Microsoft Word - 6-29-21_JLH

NOTE FROM THE EDITORS

This handbook is a free resource for

people in prison who wish to file a federal

lawsuit addressing poor conditions in

prison or abuse by prison staff.

It also contains limited general information about the United States

legal system. This handbook is available for free to anyone: prisoners,

families, friends, activists, lawyers and others.

We hope that you find this handbook helpful, and that it provides

some aid in protecting your rights behind bars. Know that those of us

on the outside are humbled and inspired by the incredible work so

many of you do to protect your rights and dignity while inside. As you

work your way through a legal system that is often frustrating and

unfair, know that you are not alone in your struggles for justice.

Good luck!

Rachel Meeropol

Ian Head

Chinyere Ezie

The Jailhouse Lawyers Handbook, 6

Edition.

Revised in 2021. Published by:

The Center for Constitutional Rights

666 Broadway, 7

Floor

New York, NY 10012

The National Lawyers Guild,

National Office

P.O. Box 1266

New York, NY 10009-8941

Available on the internet at: http://jailhouselaw.org

Cover art by Kevin "Rashid" Johnson

Layout and design by Emily Ballas

We would like to thank:

All of the jailhouse lawyers who have

sent comments, recommendations, and

corrections for the handbook, all those

who have requested and used the

handbook, and who have passed their

copy on to others inside prison walls.

Special thanks to Mumia Abu-Jamal

for his continued support of the JLH.

The original writers and editors of the

handbook (formerly the NLG Jailhouse

Lawyers Manual), Brian Glick, the Prison

Law Collective, the Jailhouse Manual

Collective, and Angus Love. Special

thanks to Carey Shenkman for his work

on the 2021 revision and to Paul Redd,

John Boston, and Alexander Reinert

for their review of this edition.

Thanks to Claire Dailey and

Lisa Drapkin, for administrating the

mailing program at CCR and NLG.

The dozens of volunteers who have

come to the Center for Constitutional

Rights and National Lawyers Guild

offices every week since 2006 to

mail handbooks to people inside

prison, especially Merry Neisner,

Torie Atkinson, Dena Weiss,

Miriam Edwin, Magaly Pena,

Damian Van Denburgh, Nora Chanko,

Perri Fagin, Clare Spitzer, and

Daniel McGowan. Additional thanks

to all those who contributed to the new

State Appendix, along with Alice S. and

Daniel L. who contributed to Appendix J.

Jeff Fogel and Steven Rosenfeld

for their work defending the handbook

in Virginia.

LEGAL DISCLAIMER:

This handbook was written by

Center for Constitutional Rights

staff. The information included in the

handbook is not intended as legal advice

or representation, and you should not

rely upon it as such. We cannot guarantee

the accuracy of this information nor

can we guarantee that all the law and

rules inside are current, as the law

changes frequently.

TABLE OF CONTENTS

CHAPTER ONE: How to Use the JLH 1

A. What Is This Handbook? ......................................................................................................................................... 1

The Importance of “Section 1983” ............................................................................................................................................................................................. 1

B. How to Use This Handbook .................................................................................................................................... 1

C. Who Can Use This Handbook ................................................................................................................................ 2

1. Prisoners in Every State Can Use This Handbook ............................................................................................................................................................. 2

2. Prisoners in Federal Prison Can Use This Handbook ........................................................................................................................................................ 2

3. Prisoners in City or County Jails Can Use This Handbook .............................................................................................................................................. 3

4. Prisoners in Private Prisons Can Use This Handbook ....................................................................................................................................................... 3

D. Why to Try and Get a Lawyer ................................................................................................................................ 3

E. A Short History of Section 1983 and the Struggle for Prisoners’ Rights ..................................................... 4

F. The Uses and Limits of Legal Action ..................................................................................................................... 5

CHAPTER TWO: Overview of Types of Lawsuits and the Prison Litigation Reform Act 7

A. Section 1983 Lawsuits ............................................................................................................................................. 7

1. Violations of Your Federal Rights .......................................................................................................................................................................................... 7

2. “Under Color of State Law” ..................................................................................................................................................................................................... 8

B. State Court Cases ...................................................................................................................................................... 9

C. Federal Torts Claims Act (FTCA) ........................................................................................................................... 9

1. Who You Can Sue ..................................................................................................................................................................................................................... 9

2. Administrative Exhaustion .................................................................................................................................................................................................... 10

3. Types of Torts ......................................................................................................................................................................................................................... 10

a. Negligence ...................................................................................................................................................................................................................................................................................... 11

b. Intentional Torts - Assault and Battery ................................................................................................................................................................................................................................... 11

c. False Imprisonment ...................................................................................................................................................................................................................................................................... 11

d. Intentional Infliction of Emotional Distress ............................................................................................................................................................................................................................ 11

4. Damages in FTCA Suits ......................................................................................................................................................................................................... 11

5. The Discretionary Function Exception .............................................................................................................................................................................. 12

D. Bivens Actions and Federal Injunctions ............................................................................................................. 12

1. Who is acting under color of federal law? ........................................................................................................................................................................ 12

2. Unconstitutional Acts by Federal Officials Subject to Bivens Claims ......................................................................................................................... 13

3. Federal Injunctions ................................................................................................................................................................................................................. 13

E. Brief Summary of the Prison Litigation Reform Act (PLRA) .......................................................................... 14

1. Injunctive Relief ...................................................................................................................................................................................................................... 14

2. Exhaustion of Administrative Remedies ........................................................................................................................................................................... 14

3. Mental or Emotional Injury ................................................................................................................................................................................................... 14

4. Attorney’s Fees ....................................................................................................................................................................................................................... 14

5. Screening, Dismissal, and Waiver of Reply ....................................................................................................................................................................... 14

6. Filing Fees and the Three Strikes Provision ..................................................................................................................................................................... 14

CHAPTER THREE: Your Rights In Prison 15

A. Your First Amendment Right to Freedom of Speech and Association ...................................................... 15

1. Access to Reading Materials ................................................................................................................................................................................................ 16

2. Free Expression of Political Beliefs .................................................................................................................................................................................... 18

3. Limits on Censorship of Mail ............................................................................................................................................................................................... 19

a. Outgoing Mail ................................................................................................................................................................................................................................................................................ 19

b. Incoming Mail ................................................................................................................................................................................................................................................................................ 20

c. Legal Mail ........................................................................................................................................................................................................................................................................................ 20

4. Access to the Telephone ....................................................................................................................................................................................................... 20

5. Access to the Internet ........................................................................................................................................................................................................... 21

6. Your Right to Receive Visits from Family and Friends and to Maintain Relationships in Prison. ........................................................................ 21

a. Access to Visits ............................................................................................................................................................................................................................................................................. 22

b. Caring for Your Child in Prison .................................................................................................................................................................................................................................................. 23

B. Your Right to Practice Your Religion .................................................................................................................. 23

1. Free Exercise Clause .............................................................................................................................................................................................................. 23

2. Establishment Clause ............................................................................................................................................................................................................. 24

3. Fourteenth Amendment Protection of Religion .............................................................................................................................................................. 25

4. Religious Freedom Restoration Act (RFRA) and Religious Land Use and Institutionalized Persons Act (RLUIPA) ......................................... 25

5. Common Issues Related to Religious Accommodations ............................................................................................................................................... 25

C. Your Right to be Free from Discrimination ....................................................................................................... 26

1. Freedom from Racial Discrimination .................................................................................................................................................................................. 27

2. Freedom from Sex and Gender Discrimination ............................................................................................................................................................... 28

a. The “Similarly Situated” Requirement ...................................................................................................................................................................................................................................... 28

b. Proving Discriminatory Intent ................................................................................................................................................................................................................................................... 28

3. Freedom from Other Forms of Discrimination ................................................................................................................................................................ 29

D. Your Procedural Due Process Rights Regarding Punishment,

Administrative Transfers, and Segregation ............................................................................................................ 29

1. Due Process Rights of People in Prison ............................................................................................................................................................................ 30

2. Transfers and Segregation .................................................................................................................................................................................................... 31

E. Your Right to Privacy and to be Free from Unreasonable Searches and Seizures .................................. 32

1. Your Fourth Amendment Rights related to Searches .................................................................................................................................................... 32

2. Your Fourteenth Amendment Right to Medical Privacy ............................................................................................................................................... 33

F. Your Right to be Free from Cruel and Unusual Punishment ......................................................................... 33

1. Your Right to Be Free from Physical Brutality and Sexual Assault by Prison Staff ................................................................................................ 34

a. Use of Excessive Force and Physical Brutality by Prison Officials .................................................................................................................................................................................... 34

b. Sexual Assault and Abuse by Prison Officials ........................................................................................................................................................................................................................ 35

c. Sexual Harassment and Verbal Abuse by Guards ................................................................................................................................................................................................................. 35

d. “Consensual” Sex between Prisoners and Guards ................................................................................................................................................................................................................ 36

e. Challenging Prison Supervisors and Prison Policies ............................................................................................................................................................................................................. 36

