Court launches early mediation program for pro se prisoner civil rights cases

Among those attending the launch of the Early Mediation Program at the U.S. Court for the Eastern District of Michigan were (sitting, l-r) U.S. Magistrate Judge Steven Whalen; Chief U.S. District Judge Denise Page Hood; U.S. District Judge Victoria Roberts; and U.S. Magistrate Judge Patricia Morris; (standing) Paul Monicatti; Victoria Lung; Kim Grimes; Julie Owens; Kevin Williams; and Kirsten Castaneda.

The U.S. District Court for the Eastern District of Michigan launched a two-year pilot program Monday to mediate federal civil rights lawsuits filed by Michigan prisoners who represent themselves in litigation.

The project — the Early Mediation Program for Pro Se Prisoner Civil Rights Cases – will encourage speedy resolution of legal disputes between prisoners and state corrections officials and lawyers to avoid costly, protracted litigation.

Prisoners will benefit by having an early opportunity to speak candidly with a trained mediator and the defendants in an informal and confidential environment rather than through legal filings. It also will give them a voice in crafting a potential settlement.

The Michigan Department of Corrections (MDOC) and the state Attorney General’s Office will benefit by getting a chance to resolve claims early on without engaging in expensive litigation. The court will benefit by being able to focus on cases that cannot be resolved through mediation.

“Pro se litigants are outnumbered and out-gunned in the legal system,” said U.S. District Judge Victoria Roberts, who modeled the program after one in the U.S. District Court of Nevada. Federal district courts have similar programs in Arizona, Idaho, Eastern California and the Middle District of Pennsylvania.

“Many prisoners have legitimate claims, but lack the legal education to successfully navigate the legal system,” Roberts added. “These lawsuits create a significant drain on state and federal resources. We think many of these cases can be resolved if we can get everybody in the same room to come to a resolution satisfactory to everyone.”

State Corrections Director Heidi Washington said: “We are looking forward to participating in this innovative approach to prisoner litigation. The MDOC is hopeful that the mediation program will result in early resolution of cases thereby reducing the burdens and cost on the MDOC and taxpayers that result from traditional litigation.”

The Michigan program will be conducted with the help of more than 40 mediators, who are skilled lawyers and who have received specialized training. They will serve without compensation.

Paul Monicatti, a prominent mediator and expert in alternative dispute resolution, vetted all of the program materials and helped recruit and train the mediators. He is based in Troy.

Michigan prisoners filed 248 civil rights suits in the U.S. District Court for the Eastern District of Michigan in 2017, representing themselves in 97 percent of the cases. The lawsuits involved: alleged violations of the First Amendment concerning the exercise of religion and access to libraries; Eighth Amendment claims involving deliberate indifference to medical treatment, conditions of confinement, retaliation, excessive force, and general allegations of cruel and unusual punishment; and Fourteenth Amendment claims alleging violation of due process and retaliation.

The majority of the cases were decided on the pleadings and disposed of without trial.

The program is part of the court’s continuing effort to address goals of the Strategic Plan for the Federal Judiciary issued by the Judicial Conference of the United States in 2010 and 2015 to improve access to the courts for pro se litigants.

The Michigan Department of Corrections and the state Attorney General’s Office have agreed to participate in the program for at least one year. The U.S. District Court for the Western District of Michigan will monitor the program for possible adoption on the west side of the state.

The Eastern District of Michigan covers 34 eastern counties from the Ohio border to the Mackinac Bridge.

Here’s how the program will work:

Pro se prisoner cases will be screened in the normal manner by the Court’s staff attorneys. Screen-

ing typically eliminates about half of the lawsuits because prisoners fail to state a legal claim, sue the wrong party, or seek damages from someone who is entitled to legal immunity.

The civil rights suits that survive screening will be stayed for 90 days and referred to mediation. Either side can ask U.S. Magistrate Judge Patricia Morris to exclude them from the process. If mediation fails to produce a settlement within 90 days, the case will proceed to litigation which could take months or years to resolve.

Prisoners will participate in mediation via video conferencing from prison. The mediator, prison officials and a state lawyer will interact with them from the Theodore Levin U.S. Courthouse in Detroit.

If the case settles during mediation, it will be placed on the record and the Court will enter an order dismissing the case but retain jurisdiction to enforce the terms of the agreement. If the case does not settle, the case will proceed in the normal manner.

The District Court Clerk’s Office will notify pro se prisoners about the program after the prisoners have filed their civil rights lawsuit. Then, prisoners will be given information about the mediation program and required to watch an orientation video.

The Court will evaluate the program for two years to determine if it should continue.

Judge Morris, who will run the mediation project from the federal courthouse in Bay City, said she has high hopes for the program.

“Hopefully, the prisoners will get some satisfaction out of the process,” Morris said. “The district court in Nevada, which was extremely helpful in helping us set up our program, says it resolved 20-30 percent of its prisoner civil rights cases. If we can achieve the same result, it will have a significant impact on the time and expense that it takes the state and the Court to handle these cases.”

In January, at Roberts’ urging, the Court and the University of Detroit Mercy School of Law opened a Pro Se Legal Assistance Clinic to provide legal advice to low-income citizens – non-prisoners – who wish to represent themselves in civil lawsuits.

The new program for pro se prisoners will not provide legal advice. It is designed to speed the resolution of disputes filed by prisoners with the aid of trained, neutral third parties with no stake in the outcome.

Chief U.S. District Judge Denise Page Hood said she is pleased that the Court adopted the program.

“Prisoners face many limitations in pursuing their claims against the MDOC,” she said. “This program will enhance the ability of prisoners to have their pro se complaints addressed and potentially resolved at an early stage of the proceedings and in a variety of ways that better redress their complaints about prison conditions and other civil rights claims. Some of these complaints may be creatively redressed without substantial costs.”

She added: “I am proud that Judge Roberts brought this program to our Court and has been able to motivate so many mediators to volunteer their time. Magistrate Judge Patricia Morris has been so helpful in agreeing to coordinate the program and the staff of the Court has been amazingly open and effective in the process.”



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