Procedural Due Process Rights of Pro Se Civil Litigants

PROCEDURAL DUE PROCESS RIGHTS OF PRO SE CIVIL..., 55 U. Chi. L. Rev.
659
55 U. Chi. L. Rev. 659
University of Chicago Law Review

Spring, 1988
Comment
PROCEDURAL DUE PROCESS RIGHTS OF PRO SE CIVIL LITIGANTS
Julie M. Bradlowp
Copyright 1988 by the University of Chicago; Julie M. Bradlow
An indigent person files a claim in federal district court under 42 U.S.C. § 1983. He requests both leave to proceed in forma
pauperis—without liability for court costs—under 28 U.S.C. § 1915(a) and court-appointed counsel under 28 U.S.C. §
1915(d). The court grants leave to proceed but denies his request for counsel. Shortly thereafter, the defendant in the action,
represented by counsel, files a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The
plaintiff is served with the motion, but because he does not comprehend it, he does not respond to it, assuming that he can
address the motion at trial. The judge then automatically enters summary judgment against the pro se plaintiff. The pro se
plaintiff learns of this dismissal and files an appeal, claiming that the trial court should have given him an explanation as to
the meaning of a summary judgment motion. Is he correct? At present, the answer depends upon the court in which he sued.
This also is true with regard to many other procedural blunders—besides failure to respond to a summary judgment
motion—that pro se civil litigants who are untrained in the law may make.
How should courts treat pro se litigants? Although the United States Supreme Court has not confronted directly the question
whether pro se civil litigants should be assisted throughout trial, the Court indicated in dicta in Faretta v. California1 that
courts should not excuse pro se criminal litigants from compliance with procedural requirements. The Supreme Court itself
has treated this dicta as settled law in subsequent cases, and lower federal courts have followed it as well. This comment
takes the position that the rule derived from Faretta—stating that pro se criminal litigants should get no special treatment—is
constitutionally correct if limited to criminal cases.
Currently, procedural treatment of pro se civil litigants is at *660 best highly case-specific, at worst inconsistent.2 This
comment concludes that a discretionary regime should be preserved, in the sense that the question of how much process is
due in any given case should be resolved by means of a sliding scale. The leniency automatically due a pro se litigant simply
because he or she is proceeding pro se is, in general, that which courts already grant: in particular, pro se litigants are entitled
to have their pleadings liberally construed by the courts. A liberal construction of the pleadings enables a court to assess the
nature of the interests at stake in the suit and to determine how much further procedural leniency, if any, is due in the
particular case.
This comment is divided into three sections. The first section provides a brief overview of pro se litigation. The second
section discusses the Supreme Court’s dicta on treatment of pro se litigants and the constitutional justifications for this
position in criminal cases. The third section discusses procedural treatment of civil litigants. It first presents some examples
of current treatment of pro se civil litigants and proposals made in the past for alleviating their plight. It then applies current
due process jurisprudence and argues that the Supreme Court’s current test for how much process the due process clause of
the fifth amendment requires demands a more individualized determination than afforded in these approaches. It is a
balancing test which becomes, when applied across the board, a sliding scale. At a minimum, this scale will require that, as
the law presently provides, pro se pleadings must be liberally construed. Beyond this rule of liberal construction, the sliding
scale offers pro se litigants only the guarantee that judges will endeavor to give such leniency and special attention as the
particular case merits.
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

PROCEDURAL DUE PROCESS RIGHTS OF PRO SE CIVIL..., 55 U. Chi. L. Rev. 659
I. AN OVERVIEW OF PRO SE LITIGATION
The sixth amendment guarantees to criminal defendants the right to assistance of counsel. Criminal defendants do, however,
have the right to waive such assistance and appear pro se.3 In civil *661 cases, litigants have a statutory right, first embodied
in the Judiciary Act of 1789, to represent themselves.4 Most states also provide, either by constitution or by statute, for a right
of self-representation in state courts.5
One wonders, of course, given the labyrinthine nature of the court system, let alone the labyrinthine nature of the law, why
anyone would choose to appear pro se. The saying goes that ‘one who is his own lawyer has a fool for a client.’6 It is the
perils of self-representation that lie behind the sixth amendment right to counsel in the first place. In Powell v. Alabama,7 an
early right to counsel case, the Supreme Court wrote:
Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He
lacks both the skill and knowledge adequately to prepare his defense, even though he have [sic] a perfect
one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it,
though he be not guilty, he faces the danger of conviction because he does not know how to establish his
innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or
those of feeble intellect.8
Nonetheless, many criminal defendants elect to represent themselves for a variety of reasons. Some believe that the public
defender’s office could not satisfactorily defend them because of its large caseload.9 Others harbor either a mistrust of
counsel10 or a blind faith in their own innocence and a belief that courts will do *662 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 justice has not been served in their
case.13 Finally, many pro se litigants 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;’14 others hope that by appearing without
counsel, they will seem more credible because the jury will judge them as people.15
Many pro se civil litigants doubtless represent themselves for some of the reasons applicable to criminal defendants. Others
appear pro se because they cannot afford counsel. Because the Supreme 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).17 If this leave
is granted, they then can request appointment of counsel under 28 U.S.C. § 1915(d).18 Appointment of counsel in these cases
is at the court’s discretion, however. Generally, it will occur only in exceptional circumstances.19 A court, however, may be
more willing to *663 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 involved and the perceived
ability of the pro se litigant to prepare and bring his case.20 Some courts have added a third requirement: that a claim be
‘colorable,’ that is, have a likelihood of success on the merits.21
Indigent civil litigants seeking to proceed under § 1915 also must avoid having their actions dismissed under § 1915(d) as
‘frivolous 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 pleadings are filed and argument is heard—to which criminal
defendants and non pro se civil litigants are not subjected.23 Regardless of the answer to this point of procedural arcana, it is
clear that § 1915(d) review provides a potential opportunity for cursory treatment of a meritorious pro se complaint. With §
1915(d) review, the danger exists that courts will arbitrarily dismiss meritorious complaints 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).24
Moreover, courts tend erroneously to considr the dismissal issue together with, instead of after, the issue of whether the
plaintiff has leave toproceed 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 *664 even before formally docketing it.25
Under the current system, a court might deny a pro se civil litigant counsel and then—assuming that the pro se litigant’s case
is not immediately dismissed under § 1915(d)—hold the pro se litigant to the same standards of compliance with procedural
rules as a litigant with counsel, even though the pro se litigant did not choose to appear pro se. Since he will have difficulty
complying with these rules, he risks losing his case on relatively mundane procedural issues. Moreover, the possibility exists,
although at least in theory it is not supposed to happen, that a pro se litigant who has a substantive cause of action may suffer
dismissal under § 1915(d) or other pleading rules, such as Rule 12(b)(6) of the Federal Rules of Civil Procedure, through
omission of facts or ignorance of the law.26 These possibilities raise the question whether the procedural treatment currently
given the pro se civil litigant by the federal courts comports with due process or whether more leniency is required to
preserve the litigant’s meaningful opportunity to be heard.27 This comment will take up this question in section three; first,
however, this comment discusses and defends the current treatment of pro se criminal defendants.
II. PROCEDURAL TREATMENT OF PRO SE LITIGANTS IN CRIMINAL CASES
In Faretta v. California,28 the Supreme Court found implicit in the right to counsel clause of the sixth amendment a right to
self-representation in criminal cases. The Court noted in dicta, however, that one who waives the benefit of legal
representation does not relieve himself of the burden of compliance with procedural requirements.29 Both lower federal courts
and commentators *665 have picked up this seemingly innocent footnote and given it the status of settled law. Yet despite its
questionable generalogy, the rule has sufficient constitutional justifications if limited to criminal defendants.
In Faretta, the eponymous defendant was charged with grand theft. He sought permission from the court to represent himself
at trial. Initially, the trial judge permitted Faretta to do so. Several weeks later, but still prior to trial, the court, on its own
initiative, held a hearing to determine Faretta’s competence to represent himself. After extensive questioning, the judge
determined that Faretta had not made a knowing and intelligent waiver of his right to counsel and that he had no
constitutional right to conduct his own defense.30 Faretta appealed his subsequent conviction on the ground that he should
have been allowed to represent himself.
The Supreme Court granted certiorari and reversed. The very language of the sixth amendment, Justice Stewart wrote for the
Court, grants rights to the defendant personally, ‘for it is he who suffers the consequences if [he] . . . fails,’31 and not to his
counsel. Assistance of counsel, under this scheme, means just that and nothing more:
The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools
guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State
interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel
upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case,
counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal
character upon which the Amendment insists. . . . Unless the accused has acquiesced in such
representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very
real sense, it is not his defense.32
The Court noted as well that the sixth amendment right to self-representation is reinforced by that amendment’s roots in
English legal history.33 The Court distinguished those cases recognizing *666 the right to court-appointed counsel from
Faretta on the ground that although the Constitution may obligate the state to provide a requesting litigant with counsel, the
state may not force a criminal defendant to accept a lawyerhe does not want.34
After criminal defendants ‘knowingly and intelligently’ waive the right to assistance of counsel, however, they relinquishthe
privileges of having counsel as well.35 The Court noted in Faretta that the unsuccessful pro se defendant may not claim
ineffective assistance of counsel on appeal.36 More importantly for present purposes, the Court remarked in dicta that:
The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a
license not to comply with relevant rules of procedural and substantive law.37
Justice Blackmun clearly intended his dissent in Faretta to cushion the impact of what supposedly was dicta upon future
cases. The opinion of the majority, Blackmun wrote, was lacking in that:
[It left] open a host of other procedural questions . . .. I assume that many of these questions will be
answered with finality in due course. Many of them, however, such as the . . . treatment of the pro se
defendant, will haunt the trial of every defendant who elects to exercise his right to self-representation.38