2. Your Right to Be Free from Physical and Sexual Assault by Other Incarcerated People ...................................................................................... 37

a. Failure to Protect from Prisoner Sexual Assault .................................................................................................................................................................................................................... 37

b. Failure to Protect from Prisoner Physical Abuse .................................................................................................................................................................................................................. 37

3. Your Right to Decent Conditions in Prison ...................................................................................................................................................................... 37

4. Your Right to Medical Care .................................................................................................................................................................................................. 40

a. Serious Medical Need .................................................................................................................................................................................................................................................................. 40

b. Deliberate Indifference ............................................................................................................................................................................................................................................................... 41

c. Causation ........................................................................................................................................................................................................................................................................................ 41

d. The COVID-19 Pandemic ........................................................................................................................................................................................................................................................... 42

G. Your Right to Use the Courts ............................................................................................................................... 42

1. The Right to Talk and Meet with Lawyers and Legal Workers .................................................................................................................................... 43

2. The Right to Access to a Law Library ................................................................................................................................................................................. 43

3. Getting Help from a Jailhouse Lawyer and Providing Help to Other Prisoners ...................................................................................................... 44

4. Dealing with Retaliation ........................................................................................................................................................................................................ 45

Issues of Importance to Women in Prison ....................................................................................................... 46

1. Medical Care ............................................................................................................................................................................................................................ 46

a. Proper Care for Women in Prison ............................................................................................................................................................................................................................................ 46

b. Medical Needs of Pregnant Women ........................................................................................................................................................................................................................................ 46

2. Your Right to an Abortion in Prison ................................................................................................................................................................................... 47

a. Fourteenth Amendment Claims ................................................................................................................................................................................................................................................ 48

b. Eighth Amendment Claims ......................................................................................................................................................................................................................................................... 48

2. Discrimination Towards Women in Prison ....................................................................................................................................................................... 49

3. Observations and Searches by Male Guards ................................................................................................................................................................... 49

Issues of Importance to LGBTQ+ People and People Living with HIV/AIDS ............................................ 50

1. Your Right to Be Protected from Discrimination ............................................................................................................................................................ 51

a. Discrimination Generally ............................................................................................................................................................................................................................................................. 51

b. Job/Program Discrimination ...................................................................................................................................................................................................................................................... 53

c. Marriage and Visitation for LGBTQ+ People in Prison ........................................................................................................................................................................................................ 53

2. Your Right to be Free from Sexual and Physical Violence ............................................................................................................................................ 54

a. Abuse by Prison Officials ............................................................................................................................................................................................................................................................ 54

b. Abuse from Other Incarcerated People .................................................................................................................................................................................................................................. 54

b. Sexual Harassment and Verbal Abuse ..................................................................................................................................................................................................................................... 55

c. Access to Protective Custody .................................................................................................................................................................................................................................................... 56

d. Cross-Gender Strip Searches ..................................................................................................................................................................................................................................................... 56

e. Shower Privacy .............................................................................................................................................................................................................................................................................. 57

3. Your Right to Facility Placements ....................................................................................................................................................................................... 57

a. Placement in male or female facilities ...................................................................................................................................................................................................................................... 57

b. Placement in involuntary segregation ..................................................................................................................................................................................................................................... 58

c. HIV/AIDS Segregation ................................................................................................................................................................................................................................................................. 59

4. Your Right to Health Care .................................................................................................................................................................................................... 60

a. Your Right to Mental and Medical Health Care Generally .................................................................................................................................................................................................. 60

5. Your Right to Gender-Affirming Medical Care and Free Gender Expression .......................................................................................................... 60

a. Challenging Gender Dysphoria Treatment Denials Generally ........................................................................................................................................................................................... 60

b. Gaining Access to Hormone Therapy ...................................................................................................................................................................................................................................... 62

c. Clothing, Grooming, and Social Transition .............................................................................................................................................................................................................................. 62

d. Gaining Access to Gender-Confirmation Surgery ................................................................................................................................................................................................................. 63

e. Changing Your Name and Gender Marker ............................................................................................................................................................................................................................. 64

6. Your Other Rights in Custody .............................................................................................................................................................................................. 65

a. Your Right to Confidentiality ..................................................................................................................................................................................................................................................... 65

b. Access to LGBTQ+-Related Reading Material ....................................................................................................................................................................................................................... 66

Issues of Importance to Pretrial Detainees ....................................................................................................... 66

K. Issues of Importance to Non-Citizens and Immigration Detainees ............................................................ 68

L. Protection of Prisoners Under International Law ............................................................................................ 70

1. Sources of International Legal Protection ........................................................................................................................................................................ 70

2. Filing a Complaint to the United Nations Special Rapporteur on Torture ................................................................................................................ 71

3. Sending a Petition to the Inter-American Commission on Human Rights (IACHR) ................................................................................................ 72

CHAPTER FOUR: Who to Sue and What to Ask for 73

A. What to Ask for in Your Lawsuit ......................................................................................................................... 73

B. Injunctions ................................................................................................................................................................. 73

1. Preliminary Injunctions and Permanent Injunctions ....................................................................................................................................................... 74

2. Exhaustion and Injunctions .................................................................................................................................................................................................. 75

3. Temporary Restraining Orders ............................................................................................................................................................................................ 75

C. Money Damages ...................................................................................................................................................... 75

1. The Three Types of Money Damages ................................................................................................................................................................................ 75

2. Damages Under the PLRA .................................................................................................................................................................................................... 76

3. Deciding How Much Money to Ask For ........................................................................................................................................................................... 77

D. Who You Can Sue ................................................................................................................................................... 77

1. Who to Sue for an Injunction .............................................................................................................................................................................................. 78

2. Who to Sue for Money Damages: The Problem of “Qualified Immunity” ............................................................................................................... 78

3. What Happens to Your Money Damages ......................................................................................................................................................................... 79

E. Settlements ............................................................................................................................................................... 80

F. Class Actions ............................................................................................................................................................. 80

CHAPTER FIVE: How to Start Your Lawsuit 82

A. When to File Your Lawsuit ................................................................................................................................... 82

1. Statute of Limitations ............................................................................................................................................................................................................ 82

B. Where to File Your Lawsuit .................................................................................................................................. 84

C. How to Start Your Lawsuit ................................................................................................................................... 84

1. Summons and Complaint ...................................................................................................................................................................................................... 85

2. In Forma Pauperis Papers ....................................................................................................................................................................................................... 90

3. Request for Appointment of Counsel ................................................................................................................................................................................ 93

D. How to Serve Your Legal Papers ........................................................................................................................ 95

E. Getting Immediate Help from the Court ............................................................................................................ 95

F. Signing Your Papers ................................................................................................................................................ 98

CHAPTER SIX: What Happens After You File Your Suit 99

A. Short Summary of a Lawsuit ................................................................................................................................. 99

B. Dismissal by the Court and Waiver of Reply ................................................................................................. 100

C. How to Respond to a Motion to Dismiss Your Complaint ......................................................................... 101

D. The Problem of Mootness ................................................................................................................................ 102

E. Discovery ................................................................................................................................................................ 103

1. Discovery Tools ..................................................................................................................................................................................................................... 103

2. What You Can See and Ask About ................................................................................................................................................................................... 106

3. Privilege .................................................................................................................................................................................................................................. 106

4. Some Basic Steps .................................................................................................................................................................................................................. 106

5. Some Practical Considerations .......................................................................................................................................................................................... 107

6. Procedure ............................................................................................................................................................................................................................... 107

7. Their Discovery of Your Information and Material ...................................................................................................................................................... 108

F. Summary Judgment .............................................................................................................................................. 108

1. The Legal Standard ............................................................................................................................................................................................................... 109

2. Summary Judgment Procedure ......................................................................................................................................................................................... 110

3. Summary Judgment in Your Favor ................................................................................................................................................................................... 110

G. What to Do If Your Complaint Is Dismissed or the Court Grants

Defendants Summary Judgment ........................................................................................................................... 111

1. Motion to Alter or Amend the Judgment ....................................................................................................................................................................... 111

2. How to Appeal the Decision of the District Court ....................................................................................................................................................... 111

CHAPTER SEVEN: The Legal System and Legal Research 112

A. The Importance of Precedent ........................................................................................................................... 112

1. The Federal Court System .................................................................................................................................................................................................. 112

2. How Judges Interpret Laws on the Basis of Precedent .............................................................................................................................................. 112

3. Statutes ................................................................................................................................................................................................................................... 114

4. Other Grounds for Court Decisions ................................................................................................................................................................................. 114

B. Legal Citations – How to Find Court Decisions and Other Legal Material ............................................ 114

1. Court Decisions ..................................................................................................................................................................................................................... 114

2. Legislation and Court Rules ................................................................................................................................................................................................ 117

3. Books and Articles ................................................................................................................................................................................................................ 117

4. Research Aids ........................................................................................................................................................................................................................ 117

Legal Writing

...........................................................................................................................................................

