Inmate Pro Se Litigation

Supplement to
1. Meeting the Challenge of Pro Se Litigation
An Update of Legal and Ethical Issues
By Nancy Biro, November 1999; updated by Kerry Hill, August 2000

Copyright American Judicature Society, 2000. This update was prepared under a grant from the State Justice Institute (SJI-99-N-042-U00-1). The views expressed do not necessarily represent the official position or policies of the American Judicature Society or the State Justice Institute. 


Inmates find it very difficult to proceed pro se, yet nevertheless, often do. Within the confines of the prison, their access to legal materials is rather limited. They often face an uphill battle with restrictive prison rules and regulations as well as trying to properly follow court rules. The United States constitution provides guarantees that protect inmates’ rights. 


State officials cannot enact regulations that “abridge” or “impair” an inmate’s right of access to the courts. They cannot, for example, interfere with the right of inmates to file petitions in court. In the frequently cited case Ex Parte Hull, the United States Supreme Court struck down a regulation that prohibited state prisoners from filing petitions for habeas corpus unless they were determined to be “properly drawn” by the parole board’s legal investigator. Ex Parte Hull, 312 U.S. 546 (1941). The Court determined that the regulation denied inmates’ access to the courts because the parole board determined which petitions would be filed. The Hull case continues to be cited in reference to this right, most recently by the Court of Criminal Appeals of Oklahoma in Braun v. State of Oklahoma, 937 P.2d 505, 509 (Okla. Crim. App. 1997).

An inmate’s right of access to the courts also mandates that prisons provide inmates with adequate law libraries or adequate assistance from persons trained in the law, such as paralegals or law students. Until recently, the leading case concerning the adequacy of prison law libraries or legal assistance was Bounds v. Smith, 430 U.S. 817 (1977). Now, however, the leading case is Lewis v. Casey, 518 U.S. 343 (J. Stevens dissenting 1996), which expanded Bounds’ holding. In Lewis, an inmate claimed that his prison’s law library and legal assistance program was inadequate and thus “abridged” or “impaired” his access to the courts. But the United States Supreme Court disagreed, holding that an inmate cannot bring a general challenge to the adequacy of a prison’s law library or the legal assistance program. Instead, an inmate must show that he has suffered “actual harm” to a legal claim that involved his criminal conviction or the conditions of his incarceration and that the cause of the injury must be the method of access (i.e., the inadequacy of the law library or the legal assistance program). Id. at 351. 

The Lewis case has been accepted and cited by several courts. See Triestman v. Poe, 1997 WL 216251 at 7 (N.D.N.Y. 1997); Prisoner’s’ Legal Association v. Roberson, 1997 WL 998592 at 2 (D.N.J. 1997); Ex parte Coleman, 728 So.2d 703, 706 (Ala. Crim. App. 1998); Hadix v. Johnson, 173 F.3d 958, 963 (6th Cir. 1999); Smith v. Armstrong, 968 F.Supp. 50, 51 (D. Con. 1997). Lewis was most recently relied on in Benjamin v. Kerik, 2000 WL 726861, which applied the Lewis “actual harm” analysis to find that no system wide inadequacies existed in the New York Department of Corrections’ prison law libraries. The Benjamin court found that only three of the plaintiffs could meet the Lewis standard, and that this was an insufficient number to justify a finding of system wide inadequacy.

Although an inmate’s right of access to the courts includes access to some combination of legal assistance, legal materials and/or a law library, inmates do not have a constitutional right to engage in legal writing for other inmates. This means that an inmate’s right of access to the courts is specific to the inmate who is seeking to bring a claim before the court. Sizemore v. Lee, 20 F.Supp.2d 956, 958 (W.D.Va. 1998). For example, an inmate cannot argue that his right of access to the courts was “abridged” or “impaired” because he was prohibited from assisting other inmates, or was prohibited from receiving help form other inmates. 

