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Inmate’s handwritten request will get a rare hearing before Supreme Court

  • McClatchy Newspapers
  • Published Thursday, Sep. 27, 2012, at 10:51 p.m.

— Kim Millbrook’s hard time began long ago, far from the Supreme Court whose attention he has now surprisingly seized.

Prison guards sexually assaulted him, Millbrook says. Prison gang members threatened him. Some judges warned him about his voluminous lawsuits. Other judges denied him an attorney.

Even if his luck starts turning, the 44-year-old inmate at the U.S. Penitentiary in Lewisburg, Pa., is supposed to remain incarcerated until December 2033.

But in the longest of long shots, Millbrook’s handwritten petition on lined paper persuaded the U.S. Supreme Court this week to consider the legal liability of prison guards. It’s a consequential case for guards and prisoners alike, made all the more remarkable by Millbrook’s ability to finally find a potentially sympathetic audience.

“The percentage of handwritten prisoner cases that (the court) accepts compared to the number that it receives is very low,” said Jeffrey Fisher, a professor at Stanford Law School. “But sometimes, it doesn’t take very long to realize that even with a prisoner’s petition, something might be there.”

With time on their hands and grievances to air, prisoners file lots of lawsuits. In 2010, federal courts received 53,323 prisoner petitions, according to the Administrative Office of the U.S. Courts.

The Supreme Court receives about 9,000 petitions from all sources annually, and typically hears only about 75. The least likely ones are filed by prisoners who, like Millbrook, represent themselves.

“It happens every year or two,” said Fisher, co-director of the Stanford Supreme Court Litigation Clinic. Fisher said the Stanford clinic may seek to represent Millbrook at the still-unscheduled oral argument; other attorneys might also make their pro-bono pitch. The court will make the formal appointment.

Another Lewisburg inmate, a native of California’s San Joaquin Valley named Matthew R. Descamps, also beat the odds this year when the Supreme Court agreed to hear his petition. At least four of the court’s nine justices must agree for a case to be heard.

Descamps says his 1978 conviction for burglary of a Stockton, Calif., grocery store should not be counted in determining whether he’s an armed career criminal. The armed career criminal designation more than doubled Descamps’ sentence following his last conviction. He’s currently due to be freed in September 2024.

The 55-year-old Descamps filed his own rambling and unexpected petition with the Supreme Court, supplementing the one filed by his Spokane, Wash.-based court-appointed attorney, Dan B. Johnson. In it, Descamps thought it useful to advise the Supreme Court that his last arrest “caused my father to have a heart attack and die.”

The ability of both Descamps and Millbrook to secure Supreme Court attention is particularly striking, as both have previously vexed legal professionals with their persistent jailhouse lawyering.

Millbrook, for one, sued after he says he was stabbed in 2009 while imprisoned in Indiana. He sued in 2007, over conditions at Henry County Jail in Illinois, and the year before he says he was sprayed with Mace in another Illinois jail. He has also repeatedly complained about his defense attorneys.

After a 2006 conviction on drug, firearms and witness-tampering charges, he sued to overturn the case. “Mr. Millbrook is very active in his own defense,” one of his former attorneys, James B. Clements, acknowledged in a July 20, 2007 hearing, a transcript shows.

“He reads through his materials and his legal sources constantly.”

In June, in a separate case, the Illinois-based 7th U.S. Circuit Court of Appeals warned Millbrook that “continuing to file frivolous papers may result in sanctions” such as a fine. A separate appellate panel based in Pennsylvania refused Millbrook’s request for an attorney, forcing him to represent himself.

Millbrook’s improbable route to the Supreme Court began, he says, in the G Block basement of the high-security Lewisburg prison. Millbrook said that on the morning of March 5, 2010, three correctional officers removed him from a Special Management Unit cell. “(One) began choking me and forced me to my knees,” Millbrook wrote.

“That’s when (another) stood in front of me and began to unzip his pants.”

Millbrook says he was forced to perform oral sex on one officer and threatened if he reported the attack. An internal prison investigation rejected Millbrook’s allegations, and he sued. Generally speaking, federal law enforcement officers cannot be sued for their actions. There are exceptions to sovereign immunity, though, and the legal question is where the lines get drawn.

In a 2002 case involving two U.S. deputy marshals in Sacramento, the 9th U.S. Circuit Court of Appeals said law enforcement officers can be sued only for actions taken during “investigative or law enforcement activity.”

A different appellate court, though, said officers can be sued “regardless” of the scope of their actions. “That division of authority may eventually warrant this court’s review in a future case,” Justice Department attorneys acknowledged in a brief, before insisting that the question need not be addressed yet.

The Supreme Court, nonetheless, said it would use Millbrook’s case to decide the circumstances under which prison guards may be sued.

“This is the proof that even someone who is a frequent filer can sometimes” succeed, Fisher said.

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