Despite Blackmun’s admonitory conclusion that the Faretta Court had not reached any conclusion about the pro se criminal
litigant’s obligation to comply with procedural rules, in a subsequent *667 case dealing with the right to self representation,
the Court gave the Faretta dicta the status of settled law. In McKaskle v. Wiggins,39 the Court held that unsolicited
participation of standby counsel did not impair the defendant Wiggins’ Faretta rights, reasoning 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:
Faretta rights are also not infringed when standby counsel assists 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 complete. Nor are they infringed when counsel merely helps to ensure the
defendant’s compliance with basic rules of courtroom 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.40
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 approach *668 to be the last word on special treatment of pro se litigants.43 For dicta on an issue supposedly
not before the Court, the Faretta standard has been given substantial deference.
Although the Court never has had the pro se procedural treatment question directly before it, the theory underlying the
Faretta approach is generally accepted in the Court’s sixth amendment right to counsel jurisprudence. The opinion of the
Court in Wiggins shows that the issue of procedural compliance by pro se criminal defendants is viewed not only in terms of
the pro se litigant’s right to self-representation, but also in terms of the need to preserve the impartiality of the judge. Judicial
impartiality was one of the original justifications for the sixth amendment right to counsel.44 The judge who unduly aids the
pro se litigant in his defense is, it is argued, wrongfully acting as an advocate for one side of the dispute.45
According the pro se criminal defendant no special treatment obviously may deter some from exercising their right to
self-representation or may encourage courts to appoint standby counsel more frequently. Despite the Court’s observation in
Faretta that the state cannot force a criminal defendant to accept a lawyer that he does not want, the Court’s subsequent
decision in Wiggins makes it clear that the right of self-representation is not so sacrosanct that courts may not do anything at
all which affects it. Like appointment of counsel to represent an accused, appointment of standby counsel removes a potential
obstacle to judicial impartiality. As long as the use of standby counsel preserves the jury’s perception that the pro se
defendant is conducting his own defense, the defendant’s Faretta right of self-representation is not infringed.46 Hence,
Wiggins shows that courts may address the impartiality problem in a manner not wholly favorable to the pro se criminal
defendant. The federal courts may take an approach, then, which provides criminal defendants with an incentive to accept
court-appointed counsel.
*669 In summary, many courts, including the Supreme Court, regard the Faretta dictum on procedural compliance as settled
law. The Faretta approach preserves judicial impartiality and functions as an alternative means to court-appointed counsel to
achieve this end. Thus, it should be settled law as regards pro se criminal defendants.
III. PROCEDURAL TREATMENT OF PRO SE CIVIL LITIGANTS
Requiring criminal defendants to comply strictly with procedural rules in federal court47 is justifiable because criminal
defendants can, if this deters them from proceeding pro se, receive court appointed counsel in cases where they may be
subject to imprisonment48 since the sixth amendment guarantees criminal defendants the right to counsel.49
The right to counsel is not absolute in civil cases,50 however. This poses an interesting problem. On the one hand, it has been
suggested that the due process rights of civil litigants are not coterminous with those of criminal litigants simply because the
interest in life or liberty is greater than the interest in property.51 Hence, appointing counsel for the indigent civil litigant only
in some cases is justified.52 On the other hand, the civil litigant who is denied court-appointed counsel and who cannot afford
to hire a lawyer must represent himself in order to have his day in court. The ‘choice’ to appear pro se may not truly be a
choice under such circumstances.53 Most pro se appearances by civil litigants are *670 not voluntary but rather result because
pro se litigants cannot afford attorneys to represent them.54 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 ot generate money judgments.55 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,’56 and assume that a civil litigant who cannot
retain counsel does not have a meritorious case.57
The effects of holding a pro se civil litigant to strict compliance with procedural rules under the Faretta approach are
manifold. 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.58 The result is to
place in jeopardy the one due process right that pro se litigants clearly have: the right to a meaningful opportunity to be
heard.59
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 exhibit some sort of leniency toward the pro se
litigant in these matters?61
*671 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 basis are on the right track. It is the spirit with which they now approach the due process inquiry
that is sometimes wanting.
A. Procedural Treatment of Pro Se Litigants in Civil Cases: A Look at The Status Quo
The only across-the-board special treatment which the Supreme Court has guaranteed pro se litigants, apart from the due
process rights accorded all litigants in civil cases, is the right to have courts liberally construe their pleadings. In Haines v.
Kerner,62 the plaintiff prisoner’s complaint against state and prison officials alleged that he suffered physical injuries while in
solitary confinement and a denial of due process in the steps leading to that confinement. The Supreme Court reversed a
dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim under 42 U.S.C. § 1983. The
Court noted that:
[A]llegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer
supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less
stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.’63
On its face, the Haines rule is limited to construction of pleadings. It seems odd, however, to allow a litigant ‘an opportunity
to offer proof’64 and then to enforce strict compliance with procedure thereafter.65 On the other hand, extending too much
procedural leniency to a pro se litigant risks undermining the impartial role of the judge in the adversary system.66 The federal
courts, which have *672 approached this question largely on a case-by-case, rule-by-rule basis, are clearly wrestling with
these conflicting notions. Some courts expand the Haines rationale into a general paternality towards the pro se civil litigant.67
Others, citing the nature of the adversary system as a bar to leniency, enforce compliance with procedural requirements by
pro se litigants in civil cases.
In several cases, for instance, the federal courts have ruled that pro se litigants must receive notice of the requirements of a
summary judgment motion under Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure.68 In Hudson v. Hardy,69 a pro
se prisoner filed a ‘petition for writ of declaratory judgment,’ alleging cruel treatment by his jailors. The district court granted
defendant’s ‘motion to dismiss the complaint or, in the alternative, for summary judgment’ without informing the plaintiff of
the nature of a summary judgment motion and his obligation to respond thereto.
The District of Columbia Circuit reversed, holding that a pro se litigant against whom a summary judgment motion is made
must be given notice of the requirement to respond to the motion in order that he might avoid having judgment automatically
entered against him.70 This notice must be, the Court wrote, ‘understandable to one in appellant’s a pro se litigant’s
circumstances fairly to apprise him of what is required.’ It must inform him not only of his obligation to respond but also of
the consequences of not doing so.71
Courts have justified this guarantee of notice by the observation that summary judgment is ‘contrary to lay intuition.’72 That
is, most pro se litigants assume that all lawsuits proceed smoothly from complaint to answer to trial.73 Hence, they do not
know how or when to respond to the motion. For example, a pro se party may *673 assume he can address the motion at
trial.74 Other procedural maneuvers are equally contrary to lay intuition. Courts therefore have extended the Hudson rationale
to some of these, including service of process,75 status calls,76 and motions to dismiss.77
Other lower federal courts, however, have taken a Faretta-type approach to ruling on procedural rights of pro se civil
litigants. On the ground that judicial assistance to pro se litigants undermines the impartial role of the judge in the adversary
system, at least one circuit court has ruled that the trial court did not have to notify a pro se plaintiff of a summary judgment
motion’s requirements.78 Courts have also denied judicial assistance and leniency to civil pro se litigants in the context of the
amount-in-controversy requirement,79 pre-trial statements,80 appearance for depositions,81 appeal periods,82 and rules of
evidence.83
Some courts have extended judicial assistance only to those pro se litigants who are prisoners.84 Prisoners, these courts claim,
have problems extending beyond the mere inability to pay for counsel85 which justify the burden placed on the adversary
system *674 by treating them in a lenient manner.86 These problems include limited access to legal materials87 and sources of
proof.88 In a similar vein, one appeals court has suggested limiting the Hudson approach to civil cases involving injunctive
relief, as opposed to those involving monetary damages.89 This rule presumably is based on the inability of indigent litigants
seeking declaratory or injunctive relief to obtain counsel even on a contingent fee basis.
Some courts have adopted both formal and informal procedures to be followed in pro se civil cases.90 For example, in the
Fifth Circuit, procedures for dealing with prisoner civil rights cases include regulations facilitating the filing of complaints,
without liability for court costs, by indigent persons; expansive construction of pleadings; provisions for supplementing the
complaint, if necessary, by an auxiliary questionnaire so as to enable the court better to understand the pleadings; assistance
with service of process; and rules enabling the court to refer cases to a magistrate for special consideration.91 In several
jurisdictions, courts use special law clerks to aid pro se litigants before the complaint is filed.92
The federal rules of practice for individual courts, however, offer little guidance to courts concerning how to rule on
procedural issues in pro se cases. These rules are largely ministerial, pertaining to briefs, service of process, naming attorneys
of record and the like.93 The Federal Judicial Center has promulgated guidelines for handling prisoner civil rights cases, most
of which are pro se, in federal court. These guidelines contain suggested forms for courts to use, procedures for centralization
of these cases in the district *675 courts, and rules for filing, dismissal, and service of complaints. They also discuss
appointment of counsel, procedures for handling motions, dismissal for failure to prosecute, procedures following the filing
of defendant’s answer, the making of special reports by the defendant, the pretrial statement, and the evidentiary hearing.94
These guidelines are, however, very general. Ultimately, they require procedural rulings in individual cases. Moreover, by
definition they are inapplicable to non-prisoner civil rights cases, although their rationale could be extended to other cases.
Finally, it is unclear to what extent federal courts have adopted these recommendations.95
Commentators also have suggested many uniform approaches for courts to adopt in this area. Before the Supreme Court
declared in Lassiter v. Dept. of Social Services96 that there is no absolute due process right to counsel in civil cases, the
obvious solution, appointment of counsel, was proposed for civil rpo se litigants. These commentators extended the logic of
Powell v. Alabana, that the indigent criminal defendant has the right to counsel because he is unable adequately to defend
himself,97 to pro se litigants in civil cases. Post-Lassiter commentators have proposed other, less expansive (and less
expensive) solutions, such as legal education98 and Hudson-type judicial notification to pro se litigants of procedural
requirements.99
This comment proposes a solution that is rarely (and then, just barely)100 addressed by courts: use of a particularized due
process balancing test to determine the procedural leniency due a pro se civil litigant in federal court simply because he is
proceeding pro se. Unlike most comments, however, this one by-and-large supports the current treatment of pro se litigants in
civil cases. What should be changed in many cases are the underlying presumptions *676 with which courts approach the