An inmate’s right of access to the courts must, at a minimum, be “meaningful” (i.e., allow the defendant an adequate opportunity to present his claims fairly). Ross v. Moffitt, 417 U.S. 600 (1974). However, this does not mean that courts are required to be more lenient when reviewing inmates’ petitions. A recent case held that inmates who neglect to follow formal court rules and procedures when they are readily available to them should not receive special consideration for review of their cases. Braun v. State of Oklahoma, 937 P.2d 505, 510 (Okla. Crim. App. 1997). In Braun, the court properly denied an inmate’s motion to file a supplement to his brief-in-chief since the court rules clearly stated that all of his arguments must be filed in the brief-in-chief and the rules 
were readily available to him. Id. 


At the trial court level, defendants in criminal cases have a constitutional right to proceed pro se, and counsel may not be imposed on them over their objection. Faretta v. California, 422 U.S. 806 (1975). The United States Supreme Court recently examined whether Faretta applies at the appellate level. In Martinez v. Court of Appeal of California, 120 S.Ct. 684, 688 (2000), the Court held that there is no constitutional right to self-representation on direct appeal from a criminal conviction. The Court makes clear though that states may recognize such a right under their own constitution. Id. at 692. The Supreme Court granted certiorari because state and federal courts have expressed conflicting views as to whether defendants in criminal cases have a right to proceed pro se at the appellate level. Prior to Martinez, most courts held that there was no right to proceed pro se on appeal since the due process and equal protection clauses of the Fourteenth Amendment did not require it. A few courts though, had extended the Sixth Amendment right of self-representation to state criminal appeals including: Indiana, Michigan, Texas, Arkansas, Pennsylvania, Louisiana, New Mexico, Oklahoma, the Eighth Circuit Court of Appeals, the Fifth Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the Seventh Circuit Court of Appeals, People v. Scott, 64 Cal.App.4th 550, 554 (Cal. App. 1998). 

Two state cases have applied Martinez to determine individual appellants’ rights to represent themselves on appeal. Grant v. State, 2000 WL 668923 (Fla.App. 4 Dist. 2000), allowed an appellant to represent himself on appeal while interpreting the Florida state constitution as not granting a constitutional right of self-representation on appeal. Likewise, Fudge v. State, 19 S.W.3d 22 (Ark. 2000), cited Martinez to refuse to allow an appellant to represent himself on appeal in a capital case.

State v. Martin, 608 N.W.2d 445 (Iowa 2000), recently addressed the intersection of a valid waiver of the right to counsel under Faretta with the amount of participation by standby counsel that is sufficient to cure a defective waiver under McKaskle v. Wiggins, 465 U.S. 168, (1984). In Martin, the defendant, Martin, did not want to be represented by his court appointed attorney, Wolfe, and the trial court gave him the alternatives of hiring a new attorney or proceeding pro se. After Martin chose to proceed pro se, the trial judge recommended twice that he retain Wolfe, but did not engage him in a discourse to make him “aware of the dangers and disadvantages of self-representation.” Faretta at 835. The court subsequently appointed Wolfe as standby counsel. 

On appeal, Martin argued that the trial court erred in allowing him to proceed pro se without determining that he had made a knowing and intelligent waiver of his Sixth Amendment right to counsel. The State argued that under McKaskle, if standby counsel plays an active role in the defense, such participation can cure a defective waiver. The Martin court found that McKaskle was not directly on point because that case did not address the level of participation necessary to cure a defective waiver. Martin at 452. However, the Martin court used a “control of litigation” standard derived from McKaskle to find that Wolfe did not interfere with Martin’s control over his defense and therefore Wolfe’s participation was insufficient to cure Martin’s defective waiver. Martin at 452.


Inmates may file civil actions in court that are unrelated to the legality of their convictions. An inmate has a state constitutional right to institute and prosecute a civil action that seeks redress for an injury or damage to his personal property, or for the vindication of any other legal right. Whisnant v. Byrd, 525 S.W.2d 152, 153 (Tenn. 1975). However, this right is “qualified and restricted.” Id. Inmates who file civil actions unrelated to the legality of their convictions will not under usual circumstances be given the opportunity to appear in court to present their cases during their prison terms. Whisnant held that trial courts should hold such matters in abeyance until the inmate is released from prison, unless an appropriate directive is issued requiring the inmate’s attendance. Id.

