The Third Circuit has slapped a district court judge and a magistrate upside the head in a new order on prisoner litigation. Ordinarily I am not “pro prisoner” nor am I one of those bleeding hearts who thinks that caging bad people is a bad thing to do. But the motto of the U.S. Army Disciplinary Barracks says what confinement is supposed to be: “they are here AS punishment, not FOR punishment.” In other words, the loss of liberty is the punishment, they are not supposed to be subjected to further punishment unless they earn it.

Now, some felons earn it. They fight. They stab their fellow prisoners. They sell drugs in the prison. They engage in all kinds of bad conduct, and they wind up getting disciplinary food (which is usually like meatloaf made with all sorts of leftovers that has a bad smell, but won’t hurt them). They get disciplinary assignments (isolation). But, when they get sick they are supposed to get adequate medical care.

Adequate medical care means care that meets the standard of care. It does not mean you fly them to the Mayo Clinic. So if a cardiac condition can be treated by diet, exercise and medication, that is just as workable as open heart surgery. These rules make sense.

Also, as prisoners, these folks can’t sue for medical malpractice, they have to sue for deprivation of constitutional rights. Only deliberate indifference to medical needs satisfies the test for a claim based on the Eighth Amendment’s prohibition on cruel and unusual punishment. And this is how it should be. No one wants to treat prisoners to begin with, but subjecting them to deliberate substandard care, or ignoring them, would indeed be cruel and unusual.

Now, before we get to the facts of the case, it should be noted that there is this thing called “recreational litigation.” You’ve heard the stories: Prisoner X got chunky instead of creamy peanut butter. Prisoner Y couldn’t get Diet Pepsi and had to drink Diet Coke. Courts have relatively easy ways of dealing with these kind of nonsense claims, and even though they take up time with state attorneys, they are generally always unsuccessful. But judges have gotten so tired of this nonsense that sometimes they let it color their judgment.  This they cannot do.  When the prisoner is treated unequally before the law, that makes it easier to treat the next suspect class badly.  It becomes a slippery slope.

Antonio Pearson was a prisoner at Somerset Prison in Pennsylvania and he developed abdominal pain. It is quite common for prisoners who want a little attention to fake abdominal pain by ingesting compounds of unorthodox chemistry.  12 hours of a softer bed and better treatment usually results.  It’s a scam, and medical professionals are wise to it and look for fakers.

But Antonio wasn’t actually faking. He went on “sick call” and they gave him the “take two aspirin and call me in the morning” routine. He went back, in much greater pain, they examined him, and sent him back to his cell. By evening he was in intractable pain. Guards called for the nurse, David Rhodes, and Rhodes said since he had been seen on sick call he could just wait until sick call the next day. After the screaming continued unabated, the guards told the nurse to come see him in the cell. Rhodes came down with a wheelchair, but told Pearson that he would not help him into the wheelchair, that if he wanted to go to the clinic, he had to walk to the wheelchair. When Pearson said he couldn’t, Rhodes reportedly said “it’s that or I’m going back.” So Pearson, while screaming in agony, crawled to the wheelchair and got in.

Rhodes took him back, did a cursory evaluation, and gave him nothing for pain while locking him in a holding cell in the infirmary.  Pearson screamed in agony the rest of the night before being sent to the local hospital the next morning for removal of his appendix. The facts are all in the opinion linked above, and they really make you wonder how the Court could conclude that Pearson was not entitled to some relief. But, even after being warned by the appellate court previously about making derogatory statements about prisoners, the district court judge and magistrate continued.

From the opinion:

As we noted in Pearson’s prior appeal and will reiterate now, Pearson suffered from two serious medical conditions, and “it does not appear . . . that he filed this lawsuit for recreational purposes or to harass prison personnel.” Pearson, 519 F. App’x at 84. It appears he filed this suit because he genuinely believes that the prison officials acted deliberately indifferent to his medical needs in violation of his constitutional rights. Whether or not he ultimately prevails, equality before the law is one of the founding principles of our government and Pearson deserves to have his case treated as carefully and thoughtfully as any other litigant’s.

While we remain convinced that the Magistrate Judge and District Judge are capable of handling Pearson’s trial without any bias, we trust that our message will be heard on this third remand and that this editorializing will cease going forward.

I think a far more prudent thing to do at this point would have been to order recusal of both these judicial officers. They have made it clear that Pearson won’t get a fair trial. As we tell jurors all the time, it’s okay to have biases and beliefs. Everyone does. But you cannot let those biases affect your judgment. Here it is apparent that these judicial officers have done that, and a better outcome would have been to order recusal.

Of course, Pearson still has a long way to go to get his case tried to a jury, and perhaps a longer way still to prevail on appeal. But he has a right to have his claims heard by a fair panel of jurors, and not have his right to a fair trial stolen by judges who regard him as less worthy of a forum than an endangered animal.

But, given the outcome, I have to give the Third Circuit high marks for writing a difficult opinion. Slapping federal judges upside the head is one of those things that you rarely see, but when you do see it, you should take note.

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