118

APPENDICES 120

A. Glossary of Terms ................................................................................................................................................ 120

B. Sample Complaint ................................................................................................................................................ 125

C. FTCA Form ............................................................................................................................................................. 128

D. Other Legal Forms ............................................................................................................................................... 130

E. (State Supplement Appendix) State Grievanc Procedures, PREA Rules, & LGBTQ+ Policies

Applicable in Certain States ................................................................................................................................... 133

F. Excerpts from the PLRA ...................................................................................................................................... 147

G. Model Questionnaire for United Nations Special Rapporteur on Torture ............................................ 150

H. Universal Declaraton of Human Rights .......................................................................................................... 151

I. Sources of Legal Support ..................................................................................................................................... 154

J. Sources of Publicity .............................................................................................................................................. 156

K. Prisoners' Rights Books and Newsletters ...................................................................................................... 157

L. Free Book Programs ............................................................................................................................................. 158

M. District Court Addresses ................................................................................................................................... 159

N. Constitutional Amendments (First through Fifteenth) ............................................................................... 175

1 | CHAPTER 1 – HOW TO USE THE JLH

CHAPTER ONE:

How to Use the JLH

What Is This Handbook?

This Handbook explains how a person in prison or

detention can start a lawsuit in federal court to fight

against mistreatment and bad conditions. As a result of the

fact that most prisoners are in state prisons, we focus on

those. However, people in federal prisons and city or

county jails will be able to use the Handbook too.

We, the authors of the Handbook, do not assume that a

lawsuit is the only way to challenge abuse in prison or that

it is always the best way. We believe that a lawsuit can

sometimes be one useful weapon in the struggle to change

prisons and the society that makes prisons the way they

are.

The Handbook discusses only some of the legal problems

which prisoners face—conditions inside prison and the way

you are treated by prison staff. The Handbook does not

deal with how you got to prison or how you can get out of

prison. It does not explain how to conduct a legal defense

against criminal charges or a defense against disciplinary

measures for something you supposedly did in prison.

Chapter One: Table of Contents

Section A ....................................... What Is This Handbook?

Section B ................................. How to Use This Handbook

Section C ............................. Who Can Use This Handbook

Section D ............................. Why to Try and Get a Lawyer

Section E ............................. Short History of Section 1983

and the Struggle for Prisoner’s Rights

Section F .................. The Uses and Limits of Legal Action

The Importance of “Section 1983”

A prisoner can file several different kinds of cases about

conditions and treatment in prison. This Handbook is

mostly about only one kind of legal action: a lawsuit in

federal court based on federal law. For prisoners in state

prison, this type of lawsuit is known as a “Section 1983”

suit. It takes its name from Section 1983 of Title 42 of the

United States Code. The U.S. Congress passed Section 1983

to allow people to sue in federal court when a state or

local official violates their federal rights. If you are in state

prison, you can bring a Section 1983 suit to challenge

certain types of poor treatment. Chapter Three of this

Handbook explains in detail which kinds of problems you

can sue for using Section 1983.

How to Use This Handbook

The Handbook is organized into six chapters and several

appendices:

> This is Chapter One, which gives you an introduction to

the Handbook. Sections C through E of this chapter

indicate the limits of this Handbook and explain how to

try to get a lawyer. Sections F and G give a short history

of Section 1983 and discuss its use and limits in political

struggles in and outside prison.

> Chapter Two discusses the different types of lawsuits

available to prisoners and summarizes an important

federal law that limits prisoners’ access to the courts,

called the Prison Litigation Reform Act.

> Chapter Three summarizes many of your constitutional

rights in prison.

> Chapter Four explains how to structure your lawsuit,

including what kind of relief you can sue for, and who to

sue.

> Chapter Five gives the basic instructions for starting a

federal lawsuit and seeking immediate help from the

court—what legal papers to file, when, where, and how.

It also provides templates and examples of important

legal documents.

> Chapter Six discusses the first things that will happen

after you start your suit. It helps you respond to a

“motion to dismiss” your suit or a “motion for summary

judgment” against you. It also tells you what to do if

prison officials win these motions. It explains how to use

“pretrial discovery” to get information and materials

from prison officials.

> Chapter Seven gives some basic information about the

U.S. legal system. It also explains how to find laws and

court decisions in a law library and how to refer to them

in legal papers.

2 | CHAPTER 1 – HOW TO USE THE JLH

> The Appendices are additional parts of the Handbook

that provide extra information. The appendices to the

Handbook provide materials for you to use when you

prepare your suit and after you file it. Appendix A

contains a glossary of legal terms. Appendix B is a

sample complaint in a prison case. Appendices C and D

contain forms for basic legal papers. You will also find

helpful forms and sample papers within Chapters Four

and Five. Appendix E contains information about

administrative grievance procedures, PREA Rules, and

LGBTQ+ policies applicable in certain states. Appendix

F has a few of the important sections of the Prison

Litigation Reform Act, and Appendix G includes the

Model Questionnaire for United Nations Special

Rapporteur on Torture, and Appendix H contains the

Universal Declaration of Human Rights. Appendix I lists

possible sources of further legal support. Appendix J

contains some tips from working journalists on how to

approach media outlets if you want to publicize your

case or your story. Appendix K lists other legal

materials you can read to keep up to date and learn

details which are not included in this manual. Appendix

L lists free book programs for prisoners, and Appendix

M includes a list of addresses of federal district courts

for your reference. Appendix N gives the text of the

first fifteen amendments to the U.S. Constitution.

We strongly recommend that you read the whole

handbook before you start trying to file your case.

Who Can Use This Handbook

Most of the prisoners in the country are in state prison, but

prisoners in other sorts of prisons or detention centers can

use this book too.

1. Prisoners in Every State Can Use This

Handbook

Section 1983 provides a way for state prisoners to assert

their rights under the United States Constitution. Every

state prisoner in the country, no matter what state or

territory they are in, has the same rights. However,

different courts interpret these rights differently. For

example, a federal court in New York may come to one

conclusion about an issue, while a federal court in

Tennessee may reach a totally different conclusion about

the same issue.

First Steps:

1. Know Your Rights! Ask yourself: have my federal

rights been violated? If you have experienced one of

the following, the answer may be yes:

> Guard or prisoner brutality or harassment

> Unsafe cell or prison conditions

> Censorship, or extremely limited mail, phone, or

visitation privileges

> Inadequate medical care

> Interference with practicing your religion

> Inadequate food

> Racial, sexual, or ethnic discrimination

> Placement in isolation without a hearing

2. Exhaust the Prison Grievance System! Use all the

steps in the prison complaint or grievance system and

write up your concerns in detail. Appeal it all the way

and save your paperwork. You MUST do this before

filing a suit.

3. Try to Get Help! Consider trying to hire a lawyer or

talking to a jailhouse lawyer and be sure to request a

pro se Section 1983 packet from your prison law library

or the district court.

States also have their own laws, and their own

constitutions. State courts, rather than federal courts, have

the last word on what the state constitution means. This

means that in some cases, you might have more success in

state court than in federal court. You can read more about

this possibility in the next chapter.

Unfortunately, we don’t have the time or the space to tell

you about the differences in the law from state to state.

So, while using this Handbook, you should also try to check

state law using the resources listed in Appendix K. You can

also check the books available in your prison and contact

the National Lawyers Guild or any other lawyers, law

students or political groups you know of that support

prisoners’ struggles.

2. Prisoners in Federal Prison Can Use This

Handbook

If you are in federal prison, this Handbook will also be

helpful. Federal prisoners have basically the same federal

rights as state prisoners. Where things are different for

people in federal prison, we have tried to make a note of it

for you.

The major difference is that federal prisoners cannot use

Section 1983 to sue about bad conditions and

mistreatment in federal prison. Instead, you have a couple

of options. For some violations of your constitutional

rights, you can use a case called Bivens v. Six Unknown

3 | CHAPTER 1 – HOW TO USE THE JLH

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971). The Bivens case allows people in prison to sue over

some Eighth Amendment violations and maybe other

constitutional violations as well. When you bring a lawsuit

using Bivens, it is called a “Bivens action.”

Federal prisoners can also use a federal law called the

Federal Tort Claims Act (FTCA) to sue the United States

directly for your mistreatment. Both Bivens and FTCA suits

are explained in more detail in Chapter Two. The bottom

line is that federal and state prisoners have mostly the

same rights, but they will need to use slightly different

procedures when filing a case.

3. Prisoners in City or County Jails Can Use

This Handbook

People serving sentences in jail have the same rights under

Section 1983 and the U.S. Constitution as people in prison.

Usually these are city jails, but they can be run by any kind

of municipality. A “municipality” is a city, town, county, or

other kind of local government.

People in jail waiting for trial are called “pretrial detainees,”

and sometimes have more protection under the

Constitution than convicted prisoners. Chapter Three,

Section J discusses some of the ways in which pretrial

detainees are treated differently than convicted prisoners.

