Seventh Circuit Reaffirms Legal Tools Helpful Against Abusive Pro Se Litigants

June 26, 2020

Almost every municipality knows the headache of facing a self-represented litigant who knows enough about the legal process to weaponize legal procedure and thereby drive up defense costs, but who refuses to obey the rules himself. Two recent Seventh Circuit decisions remind lower courts of tools to curb such behavior.

The first is James v. Hale and concerns the “sham affidavit rule.” James arose from a prisoner’s claim of inadequate medical care. The prisoner was deposed and made admissions about the care sufficient to entitle the defendants to summary judgment. But when the defendants moved for summary judgment, the plaintiff produced an affidavit swearing “under oath” to a different version of the facts, directly contradicting his deposition.

Such an affidavit is a problem because courts may not weigh credibility at summary judgment. Judging credibility is a jury task. The court must assume the plaintiff and his or her witnesses are telling the truth, and decide whether given that assumption, summary judgment is warranted. This rule can be abused by a plaintiff who seeks to avoid the consequences of damaging admissions and tries to evade summary judgment with an affidavit contradicting earlier testimony.

Fortunately, the “sham affidavit” rule holds that if a litigant submits an affidavit in opposition to summary judgment, and that affidavit contradicts earlier sworn testimony, the court may view the affidavit as a “sham” and ignore it. That happened in James, and the Seventh Circuit approved. This rule is not new, but its application has been inconsistent. James reminds courts and defendants of a way to combat such bad faith attempts to dodge summary judgment.

The second case is Cartwright v. Silver Cross Hospital. It was an employment discrimination case that lasted four years. The plaintiff began pro se, and he repeatedly missed hearings, refused to appear for his deposition, and refused to cooperate in discovery. Despite this obstruction, a district court recruited a succession of four different pro bono attorneys for him, one of whom spent several hundred hours on the case. The behavior continued, but each time a recruited attorney withdrew, the court appointed another. The impact on the employer’s defense costs is obvious.

When the district court finally dismissed the suit for misconduct, the Seventh Circuit did not merely affirm. Rather, it chastised the district court for rewarding such obnoxious behavior with free legal assistance and said the court should have dismissed the suit much sooner and saved the defendants the time and expense of further litigation. The court reiterated that pro bono representation is a privilege and a limited resource, and should not be “squandered” on litigants who flout the rules. Cartwright reminds trial courts to stop giving so many chances and free attorneys to abusive pro se litigants and thereby give municipalities a modicum of relief.

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