Prisoners of Pleading

57 Pages Posted: 27 Mar 2016 Last revised: 26 Apr 2016

See all articles by Richard Frankel

Richard Frankel

Drexel University Thomas R. Kline School of Law

Alistair E Newbern

Vanderbilt University Law School

Date Written: March 25, 2016


Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than ninety percent of those actions were filed pro se. Pro se prisoners frequently use — and in many federal districts are required to use — standardized complaint forms created by the federal judiciary. These standard forms first came into use in the 1970s at the recommendation of a committee of federal judges seeking to more effectively manage prison litigation and reduce its burdens on the federal courts. Although complaint forms have been around for nearly forty years and are now used in almost every federal district, no one, until now, has recognized the extent to which these forms actually diverge from or misrepresent the content of the law.

In this paper, we collect and analyze every form complaint used by the federal district courts. Our results indicate that, while form complaints can be helpful to pro se prisoners, many impose burdens that are inconsistent with governing law. First, many complaints require prisoners to plead facts that the law says they are not required to plead. Second, many complaints prohibit or discourage prisoners from pleading facts necessary to survive a motion to dismiss. Third, some complaints require plaintiffs to plead legal conclusions, using language that may confuse unsophisticated prisoners and cause them to make inadvertent but significant legal errors.

These flaws can impose serious consequences on prisoners, including unwarranted dismissal of their complaints. Prisoners are already uniquely marginalized in our legal system. They should not bear added pleading burdens not faced by other litigants. To address the concerns raised in our study, we provide a model form complaint that is compliant with the law and that attempts to reduce the hurdles prisoners face to filing a factually sufficient complaint.

Keywords: prisoner rights, mass incarceration, civil rights, civil procedure, access to justice, law and society, criminal justice

Suggested Citation

Frankel, Richard and Newbern, Alistair E, Prisoners of Pleading (March 25, 2016). 94 Washington University Law Review, 2017, Forthcoming; Drexel University Thomas R. Kline School of Law Research Paper No. 2016-A-03; Vanderbilt Public Law Research Paper No. 16-16. Available at SSRN:

Richard Frankel (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

Alistair E Newbern

Vanderbilt University Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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