However, you can still use most of the cases and

procedures in this Handbook to bring your Section 1983

claim. Where things are different for people in jails, we

have tried to make note of it for you.

4. Prisoners in Private Prisons Can Use This

Handbook

As you know, most prisons are run by the state or the

federal government, which means that the guards who

work there are state or federal employees. A private

prison, on the other hand, is operated by a for-profit

corporation, which employs private individuals as guards.

If you are one of the hundreds of thousands of prisoners

currently incarcerated in a private prison, most of the

information in this Handbook also applies to you. The

ability of state prisoners in private prisons to sue under

Section 1983 is discussed in Chapter Two, Section A. In

some cases it is actually easier to sue private prison guards

because they cannot claim “qualified immunity.” You will

learn about “qualified immunity” in Chapter 4, Section D.

How Do I Use This Handbook?

This is the Jailhouse Lawyers Handbook. Sometimes it

will be referred to as the “JLH” or the “Handbook.” It is

divided into seven chapters, which are also divided into

different sections. Each section has a letter, like “A” or

“B.” Some sections are divided into parts, which each

have a number, like “1” or “2.”

Sometimes we will tell you to look at a chapter and a

section to find more information. This might sound

confusing at first but when you are looking for specific

things, it will make using this Handbook much easier.

We have tried to make this Handbook as easy to read

as possible. But there may be words that you find

confusing. At the end of the Handbook, in Appendix A,

we have listed many of these words and their meanings

in the Glossary. If you are having trouble understanding

any parts of this Handbook, you may want to seek out

the Jailhouse Lawyers in your prison. Jailhouse Lawyers

are prisoners who have educated themselves on the

legal system, and one of them may be able to help you

with your suit.

In many places in this Handbook, we refer to a past

legal suit to prove a specific point. It will appear in

italics, and with numbers after it, like this:

Smith v. City of New York, 311 U.S. 288 (1994)

This is called a “citation.” It means that a court decided

the case of Smith v. City of New York in a way that is

helpful or relevant to a point we are trying to make.

Look at the places where we use citations as examples

to help with your own legal research and writing.

Chapter Seven explains how to find and use cases and

the meaning of citations.

Why to Try and Get a Lawyer

Unfortunately, not that many lawyers represent prisoners,

so you may have trouble finding one. You have a right to

sue without a lawyer. This is called suing “pro se,” which

means “in one’s own behalf.” Filing a lawsuit pro se is very

difficult. Thousands of lawsuits are filed by prisoners every

year, and most of these suits are lost before they even go

to trial. We do not want to discourage you from turning to

the court system, but encourage you to do everything you

can to try to get a lawyer to help you, before you decide to

file pro se.

4 | CHAPTER 1 – HOW TO USE THE JLH

Why So Much Latin?

"Pro Se" is one of several Latin phrases you will see in

this Handbook. The use of Latin in the law is

unfortunate, because it makes it hard for people who

aren't trained as lawyers to understand a lot of

important legal procedures. We have avoided Latin

phrases whenever possible. When we have included

them, it is because you will see these phrases in the

papers filed by lawyers for the other side, and you may

want to use them yourself. Whenever we use Latin

phrases, we have put them in italics, like pro se. Check

the glossary at Appendix A for any words, Latin or

otherwise, that you don't understand.

A lawyer is also very helpful after your suit has been filed.

They can interview witnesses and discuss the case with

the judge in court while you are confined in prison. A

lawyer also has access to a better library and more

familiarity with legal forms and procedures. And despite all

the legal research and time you spend on your case, many

judges are more likely to take a lawyer seriously than

someone filing pro se.

If you feel, after reading Chapter Three, that you have a

basis for a lawsuit, try to find a good lawyer to represent

you. You can look in the phone book to find a lawyer or to

get the address for the “bar association” in your state. A

bar association is a group that many lawyers belong to.

You can ask the bar association to give you the names of

some lawyers who take prison cases. Some prisoners’

rights organizations can sometimes help you find a lawyer.

You probably will not be able to pay the several thousand

dollars or more which you would need to hire a lawyer. But

there are other ways you might be able to get a lawyer to

take your case.

> If you have a good chance of winning a substantial

amount of money (explained in Chapter Four, Section C), a

lawyer might take your case on a “contingency fee” basis.

This means you agree to pay the lawyer a portion of your

money damages if you win (usually between 30-40%), but

the lawyer gets nothing if you lose. This kind of

arrangement is used in many suits involving car accidents

and other personal injury cases outside of prison. In prison,

it may be appropriate if you have been severely injured by

guard brutality or due to unsafe prison conditions.

> If you don’t expect to win money from your suit, a

lawyer who represents you in some types of cases can get

paid by the government if you win your case. These fees

are authorized by the United States Code, Title 42, Section

1988. However, the Prison Litigation Reform Act of 1996

(called the “PLRA” and discussed in Chapter Two, Section

E) added new rules that restrict the court’s ability to award

fees to your lawyer. These new provisions may make it

harder to find a lawyer who is willing to represent you.

> If you can’t find a lawyer to represent you from the start,

you can file the suit yourself and ask the court to “appoint”

a lawyer for you. This means the court will recruit a lawyer

to take your case. Unlike in a criminal case, you have no

absolute right to a free attorney in a civil case about prison

abuse. This means that a judge is not required by law to

make a lawyer take your Section 1983 case, but they can

do so if they choose to and are able to find a willing

lawyer. You will learn how to ask the judge to get you a

lawyer in Chapter Five, Section C, Part 3 of this Handbook.

> A judge can appoint a lawyer as soon as you file your

suit. But it is much more likely that they will only appoint a

lawyer for you if you successfully get your case moving

forward and convince the judge that you have a chance of

winning. This means that the judge may wait until after

they rule on the prison officials’ motions to dismiss your

complaint or motion for summary judgment. Chapters Five

and Six of this Handbook will help you prepare your basic

legal papers and respond to a motion to dismiss or a

motion for summary judgment.

Even if you have a lawyer from the start, this Handbook is

still useful to help you understand what they are doing.

Be sure your lawyer explains the choices you have at each

stage of the case. Remember that they are working for

you. This means that they should answer your letters and

return your phone calls within a reasonable amount of

time. Don’t be afraid to ask your lawyer questions. If you

don’t understand what is happening in your case, ask your

lawyer to explain it to you. Don’t ever let your lawyer force

decisions on you or do things you don’t want.

A Short History of Section 1983

and the Struggle for Prisoners’

Rights

As you read in Sections A and C, most prisoners who

decide to challenge abuse or mistreatment in prison will do

so through a federal law, 42 U.S.C. § 1983, usually just

known as “Section 1983.” Section 1983 is a way for any

individual (not just a prisoner) to challenge something done

by a state employee or local government employee. The

part of the law you need to understand reads as follows:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, 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 …

5 | CHAPTER 1 – HOW TO USE THE JLH

Section A of Chapter Two will explain what this means in

detail, but we will give you some background information

here. Section 1983 was passed by the United States

Congress over 150 years ago. Section 1983 was originally

known as Section 1 of the Ku Klux Klan Act of 1871.

Section 1983 does not mention race, and it can be used by

people of any color, but it was originally passed specifically

to help Black people enforce the new constitutional rights

they won after the Civil War—specifically, the 13th, 14th

and 15th Amendments to the U.S. Constitution. Those

amendments made slavery illegal, established the right to

“due process of law” and equal protection of the laws, and

guaranteed every male citizen the right to vote. Although

these amendments became law, white racist judges in the

state courts refused to enforce these laws, especially when

Black people had their rights violated by other state or

local government officials. The U.S. Congress passed

Section 1983 to allow people to sue in federal court when

a state or local official violated their federal rights.

Soon after Section 1983 became law, however, Northern

big businessmen joined forces with Southern plantation

owners to take back the limited freedom that Black people

had won. Federal judges found excuses to undermine

Section 1983 along with most of the other civil rights bills

passed by Congress. Although the purpose of Section

1983 was to bypass the racist state courts, federal judges

ruled that most lawsuits had to go back to those same

state courts. Their rulings remained law until Black people

began to regain their political strength through the civil

rights movement of the 1960s.

In the 1960s, a series of very good Supreme Court cases

reversed this trend and transformed Section 1983 into an

extremely valuable tool for state prisoners. People in

prison soon began to file more and more federal suits

challenging prison abuses. A few favorable decisions were

won, dealing mainly with freedom of religion, guard

brutality, and a prisoner’s right to take legal action without

interference from prison staff. But many judges still

continued to believe that the courts should let prison

officials make the rules, no matter what those officials did.

This way of thinking is called the “hands-off doctrine,”

because judges keep their “hands off” prison administration.

The next big breakthrough for prisoners did not come until

the early 1970s. Black people only began to win legal

rights when they organized together politically, and labor

unions only achieved legal recognition after they won

important strikes. In the same way, prisoners did not begin

to win many important court decisions until the prison

movement grew strong.

