Willie C. Free v. United States

Seventh Circuit

Willie C. Free v. United States

879 F.2d 1535, 1989 U.S. App. LEXIS 10786, 1989 WL 81848

CourtCourt of Appeals for the Seventh Circuit

DecidedJuly 19, 1989

Docket88-1710

StatusPublished

Cited by123 cases

This text of 879 F.2d 1535 (Willie C. Free v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Willie C. Free v. United States, 879 F.2d 1535, 1989 U.S. App. LEXIS 10786, 1989 WL 81848 (7th Cir. 1989).

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POSNER, Circuit Judge.

Willie C. Free, who is not free — who is serving a life term in the federal penitentiary in Marion, Illinois — brought suit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., alleging that during a shakedown search of his cell, prison guards either negligently or intentionally destroyed various items of personal hygiene, including toothpaste and baby powder, plus a tennis shoe. [1536]*1536Free estimates the value of the items at $50. The parties consented to have the suit tried by a magistrate, see 28 U.S.C. § 636(c), who held a bench trial in the penitentiary and at its conclusion entered judgment for the United States. Free asked the magistrate for permission to appeal in forma pauperis, a status to which he is not entitled, despite his poverty, if the suit or appeal is frivolous or malicious. See 28 U.S.C. § 1915; Fed.R.App.P. 24(a); Savage v. CIA, 826 F.2d 561, 562 (7th Cir.1987). The magistrate denied Free’s request, which he renews with u's.

The request has no merit. The appeal is frivolous in the sense of utterly groundless; no basis for overturning the magistrate’s decision is shown or appears from the record. Although not a lawyer or represented by counsel, Free is an experienced Federal Tort Claims Act litigant, and his inability to propose a colorable ground for appeal is telling.

His litigation experience brings us to the second and more interesting sense in which this is a frivolous suit and appeal. In the last two years alone, Free has filed twelve lawsuits in federal court, seeking relief under the Federal Tort Claims Act for alleged destruction of his personal property. He has threatened to bring a tort claims suit every timé his cell is searched. By this threat it appears that he is trying both to deter the prison guards from searching his cell and to obtain replacements for lost, damaged, or worn-out items of personal property at the government’s expense. This is an abuse of the judicial process in the classic sense of using the courts to pursue ends other than the vindication of claims believed to be meritorious. Abusers of the judicial process are not entitled to sue and appeal without paying the normal filing fees — indeed, are not entitled to sue and appeal, period. Abuses of process are not merely not to be subsidized; they are to be sanctioned.

Like other inmates at Marion, see Tinker-Bey v. Meyers, 800 F.2d 710 (7th Cir.1986), Free is attempting to exploit a deficiency in the Federal Tort Claims Act. The Act has no floor on the amount in controversy, and as we noted in Tinker-Bey bored or mischievous prisoners have brought suits under the Act for losses as minor as the loss of a comb. Such suits convert the federal courts into small-claims courts and prison lost-and-found departments. In a period of unprecedented federal judicial workloads, it is apparent that the responsibility for protecting the personal property of federal prisoners should be lodged elsewhere. We reiterate the suggestion we made three years ago in Tinker-Bey, and repeated in a different context (requests for waiver of fees under the Freedom of Information Act) in Savage v. CIA, supra, 826 F.2d at 563: Congress should give serious consideration to creating an exclusive rather than merely a preliminary administrative remedy for small tort claims by federal prisoners.

We are not suggesting that prisoners should have no legal rights, or that they should bear the entire brunt of necessary reforms of an overextended federal judicial system. Correctional officers have power, and power frequently is abused. The issue is the optimal remedy. Litigation in federal court is not a free good, and litigation by prisoners places heavy burdens not only on the courts themselves but on other litigants, whose cases are shoved farther back in the queue. At a time of staggering federal caseloads, the need to devise alternative remedies for classes of litigation that do not imperatively require the full Article III treatment is urgent; one of those classes is small tort claims by federal prisoners.

The request for leave to appeal in forma pauperis is denied, and the appeal is dismissed.

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POSNER, Circuit Judge.

Willie C. Free, who is not free — who is serving a life term in the federal penitentiary in Marion, Illinois — brought suit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., alleging that during a shakedown search of his cell, prison guards either negligently or intentionally destroyed various items of personal hygiene, including toothpaste and baby powder, plus a tennis shoe. [1536]*1536Free estimates the value of the items at $50. The parties consented to have the suit tried by a magistrate, see 28 U.S.C. § 636(c), who held a bench trial in the penitentiary and at its conclusion entered judgment for the United States. Free asked the magistrate for permission to appeal in forma pauperis, a status to which he is not entitled, despite his poverty, if the suit or appeal is frivolous or malicious. See 28 U.S.C. § 1915; Fed.R.App.P. 24(a); Savage v. CIA, 826 F.2d 561, 562 (7th Cir.1987). The magistrate denied Free’s request, which he renews with u's.

The request has no merit. The appeal is frivolous in the sense of utterly groundless; no basis for overturning the magistrate’s decision is shown or appears from the record. Although not a lawyer or represented by counsel, Free is an experienced Federal Tort Claims Act litigant, and his inability to propose a colorable ground for appeal is telling.

His litigation experience brings us to the second and more interesting sense in which this is a frivolous suit and appeal. In the last two years alone, Free has filed twelve lawsuits in federal court, seeking relief under the Federal Tort Claims Act for alleged destruction of his personal property. He has threatened to bring a tort claims suit every timé his cell is searched. By this threat it appears that he is trying both to deter the prison guards from searching his cell and to obtain replacements for lost, damaged, or worn-out items of personal property at the government’s expense. This is an abuse of the judicial process in the classic sense of using the courts to pursue ends other than the vindication of claims believed to be meritorious. Abusers of the judicial process are not entitled to sue and appeal without paying the normal filing fees — indeed, are not entitled to sue and appeal, period. Abuses of process are not merely not to be subsidized; they are to be sanctioned.

Like other inmates at Marion, see Tinker-Bey v. Meyers, 800 F.2d 710 (7th Cir.1986), Free is attempting to exploit a deficiency in the Federal Tort Claims Act. The Act has no floor on the amount in controversy, and as we noted in Tinker-Bey bored or mischievous prisoners have brought suits under the Act for losses as minor as the loss of a comb. Such suits convert the federal courts into small-claims courts and prison lost-and-found departments. In a period of unprecedented federal judicial workloads, it is apparent that the responsibility for protecting the personal property of federal prisoners should be lodged elsewhere. We reiterate the suggestion we made three years ago in Tinker-Bey, and repeated in a different context (requests for waiver of fees under the Freedom of Information Act) in Savage v. CIA, supra, 826 F.2d at 563: Congress should give serious consideration to creating an exclusive rather than merely a preliminary administrative remedy for small tort claims by federal prisoners.

We are not suggesting that prisoners should have no legal rights, or that they should bear the entire brunt of necessary reforms of an overextended federal judicial system. Correctional officers have power, and power frequently is abused. The issue is the optimal remedy. Litigation in federal court is not a free good, and litigation by prisoners places heavy burdens not only on the courts themselves but on other litigants, whose cases are shoved farther back in the queue. At a time of staggering federal caseloads, the need to devise alternative remedies for classes of litigation that do not imperatively require the full Article III treatment is urgent; one of those classes is small tort claims by federal prisoners.

The request for leave to appeal in forma pauperis is denied, and the appeal is dismissed.

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879 F.2d 1535, 1989 U.S. App. LEXIS 10786, 1989 WL 81848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willie-c-free-v-united-states-ca7-1989.

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