procedural treatment question.
B. Procedural Due Process Rights of Pro Se Civil Litigants
Pro se litigants deserve, of course, the minimum due process rights to which all other litigants are entitled. The most
significant of these rights is an opportunity to be heard, ‘granted at a meaningful time and in a meaningful manner.’101 Other
minimum due process protections include the requirement of adequate notice, the right to a neutral and detached decision
maker, the right to hire counsel, the right to present evidence and confront and cross-examine witnesses, and the right not to
be subjected to the jurisdiction or laws of a forum with which one has no significant contacts.102
As the Court noted in Logan v. Zimmerman Brush Co., however, not ‘every civil litigant [is entitled] to a hearing on the
merits in every case.’103 The Court has maintained that ‘the very nature of due process negates any concept of inflexible
procedures universally applicable to every imaginable situation.’104 Due process is not ‘unrelated to time, place and
circumstances,’ but rather is ‘flexible and calls for such procedural protections as the particular situation demands.’105
To this end, the Court has promulgated a balancing test requiring the weighing of private and governmental interests in order
to determine how much judicial process is due.106 Applied on a case-by-case basis, such a balancing test is essentially a
sliding scale. That is, some litigants will require very great procedural protections; others will require no protection; and the
vast majority will receive an amount of protection somewhere in between.
At the risk of sounding tautological, a meaningful opportunity to be heard under the due process clause requires, therefore, an
inquiry to determine how much further process is due under the facts and circumstances of the particular case. This comment
concludes that, at a minimum, a civil pro se litigant is entitled to a liberal construction of his pleadings as is already required
under *677 Haines v. Kerner.107 This liberal construction will in turn facilitate the court’s efforts to determine what further
procedural protections the due process balancing test requires.
Procedural due process inquiries require a two-step analysis. The first step is identification of a protected interest of which
the litigant otherwise would be deprived. The second step is a determination of what type of judicial process is due.108
1. Protected Interest. Civil litigants have a protected interest in a meaningful opportunity to be heard. This interest is
analytically distinct from any protected liberty or property interests that may underlie the litigant’s cause of action or legal
defenses.109 Litigants have invoked the interest in a meaningful opportunity to be heard in order to gain access to the courts in
the absence of any potential deprivation of an underlying substantive interest.110 This subsection argues that, regardless of
whether there are protected liberty or property interests attached to a given pro se litigant’s underlying claim, courts should
hold that a meaningful opportunity to be heard is itself a protected interest for such litigants.
Authorities are split on whether there is a constitutional right to proceed pro se in civil cases.111 In fact, access to court is
rarely unconditional where there are no fundamental constitutional rights at stake or there is no necessity to resort to the court
system.112 Civil litigants, however, have a statutory right to proceed pro se under 28 U.S.C. § 1654.
Although the government may not be required to give litigants access to court, case law indicates that once it does grant
access, the procedures used must comport with due process.113 Moreover, *678 statutory interpretation supports this
argument: Congress, after all, would not have granted the right to proceed pro se without conveying with that right a
meaningful opportunity to be heard. Ordinarily, a denial of due process does not occur if a state restricts the right of access by
means of reasonable procedural requirements.114 A litigant is denied due process, however, if these requirements work to deny
him a meaningful opportunity to be heard.115
A refusal to construe pleadings flexibly, as required under Haines, is tantamount to withdrawal of that meaningful
opportunity. For instance, an otherwise meritorious claim could be dismissed under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim. The very point of the Haines approach is to determine if, when a pro se civil
plaintiff has not said the ‘magic words’ (or has said the wrong words), a cause of action exists.116 Even though the number of
meritorious pro se complaints may be small, it is essential that these complaints be recognized.117 The protection of federal
court litigants’ interest in a meaningful opportunity to be heard while litigating is a central aspect of procedural due process.