Powerful, racially united strikes and rebellions shook

Folsom Prison, San Quentin, Attica, and other prisons

throughout the country during the early 1970s. These

rebellions brought the terrible conditions of prisons into

the public eye and had some positive effects on the way

federal courts dealt with prisoners. Prisoners won

important federal court rulings on living conditions, access

to the media, and procedures and methods of discipline.

Unfortunately, the federal courts did not stay receptive to

prisoners’ struggles for long. In 1996, Congress passed and

President Clinton signed into law the Prison Litigation

Reform Act (PLRA). The PLRA is very anti-prisoner and

works to limit prisoners’ access to the federal courts. Why

would Congress pass such a bad law? Many people say

Congress believed a story that was told to them by states

tired of spending money to defend themselves against

prisoner lawsuits. In this story, prisoners file mountains of

unimportant lawsuits because they have time on their

hands and enjoy harassing the government. The obvious

truth—that prisoners file a lot of lawsuits because they are

subjected to a lot of unjust treatment—was ignored.

The PLRA makes filing a complaint much more costly,

time-consuming, and risky to prisoners. Many prisoners’

rights organizations have tried to get parts of the PLRA

struck down as unconstitutional, but so far this effort has

been unsuccessful. You will find specific information about

the individual parts of the PLRA in later chapters of this

Handbook. Some of the most important sections of the

PLRA are included in Appendix F at the end of this book.

History has taught us that convincing the courts to issue

new rulings to improve day-to-day life in prisons and

change oppressive laws like the PLRA requires not only

litigation, but also the creation and maintenance of a

prisoners' rights movement both inside and outside of the

prison walls.

The Uses and Limits of Legal

Action

Only a strong prison movement can win and enforce

significant legal victories. But the prison movement can

also use court action to help build its political strength. A

well-publicized lawsuit can educate people outside about

the conditions in prison. The struggle to enforce a court

order can play an important part in political organizing

inside and outside prison. Good court rulings backed up by

a strong movement can convince prison staff to hold back

so that conditions inside are a little less brutal, and

prisoners have a little more freedom to read, write, and

talk.

Still, the value of any lawsuit is limited. It may take several

years from starting the suit to win a final decision that you

can enforce. There may be complex trial procedures,

appeals, and delays in complying with a court order. Prison

officials may be allowed to follow only the technical words

of a court decision while continuing their illegal behavior

another way. Judges may ignore law which obviously is in

your favor because they are afraid of appearing “soft on

criminals,” or because they think prisoners threaten their

own position in society. Even the most liberal, well-

meaning judges will only try to change the way prison

officials exercise their power. No judge will seriously

6 | CHAPTER 1 – HOW TO USE THE JLH

address the staff’s basic control over your life while in

prison.

To make fundamental changes in prison, you can’t rely

on lawsuits alone. It is important to connect your suit to

the larger struggle. Write press releases that explain your

suit and what it shows about prison and about the reality

of America. Send the releases to newspapers, radio and

TV stations, and legislators. Keep in touch throughout the

suit with outside groups that support prisoners’ struggles.

Look at Appendix J for tips we collected from journalists

on how to approach media and groups that may be able

to help you.

You may also want to discuss your suit with other

prisoners and involve them in it even if they can’t

participate officially. Remember that a lawsuit is

most valuable as one weapon in the ongoing struggle

to change prisons and the society which makes prisons

the way they are.

Of course, all this is easy for us to say, because we are not

inside. All too often, jailhouse lawyers and activists face

retaliation from guards due to their organizing and

lawsuits. Chapter Three, Section G, Part 4 explains some

legal options if you face retaliation. However, while the law

may be able to stop abuse from happening in the future,

and it can compensate you for your injuries, the law cannot

guarantee that you will not be harmed. Only you know the

risks that you are willing to take.

Finally, you should know that those of us who fight this

struggle from the outside are filled with awe and respect

at the courage of those of you who fight it, in so many

different ways, on the inside.

“Jailhouse lawyers aren’t

simply, or even mainly,

jailhouse lawyers. They are

sons, daughters, uncles,

nieces, parents, sometimes

teachers, grandparents, and

occasionally writers. In short, they are part of a

wider, broader, deeper social fabric.”

– Mumia Abu-Jamal

Award-winning journalist, author, and jailhouse lawyer,

from his 2009 book “Jailhouse Lawyers.”

7 | CHAPTER 2 – OVERVIEW OF THE TYPES OF LAWSUITS AND THE PRISON LITIGATION REFORM ACT

CHAPTER TWO:

Overview of Types of Lawsuits and the Prison Litigation Reform Act

This chapter describes the different types of lawsuits you

can bring to challenge conditions or treatment in prison or

detention, including Section 1983 actions, state law

actions, the Federal Tort Claims Act and Bivens actions. We

also discuss international law and explain the impact of the

Prison Litigation Reform Act (PLRA).

Chapter Two: Table of Contents

Section A .......................................... Section 1983 Lawsuits

Section B ................................................... State Court Cases

Section C ......................................... Federal Tort Claims Act

Section D .......................................................... Bivens Actions

Section E ............................................. Brief Summary of the

Prison Litigation Reform Act (PLRA)

Section 1983 Lawsuits

Section 1983 lawsuits provide a way for people in state

prisons or local jails to get relief from unconstitutional

treatment or conditions. The main way to understand what

kind of lawsuit you can bring under Section 1983 is to look

at the words of that law:

“Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State or Territory, or the District of Columbia,

subjects, or causes to be subjected, 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 of the words are perfectly clear. Others have

meanings that you might not expect, based on years of

interpretation by judges. In this section we will explore

what the words themselves and judges’ opinions from past

lawsuits tell us about what kind of suit is allowed under

Section 1983.

Although Section 1983 was designed especially to help

Black people, anyone can use it, regardless of race. The law

refers to “any citizen of the United States or any other

person within the jurisdiction thereof.” This means that

you can file a Section 1983 action even if you are not a

United States citizen. Martinez v. City of Los Angeles, 141

F.3d 1373 (9th Cir. 1998). All you need is to have been

“within the jurisdiction” when your rights were violated.

“Within the jurisdiction” just means you were physically

present in the United States.

Not every harm you suffer or every violation of your rights

is covered by Section 1983. There are two requirements.

First, Section 1983 applies to the “deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws.” This means that the violations you

are suing about must violate your federal rights. Federal

rights are those given by the U.S. Constitution,

Amendments to the Constitution, and laws passed by the

U.S. Congress. They are explained in part 1, below. Second,

Section 1983 also says “under color of any statue,

ordinance, regulation, custom or usage, of any State or

Territory.” Courts have developed a shorthand for this

phrase. They call it “under color of state law.” This means

that the violation of your rights must have been done by a

state or local official. This requirement is explained in part

2 below.

1. Violations of Your Federal Rights

Section 1983 won’t help you with all the ways in which

prison officials mistreat prisoners. You need to show that

the way a prison official treated you violates the U.S.

Constitution or a law passed by the U.S. Congress.

Prisoners most commonly use Section 1983 to enforce

rights guaranteed by the U.S. Constitution. These are

called “constitutional rights.” Your constitutional rights are

explained in Chapter Three.

You can also use Section 1983 to enforce rights in federal

laws, or “statutes.” But most federal laws which apply to

prisoners provide their own cause of action, which you can

use without reference to Section 1983. For example, the

Americans with Disabilities Act, or the “ADA” can be found

at 42 U.S.C. §§ 12101 – 12213. The ADA prevents

discrimination against people with disabilities, including

prisoners. If you have any sort of physical or mental

disability, you can file an ADA lawsuit without making

reference to Section 1983.

Another federal statute that may be useful to prisoners is

the Religious Land Use and Institutionalized Persons Act, or

“RLUIPA,” which was passed by Congress in 2000. 42

U.S.C. § 2000cc-1(a). RLUIPA protects prisoners’ rights to

exercise their religion and may be used by any prisoner,

whether in federal or state prison or in jail. A second

federal statute protecting the religious rights of prisoners

is the Religious Freedom Reformation Act, or “RFRA.” 42

8 | CHAPTER 2 – OVERVIEW OF THE TYPES OF LAWSUITS AND THE PRISON LITIGATION REFORM ACT

U.S.C. § 2000bb-1(c). RFRA can only be used by prisoners

in federal prison. It is not available to prisoners in state

prison. Religious freedom is a constitutional right protected

by the First Amendment, but RLUIPA and RFRA provide

even more protection than the First Amendment. Chapter

Three, Section B explains the protection provided by each

of these laws. Like ADA claims, these claims can be

brought in a Section 1983 suit, or on their own.