While Whisnant v. Byrd held that inmates had a constitutional right to institute and pursue civil litigation unrelated to the reason for their incarceration, and provided that a civil action brought by an inmate should be stayed until the inmate was released from prison and could appear in court, Sanjines v. Ortwein narrowed the case. Sanjines overruled Whisnant to the extent that Whisnant provided for a mandatory, automatic stay on civil actions brought by inmates, holding that under the specific facts in Sanjines, “an inmate who is the plaintiff in a legal malpractice case and who contemporaneously is the petitioner in a post-conviction matter involving the same facts is not entitled to an automatic stay of the malpractice case until the outcome of the post-conviction matter.” Sanjines at 911.

Recently, the Supreme Court of Tennessee provided clarity on the issues presented in Whisnant and Sanjines. In Logan v. Winstead, 2000 WL 1006631 (Tenn. 2000), the court overruled Whisnant to the extent that the case may be interpreted to stand for the proposition that an incarcerated plaintiff has an absolute right to have civil proceedings stayed or held in abeyance until he or she is released from custody. Logan at *1. Logan delineated a factor driven analysis for trial courts to apply in using their discretion as to whether to grant a stay. Trial courts should “weigh the competing interests of the inmate’s ability to present proof and the burden on the judicial system and the defendant in continuing the action.” Logan at *4. The Logan court included such factors as: 1) “whether the inmate will be released from prison and able to appear in court within a reasonable time from the filing of the suit,” 2) the “burden on the court in maintaining a docket on which such claims will remain for an extended period,” and 3) “ the inconvenience and impracticability of litigating a suit several years after its filing.” Logan at *5.

Logan specifically addressed the concerns of inmates proceeding pro se on civil matters unrelated to the reason for their incarceration. Should a trial court grant a request for an abeyance, Logan stated that the trial court should “afford the prisoner sufficient time for filing briefs and motions and for conducting discovery.” Logan at *5. The court noted that these kinds of considerations are particularly important as regards pro se litigants. Id. The court noted that when granting a request for an abeyance from a pro se inmate litigant, the trial court should waive timing requirements of the Rules of Civil Procedure and set a timetable that takes the special needs of the plaintiff into account. 


The Colorado Tenth Judicial District Commission on Judicial Performance recently issued a recommendation of “do not retain” for Judge Adele Anderson, a judge in Pueblo County. Anderson was one of two out of 83 judges who was not recommended for retention. The Commission’s decision was based on a survey conducted to evaluate Judge Anderson’s performance. Respondents to the survey included members of law enforcement, attorneys, litigants, jurors, criminal defendants, courthouse personnel and crime victims. One of the bases for the Commission’s decision was that some survey respondents noted Judge Anderson’s “demeaning and harsh treatment of individuals appearing in her court without legal counsel.” See the Commission’s recommendation at

The California Commission on Judicial Performance publicly censured a judge for failing to respect the rights of pro se litigants. Inquiry Concerning Judge Fred L. Heene, Jr., No. 153, October 13, 1999. This seems to be the only case in which a judge has been disciplined for the judge’s treatment of unrepresented individuals.

The judge’s actions violated several canons of the code of judicial conduct, including: canon 1, “a judge shall uphold the integrity and independence of the judiciary”; canon 2A: “a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”; and canon 3B: “a judge shall perform the duties of judicial office impartially and diligently.”

In deciding whether to discipline the judge, the Commission noted that the judge’s nine incidents of improper treatment of unrepresented individuals in slightly less that two years were not isolated, unrelated incidents of misconduct, but “in every instance, [the] Judge failed to respect the rights of unrepresented individuals.”

In Count one, the judge ordered a witness who was testifying at a preliminary hearing to be taken into custody because the witness testified that she had given the police information that was not true. The judge set bail in the amount of $25,000 and asked that charges be filed because “she has admitted to this court a crime.” The district attorney repeatedly told the judge that there were no charges pending against the witness and that the district attorney’s office had not made a determination as to whether the witness had committed a crime. The judge eventually withdrew the order and let the witness go.

In Count two, the judge imposed a fine and denied the defendant the right to cross-examine a police officer regarding a speeding violation.

