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Unpublished Fourth Circuit Per Curiam Opinion Involving Pro Se Litigant Rights Moving Towards the Supreme Court on the Backs of Legal Giants

Note: much of the information below comes from The American Lawyer’s October 23 “Daily Dicta,” by Jenna Greene.

He started as a pro se plaintiff alleging First Amendment (and other) violations by a number of federal judges, an FBI agent, and a US Marshal.  Now William Bond has been represented by some of the heaviest of legal heavyweights as his case makes its way up towards the highest court in the land.  David Boies has agreed to replace retired Seventh Circuit Judge Richard Posner as counsel as Bond pursues a cert petition to the Supreme Court of the United States after the Fourth Circuit in August affirmed the trial court’s dismissal of (then pro se) plaintiff Bond’s post-judgment motion to reopen his case and amend his complaint  (Posner represented Bond in the Fourth Circuit, but according to The American Lawyer “was not in a position to take the case up to the Supreme Court.”)

Posner, who in retirement has started The Posner Center of Justice for Pro Se’s to assist pro se litigants, had argued to the Fourth Circuit that the trial court abused its discretion in failing to explain its basis for denying the pro se plaintiff’s motion for leave to file an amended complaint.  The Fourth Circuit disagreed, holding that the bases for the denial, although not specifically stated, appeared to be futility.   In an interview reported on by The American Lawyer, Boies stated that this case is important because of the pro se nature of the litigant; Bond and other pro se plaintiffs “deserve better than the court simply saying that they lose.”  This echoes some of Posner’s recent comments.  The famous jurist has claimed recently in the forward to a book written by a successful pro se litigant (see here) that he left the bench in part because he believed the court system was unjust to pro se litigants, hence his foray into advocacy for the unrepresented.

In an application for an extension of time to file the cert petition, Boies argued that there is a circuit split with respect to how a district court must handle dismissal of a pro se plaintiff’s complaint:

The Third, Seventh, Ninth, Eleventh and D.C. Circuits have all held that the district court must provide reasons when dismissing a pro se litigant’s complaint so that the pro se litigant is on notice and able to amend the complaint to cure the stated deficiencies.  Conversely, in the First, Fourth, Fifth, and Tenth Circuits, the district court does not have to provide any reasons when denying a pro se litigant’s motion for leave to amend if the district court’s reasons are apparent from the underlying record. (internal citations omitted)

While this case is getting attention in part because of the names of the lawyers that have appeared on the pleadings, it could have significant ramifications for both lawyers and pro se‘s alike.  Practitioners who have litigated against pro se plaintiffs (or, much less frequently, pro se defendants) will likely tell you that the experience can be frustrating.  From my own experience, I can say that the issue of multiple amendments to fix deficiencies in a complaint (the issue that is the crux of Bond’s appeal) is one of the most frustrating, particularly for the client that has to pay for multiple motions to dismiss successive amended complaints.  As someone who regularly represents local governments, I probably see more than my fair share of pro se litigants and I would say that generally I find the districts courts to be fair and appropriately accommodating to pro se plaintiffs.  But as federal courts continue to create pro bono civil representation programs (see here and here for examples from the MDNC and EDNC), more lawyers are getting an inside look at what the court system is like for pro se litigants.  And some I have talked to who have had that inside look agree with Posner; one in particular stated that “the deck is stacked against pro se litigants.”  (Admittedly, the two viewpoints are not necessarily mutually exclusive–the district courts can be fair and accommodating to pro se litigants and the deck can still be stacked against them)

It will be interesting to see if the Supreme Court takes this case, and if so, what the outcome is.  Predictions?  Comments?  Leave them below.

–Patrick Kane

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https://www.ncapb.com/2018/10/23/unpublished-fourth-circuit-per-curiam-opinion-involving-pro-se-litigant-rights-moving-towards-the-supreme-court-on-the-backs-of-legal-giants/
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