2. What Process is Due. Once a protected interest is identified, courts must then determine how much process is due the civil
pro se litigant. The Supreme Court in Mathews v. Eldridge promulgated its test for determining the procedural protections to
which a litigant is entitled by due process.118 This test requires consideration of three factors:
*679 First, the private interest that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute procedural requirement would
entail.119
As Judge Posner points out, this balancing test is no more than an application of the Learned Hand formula for negligence
liability120 to the due process context.121 Hand’s formula, B < PL, finds defendants liable for their negligent conduct when the
burden of taking precautions (B) is less than the probability that accidents will otherwise occur (P) multiplied by the cost of
accidents to the plaintiff (L).122 In the due process context, this formula should mean that the type of process due is that
whereby the government’s interest in not having such precautions (B) does not exceed the probability that error will
otherwise occur (P) multiplied by the value of the litigant’s interest (L). As Posner suggests, the objective of a procedural
system is to minimize both the cost of erroneous judicial decisions and the cost of operating the procedural system. In other
words, if the cost of such error is less than the cost of reducing the error, then efficiency considerations tell us to tolerate the
error.123
We now will consider whether due process requires use of the Haines approach in the case of a pro se civil litigant in light of
these factors. Valuing the interests at stake is hard, naturally, because many of them cannot be measured in dollars and cents.
For instance, what is the value of injunctive relief to a pro se plaintiff suing under 42 U.S.C. § 1983? How, for that matter,
does one place a numerical value on any intangible right? Can we assume that it is worth as much to the litigant as the money
received by a plaintiff suing for damages? Even the amount received in a civil damage action will vary from case to case, so
it is difficult to equate the two different forms of relief; some say impossible.124 Posner recognizes *680 that these interests
are hard to value and that what essentially are efficiency considerations have their limits as decision making criteria. He
urges, however, that these factors be applied qualitatively as well as quantitatively.125 As it turns out, this is in fact what courts
often do.126
a. The Pro Se Civil Litigant’s Interest. The pro se civil litigant’s constitutionally protected interest is in a meaningful
opportunity to be heard. Obviously, valuation of this interest includes the value of the underlying substantive claim which he
may be either prevented or deterred from bringing. It also includes the value of this opportunity itself.127
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 protected interest.128
b. The Probability of Error. Needless to say, judicial resources should not be wasted on frivolous claims. Many pro se claims
are in fact frivolous.129 Without liberal construction of pleadings under Haines, however, many meritorious complaints will
not make it beyond the pleading stage.130 The Haines approach, then, is valuable in that it will reduce erroneous dismissal of
claims to at least ‘normal’ levels and will encourage pro se civil litigants to bring meritorious *681 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:
prose litigants impose burdens, both temporally and financially, on the courts.131 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 impartial role of the judge in the adversary system. This is an important
interest, important enough to justify strict enforcement of compliance by pro se criminal defendants with procedural rules

under Faretta and Wiggins.133 In the civil context, however, this argument 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 because of his lack of knowledge. This point parallels the reasoning in Ake v. Oklahoma, where the Court noted
that the state’s interest in prevailing at trial in a criminal case is necessarily tempered by its interest in a fair and accurate
adjudication of cases.134 Moreover, 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 represented by counsel.135
Haines admittedly requires ‘less stringent standards’136 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, *682
therefore, appears minimal.
The final governmental interest is in reducing the great amount of frivolous pro se litigation.137 No one will deny that these
cases are burdensome to the court system.138 This interest may be the most substantial of those discussed here. For the same
reason the government should be interested in impartial justice for civil pro se litigants, however, it also should be interested
in having meritorious civil pro se claims make it into court.139 Because the government is committed to ensuring that litigants
have their day in court, the law should presume that the government’s interest in ensuring court access outweighs the
government’s interest in the reduction of spurious suits that might result if courts did not liberally construe pleadings.
3. Toward a Due Process Standard for Leniency. In summary, pro se litigants in civil cases in federal court are entitled under
the due process clause to have their pleadings liberally construed by the courts under the Haines v. Kerner standard.140
Thereafter, the same Eldridge factors used to reach this conclusion—the balancing of the values of private interests and
procedural reform against the value of the government’s interest in preserving the status quo—should be applied on a
case-by-case basis to determine what further process is due. For the most part, things should go on as they did before: many
cases still will be dismissed, a very few will have counsel appointed to represent the pro se litigant therein, and others will
end up somewhere in between. Treatment of these other cases will include lenient application of all procedural rules
whenever it is in the interest of due process to do so; forcing strict compliance with subsequent court procedures is
inconsistent with a liberal construction of pleadings at the beginning of an action. It also will include the adoption of general
rules—comparable to the Haines standard for review of pleadings—protecting the pro se civil litigant whenever the benefit
of according such rules outweighs their cost under Eldridge.
What should change, however, is the spirit in which some *683 courts construe these complaints. Regarding Haines as a
particular product of a more generally applicable constitutional rule should encourage courts to reconsider the scope of their
responsibilities. Courts should use the Haines standard, and not the Faretta standard, as the touchstone for evaluating
procedural due process rights of civil pro se litigants. The background justification for the Faretta approach in criminal cases,
the sixth amendment right to counsel, does not apply in civil cases.
Many pro se civil complaints will, as is proper, still be dismissed. On the other hand, the pro se civil litigant’s lack of
knowledge will retain its rightful place as a ‘shield’ for him, and not become a ‘sword’ for the court to use to deter him from
suing or to defeat him in court if he does sue. A willingness to treat pro se litigants benevolently can alleviate a potentially
unfair procedural system.141 In short, the Faretta approach, whereby pro se status implies no reprieve from with procedural
requirements,142 while justified in criminal casesS hould not be used to determine (or terminate) the procedural due process
rights of civil pro se litigants.
IV. CONCLUSION
The Supreme Court has mentioned in dicta in the criminal context that pro se status does not mean that a litigant is free to
ignore relevant rules of procedural and substantive law. This position is justifiable in criminal cases on constitutional
grounds.
It is not, however, justifiable in civil cases, where many litigants appear pro se not because they prefer to do so, but because
they cannot afford counsel. Modern procedural due process jurisprudence requires, at the very least, that courts should give
the pro se civil litigant a liberal construction of his pleadings. The court should then determine what further process is due,
based on the individual facts and circumstances of the case. In short, in civil cases, there sometimes may be a ‘license not to
comply’ with procedural requirements.
Footnotes
p
B.A. 1985, Yale University; J.D. Candidate 1988, The University of Chicago.
1
422 U.S. 806, 835 n.46 (1975).
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).
3
Faretta, 422 U.S. at 819-20. For important cases developing the right-to-counsel jurisprudence, 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 Shannon Donahue, Fathers Behind Bars: The Right to Counsel in
Civil Contempt Proceedings, 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).
5
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 constitutional provisions).
6
Faretta, 422 U.S. at 852 (Blackmun dissenting).
7
287 U.S. 45 (1932).
8
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
hardships of the accusation of crime and the sophisticated person enamored with his own ability, to the crafty coutroom
experienced one who ruthlessly plays for the breaks. All eventually play the part of the proverbial fool.’).
9
Ira P. Robbins and Susan N. Herman, Pro Se Litigation—Litigating Without Counsel: Faretta or For Worse, 42 Brooklyn L.Rev.
629, 632 (1976).
10
Id.
11
Recent Development, The Role of Standby Counsel: The Road From Faretta to Wiggins, 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).
14
Wiggins v. Estelle, 681 F.2d 266, 271 n.16 (5th Cir. 1982).

15
Recent Development, 27 How.L.J. at 1800 (cited in note 11).
16
Lassiter v. Department of Social Services, 452 U.S. 18, 26-27 (1981) (adopting a presumption 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 counsel). 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), discussed 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 defense 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.
18
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. Escalderon, 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 fofficers, 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).
20
See, 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 proceeding on the merits. See Haines v. Kerner, 404 U.S. 519 (1972), discussed in
section III.A.
23
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 Fordham L.Rev. 1399, 1411 (1982) (arguing that denial of motion to appoint counsel should be immediately
appealable).
24
Crisafi 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 volume of prisoner condition-of-confinement cases and the large number of frivolous complaints makes it difficult to ensure
that the meritorious case will be recognized).
25
See Recommended Procedures at 57 (cited in note 24); Wayne T. Westling and Patricia Rasmussen, Prisoners’ Access to the
Courts: Legal Requirements and Practical Realities, 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 special care, see Haines v. Kerner, 404 U.S. 519
(1972), a litigant with counsel may allege crucial 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).
29
Id. at 835 n.46.
30
Id. at 808-10 and n.3.
31
Id. at 818-20.
32
Id. at 820-21.
33
Id. at 821-32. The Court discussed procedure in the seventeenth-century Star Chamber, 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 Treason Act of 1695, which, in contravention to the existing practice of self-representation 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 charters 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 standard’s development and the Supreme Court’s landmark holding in Strickland v.
Washington, 466 U.S. 668 (1984), see Comment, Constitutional Law. The Sixth Amendment Right to Effective Assistance of
Counsel, 24 Washburn L.J. 360 (1985).
37
Faretta, 422 U.S. at 835 n.46.
38
Id. at 852 (Blackmun dissenting).
39
465 U.S. 168 (1984).
40
Id. at 183-84.
41
See, e.g., Andrews v. Bechtel Power Corp., 780 F.2d 124, 140 (1st Cir. 1985) (pro se plaintiff cannot be exempted from
Fed.R.Evid. 103(a)(2), forbidding a claim of error predicated on evidence not actually offered at trial); Burgs v. Sissel, 745 F.2d