Prisoners can use Section 1983 to sue about conditions or

treatment in prison. You cannot use Section 1983 to

challenge the reason you are in prison, how long you are in

prison, or to obtain immediate or speedier release from

prison. If you want to challenge your trial, your conviction,

or your sentence, you need to use a completely different

type of action, called a writ of habeas corpus. This

handbook will not help you with that kind of case, but

some of the resources listed in Appendix K explain how to

do it.

2. “Under Color of State Law”

Section 1983 only allows you to sue for actions taken

“under color of state law.” This usually means that your

rights must have been violated by a state or local official.

This includes people who work for the state, city, county,

or other local governments. If you are in a state prison,

anything done to you by a prison guard, prison doctor, or

prison administrator (like the warden) is an action “under

color of state law.”

The “under color of state law” requirement does not mean

that the action has to have been legal under state law. This

is very important, and was decided in a case called Monroe

v. Pape, 365 U.S. 167 (1961). All you need to show is that

the person you sue was working for the prison system or

some other part of state or city government at the time of

the acts you’re suing about.

The decision in Monroe v. Pape that state government

officials can be sued under Section 1983 was expanded in

a case called Monell v. New York City Dep't of Social Services,

436 U.S. 658 (1978). In that case, the Supreme Court

allowed for Section 1983 claims against municipal and city

governments.

In a Section 1983 suit, you can sue over a one-time action

that violated your rights. For example, you can sue if a

guard beats you. You can also sue over a pattern or

practice of certain acts, like if guards routinely look away

and fail to act when prisoners fight with each other. Finally,

you can also sue over an official prison policy. For example,

you could sue if the prison has a policy that allows Catholic

prisoners to pray together but doesn’t allow the same

thing for Muslim prisoners.

You can’t use Section 1983 to sue federal employees over

their actions because they act under color of federal law,

not state law. You can sometimes use something called a

“Bivens” action to sue in federal court when a federal

official violates your constitutional rights, but this type of

case is limited. Bivens actions are explained in Section D of

this chapter.

You also can’t use Section 1983 to sue a private citizen

who acted without any connection to the government or

any governmental power. For example, if another prisoner

assaults you, you cannot use Section 1983 to sue that

prisoner, because they do not work for the government.

You could, however, use Section 1983 to sue a guard for

failing to protect you from the assault.

You can sometimes use Section 1983 to sue private

citizens who are working for a state or local government. A

person can exercise power from the government even if

they don’t actually work for the state directly. You can use

Section 1983 to sue a private citizen, such as a doctor,

who mistreats you while they are working with or for

prison officials. In a case called West v. Atkins, 487 U.S. 42

(1988), the Supreme Court held that a private doctor with

whom the state contracts to provide treatment to a

prisoner can be sued using Section 1983. And in

Richardson v. McKnight, 521 U.S. 399 (1997) the Supreme

Court ruled that private prison guards sued under Section

1983 are not entitled to the defense of qualified immunity.

When using Section 1983 against non-state officials, most

courts will look at whether the individual is performing a

traditional state function so that it looks just like the guard

is acting “under color of state law.” One case that discusses

this in detail is Skelton v. PriCor, Inc., 963 F.2d 100 (6th Cir.

1991). In Skelton, a private prison employee wouldn’t let a

prisoner go to the law library or have a bible. The Sixth

Circuit ruled that the private prison guard’s action was

“under color of state law” and allowed the prisoner to sue

using Section 1983. Another helpful case is Giron v.

Corrections Corporation of America, 14 F. Supp. 2d 1245

(D.N.M. 1998). In that case a woman was raped by a guard

at a private prison. The court held that the guard was

“performing a traditional state function” by working at the

prison, so his actions were “under color of state law.”

The Parties in a Lawsuit

“Plaintiff” is the person who starts a lawsuit. If you

sue a guard over prison abuse, you are a plaintiff.

“Defendant” is the person who you sue. If you sue

a prison doctor, guard, and a supervisor, they are

all defendants.

9 | CHAPTER 2 – OVERVIEW OF THE TYPES OF LAWSUITS AND THE PRISON LITIGATION REFORM ACT

State Court Cases

Section 1983 allows people in state prisons to bring

federal claims in federal court. But people in state prisons

can also bring 1983 claims and other claims in state court.

One reason you might want to sue in state court, rather

than federal court, is the Prison Litigation Reform Act, or

“PLRA.” The PLRA is a federal law that makes it difficult for

a prisoner to file a federal lawsuit by imposing all sorts of

procedural hurdles and requirements. We explain the

PLRA in Section E of this Chapter. States have laws similar

to the PLRA, but some provisions vary. It is important to

find out about the PLRA-like statute in your state.

A good thing about state court is that you may also be able

to enforce rights that you don’t have in federal court. For

example, a state “tort” claim is an entirely different way to

address poor prison conditions. A “tort” is an injury or

wrong of some sort. The advantage of suing in state court

is that some conduct by prison guards may be considered a

“tort” but may not be so bad as to be considered a

constitutional violation.

For example, you will learn in Chapter Three that the

Eighth Amendment prohibits “cruel and unusual

punishment” and entitles prisoners to medical care that is

not so poor as to amount to such punishment. For a

constitutional medical care claim (described in detail in the

Chapter Three) a prisoner needs to prove that they had a

serious medical need and that the guard or doctor in

question acted recklessly in failing to provide medical care.

On the other hand, you can sue a prison doctor for the

state tort of medical negligence if they mess up in your

treatment, whether that mistake was reckless or not.

Common torts are listed in Section C, Part 2 of this

Chapter, under the heading, “Types of Torts.”

Another type of state claim is a claim based on your state’s

constitution. Some state constitutions provide more rights

than the federal constitution.

Sometimes a prisoner's suit will include claims based on

state law as well as federal law. You can do this in a

Section 1983 suit if the action you are suing about violates

both state and federal law. But it is tricky to try this

without an experienced lawyer, and usually it won’t make a

very big difference. You can’t use Section 1983 to sue

about an action that only violates state law. It is also

important to know that if you bring federal claims in state

court, your case may be “removed” to federal court by the

defendants.

Historically, federal judges were more sympathetic to

prisoners than state judges. However, the PLRA has made

federal court a much less friendly place for prisoners.

Sadly, that does not mean that you will necessarily get fair

treatment in state court. Many state court judges are

elected, rather than appointed, so they may avoid ruling

for prisoners because it might hurt their chances of getting

reelected.

Federal Torts Claims Act (FTCA)

If you are a federal prisoner, or a pretrial or immigration

detainee in a federal facility, your best chance for relief

may be a claim under the Federal Tort Claims Act (“FTCA”)

because Section 1983 cases are for state prisoners only.

Usually, you cannot sue the United States itself. The FTCA

is an exception to this general rule. The FTCA allows

federal prisoners and immigration or pretrial detainees in

federal jails or facilities to file lawsuits against the United

States when a federal employee has injured them.

The most important FTCA provisions are in Title 28 of the

United States Code, sections 1346(b), 1402(b), 2401(b) and

2671-2680. When we reference Title 28 in this chapter, it

will look like this: “28 U.S.C. § 2679(d)(2)” where “28

U.S.C.” means “Title 28 of the United States Code,” and the

numbers and letters after it refer to a specific section in

the code.

FTCA Claims and Qualified Immunity

One of the good things about an FTCA claim is that the

United States does not have “qualified immunity.”

“Qualified immunity” is described in Chapter Four. For

both Bivens and Section 1983 claims, the qualified

immunity defense makes it hard to win money damages

from government officials.

The FTCA only allows you to sue over the “torts” described

in Section B of this chapter. You’ll find examples of torts in

the following section. The FTCA provides a way to sue the

U.S. in federal court for torts committed by a federal

employee. 28 U.S.C. § 1346(b).

You do not have to be a U.S. citizen to obtain relief under

the FTCA. There are, however, many more FTCA cases

that have been brought by citizen prisoners than

noncitizen detainees.

FTCA actions must be brought in federal court, not state

court. However, the federal court will use state tort law.

Since torts are different from state to state, make sure that

the tort you’re suing over exists under the law of the state

where you are in prison or jail.

1. Who You Can Sue

When you bring a lawsuit using the FTCA , you will name

the “United States” as the defendant. You cannot name the

specific federal employee who hurt you, or an agency such

as the “Bureau of Prisons.” Although you will name the

10 | CHAPTER 2 – OVERVIEW OF THE TYPES OF LAWSUITS AND THE PRISON LITIGATION REFORM ACT

United States as the defendant in your FTCA suit, you will

discuss the actions of a specific federal employee.

The FTCA only allows you to sue over actions by federal

officials or employees. This means you can’t sue over the

actions of a state or local law enforcement agent. You also

can’t sue about an independent contractor under the FTCA

unless federal employees directly supervised the day-to-

day activities of the contractors. Figuring out whether

someone is a contractor or federal employee can be tricky,

but you should look to the standard set out in the Supreme

Court case, United States v. Orleans, 425 U.S. 807 (1976).