In Count three, the judge ordered the defendant to sell his car in order to pay his fine for driving with an expired registration. The judge told the defendant to “make it happen,” and that at the next court date “either you have a sale that’s been registered with [the] DMV showing the car is gone, or we will give you some vacation time to think about it.” The defendant later returned to the judge’s court and stated that he had sold his car and the judge dismissed the case after imposing $10 in court costs. 

In Count four, the judge questioned the defendant regarding the defendant’s failure to complete her community service hours without informing the defendant that he was conducting a violation of probation hearing, nor advising the defendant of her rights in connection with a probation violation hearing. The judge remanded the defendant into custody and sentenced her to 44 days in the county jail. The defendant told the judge that she did not do the community service because she had been pregnant and was on bed rest. When the defendant replied that she had not come into court to tell the court this, the judge remanded her into custody and said, “Okay. Good luck.” The defendant pleaded with the judge that she had a seven-day old baby at home, and the judge responded, “Ma’am, you should have thought about that a long time ago.”

In Count five, the judge ordered a juror in contempt and remanded him when the juror was late to court without informing the juror that the judge was conducting a contempt hearing.

In Count six, the judge sentenced a defendant to 20 days in the county jail in the absence of a plea of guilty, no contest, or conviction at trial, for failing to pay a traffic fine. The judge demanded, “$589 or 20 days in the county jail,” and then remanded the defendant into custody.

In Count seven, the judge denied the defendant’s request for a public defender telling the defendant he was “an able-bodied person” who could get a job. He also stated that “[t]here are a lot of jobs out there. I would suggest you go find one.” When the defendant later appeared in court on a new felony charge stating that he had not worked for two months, the judge appointed the public defender on both cases.

In Count eight, the judge reinstated and modified the terms of the defendant’s probation by adding 30 days to the jail sentence and remanding him without advising the defendant of his constitutional rights regarding revocation of probation (e.g., the rights to an attorney, a hearing, and to subpoena and examine witnesses).

In Count nine, the judge reinstated and modified the terms of the defendant’s probation by imposing community service hours in lieu of a fine without advising the defendant of her constitutional rights regarding revocation of probation (e.g., the rights to an attorney, a hearing, and to subpoena and examine witnesses).

The judge’s pattern of mistreatment of pro se litigants was the basis for the Commission’s discipline. However, since the Commission accepted the judge’s “proposed disposition” in which the judge admitted the truth of the charges and stated that he freely and voluntarily consented to the imposition of discipline up to and including a public censure, it is not known whether the Commission would have imposed a stricter discipline against the judge absent the judge’s “proposed disposition.” By agreeing to the “proposed disposition,” the Commission was able to discipline the judge without having to prove each of the allegations in the complaint, therefore making the process less time consuming and less costly.


Ghostwriting is the practice of attorneys assisting self-represented litigants by drafting pleadings that a litigant files with the court, without the acknowledgement that the pleadings were prepared by an attorney. Although courts condemn the practice of ghostwriting, they are still reluctant to discipline attorneys for engaging in ghostwriting. In the most recent case, Ricotta v. State of California, 4 F.Supp.2d 961, 986 (S.D. Cal. 1998), the court explained that previous cases addressing ghostwriting were reluctant to discipline attorneys because there were no specific rules dealing with ghostwriting, and the issue was only recently addressed by various courts and bar associations. Id. 

The Ricotta court was persuaded by the reasoning of these earlier decisions and determined that the circumstances justifying such a conclusion have yet to change. It held that the attorney’s actions were not nearly egregious enough to take the unprecedented step of holding an attorney and a pro se party in contempt for giving and receiving assistance in drafting documents. Id.

