Wednesday, October 7, 2009

Too Good A Pro Se Prison Lawyer

Posted by Alan Childress

This blurb from the Fifth Circuit Civil News daily update shows that sometimes you punish yourself by being too good, but I bet the inmate wears the opinion as something of a badge of honor, especially if he eventually actually wins on his religious freedom claim.  I just wish it were published so more people could see the logic.  But my thanks, still, to Robert McKnight of the Civil News for bringing it to light.

The U.S. Court of Appeals for the Fifth Circuit did not publish any non-habeas civil decisions on Monday, October 5. It released this notable unpublished decision:  McAlister v. Livingston, No. 08-20297 (5th Cir. Oct. 6, 2009) (King, Davis and Benavides) (per curiam; unpublished):  The district court denied inmate McAlister's request for appointment of counsel in his civil rights lawsuit against Texas prison officials. The lawsuit alleged religious discrimination against Wiccan inmates in violation of the First Amendment, the Religious Land Use and Institutionalized Persons Act, and the Equal Protection Clause.  Holding:  Affirmed with respect to the denial of appointment of counsel. The district court did not provide reasons for the denial, but the basis was clear enough for affirmance:  "The record, 997 pages long, contains numerous pleadings, briefs, and motions that McAlister has drafted and affidavits he has gathered from various individuals. These documents are all relevant and on-point.... McAlister has sufficiently investigated his case, and his presentation of his claims and the relevant legal issues to both the district court and to this court for review has been adequate."  No other factors weighed in favor of appointment of counsel.  And, indeed, the Court vacated and remanded with respect to the First Amendment and RLUIPA claims.  (Appeal from S.D. Tex.  Case No. H-05-3228. [Link to PDF.])

That may be the 'obvious' reason for denying appointed counsel:  he was too good.  It certainly flies in the face of the obvious counterground:  my general principle that one does not needlessly piss off the group leader of the Wiccans.

If I may reminisce, it reminds me of a case I worked on while clerking for the Fifth Circuit just after the split with the Eleventh (we got custody of the Texas inmates, while they got to raise all the loons in Florida).  Some warden decided that too many clever inmates were claiming to be Jews to get the kosher food.  Maybe it was less Alpoesque, I do not know.  But I do know this:  the warden instituted an earnesty-sifting process by hiring a local rabbi (in rural East Texas, must have been a lonely guy back then) to "test" prisoners on their Jewishness.  I know that sounds like a setup for some bad ethnic stereotype jokes (or an even worse moile joke), but it is not.  (If they claim to be Presbyterian, I would offer them a ham sandwich made with Miracle Whip and see if they gag, thus denying their innate Presbyterishness.  Or just play Art Garfunkel's solo album and see if their eyes dialate.)  As I recall, the Fifth Circuit struck down the testing procedure rather handily.  The principle seemed to be that anyone could become Jewish if they wanted to be.

Merton's unintended consequences of social actions tells me that the predictable next step for the warden would be to make the kosher food kosher but inedible, or at least equally inedible if he wanted to avoid another pro se complaint.

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Comments

Alan, this is a wonderfully timely post, in view of the piece in the NY Times "Dining In, Dining Out" section today: http://www.nytimes.com/2009/10/07/dining/07deli.html?_r=1&ref=todayspaper

The story is about the survival of Jewish delis in neighborhood of cities like Newark or Detroit or Chicago that used to be primarily Jewish but are now primarily African-American. As you can see from this excerpt, the test on whether the inmate was actually Jewish or not would be that only the Jews would COMPLAIN about the kosher food:

“In many ways, deli owners in places like Detroit or Chicago have told me, they are better deli clients than Jews,” Mr. Sax said referring to African-Americans. “They accept it as it is. Take a corned beef sandwich. A Jewish customer will say, ‘I want the corned beef lean, from the middle of the brisket,’ because their grandfathers did."

Posted by: Jeff Lipshaw | Oct 7, 2009 9:10:58 AM

I knew you would not be able to resist, Jeff, but you did exceed my high expectations. You, like me, must identify with the part of Roger Rabbit where they smoke him out from hiding behind a wall by knocking 'shave and a haircut' and eventually he cannot resist the straight line. "Two bits!!!!!!" he sings, busting through the wall. I still love that movie but am a little embarrassed, on three levels, about the reaction I have to Jessica Rabbit.

I was painting my hallway last night with Ralph Lauren eggshell Lattice White (which is lovely, btw, though not as white as his polo mallet white) and -- brought to you by OCD -- I could not stop saying to myself, "...and the Pips!"

Posted by: Alan Childress | Oct 7, 2009 9:26:47 AM

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