Most courts decide the question by looking at facts like

who owned the tools used by the contractor and who paid

the salary, worker’s compensation, and insurance of the

employee. In one good case, a prisoner succeeded in an

FTCA case arising from a fever outbreak at a prison owned

by the Bureau of Prisons but operated by a private prison

company. The United States defended the case by arguing

that the private contractor—not the United States—was

responsible. The Ninth Circuit Court of Appeals disagreed,

saying that the Bureau of Prisons had a duty to warn

prisoners about the risks of valley fever. Edison v. United

States, 822 F.3d 510 (9th Cir. 2016).

The FTCA is most useful for people held in federal

immigration detention centers, or federal jails or prisons.

But if you are a federal detainee injured in a state, county,

or local jail you may also be able to bring a claim against

the United States under the FTCA for negligently housing

you in an unsafe non-federal facility. You should argue that

the United States has a duty to use reasonable care in

ensuring the safety of federal detainees no matter where

they are housed. The law is not settled in this area, but you

should carefully read a Supreme Court decision, Logue v.

U.S., 412 U.S. 521 (1973) which held that the federal

government was not responsible for the suicide of a

federal prisoner who was negligently confined in a

municipal jail because the municipal employees were

federal contractors, not federal employees. Probably, you

will only be able to succeed on this theory if a federal

employee knew or should have known you were being put

into an unsafe situation. One example is Cline v. United

States Department of Justice, 525 F. Supp. 825 (D.S.D.

1981), a good case in which the court allowed a claim by a

federal prisoner held in a county jail after U.S. Marshals

placed him into a situation they knew was unsafe.

The FTCA requires that the government employee whose

acts you are complaining of was acting within the “course

and scope of employment.” The meaning of this

requirement is also a matter of state law, so you will have

to figure out what the law is in your state. Under the law in

some states, this requirement is relatively easy to meet.

For example, in California the court asks whether the risk

of this kind of tort is generally foreseeable given the

enterprise. Perry v. County of Fresno, 215 Cal.App.4th 94

(2013). In other words, the court will consider whether the

type of injury you are complaining about is something that

happens often in a prison.

But in other states, the standard can be difficult to meet. In

Shirley v. United States, 232 F. App’x. 419 (5th Cir. 2007),

for example, a federal prisoner filed an FTCA claim after

she was sexually assaulted by a correctional officer. The

Court dismissed her case because under Texas law, an

employee only acts under the scope of employment when

they act to further the employer’s business.

At least one court has gotten around this requirement

altogether. In Bolton v. United States, 347 F. Supp. 2d 1218

(N. D. Fla. 2004), the court held that it doesn’t matter if a

guard is acting in the scope of their employment, as long as

they are acting “under color of federal law.” Under this

theory, all that matters is that the person who hurt you or

acted wrongfully is a federal employee.

2. Administrative Exhaustion

Before you can raise an FTCA claim, first you must present

the claim to the appropriate federal agency, such as the

Federal Bureau of Prisons (BOP) or Immigration & Customs

Enforcement (ICE), and you have to do that within two

years of the action that leads to the injury. 28 U.S.C. §

2675(a). If you are in a federal prison, your claim needs to

be submitted to the Bureau of Prisons at 320 First Street,

NW, Washington, D.C. 20534.

Use Government Standard Form 95 to make the

administrative claim. A copy of this form is included in

Appendix C. If this form is unavailable, you can write a

letter specifying that you are making an administrative

claim. Your administrative request must include a specific

dollar amount requested for damages and the facts

supporting your claim. Make sure you sign the form and

include all the detail you can. You must include enough

information to allow the agency to investigate your claim.

In very rare cases, the agency could respond by accepting

your claim and giving you money without you having to

sue.

If your administrative claim is denied, you have six months

from the date the agency denies your claim to file a FTCA

lawsuit in federal court under 28 U.S.C. § 2401(b) and 28

U.S.C. § 2675(a).

If the agency doesn’t respond to your administrative claim

within six months you may “deem” the claim denied under

28 U.S.C. § 2675(a) and file your suit. You must state in

your complaint that you have completed the administrative

claim process, or if you file a suit under the “deeming

provision” of the FTCA, state that you meet the exhaustion

requirement because the government did not respond to

your administrative claim within six months.

3. Types of Torts

Under the FTCA and state law, you can sue for negligence

or for intentional torts like assault, battery, false arrest,

abuse of process, and intentional infliction of emotional

distress. These common torts are explained below.

You can sue on almost any tort that exists under state law.

There are a few exceptions. You can’t bring a libel or

11 | CHAPTER 2 – OVERVIEW OF THE TYPES OF LAWSUITS AND THE PRISON LITIGATION REFORM ACT

slander case under the FTCA and you can’t sue if the

government mishandles, detains, or loses your belongings.

However, you can file an administrative claim for damage

or loss to personal property under 31 U.S.C. § 3723(a)(1).

a. Negligence

A government employee is negligent when they “fail to use

reasonable care.” Since people have different ideas about

what is reasonable, courts ask what a “reasonably prudent

person” would do in a similar situation.

There are four things you need to show in a negligence

claim: duty, breach, causation, and damages. “Damages”

are usually the easy part—you just have to show you have

been hurt in some way. But “duty” is harder. Correctional

officials do not have a duty to provide a “risk-free”

environment. They do, however, have a duty to keep

prisoners safe and protect them from unreasonable risks.

To prove negligence, the employee must have “breached”

(failed in) this duty to keep you safe. Lastly, the harm that

you suffered must have been caused by the actions of the

federal employee, not some other person or event.

You can use the FTCA to challenge any kind of negligence

by a detention center or federal prison employee, including

the negligent denial of medical care or an officer’s failure

to protect a detainee from another detainee. Prisoners

often bring negligence claims against prison doctors and

nurses for medical malpractice. For example, in Jones v.

United States, 91 F.3d 623 (3d Cir. 1996), the court found

the prison breached a duty to a prisoner who had a stroke

after prison officials withheld his medication. And in

Plummer v. United States, 580 F.2d 72 (3d Cir. 1978),

prisoners successfully made a negligence claim based on

exposure to tuberculosis.

Sometimes, a court will find that the federal employee did

not breach their duty of care. For example, the Seventh

Circuit denied William Dunne’s FTCA claim for injuries he

suffered when he slipped and fell three times on ice during

recreational time at a prison. The court held that the

accumulation of snow or ice where Dunne fell was so small

that an official using ordinary care could not reasonably be

expected to know about it. Dunne v. United States, 989

F.2d 502 (7th Cir. 1993).

What if you are injured by another prisoner? An important

Supreme Court case on this topic is United States v. Muniz,

374 U.S. 150 (1963). Muniz, one of the plaintiffs in the

case, was beaten unconscious by other prisoners after a

guard locked him in a dormitory. The prisoner argued that

the prison officials were negligent in failing to provide

enough guards to prevent the assault. The court said that

this type of claim is appropriate under the FTCA, but found

against the prisoner because the officials followed prison

regulations and could not have reasonably prevented the

assault.

If a prison official has violated a federal or state statute,

you can use it to strengthen your FTCA claim. You can

argue that the statute defines or creates a duty, which was

breached by the official. For example, one court found that

the Bureau of Prisons breached a duty to let a prisoner

make phone calls to his attorney based on the language

from the Code of Federal Regulations. Yosuf v. United

States, 642 F.Supp. 415 (M.D.Pa. 1986).

b. Intentional Torts - Assault and Battery

Assault and battery often go together, but they are two

separate torts. An assault is when someone does

something that makes you fear they are about to harm

you. It is a threat. If that threat becomes a touch, like if a

guard hits, kicks, or beats you, that is a battery. A battery is

any “offensive touch or contact” where some kind of force

is applied.

You can use the FTCA to sue a government employee who

assaults or batters you. While the exact standard in each

state is different, courts will generally look at whether the

use of forces was justified under the circumstances.

c. False Imprisonment

You may have a claim for false imprisonment if you are

imprisoned longer than your sentence or held in SHU

longer than the time of your punishment for a disciplinary

offense. For example, under New York law there are four

elements to a false imprisonment claim (1) the defendant

intended to confine you, (2) you were aware of the

confinement, (3) you did not consent to the confinement,

and (4) the confinement was not otherwise privileged. In

Gittens v. New York, 504 N.Y.S.2d 969 (Ct. Cl. 1986), a New

York court held the plaintiff had a claim for false

imprisonment because he was held in SHU for nine days

beyond the last day of the penalty imposed, and the only

reason given was “investigation.” It is important to note

that the prisoner in that case got no process whatsoever.

You would most likely not be able to succeed with a claim

like this if you got any process related to your extra time in

the SHU.

d. Intentional Infliction of Emotional Distress

Another tort is Intentional Infliction of Emotional Distress

or IIED. This tort arises when someone purposefully does

something outrageous that makes you feel very upset.

Under the law of most States, an IIED claim requires a

showing that: (1) the defendant acted in a way that is

extreme or outrageous for the purpose of causing

emotional distress; (2) the plaintiff actually suffered severe

or extreme emotional distress; and (3) the defendant’s

conduct caused the emotional distress.

