).
115 Boddie, 401 U.S. at 377-80; Walters v. Nat. Assn. of Radiation Survivors, 473 U.S.
305, 319-34 (1985) (plaintiff's interest in a "meaningful presentation," here alleged to be
denied by an attorney fee limitation statute that deprived plaintiff of the right to be repre-
sented by counsel of his choice, was outweighed by the government's interests in having
informal proceedings before the Veterans Administration and in preventing large portions of
awards from going to attorneys). See discussion of the procedural due process determination
at section III.B.2. See also Tribe, American Constitutional Law § 10-18 at 753-60 (cited in
note 109).
"' See, e.g. Hansen v. May, 502 F.2d 728 (9th Cir. 1974) (pro se plaintiff's claim, styled
one for "habeas corpus," should have been treated by lower court as stating a claim under §
1983). Some argue that, carried too far, the Haines approach will find a cause of action
where none exists. See Justice Rehnquist's dissent in Hughes v. Rowe, 449 U.S. 5, 22-23
(1980).
'1 Westling and Rasmussen, 16 Loy.U.Chi.L.J. at 275, 303 (cited in note 25).
Its 424 U.S. 319 (1976).
1988] ProceduralDue Process Rights
the rule it yields is, in effect: "Void procedures for lack of due process only when alternative
procedures would so substantially increase social welfare that their rejection seems irra-
The University of Chicago Law Review [55:659
that these interests are hard to value and that what essentially are
efficiency considerations have their limits as decision making crite-
ria. He urges, however, that these factors be applied qualitatively
as well as quantitatively. 11 5 As it turns out, this is in fact what
courts often do. 2 '
a. The Pro Se Civil Litigant's Interest. The pro se civil liti-
gant's constitutionally protected interest is in a meaningful oppor-
tunity to be heard. Obviously, valuation of this interest includes
the value of the underlying substantive claim which he may be ei-
ther prevented or deterred from bringing. It also includes the value
27
of this opportunity itself.1
A meaningful opportunity to be heard is a core due process
value. As discussed above, if one cannot proceed at all, one clearly
has lost more than simply the damages or the injunctive relief
sought because the meaningful opportunity to be heard is itself a
12 8
protected interest.
b. The Probabilityof Error.Needless to say, judicial resources
should not be wasted on frivolous claims. Many pro se claims are
in fact frivolous. 2 9 Without liberal construction of pleadings under
Haines, however, many meritorious complaints will not make it be-
yond the pleading stage. 130 The Haines approach, then, is valuable
in that it will reduce erroneous dismissal of claims to at least "nor-
mal" levels and will encourage pro se civil litigants to bring merito-
tional." Jerry L. Mashaw, The Supreme Court's Due Process Calculus For Administrative
Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44
U.Chi.L.Rev. 28, 47-49 (1976).
125 Posner, Economic Analysis of Law § 21.1 at 518 (cited in note 121).
'2 See, e.g., Little v. Streater, 452 U.S. 1, 13-14 (1981) (in deciding that application of
statute charging blood test fees to requesting party in paternity actions denied indigent
father due process of law, Court considered the importance of the parent-child relationship);
Ake v. Oklahoma, 470 U.S. 68, 79-83 (1985) (in holding that indigent criminal defendants
are entitled to court appointed psychiatrists where sanity at the time of offense is a major
factor in the trial, Court discussed the value, in terms of enhancement of defendant's case,
of such assistance). See also T. Alexander Aleinikoff, Constitutional Law in the Age of Bal-
ancing, 96 Yale L.J. 943, 975 n.203 (1987)("[In its constitutional cases, the Supreme] Court
may talk about 'costs' and 'benefits' to give the impression that some agreed upon common
scale is being used for weighing values, but the Court's analysis is decidedly non-
economic.").
12 See Zeigler and Hermann, 47 N.Y.U.L.Rev. at 205-06 (cited in note 2) (pro se liti-
gants deserve fair and efficient screening of their claims).
128 See section III.B.1.
129 See cases cited in Note, 55 Fordham L.Rev. at 1109 n. 4 (cited in note 53).
220 See Westling and Rasmussen, 16 Loy.U.Chi.L.J. at 304-05 (cited in note 25) (ten-
dency of courts to review the denial to proceed in forma pauperis and the resulting sum-
mary dismissal under 28 U.S.C. § 1915(d) under the abuse of discretion standard; summary
dismissal under § 1915(d) should instead be used sparingly in order to avoid dismissal of
meritorious claims).
1988] Procedural Due Process Rights
rious claims.
c. The Government's Interests. The governmental interests in
not having the pleadings of pro se civil litigants liberally construed
are many. However, they do not outweigh in most cases the value
to the civil pro se litigant of having such liberal construction under
Haines.
The first governmental interest is, of course, conservation of
judicial resources: time and money. There is no doubt about it: pro
se litigants impose burdens, both temporally and financially, on
the courts." 1 All other litigants, however, cost the court time and
money as well. 132 The additional time and money required to give a
liberal reading to pro se pleadings once one already has them in
hand seems minimal.
The second governmental interest is in preserving the impar-
tial role of the judge in the adversary system. This is an important
interest, important enough to justify strict enforcement of compli-
ance by pro se criminal defendants with procedural rules under
Faretta and Wiggins. 3 In the civil context, however, this argu-
ment proves too much. The effects of a Faretta approach in civil
cases are deterrence of meritorious suits and hindrance of the pro
se civil litigant who has difficulty complying with procedure be-
cause of his lack of knowledge. This point parallels the reasoning
in Ake v. Oklahoma, where the Court noted that the state's inter-
est in prevailing at trial in a criminal case is necessarily tempered
by its interest in a fair and accurate adjudication of cases.134 More-
over, the actual burden imposed on the adversary system by
Haines review is slight. The standard that a complaint should be
dismissed only if it is "beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief" originally was formulated in the context of litigants repre-
sented by counsel.135 Haines admittedly requires "less stringent
standards"' 3 6 for review of pro se claims than of pleadings drafted
by lawyers. The ultimate result is a less stringent interpretation of
what is itself a very lax standard. The incremental adversarial cost,
"' See Note, 96 Yale L.J. at 1646 and n.31 (cited in note 5); Special Project, The Legal
Services Corporation: Past, Present and Future, 28 N.Y.L.Sch.L.Rev. 593, 668-69 (1983).
12 In 1980, for instance, the total budget for the United States Courts was
$578,761,000. Administrative Office of the United States Courts, 1980 Annual Report of the
Director 28 (1980).
133 See section II.
1- 470 U.S. 68, 79 (1985).
M Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
M'Haines, 404 U.S. at 520-21.
The University of Chicago Law Review [55:659
137 See, e.g., Westling and Rasmussen, 16 Loy.U.Chi.L.J. at 291 n.108, 304 (cited in note
25) (only 4.9 percent of prisoner civil rights cases, 80-95 percent of which were pro se in
1979, survive pretrial).
138 See Note, 55 Fordham L.Rev. at 1109-10 n.4 (cited in note 53); Recommended Pro-
IV. CONCLUSION
141 Robbins and Herman, 42 Brooklyn L.Rev. at 667 (cited in note 9).
142 Faretta, 422 U.S. at 835 n.46.