526, 528 (8th Cir. 1984) (pro se plaintiff cannot be excused from complying with the requirements of Fed.R.Civ.Proc. 41(b), case
dismissed for failure to comply with order of court); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (pro se plaintiff in habeas
action cannot be excused from failure to take a timely appeal under Fed.R.App.Proc. 4(a)); Hepperle v. Johnston, 590 F.2d 609,
612-13 (5th Cir. 1979) (pro se plaintiff’s failure to appear for deposition justified dismissal for want of prosecution under
Fed.R.Civ.Proc. 41(b)); Martinez-McBean v. Government of Virgin Islands, 562 F.2d 908, 912-13 (3d Cir. 1977) (pro se status did
not mitigate failure to comply with local period for appeal, thus lower court’s reversal under Fed.R.Civ.Proc. 60(b)(6) not
justified).
42
See, e.g., Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th Cir. 1986) (court has no duty to inform pro se plaintiff of need to respond
to motion for summary judgment); Nelson v. Foti, 707 F.2d 170, 171-72 (5th Cir. 1983) (pro se plaintiff should not be excused
from failure to take timely appeal under Fed.R.App.Proc. 4(a)); Dozier v. Ford Motor Co., 702 F.2d 1189, 1194-95 (D.C.Cir. 1983)
(court was not wrong in dismissing pro se plaintiff’s complaint for lack of jurisdiction even though complaint could have been
amended); United States v. Pinkey, 548 F.2d 305, 310 (10th Cir. 1977) (pro se defendant was not denied a fair trial because he
failed to object to judge’s suggestion that plaintiff government introduce handwritten voir dire questions into evidence in mail
fraud action).
43
See, e.g., Comment, Pro Se Defendants and Advisory Counsel, 14 Land & Water L.Rev. 227, 247-48 (1979); Paul Marcus, The
Faretta Principle: Self-Representation v. the Right to Counsel, 30 Am.J.Comp.L. 551, 569-70 (1982 Supp.).
44
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).
46
Wiggins, 465 U.S. at 178-79.
47
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).
48
Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979).
49
‘In all criminal prosecutions, the accued shall enjoy the right . . . to have the Assistance of Counsel for his defence.’ U.S.Const.
amend. VI.
50
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 accuracy 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
process right to counsel.
53
Jacobsen, 790 F.2d at 1367-68 (Reinhardt dissenting). See generally Note, An Extension of the Right of 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).
54
Note, 55 Fordham L.Rev. at 1132, n.149; Robbins and Herman, 42 Brooklyn L.Rev. at 663 (cited in note 9).
55
Note, Pro Se Appeals in the Fifth Circuit: The Gradual Demise of the Notice Exception to Federal Rule of Appellate Procedure
4(a) and An Argument for Its Resurrection, 4 Rev. Litigation 71, 73 (1983).
56
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).
58
See text at note 24-26.
59
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.
60
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 litigant a lawyer and then trip him up on
technicalities.’).
62
404 U.S. 519 (1972).
63
Id. at 520-21 (emphasis added), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
64
Haines, 404 U.S. at 521.
65
Note, 55 Fordham L.Rev. at 1120-21 (cited in note 53).
66
Id. at 1121-23. See also notes 43-45 and accompanying text.
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).

70
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).
72
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).
74
Jacobsen, 790 F.2d at 1368 (Reinhardt dissenting).
75
Borzeka v. Heckler, 739 F.2d 444 (9th Cir. 1984) (Fed.R.Civ.Proc. 4(d)(5), requiring personal service on an officer or agent of the
United States when the United States is a party, should be given flexible construction in the case of a pro se litigant).
76
Camps v. C & P Tel. Co., 692 F.2d 120, 124-25 (D.C.Cir. 1981) (pro se plaintiff who showed up a few minutes late for status call
should not have his case dismissed).
77
Mitchell v. Inman, 682 F.2d 886 (11th Cir. 1982) (pro se plaintiff should not have his case dismissed for failure to respond to
motion to dismiss where he was not given notice of the need to respond thereto).
78
Jacobsen v. Filler, 790 F.2d 1362, 1365-66 (9th Cir. 1986).
79
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).
80
Burgs v. Sissel, 745 F.2d 526 (8th Cir. 1984) (pro se plaintiff’s § 1983 complaint properly 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).
81
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 earlier order of dismissal).
83
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).
84
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. Escalderon, 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).
85
Hudson, 412 F.2d at 1094.

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 litigants, 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’).
87
Moore v. State of Fla., 703 F.2d 516, 520 (11th Cir. 1983).
88
Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C.Cir. 1968).
89
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).
91
Mitchell v. Beaubouef, 581 F.2d 412, 415-16 (5th Cir. 1978).
92
Zeigler v. 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 Appeals 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).
94
Recommended Procedures at 45-106 (cited in note 24).
95
As of January, 1980, four circuits and several district courts had cited the previous edition of the Recommended Procedures. Id. at
ix. See also Westling and Rasmussen, 16 Loy.U.Chi.L.J. at 299 n.152 (cited in note 25), for recent cases citing the Recommended
Procedures. Use of the Recommended Procedures is not universal, and it is unclear whether the courts that do use them follow
them chapter and verse.
96
452 U.S. 18 (1981).
97
See Note, 96 Yale L.J. at 1641-42 and n.5 (cited in note 5). See also note 8 and the accompanying text above.
98
Id. at 1642. One former federal prisoner has written a book on suing pro se. See Daniel E. Manville, Prisoners’ Self-Help Litigation
Manual (rev. 2d ed. 1986).
99
Note, 55 Fordham L.Rev. 1109, 1128-37 (cited in note 53).
100
Id. at 1115 n.38. See also unreported cases discussed in Robbins and Herman, 42 Brooklyn L.Rev. at 669 (cited in note 9).
101
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).
104
Wolff v. McDonnell, 418 U.S. 539, 560 (1974), quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).
105
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).
106
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
107
434 U.S. 519 (1972).
108
Logan, 455 U.S. at 428.
109
Laurence H. Tribe, American Constitutional Law § 10-18 at 753-54 (2d ed. 1988).
110
John E. Nowak, Ronald D. Rotunda, J. Nelson Young, Constitutional Law § 13.10 at 517 (3d ed. 1986).
111
See the cases cited in Note, 55 Fordham L.Rev. at 1109 n.3 (cited in note 53).
112
See United States v. Kras, 409 U.S. 434 (1973) (access to bankruptcy court could be 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 government 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 divorce 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 must comport with due process); Nowak, Rotunda, Young, Constitutional Law § 13.10 at 518 n.8 (cited in note 110).
114
Tribe, 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
represented 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).
116
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).

117
Westling and Rasmussen, 16 Loy.U.Chi.L.J. at 275, 303 (cited in note 25).
118
424 U.S. 319 (1976).
119
Id. at 335.
120
See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
121
Richard A. Posner, Economic Analysis of Law § 21.1 at 517-18 (3d ed. 1986).
122
Carroll Towing, 159 F.2d at 173. Posner, Economic Analysis of Law at § 21.1 at 517-18 (cited in note 121).
123
See Posner, Economic Analysis of Law § 21.1 at 517-18 (cited in note 121).
124
One commentator dubs the Eldridge formula a ‘utilitarian calculus’ and claims that 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
irrational.’ 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).
126
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
Balancing, 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.’).
127
See Zeigler and Hermann, 47 N.Y.U.L.Rev. at 205-06 (cited in note 2) (pro se litigants 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).
130
See Westling and Rasmussen, 16 Loy.U.Chi.L.J. at 304-05 (cited in note 25) (tendency of courts to review the denial to proceed in
forma pauperis and the resulting summary 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).
131
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).