Interestingly though, Colorado recently adopted several new rules addressing the limited representation of clients in litigation matters. The changes require attorneys who draft documents for pro se litigants to include to attorney’s name, address, telephone number, and registration number on the document. See Colorado Rules of Civil Procedure (C.R.C.P.) 11 (1999); C.R.C.P. 311 (1999); C.R.C.P. 121 section1.1 (comment) (1999); Colorado Rules of Professional Conduct (Colo.R.P.C.) 1.2 (1999); Colo.R.P.C. 4,2 (comment ) (1999) and Colo.R.P.C. 4.3 (comment) (1999). Providing limited representation to a pro se litigant in accordance with these rules does not constitute an entry of appearance by the attorney in the case. And, assisting a pro se litigant in filling out pre-printed and electronically published forms issued by the court does not constitute limited representation, and an attorney is not required to disclose such assistance. Recently, In re Merriam, 250 B.R. 724 (Bkrtcy.D.Colo. 2000), a bankruptcy case, interpreted Johnson and Ricotta as finding ghostwriting sanctionable under Rule 11 and as contempt of court. Merriam at 733.


Judges who try to assist a self-represented litigant may be perceived as being biased toward that litigant. On the other hand, a judge who makes no effort to prevent a self-represented litigant from making errors that jeopardize the litigant’s defense or claim may deny that litigant “meaningful” access to the courts.

To a certain extent, courts can protect pro se litigants against the consequences of procedural and technical errors. For example, one court held that a sentencing court’s failure to advise a pro se defendant of his right to appeal was error per se, and warranted remand. United States v. Sanchez, 88 F.3d 1243, 1250-1251 (D.C. Cir. 1996). However, if a sentencing court fails to advise a pro se defendant of his right to appeal and the defendant knew of his right, the defendant is not entitled to relief. Peguro v. United States, 119 S.Ct. 961 (1999), United States v. Allgood, 48 F.Supp.2d 554 (E.D. Va. 1999).

Although courts do not have a duty to inform a pro se litigant of the need to respond to a motion for summary judgment, litigants are entitled to at least be warned that when confronted with a motion for summary judgment they must obtain counter-affidavits or other evidentiary material to avoid the entry of judgment against them. Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). However, this does not apply to pro se inmates filing habeas corpus actions under 28 U.S.C. § 2254. Tesack v. Trent, 22 F.Supp.2d 540, 542 (S.D.W.Va. 1998).

A 1997 advisory opinion issued by the Indiana Commission on Judicial Qualifications provides judges with guidance on ways to handle pro se litigants. Indiana Advisory Opinion 1-97 (1997). The Commission warns that judges sometimes take an unnecessarily strict approach when pro se litigants’ pleadings or presentations are deficient in some minor way so that judges can maintain their neutrality and impartiality. The opinion provides two examples to illustrate its point.

In one example, when a pro se litigant seeking a name change pays the required fees, submits proof of publication, establishes the basis for the request, but inadvertently or for lack of experience does not state an element that the judge requires, such as that the name change is not sought for a fraudulent purpose, the judge should make that simple inquiry during the litigant’s presentation to the court rather than simply deny the petition on that basis alone. Neither the interests of the court nor the litigant are served by rejecting the petition on the basis of this type of deficiency.

Similarly, for example, a married couple seeking a divorce, each acting pro se, with no contest or issues in dispute, might unknowingly omit from their pleadings their county of residence. A judge should ask the parties to establish this element in their petition, and proceed appropriately, rather than deny the petition, and excuse the parties from the courtroom on the basis of their omission. The opinion stresses that a judge does not have an obligation to cater to a disrespectful or unprepared pro se litigant, or to make any effort on behalf of any citizen that might put another at a disadvantage. This opinion aside, there have been no additional recent ethics advisory opinions advising judges how to handle pro se litigants.


Courts are not obligated to allow defendants to proceed pro se when, in doing so, they abuse the dignity of the courtroom. The Supreme Court of Kansas held that a defendant’s Sixth Amendment right of self-representation was not violated by the trial court’s termination of that representation in response to the defendant’s “obstructionist” behavior. State v. Plunkett, 261 Kan. 1024, 1029 (Kan. 1997). The defendant maintained a surly, disrespectful attitude throughout the proceeding. He became belligerent, used profanity, refused to stand when addressing the court, and refused to answer the judge’s questions. Id. the court held him in contempt and terminated his self-representation, finding that his conduct was “obstructionist.”

