By Chief Judge Christopher C. Edwards and Taylor Wood
Most courts and lawyers are familiar with more than one frequent frivolous self-represented plaintiff. These self-represented litigants file the bizarre complaints that are shared among lawyers as dark entertainment, resulting in hearings that resemble theater of the absurd, challenging even the best tempered jurists’ ability to be patient, dignified and courteous. Here’s a federal district court judge’s description of such a complaint. “The court characterized the complaint as ‘kitchen-sink style,’ ‘confusing, repetitious, and baseless,’ and containing ‘pages of nonsense’ with ‘outlandish and frivolous arguments liberally scattered throughout.’ [T]he court rejected the allegations of criminal racketeering to be implausible and ‘nothing short of preposterous.’”1 What can courts do to manage such clear abuses of due process?
Due process allows prior restraint on free access to due process by allowing courts to preemptively approve or disapprove its use by those self-represented litigants who have repeatedly abused due process. “No person is free to abuse the courts by inundating them with frivolous actions which burden the administration of the courts for no useful purpose.”2
An effective response is for counsel or the judge to start the process that can result in a screening order, requiring the self-represented person and the clerk to notify the judge for pre-approval, or screening, before any new complaint, submitted by that self-represented person, is accepted for filing in that court. Screening orders are not yet widely used in Georgia, but several Georgia cases spell out the rules.
What are the Georgia rules on screening orders? Screening orders may require judicial pre-approval of filing any new actions by a self-represented litigant3 who shows a pattern or history of frivolous filings.4 A blanket prohibition, banning all filings by a self-represented litigant, is not allowed5: “… limitation on [the litigant’s] ability to file pro se lawsuits [can] not totally deprive [the litigant] of meaningful access to the courts and …[must be] reasonable under the circumstances.”6 Screening orders can apply to permanently require pre-approval of all future self-represented actions in the court entering the screening order7, but should preferably be tailored to screen only self-represented actions involving a certain subject matter or certain named defendants8.
What process is due before due process is subject to prior restraint? A party may file a motion, or the court may issue an order noticing the court’s own sua sponte motion to consider granting a screening order9. Screening orders can only be entered in a pending action10 to apply in the future, in that court. The screening order must be incorporated in the final judgment or else the final judgment will supersede and vacate it by operation of law11. Whether a party’s motion or the court’s own motion, thirty days response time should be allowed12. No oral hearing is required13, but after timely due process notice, a screening order may be issued.14 There is no evidentiary standard in the Georgia case law for issuance of a screening order. The authors suggest a clear and convincing evidentiary standard is appropriate because limits on exercise of due process should be cautiously applied. When entering a screening order, the screening order should attach a prescribed application form, to ensure the screened self-represented party knows how to proceed to attempt filing a new self-represented action. In other words, a permanent screening order, should attach an application form to allow attempted future filings.
What happens when a “screened” plaintiff under a screening order wishes to file a new action? The party governed by the screening order must first file an application to file a new action, with the intended complaint exhibited to the application for judicial approval or disapproval. The application seeks the court’s sanction to allow filing, like an adoption or condemnation, so the usual nonrefundable civil filing fee is due upon filing the application, subject to waiver for indigency if so determined. When the party applies to file, the clerk must assign a judge to the action to review the application. The judge must then enter an order, to approve or disapprove filing and service of the proposed complaint.15 Alternatively, an order can deny the application but allow the self-represented plaintiff to amend the proposed complaint for a second chance at approval to file, such as by narrowing the causes of action or adding affidavits16.
Georgia courts should be reserved in granting screening orders, but when appropriate, screening orders can prevent repeated abuse of due process, maintaining constitutional intent to provide due process on genuine justiciable claims.
About the Authors
Christopher C. Edwards is the chief judge of the Griffin Judicial Circuit and serves on the State Bar of Georgia’s Board of Governors and also on its Board of the General Practice and Trial Section.
Taylor Wood is a graduate of the 2019 class of Mercer Law School and previously served as Judge Edwards’ staff attorney.
1 In re Carter, 235 Ga. App. 551, 552 (1998)
2 Srivastava v. Daniels, 409 Fed. Appx. 953, 954-55 (7th Cir. 2011)
3 See Smith v. Adamson, 226 Ga. App. 698 (1997); Tahamtan v. Chase Manhattan Mortg. Corp., 252 Ga. App. 113 (2001); Higdon v. Higdon, 321 Ga. App. 260 (2013); and In re Lawsuits of Carter, 235 Ga. App. 551 (1998).
4 See Smith v. Adamson, 226 Ga. App. 698 (1997); Tahamtan v. Chase Manhattan Mortg. Corp., 252 Ga. App. 113 (2001); Higdon v. Higdon, 321 Ga. App. 260 (2013); Howard v. Sharpe, 266 Ga. 771 (1996); Hooper v. Harris, 236 Ga, App. 651 (1999); and Moreton Rolleston, Jr., Living Trust v. Kennedy, 277 Ga. 541 (2004).
5 See Hooper v. Harris, 236 Ga, App. 651 (1999) and In re Lawsuits of Carter, 235 Ga. App. 551 (1998).
6 Higdon v. Higdon, 321 Ga. App. 260, 266-67 (2013), citing Smith v. Anderson, 226 Ga. App. 698, 700 (1997).
7 See Smith v. Adamson, 226 Ga. App. 698 (1997); Tahamtan v. Chase Manhattan Mortg. Corp., 252 Ga. App. 113 (2001); and Moreton Rolleston, Jr., Living Trust v. Kennedy, 277 Ga. 541 (2004).
8 See Moreton Rolleston, Jr., Living Trust v. Kennedy, 277 Ga. 541 (2004), where a screening order was entered to prevent frivolous filings regarding Rolleston’s adverse interest in the property; see also Hooper v. Harris, 236 Ga, App. 651 (1999), where a screening order was entered regarding Hooper’s stalking and aggravated stalking conviction.
9 In re Lawsuits of Carter, 235 Ga. App. 551, 555 (1998).
10 In re Lawsuits of Carter, 235 Ga. App. 551, 555 (1998).
11 Gorham v. Gorham, 147 Ga. 433, 434 (1917), where a contempt proceeding was brought out of an award of temporary alimony was not merged into the final judgment.
12 USCR 6.2.
13 USCR 6.3.
14 In re Lawsuits of Carter, 235 Ga. App. 551, 556 (1998).
15 Any action taken by the court may be subject to a motion for reconsideration by any party within 30 days. Stumm v. Wilkie, 2019 WL 6487202 (7th Cir.)
16 See Smith v. Adamson, 226 Ga. App. 698 (1997) and Higdon v. Higdon, 321 Ga. App. 260 (2013).