132
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.
134
470 U.S. 68, 79 (1985).
135
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
136
Haines, 404 U.S. at 520-21.
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 Procedures at 9 (cited in note 24).
139
See section III.B.2.c. See also Recommended Procedures at 11 (cited in note 24) (important to society, as well as to the individual,
that meritorious complaints are found and dealt with).
140
404 U.S. 519 (1972).
141
Robbins and Herman, 42 Brooklyn L.Rev. at 667 (cited in note 9).
142
Faretta, 422 U.S. at 835 n.46.
55 UCHILR 659
End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

PROCEDURAL DUE PROCESS RIGHTS OF PRO SE CIVIL L..., 55 U. Chi. L. Rev. 659
Citing References (53)
Title Date Type Depth

1. Boyd v. Citizens Bank of Pennsylvania, Inc. May 22, 2014 Case
2014 WL 2154902, *2+ , W.D.Pa.
This is an employment discrimination case brought by Debra Boyd (“Plaintiff” or
“Boyd”) against her former employer, Citizens Bank of Pennsylvania, Inc.
(“Defendant” or “the...
2. U.S. v. Gregg Dec. 11, 2013 Case

2013 WL 6498249, *4+ , W.D.Pa.
Presently before the Court is the Motion for Summary Judgment (Docket No.
48) filed by the United States of America (“Plaintiff”) seeking judgment as a
matter of law pursuant to...
3. Eagle Eye Fishing Corp. v. U.S. Dept. of Commerce Mar. 17, 1994 Case
20 F.3d 503, 506 , 1st Cir.(Mass.)
Review was sought of order of National Oceanic and Atmospheric
Administration (NOAA) which found fishing company and captain guilty of
possession of billfish tail. The United...
4. Mala v. Crown Bay Marina, Inc. Jan. 07, 2013 Case

704 F.3d 239, 244 , 3rd Cir.(Virgin Islands)
LITIGATION - Parties. Pro se litigants do not have a right to receive how-to
legal manuals from judges.
5. Petralia v. Appleton Papers, Inc. Apr. 06, 2001 Case

2001 WL 531204, *2 , D.N.H.
Pro se plaintiff asserts a number of claims against the remaining defendants
arising from her alleged injurious exposure to carbonless copy paper in the
work place. Her claims are...
6. Cusamano v. Sobek Jan. 26, 2009 Case

604 F.Supp.2d 416, 446 , N.D.N.Y.
CIVIL RIGHTS - Prisons. Denial of access to toilet paper and soap did not
constitute unconstitutional condition of confinement.
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2008 WL 4426763, *4 , N.D.N.Y.
Timothy Fletcher, proceeding pro se, commenced this action pursuant to 42
U.S.C. § 1983 alleging, in summary, that the defendants, the Commissioner of
the New York State Division...


8. Sheils v. Brannen Sep. 18, 2008 Case
2008 WL 4371776, *2 , N.D.N.Y.
This matter comes before the Court following a Report-Recommendation filed
on August 12, 2008, by the Honorable George H. Lowe, United States
Magistrate Judge, pursuant to 28...
9. Zimmerman v. Burge Mar. 28, 2008 Case

2008 WL 850677, *9 , N.D.N.Y.
Nicholas Zimmerman, an inmate at Auburn Correctional Facility, brings this
action pursuant to 42 U.S.C. § 1983 alleging that defendants, seven
employees of the New York State...
10. Shaheen v. McIntyre Nov. 05, 2007 Case

2007 WL 3274835, *6 , N.D.N.Y.
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the
Hon. George H. Lowe, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28...
11. Koehl v. Greene Sep. 26, 2007 Case

2007 WL 2846905, *3 , N.D.N.Y.
on September 10, 2007 by the Honorable George H. Lowe, United States
Magistrate Judge, pursuant to 28...
12. Shomo v. New York Dept. of Correctional Services Sep. 04, 2007 Case
2007 WL 2580509, *3 , N.D.N.Y.
on August 6, 2007, by the Honorable George H. Lowe, United States
Magistrate Judge, pursuant to 28 U.S.C....
13. Standley v. Dennison Aug. 21, 2007 Case

2007 WL 2406909, *7 , N.D.N.Y.
After John Standley filed a § 1983 action alleging violations of his Fourteenth
Amendment rights, see Dkt. No. 4; see also 42 U.S.C. § 1983, his complaint
was referred to...
14. Tracy v. Freshwater July 31, 2007 Case

2007 WL 2230068, *3 , N.D.N.Y.
The above matter comes to me following a Report-Recommendation by
Magistrate Judge George H. Lowe, duly filed on July 11, 2007. The Clerk has
sent to me the entire file of this...
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2007 WL 1531879, *4 , N.D.N.Y.
Magistrate Judge George H. Lowe, duly filed on the 30th day of April, 2007.
Following ten days from the service...


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2007 WL 748442, *6 , N.D.N.Y.
Magistrate Judge George H. Lowe, duly filed on the 12th day of February,
2007. Following ten days from the service...
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2007 WL 951447, *3 , N.D.N.Y.
This matter has been referred to me for Report and Recommendation by the
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28 U.S.C. § 636(b) and Local...
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Table of Authorities (66)
Treatment Referenced Title Type Depth Page

Number
— 1. Ake v. Oklahoma Case — 681+
105 S.Ct. 1087, U.S.Okla., 1985

Defendant was convicted before the District Court,
Canadian County, James D. Bednar, J., of two
counts of murder in the first degree and two counts
of shooting with intent to kill,...
— 2. Aldabe v. Aldabe Case — 683
616 F.2d 1089, 9th Cir.(Cal.), 1980

A pro se civil rights complaint was dismissed by the
United States District Court for the Eastern District
of California, Philip C. Wilkins, Chief Judge, and
plaintiff appealed. ...
— 3. Andrews v. Bechtel Power Corp. Case — 683+
780 F.2d 124, 1st Cir.(Mass.), 1985

Employment applicant brought employment
discrimination action against employer and union.
The District Court for the District of Massachusetts,
David S. Nelson, J., denied class...
— 4. Argersinger v. Hamlin Case — 683+
92 S.Ct. 2006, U.S.Fla., 1972

A state prisoner brought an original habeas corpus
proceeding in the Florida Supreme Court, which
discharged the writ, 236 So.2d 442. Certiorari was
granted. The Supreme Court,...
— 5. Armstrong v. Manzo Case — 683
85 S.Ct. 1187, U.S.Tex., 1965

Proceeding to set aside adoption decree. The
District Court, El Paso County, Texas, denied relief,
and the father appealed. The Court of Civil Appeals
of Texas, 371 S.W.2d 407,...
— 6. Barker v. Norman Case — 683
651 F.2d 1107, 5th Cir.(Tex.), 1981

Civil Rights Act suit seeking damages and injunctive
relief was brought against federal agent and city
police officer based on search of plaintiff’s
apartment, alleged coercion of...


Number
— 7. Birl v. Estelle Case — 683
660 F.2d 592, 5th Cir.(Tex.), 1981
Appeal was taken from judgment entered by the
United States District Court for the Northern District
of Texas, David O. Belew, Jr., J., denying habeas
corpus relief. The Court of...
— 8. Boddie v. Connecticut Case — 683+
91 S.Ct. 780, U.S.Conn., 1971

Class action, on behalf of women in Connecticut
receiving state welfare assistance and desiring to
obtain divorces but barred from doing so by inability
to pay required court fees...
— 9. Borzeka v. Heckler Case — 683
739 F.2d 444, 9th Cir.(Nev.), 1984

Claimant for social security disability benefits
appealed from an order of the United States District
Court for the District of Nevada, Roger D. Foley,
Senior District Judge,...
— 10. Branch v. Cole Case — 683

686 F.2d 264, 5th Cir.(Miss.), 1982
Appeal was taken by plaintiff from judgment of the
United States District Court for the Northern District
of Mississippi, at Greenville, William C. Keady, Chief
Judge, in state...
— 11. Burgs v. Sissel Case — 683+

745 F.2d 526, 8th Cir.(Iowa), 1984
Inmate filed civil rights complaint against prison
officials. The United States District Court for the
Northern District of Iowa, Edward J. McManus, Chief
Judge, entered order...
— 12. Cafeteria and Restaurant Workers Case — 683

Union, Local 473, AFL-CIO v. McElroy
81 S.Ct. 1743, U.S.Dist.Col., 1961
Action by union and employee against Secretary of
Defense and others seeking, among other things, to
compel return to employee of her identification
badge so that she might be...