A defendant also engages in “obstructionist” behavior when the defendant refuses court-appointed counsel and then voluntarily absents himself from the trial. The Supreme Court of Minnesota held that a defendant’s constitutional rights were not violated by conducting the defendant’s trial without the defendant present and by re-appointing court counsel that did not present a defense. State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1997).

Behavior that is disruptive but does not rise to the level of being abusive, disrespectful, obscene, or likely to obstruct the progress of the trial is not “obstructionist.” In one case, a defendant laughed continually during a witness’ testimony, nodded when a witness asked him a question while the witness was testifying, and repeated words that were spoken by a witness that were apparently not understood by counsel or the court reporter. Tatum v. United States, 703 A.2d 1218, 1224 (D.C. 1997). In this case, the defendant was entitled to be present during the proceedings because, although his actions were distracting, they were not intended to impede or disrupt the proceedings and did not rise to the level of “ obstructionist.”


Pro se litigants often make the most demands on court staff. These demands can range from requesting the proper form to file in court to asking court clerks their opinion of a litigant’s case. Court staff must respond carefully to ensure they do not engage in the unauthorized practice of law.


In recent years, the numbers of self-represented litigants in family law cases have surged nationwide, with some reports indicating that eighty percent or more of family law cases involve at least one pro se litigant. Russell Engler, Fordham Law Review, “And Justice For All—Including the Unrepresented Poor: Revisiting the Role of the Judges, Mediators, and Clerks” 2047, April (1999). Florida has a relatively new court rule that defines the parameters of what court staff at family court self-help centers may do to assist pro se litigants. Florida Family Law Rule 12.750 (1998). According to this new rule, self-help personnel may:

Encourage self-represented litigants to obtain legal advice; 

Provide information about available pro bono legal services, low cost legal services, legal aid programs, and lawyer referral services; 

Provide information about available approved forms, without providing advice or recommendation as to any specific course of action; 

Provide approved forms and approved instructions on how to complete the forms; 
Engage in limited oral communications to assist a person in the completion of blanks on approved forms; 

Record information provided by a self-represented litigant on approved forms; 

Provide, either orally or in writing, definitions of legal terminology from widely accepted legal dictionaries or other dictionaries without advising whether or nor a particular definition is applicable to the self-represented litigant’s situation; 

Provide, either orally or in writing, citations of statutes and rules, without advising whether or not a particular statute or rule is applicable to the self-represented litigant’s situation; 

Provide docketed case information; 

Provide general information about court process, practice, and procedure; 

Provide information about mediation, required parenting courses, and courses for children of divorcing parents; 

Provide, either orally or in writing, information from local rules or administrative order; 
Provide general information about community services; and 

Facilitated the setting of hearings 

Self-help personnel may not:

Provide legal advice or recommend a specific course of action for a self-represented litigant; 

Provide interpretation of legal terminology, statutes, rules, orders, cases, or the constitution; 

Provide information that must be kept confidential by statute, rule, or case law; 

Deny a litigant’s access to the court; 

Encourage or discourage litigation; 

Record information on forms for a self-represented litigant, except as otherwise provided by this rule; 

Engage in oral communications other than those reasonably necessary to elicit factual information to complete the blanks on forms except as otherwise provided by this rule; 

Perform legal research for litigants; 

Represent litigants in court; and 

Lead litigants to believe that court staff are representing them as lawyers in any capacity or induce the public to rely upon them for legal advice. 

By enacting this rule the court hopes to clarify the boundaries court staff must observe when assisting pro se litigants.


Only recently have courts started taking steps towards effectively dealing with pro se litigants. As evidence by the new Colorado and Florida rules, courts are increasingly becoming aware of the vast need for assistance to pro se litigants and are adopting new guidelines to make the courts more accessible and “user-friendly.” The developing case law is also reshaping how courts deal with pro se litigation and is changing court rules and procedures as new issues arise. Much of the new case law deals with inmates’ right of access to the courts and criminal defendant’ right to proceed pro se. 

Nevertheless, new case law is steadily developing in other areas as well. As pro se litigation becomes more and more widespread, courts can anticipate more guidance from new case law, court rules and advisory

© Copyright American Judicature Society, 2002. 
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