concluded that: "The number of these petitions found to have merit is very small, both proportionately and absolutely."3 This is reflected in the fact that 5,355 of 5,858 or 91 percent of the cases brought in federal court in fiscal year 1976 were dismissed or terminated prior to pretrial.4

The stresses that produce these complaints are extreme and, to some extent, predictable. What to most people would be a very insignificant matter becomes, because of the nature of prison life, of real concern to the prison inmate. Most of the money damage claims, realistically evaluated, could be handled by a small claims court at the state level. Most requests for injunctive relief involve issues which would seem to many people to be quite trivial.

The fact that the volume of conditions-ofconfinement cases is large and the fact that many are frivolous make it difficult to ensure that the meritorious complaint is found and given careful attention. Therefore, the federal judiciary must be especially alert to recognize the meritorious case and grant appropriate relief. The Freund Commission concluded: [I]t is of the greatest importance to society as well as to the individual that each meritorious petition be identified and dealt with."5

The cases sometimes raise constitutional questions of great significance to prisoners and to the nation's correctional systems. Because lawyers are typically not involved, a very difficult task confronts the judiciary, particularly at the early stages of this class of pro se litigation.

It becomes absolutely necessary for the federal judiciary to understand the factual basis of the complaint and then to relate the facts to developing legal precepts in federal constitutional law. This compendium of cases is illustrative of the difficult issues being presented by the prisoner complaints.

3. Id. at 587.

4. Annual Report of the Director of the Administrative Office of the United States Courts, 1976.

5. Freund Report, supra note 2, at 587.

SECTION I: CIVIL RIGHTS STATUTES; JURISDICTION

There are several different civil rights statutes, each having different requirements, but mostly civil rights actions by prisoners are brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subject, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Some other possible sources of causes of action are 42 U.S.C. 1981:

All persons within the juris-
diction of the United States shall
have the same right in every State
and Territory to make and enforce
contracts, to sue,
to sue, be parties, give
evidence, and to the full and equal
benefit of all laws and proceedings
for the security of persons and
property as is enjoyed by white
citizens, and shall be subject to
like punishment, pains, penalties,
taxes, licenses and exactions of
every kind, and to no other.

6. Municipal corporations are not immune under section 1981. Mahone v. Waddle, 564 F.2d 1018, 1032 (2d Cir. 1977). Suits under sections 1981 and 1982 require plaintiff to allege racial discrimination. Milton v. Nelson, 527 F.2d 1158 (9th Cir. 1976); Save Our Cemetaries v. Archdiocese of New Orleans, 568 F.2d 1074, 1078

42 U.S.C. § 1985(2):

(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.

42 U.S.C. § 1985(3):

7

(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the prem

(5th Cir. 1978). Section 1981 is not confined to contractual matters and includes racially motivated misuse of government power. Hall v. Pennsylvania State Police, 570 F.2d 86, 91 (3d Cir. 1978). See generally Garner v. Giarrusso, 571 F.2d 1330 (5th Cir. 1978) for a discussion of immunity of a municipality.

7. See Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976) (section 1985 (2) requires class-based invidious discriminatory animus); Jones v. U.S., 536 F.2d 269, 271 (8th Cir. 1976) (must allege racial or class-based animus).

ises of another, for the purpose of depriv-
ing, either directly or indirectly, any
person or class of persons of the equal
protection of the laws, or of equal
privileges and immunities under the laws;
or for the purpose of preventing or
hindering the constituted authorities of
any State or Territory from giving or
securing to all persons within such State
or Territory the equal protection of the
laws; or if two or more persons conspire
to prevent by force, intimidation, or
threat, any citizen who is lawfully
entitled to vote, from giving his support
or advocacy in a legal manner, toward or
in favor of the election of any lawfully
qualified person as an elector for
President or Vice President, or as a
Member of Congress of the United States;
or to injure any citizen in person or
property on account of such support or
advocacy; in any case of conspiracy set
forth in this section, if one or more
persons engaged therein do, or cause to
be done, any act in furtherance of the
object of such conspiracy, whereby
another is injured in his person or
property, or deprived of having and
exercising any right or privilege of a
citizen of the United States, the party
so injured or deprived may have an
action for the recovery of damages,
occasioned by such injury or deprivation,
against any one or more of the conspirators.

7 a

The court has jurisdiction over section 1983 cases alleging constitutional deprivations under 28 U.S.c. § 1343(3) and over section 1985(2) and (3) cases under U.S.C. § 1343 (1). 28 U.S.C. § 1343 provides:

7a. See Section IX infra.

8. However, section 1343 (3) does not grant jurisdiction of actions alleging deprivation of a right secured by the laws of the United States except acts of Congress providing for equal rights of citizens. Gonzalez v. Young, 560 F.2d 160, 166 (3d Cir. 1977). But see Chase v. McMasters, 573 F.2d 1011, 1017 (8th Cir. 1978).

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

Civil rights actions by prisoners against federal officials may be brought under 28 U.S.C. § 13319 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).9a These actions are usually brought in mandamus under 28 U.S.C. § 1361. Section 1331 provides:

(a) The district courts shall

have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States ex

9. Lynch v. Household Finance, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972) held that in cases brought under § 1983 no jurisdictional amount is required.

9a. See Section X infra.