Number
— 13. Camps v. C & P Telephone Co. Case — 683
692 F.2d 120, D.C.Cir., 1981
Appeal was taken from order of the United States
District Court for the District of Columbia, John H.
Pratt, J., in employment discrimination action. The
Court of Appeals,...
— 14. Conley v. Gibson Case — 683+
78 S.Ct. 99, U.S.Tex., 1957

Action for declaratory judgment and for other relief.
The United States District Court for the Southern
District of Texas, Houston Division, 138 F.Supp. 60,
rendered judgment...
— 15. Cookish v. Cunningham Case — 683
787 F.2d 1, 1st Cir.(N.H.), 1986

Inmate brought action alleging he had been denied
proper medical care, access to law library and
alleging that law library was inadequate. The
United States District Court for...
— 16. Crisafi v. Holland Case — 683
655 F.2d 1305, D.C.Cir., 1981

Pro se prisoner appealed from dismissal by the
United States District Court for the District of
Columbia of prisoner’s in forma pauperis civil action.
The Court of Appeals held...
— 17. Davis v. Zahradnick Case — 683
600 F.2d 458, 4th Cir.(Va.), 1979

In an action brought under the Civil Rights Act of
1871 by inmate against prison guard and warden,
the United States District Court for the Eastern
District of Virginia, at...
— 18. Dozier v. Ford Motor Co. Case — 683+
702 F.2d 1189, D.C.Cir., 1983

Suit based upon diversity was dismissed for lack of
statutory amount in controversy and for absence of
complete diversity of citizenship. The Fourth
Circuit affirmed. ...


Number
— 19. Evitts v. Lucey Case — 683
105 S.Ct. 830, U.S.Ky., 1985

Petitioner brought writ of habeas corpus, seeking
release following his conviction in Kentucky of
trafficking in controlled substances. Following
remand, 645 F.2d 547, the United...
— 20. Faretta v. California Case — 659+
95 S.Ct. 2525, U.S.Cal., 1975

In a prosecution in the Superior Court, Los Angeles
County, California, for grand theft, the accused well
before trial requested that he be permitted to
represent himself. The...
— 21. Garaux v. Pulley Case — 683
739 F.2d 437, 9th Cir.(Cal.), 1984

Pro se plaintiff filed suit seeking declaratory and
injunctive relief and damages concerning his
reclassification by prison officials. The United States
District Court for the...
— 22. Gideon v. Wainwright Case — 683
83 S.Ct. 792, U.S.Fla., 1963

The petitioner brought habeas corpus proceedings
against the Director of the Division of Corrections.
The Florida Supreme Court, 135 So.2d 746, denied
all relief, and the...
— 23. Haines v. Kerner Case — 671+
92 S.Ct. 594, U.S.Ill., 1972

State prison inmate brought an action against the
governor of Illinois and other state officers and
prison officials to recover damages. The United
States District Court for the...
— 24. Ham v. Smith Case — 683+
653 F.2d 628, D.C.Cir., 1981

In Freedom of Information Act action, the United
States District Court for the District of Columbia,
June L. Green, J., granted summary judgment for
defendant, and pro se plaintiff...


Number
— 25. Hansen v. May Case — 683
502 F.2d 728, 9th Cir.(Idaho), 1974
Appeal from a judgment of the United States District
Court for the District of Idaho, Ray McNichols, Chief
Judge, summarily denying a petition for writ of
habeas corpus by state...
— 26. Hepperle v. Johnston Case — 683+

590 F.2d 609, 5th Cir.(Tex.), 1979
An action was dismissed for want of prosecution,
and the United States District Court for the Northern
District of Texas at Dallas, Robert W. Porter, J., also
refused to consider...
— 27. Hodge v. Police Officers Case — 683
802 F.2d 58, 2nd Cir.(N.Y.), 1986

Indigent brought civil rights action against police
officers who had arrested him. The United States
District Court for the Southern District of New York,
Mary Johnson Lowe, J.,...
— 28. Hudson v. Hardy Case — 672+
412 F.2d 1091, D.C.Cir., 1968

Declaratory judgment action by prisoner based upon
alleged cruel and inhuman treatment by jail officials.
The United States District Court for the District of
Columbia, Matthew F....
— 29. Hughes v. Rowe Case — 683
101 S.Ct. 173, U.S.Ill., 1980

The United States District Court for the Northern
District of Illinois, McMillen, J., granted motion to
dismiss Illinois State Penitentiary inmate’s civil rights
complaint and...
— 30. Jacobsen v. Filler Case — 683+
790 F.2d 1362, 9th Cir.(Ariz.), 1986

Action was brought against city, council members,
city attorney and assistant city attorney challenging
the dismantling and confiscation of newspaper
racks. The United States...


Number
— 31. Johnson v. Zerbst Case — 683
58 S.Ct. 1019, U.S.Ga., 1938

On Writ of Certiorari to the United States Circuit
Court of Appeals for the Fifth Circuit. Habeas corpus
by John A. Johnson against Fred G. Zerbst,
Warden, United States...
— 32. Joint Anti-Fascist Refugee Committee Case — 683

v. McGrath
71 S.Ct. 624, U.S.Dist.Col., 1951
Actions for declaratory and injunctive relief by the
Joint Anti-Fascist Refugee Committee, and by the
National Council of American-Soviet Friendship,
Inc., and others, and by the...
— 33. Lassiter v. Department of Social Case — 675+

Services of Durham County, N. C.
101 S.Ct. 2153, U.S.N.C., 1981
The District Court, Durham County, Samuel F.
Gantt, J., terminated a mother’s parental rights and
appeal was taken. The North Carolina Court of
Appeals, Robert M. Martin, J., 43...
— 34. Lewis v. Faulkner Case — 683+
689 F.2d 100, 7th Cir.(Ind.), 1982

Appeal was taken from order of the United States
District Court for the Northern District of Indiana,
Allen Sharp, Chief Judge, dismissing complaint. The
Court of Appeals, Posner,...
— 35. Little v. Streater Case — 683+
101 S.Ct. 2202, U.S.Conn., 1981

Putative father appealed from a judgment of the
Appellate Session of the Connecticut Superior Court
affirming a judgment identifying him as an
illegitimate child’s father and...
— 36. Logan v. Zimmerman Brush Co. Case — 676+
102 S.Ct. 1148, U.S.Ill., 1982

Employee, who was discharged purportedly
because his short left leg made it impossible for him
to perform his duties as a shipping clerk, filed timely
charge of unlawful...


Number
— 37. Maclin v. Freake Case — 683
650 F.2d 885, 7th Cir.(Ind.), 1981

After denying appointment of counsel, the United
States District Court for the Northern District of
Indiana, South Bend Division, Allen Sharp, J.,
dismissed prisoner’s complaint...
— 38. Martinez v. State of Cal. Case — 683
100 S.Ct. 553, U.S.Cal., 1980

Suit was brought for the murder of a girl by a
parolee who had been released on parole some five
months before he committed such killing. The trial
court in California sustained...
— 39. Martinez-McBean v. Government of Virgin Case — 683+

Islands
562 F.2d 908, 3rd Cir.(Virgin Islands), 1977
Discharged teacher brought action challenging his
dismissal. Two and one-half years after dismissing
the action, the United States District Court of the
Virgin Islands, Division...
— 40. Mathews v. Eldridge Case — 678+
96 S.Ct. 893, U.S.Va., 1976

A person whose social security disability benefits
had been terminated brought an action challenging
the constitutional validity of the administrative
procedures established by the...
— 41. McKaskle v. Wiggins Case — 667+
104 S.Ct. 944, U.S.Tex., 1984

Petitioner filed habeas petition claiming that standby
counsel’s conduct deprived him of his right to
present his own defense. The United States District
Court for the Western...
— 42. Merritt v. Faulkner Case — 683+
697 F.2d 761, 7th Cir.(Ind.), 1983

Prisoner sought relief for alleged deliberate
indifference of prison officials to his serious medical
problems. The United States District Court for the
Northern District of...


Number
— 43. Miller v. Simmons Case — 683
814 F.2d 962, 4th Cir.(N.C.), 1987

Pro se litigant brought civil rights action against
sheriff and deputy sheriff for indifference to serious
medical need while incarcerated. The United
States District Court for...
— 44. Mitchell v. Beaubouef Case — 683

581 F.2d 412, 5th Cir.(La.), 1978
Three inmates of the Louisiana State Penitentiary
filed a pro se complaint, alleging that they had been
deprived of due process of law in a prison
disciplinary hearing. After...
— 45. Mitchell v. Inman Case — 683+
682 F.2d 886, 11th Cir.(Ga.), 1982

Employee filed pro se civil rights complaint against
employer alleging his job probationary period was
improperly extended in retaliation for his appealing a
dismissal of a...
— 46. Moore v. State of Fla. Case — 683+

703 F.2d 516, 11th Cir.(Fla.), 1983
The United States District Court for the Middle
District of Florida, W m. Terrell Hodges, Chief Judge,
granted summary judgment in favor of defendants in
civil rights action by...
— 47. Morrissey v. Brewer Case — 683
92 S.Ct. 2593, U.S.Iowa, 1972

Two cases, in each of which the United States
District Court for the Southern District of Iowa
denied a petition for writ of habeas corpus for the
release of a prisoner following...
— 48. Nelson v. Foti Case — 683

707 F.2d 170, 5th Cir.(La.), 1983
Prisoner, acting pro se, appealed from an order of
the United States District Court for the Eastern
District of Louisiana, Charles Schwartz, Jr., J., which
denied his petition for...


