Justice Sotomayor Votes to Review and then Reverse Pro Se Prisoner Case Lower Courts Found “Patently Frivolous”

Today Justice Sotomayor authored what strikes me as a rather remarkable dissent from denial of certiorari in Pitre v. Cain, a pro se Eighth Amendment case brought by a prison inmate whose case was dismissed as “patently frivolous” by the trial court and affirmed by the Fifth Circuit in a short one-paragraph order. What is it about this pro se prisoner case that grabbed Justice Sotomayor’s attention, and led her not only to say that she would have granted the case, but to announce that she would have voted in the inmate’s favor?

Let’s take a look.

Pitre is an HIV-positive inmate in the Louisiana state prison system who has been prescribed medication to treat his HIV. In 2008, he was transferred to a particular corrections facility, the Phelps Correctional Center, where inmates apparently have to do hard labor. Pitre decided to protest the transfer by refusing to take his HIV medication. Pitre was then made to do hard labor like the other inmates in the facility, and he has been really struggling to do the work given his illness and his failure to take his medication. Pitre complained that the state was making him do harder labor than he could do given his illness, in violation of his constitutional rights. The state responded that Pitre was bringing it on himself because he was refusing to take his medication that would enable him to do the work. In effect, each side blamed the other: Pitre blamed the state for making him work when he was in such bad shape, and the state blamed Pitre for refusing to take his medication so that he was in such bad shape in the first place.

The magistrate judge agreed with the state’s view, and recommended that the case be dismissed as “patently frivolous”:

A claim of deliberate indifference based on an inmate’s work assignment is actionable only when a prison official assigns an inmate to a job that the official knows would “significantly aggravate” the inmate’s serious medical needs. Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.1989)(citing Black v. Ciccone, 324 F.Supp. 129, 133 (W.D.Mo.1970). From the outset, plaintiff was aware of the results that were certain to follow should he discontinue his medication. Nevertheless, with full knowledge of those effects, he chose to discontinue an admittedly successful course of treatment. All of the deleterious symptoms experienced by plaintiff, and complained of herein, were caused by his refusal to participate in the therapeutic plan offered by the defendants; his current symptoms were neither caused nor even exacerbated by the defendants. Plaintiff, has been, as the saying goes, “hoist by his own petard” FN3 and this attempt to blame his current predicament on the defendants is absurd. A ruling in plaintiff’s favor herein would encourage him to continue on this self destructive path.

FN3. Hamlet, Act III, Scene 4, lines 206-07, “For ‘tis the sport to have the engineer/Hoist with his own petard” In common usage the phrase means to fall into one’s own trap.

The district court agreed, adopting the magistrate’s report and recommendation in a one-page order. The Fifth Circuit then affirmed in a one paragraph order that read as follows:

Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:
The judgment of the district court is affirmed. Mr. Pitre has been given medical care, but he refuses to take medication which results at times in physical problems. Evidence of conscious indifference is not presented. The report of the magistrate judge dated April 29, 2009, 2009 WL 1491042, explains the reasons for dismissal. AFFIRMED.

Pitre then filed his own cert petition, which the Court denied over Justice Sotomayor’s dissent. Justice Sotomayor would have construed the pro se petition liberally as making claim that Pitre had been punished for his refusal to take his medication:

His pro se complaint and attachments thereto, “liberally construed,” Estelle v. Gamble, 429 U. S. 97, 106 (1976), allege . . . that respondents . . . punished him for refusing to take medication, or attempted to coerce him to take medication, by subjecting him to hard labor that they knew exceeded his medical limitations.

Specifically, Sotomayor would have liberally construed the complaint as stating a Due Process claim that making Pitre do hard labor was an attempt to improperly punish him to force him to take his HIV medication despite his liberty interest in refusing medication. This was an open question, Justice Sotomayor contended:

We have . . . held that prison officials may forcibly treat a mentally ill inmate with antipsychotic drugs “if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” Harper, 494 U. S., at 227. We have not considered, however, whether prison officials may require inmates with HIV to take medication, such that the refusal to do so might justify the imposition of sanctions by such officials.

Second, Justice Sotomayor would have held that the liberally construed complaint stated an Eighth Amendment violation:

Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain. But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him—just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post, see Hope, 536 U. S., at 738. Pitre’s allegations, if true, describe “punitive treatment [that] amounts to gratuitous infliction of ‘wanton and unnecessary’ pain that our precedent clearly prohibits.” Ibid. I cannot comprehend how a court could deem such allegations “frivolous.” Because I believe that Pitre’s complaint states an Eighth Amendment violation, I would grant the petition for a writ of certiorari and reverse the judgment below.

I find Justice Sotomayor’s opinion a bit puzzling. I haven’t seen a copy of the complaint, so it’s unclear if it really could be liberally construed in the way Sotomayor does. But even so construed, I’m not sure I get the argument. First off, I’m not sure what Sotomayor is doing with the Due Process argument: Is she suggesting the Court take the case to decide that issue, even though it was not discussed below? It’s not entirely clear.

On the more substantive Eighth Amendment claim, Sotomayor suggests that if we construe the complaint as saying that Pitre was punished for his refusal to take medication, then it’s an Eighth Amendment violation. But that seems to artificially remove Pitre’s own role in creating his condition out of the picture, which doesn’t seem plausible to me. Sotomayor relies on Hope v. Pelzer, where the inmate was shackled after his misconduct was completed: The inmate had some role in triggering the punishment, as is the case here, and the Court still found an Eighth Amendment. But Hope didn’t have any control over whether he was shackled after he engaged in misconduct: He was left to suffer. That’s not true with Pitre, who has made the voluntary and continuing choice not to take his medication that appears to be the cause of his work being so hard for him. It’s hard to imagine that there would have been an Eighth Amendment violation in Hope if Hope had been shackled, given the key, and told that he could let himself out if he wanted. Or so it seems to me: I suppose this depends on part on what we take to be the likely ameliorative effect of taking the HIV medication, which doesn’t get discussed in any of the opinions.

Anyway, whatever the substantive merits of Pitre, it’s particularly interesting that Sotomayor chose to write on it. As far as I can tell, there was nothing special about this case that made it high-profile or would normally get a lot of attention. It was just a pro se prisoner petition in a big stack of IFPs that normally would be short-formed with a quick “Splitless, factbound, I recommend DENY.” That alone makes this opinion quite interesting.