Number
— 49. Phillips v. U.S. Bd. of Parole Case — 683
352 F.2d 711, D.C.Cir., 1965
Federal prisoner brought a proceeding against the
United States Board of Parole and others to secure
his release from detention on ground that the Board
had revoked his conditional...
— 50. Powell v. State of Ala. Case — 661+
53 S.Ct. 55, U.S.Ala., 1932

On Writs of Certiorari to the Supreme Court of the
State of Alabama. Ozie Powell and two others,
Haywood Patterson, and Charley Weems and
another were convicted of rape. The...
— 51. Robbins v. Maggio Case — 683+
750 F.2d 405, 5th Cir.(La.), 1985

Three independent in forma pauperis civil rights
actions were commenced by prison inmates. The
United States District Court for the Middle District of
Louisiana, Alton T. Moran,...
— 52. Roseboro v. Garrison Case — 683+
528 F.2d 309, 4th Cir.(N.C.), 1975

State prison inmate filed Civil Rights Act suit
seeking declaratory and injunctive relief as well as
damages. The United States District Court for the
Eastern District of North...
— 53. Scott v. Illinois Case — 683
99 S.Ct. 1158, U.S.Ill., 1979

Defendant was convicted of theft and fined $50
after a bench trial in the Circuit Court, Cook County.
His conviction was affirmed by the Appellate Court
for the First District,...
— 54. Smart v. Villar Case — 683
547 F.2d 112, 10th Cir.(Kan.), 1976

United States District Court for the District of
Kansas, Earl E. O’Connor, J., dismissed state
prisoner’s pro se complaint against physician at
state prison, and prisoner appealed....


Number
— 55. Strickland v. Washington Case — 683
104 S.Ct. 2052, U.S.Fla., 1984

See 467 U.S. 1267, 104 S.Ct. 3562. Defendant, who
received death penalty for murder conviction, filed
petition for writ of habeas corpus. The United States
— 56. U. S. ex rel. Smith v. Pavich Case — 683

568 F.2d 33, 7th Cir.(Ill.), 1978
Illinois prisoner sought habeas corpus relief on
ground that he had been denied his constitutional
right to effective assistance of counsel. The United
States District Court for...
— 57. U.S. v. 30.64 Acres of Land, More or Case — 683

Less, Situated in Klickitat County, State of
Wash.
795 F.2d 796, 9th Cir.(Wash.), 1986
United States filed complaint to establish just
compensation for 30.64 acres of land taken by
Government as added flowage easement for
Bonneville Dam. The United States District...
— 58. U.S. v. Dujanovic Case — 683
486 F.2d 182, 9th Cir.(Ariz.), 1973

Defendant was convicted in the United States
District Court for the District of Arizona, William P.
Copple, J., of failing to submit to induction, and he
appealed. The Court of...
— 59. U.S. v. Kras Case — 683
93 S.Ct. 631, U.S.N.Y., 1973

Petitioner filed petition for leave to file petition in
bankruptcy without prepayment of filing fees. The
Government intervened. The United States District
Court for the Eastern...
— 60. U.S. v. Pinkey Case — 683+

548 F.2d 305, 10th Cir.(Colo.), 1977
Defendant was convicted before the United States
District Court for the District of Colorado, Fred M.
Winner, Chief Judge, of using the mails to
perpetrate a scheme to defraud and...


Number
— 61. United States v. Carroll Towing Co. Case — 683+
159 F.2d 169, C.C.A.2 (N.Y.), 1947

Appeal from the District Court of the United States
for the Eastern District of New York. Libel by
Conners Marine Company, Inc., against
Pennsylvania Railroad Company, charterer of...
— 62. Walters v. National Ass’n of Radiation Case — 683

Survivors
105 S.Ct. 3180, U.S.Cal., 1985
Veterans organizations, veterans and a veteran’s
widow brought action challenging constitutionality of
the statutory $10 maximum fee that may be paid an
attorney or agent who...
— 63. Whisenant v. Yuam Case — 683
739 F.2d 160, 4th Cir.(N.C.), 1984

Section 1983 action was brought against police
officers, prison officials, and two private citizens to
recover damages arising out of denial of medical
care to pretrial detainee. ...
— 64. Wiggins v. Estelle Case — 668+
681 F.2d 266, 5th Cir.(Tex.), 1982

State prisoner petitioned for writ of habeas corpus,
challenging participation of court-appointed standby
counsel in his defense at trial. The United States
— 65. Wilborn v. Escalderon Case — 683+
789 F.2d 1328, 9th Cir.(Cal.), 1986

Civil rights plaintiff who was arrested on parole
violations brought action against Director of
California Department of Corrections and his parole
officer alleging he had been...
— 66. Wolff v. McDonnell Case — 683
94 S.Ct. 2963, U.S.Neb., 1974

Civil rights action was brought challenging
administrative procedures and practices at
Nebraska penal and correctional complex. From an
order of the United States District Court...

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PROCEDURAL DUE PROCESS RIGHTS OF PRO SE CIVIL..., 55 U. Chi. L. Rev.

55 U. Chi. L. Rev. 659

University of Chicago Law Review

Copyright 1988 by the University of Chicago; Julie M. Bradlow

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

I. AN OVERVIEW OF PRO SE LITIGATION

II. PROCEDURAL TREATMENT OF PRO SE LITIGANTS IN CRIMINAL CASES

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 3

III. PROCEDURAL TREATMENT OF PRO SE CIVIL LITIGANTS

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 6

procedural treatment question.

B. Procedural Due Process Rights of Pro Se Civil Litigants

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 7

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 8

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 10

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 11

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 12

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 13

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 14

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 15

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 16

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 17

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 18

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 19

Citing References (53)

Title Date Type Depth

2. U.S. v. Gregg Dec. 11, 2013 Case

4. Mala v. Crown Bay Marina, Inc. Jan. 07, 2013 Case

5. Petralia v. Appleton Papers, Inc. Apr. 06, 2001 Case

6. Cusamano v. Sobek Jan. 26, 2009 Case

7. Fletcher v. Goord Sep. 25, 2008 Case

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 20

Title Date Type Depth

9. Zimmerman v. Burge Mar. 28, 2008 Case

10. Shaheen v. McIntyre Nov. 05, 2007 Case

11. Koehl v. Greene Sep. 26, 2007 Case

13. Standley v. Dennison Aug. 21, 2007 Case

14. Tracy v. Freshwater July 31, 2007 Case

15. Eady v. Lappin May 22, 2007 Case

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 21

Title Date Type Depth

17. Sledge v. Kooi Feb. 12, 2007 Case

18. Pro Se Litigants and Summary Judgment 2003 Law Review —

23. CONSUMER BANKRUPTCY: A ROUNDTABLE DISCUSSION 1994 Law Review —

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 22

Title Date Type Depth

25. PRO SE EXECUTORS-UNAUTHORIZED PRACTICE OF LAW, OR 2007 Law Review —

26. THE PRO SE PHENOMENON 2005 Law Review —

29. CIVIL PROCEDURE SURVEY 1993 Law Review —

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 23

Title Date Type Depth

32. LEVERAGING TECHNOLOGY TO DELIVER LEGAL SERVICES 2009 Law Review —

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 24

Title Date Type Depth

40. THE ETHICAL EXPLOITATION OF THE UNREPRESENTED 2008 Law Review —

42. EXPLICIT LIMITATIONS ON THE IMPLICIT RIGHT TO 1996 Law Review —

45. CYBERSMEAR OR CYBER-SLAPP: ANALYZING DEFAMATION 2001 Law Review —

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 25

Title Date Type Depth