The conduct really must be outrageous and extreme. One

successful example of an IIED claim is Schmidt v. Odell, 64

F. Supp. 2d 1014 (D. Kan. 1999), where a prisoner who

had both legs amputated was not given a wheelchair or

other accommodation by the jail, and thus had to crawl

around on the floor.

4. Damages in FTCA Suits

Damages (money you can get from a lawsuit) are explained

in Chapter Four. For now, just note that under the FTCA,

you can sue the United States for actual (money) damages

12 | CHAPTER 2 – OVERVIEW OF THE TYPES OF LAWSUITS AND THE PRISON LITIGATION REFORM ACT

to compensate you for your injury. You cannot get punitive

damages from the United States under the FTCA. Usually,

you can’t get more money than the amount of damages

you asked for in your administrative claim. One exception

is if your injuries have gotten a lot worse since the time

you filed your administrative claim. state tort law

ultimately determines how high your damages can be.

5. The Discretionary Function Exception

The United States often defends against FTCA claims

based on the “discretionary function exception.” When an

employee has the freedom to act on their own judgment,

rather than just follow a rule, they are said to have

performed a “discretionary function or duty” and their

actions cannot make the United States liable under the

FTCA. This is true even if they abused their discretion. 28

U.S.C. § 2680[a]. This is in contrast to when an employee is

just implementing a policy or prison regulation.

Unfortunately, courts have interpreted the discretionary

function exception very broadly.

In Berkovitz v. United States, 486 U.S. 531 (1988), the

Supreme Court laid out a test to help figure out whether

an action is discretionary or not. First, you should ask if the

employee exercised “judgment” or “choice” in doing what

they did. If they just implemented a policy or regulation of

the prison, they didn’t exercise their own judgment and the

act is not discretionary. The Tenth Circuit, for example,

said that a doctor’s decisions about how to medically treat

a patient at an Air Force base are not discretionary.

Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977).

On the other hand, if the employee did make their own

choice, the act probably was “discretionary” and subject to

the exception. For example, a prisoner who sued a

Tennessee prison for losing his property when they

transferred him lost his case on the discretionary function

exception. The court said the warden exercised his

discretion in making the arrangements for the prisoner’s

transfer. Ashley v. United States, 37 F. Supp. 2d 1027 (W.D.

Tenn. 1997). The widow of a murdered federal prisoner

ran into the same problem when she tried to argue the

prison negligently understaffed the area of the prison

where her husband was killed. The court said that the

decision about how many officers to station in a given

compound was discretionary. Garza v. United States, 413 F.

Supp. 23 (W.D. Okla. 1975).

A good case to read where a prisoner was able to

overcome the discretionary function exception is Keller v.

United States, 771 F.3d 1021 (7th Cir. 2014). In that case, a

mentally ill person in a federal prison was placed in general

population and brutally attacked. His illness prevented him

from defending himself. The prisoner sued the prison for

negligence, and the Seventh Circuit said that the

discretionary function exception didn’t apply to negligent

behavior. The court said that “carelessness would not be

covered by the discretionary function exception, as it

involves no element of choice or judgment grounded in

public policy considerations.”

Bivens Actions and Federal

Injunctions

FTCA claims can only be brought for torts, not

constitutional violations. If a federal prisoner wants to

make a constitutional claim for money damages, they must

do so through a “Bivens action.” The name comes from a

lawsuit, Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), in which the

Supreme Court established the right to bring a lawsuit for

money damages against individual law enforcement

officials, acting under color of federal law, for violations of

constitutional rights. You might notice that this sounds

very similar to the language in Section 1983. The key

difference is that Section 1983 applies to state actors,

while Bivens applies to federal actors. If you are an

immigration detainee in the custody of ICE, a federal

agency, or a federal prisoner in the custody of the Bureau

of Prisons, in most situations, you will be relying on Bivens

and not on Section 1983.

There are two main elements to a Bivens action: (1) a

federal actor and (2) unconstitutional acts by that person

that are properly the subjects of a Bivens Claim. This

section discusses each of those elements in turn.

If a federal prisoner is not seeking money damages, but

instead wants to change a prison policy, or stop ongoing

illegal action, the prisoner can file a case for an “injunction”

in federal court under 28 U.S.C. 1331. These federal

injunctions are also described below.

1. Who is acting under color of federal law?

Who should you name as the defendant in your lawsuit? In

other words, who should you sue? First, it is important to

know that Bivens provides a right of action against

individuals only, and not against federal agencies, private

corporations, or private contractors. This means you must

name actual people as the defendants in your lawsuit, not

the prison or the Bureau of Prisons.

When it comes to immigration detention, it can sometimes

be tricky to determine whether or not someone is acting

under federal law, because immigrants can be detained in a

variety of different types of facilities, including facilities

run by private corporations. However, no matter what kind

of facility you are detained in, you are in the custody of

ICE, a federal agency.

> If you are in a Bureau of Prisons prison, all of the prison

personnel you have contact with are acting under federal

law.

> If you are in a federal detention center, all of the prison

personnel you have contact with are acting under federal

law for the purpose of Bivens.

13 | CHAPTER 2 – OVERVIEW OF THE TYPES OF LAWSUITS AND THE PRISON LITIGATION REFORM ACT

> If you are in a private facility or a state, county, or other

local facility that has a contract with ICE to hold

immigration detainees, you may be able to sue an ICE

official who oversees conditions at your facility, but you

cannot bring a Bivens suit against the facility itself, the

private guards, or the state guards, but you can sue the

state guards under Section 1983.

If you can’t figure out whether the person you want to sue

is a state actor or a federal actor, you can bring your

lawsuit under both Bivens and Section 1983, and the Judge

will decide which approach is appropriate.

2. Unconstitutional Acts by Federal Officials

Subject to Bivens Claims

In general, the same constitutional standards that apply in

Section 1983 actions apply in Bivens actions. We explain

those constitutional standards Chapter Three. Where there

are differences, we have tried to highlight them

throughout.

But Bivens actions are much harder to bring than Section

1983 claims. That is because, unlike a Section 1983

lawsuit, Bivens actions are not available to challenge every

unconstitutional thing that happens in prison. Ever since a

Supreme Court case called Ziglar v. Abbasi, 137 S. Ct. 1843

(2017), prisoners have had a much harder time succeeding

with Bivens Claims.

If you bring a Bivens Claim, the court will first ask whether

your claim arises in a “familiar Bivens context.” If what

happened to you is the same as (or very similar to) what

has happened to other prisoners in Bivens cases courts

have allowed in the past, then your case arises in a familiar

Bivens context, and you will be allowed to move forward.

However, if your case is different from previous Bivens

cases, your case will be dismissed unless you persuade the

court that Bivens should be expanded to cover the type of

claim you are making.

One good case to read about where this issue arose is Jerra

v. United States, No. 12-cv-01907, 2018 WL 1605563

(C.D. Ca. May 25, 2018). In that case, a court decided that

a prisoner’s claims about excessive force and guard

retaliation did not arise in a familiar Bivens context, but the

court decided that an extension of Bivens was appropriate,

so the case was allowed to move forward.

Most courts have recognized that prisoner claims about

inadequate medical care (described in Chapter 3, Section F)

do arise in a familiar Bivens context, because in 1980, the

Supreme Court allowed one of these claims to go forward

in a very important case called Carlson v. Green, 446 U.S.

14 (1980). However, since the Ziglar case in 2017, many

courts have decided that other constitutional claims by

prisoners require an expansion of Bivens, and many of

those courts have decided not to extend it.

The question of whether or not a federal prisoner can

bring a Bivens Claim is a very complicated and difficult area

of the law which is changing every day, so you might want

to ask the court to appoint a lawyer to help you brief the

issue. In a case called Houck v. United States, No. 16-CV-

1396-JPG-DGW, 2018 WL 2129771, at *2 (S.D. Ill. May 9,

2018) the Court granted a prisoner’s motion for

recruitment of counsel on this ground, noting, “the analysis

required by Ziglar is complex.” There is more information in

Chapter 5, Section C, Part 3 on how to ask the court to

assign you a free lawyer.

PRACTICE TIP: You can bring Bivens Claims and FTCA

claims in the same lawsuit. And given how unclear

Bivens law is right now, if you can bring an FTCA claim,

it is probably a good idea to do so, and not rely on

Bivens alone. If you prove your claims, however, you

will only be able to recover money under one of the

two causes of action.

3. Federal Injunctions

You may not always be interested in suing for damages. In

some cases, you may just want to try to change a prison

policy you believe is unconstitutional. Section 1983 allows

these types of claims, called “injunctions” for prisoners in

state or local custody. Injunctions are explained in Chapter

Four, Section B.

Federal law also allows federal prisoners to bring these

types of claims in federal court. 28 USC 1331 states that

federal district courts have the power to hear “all civil

actions arising under the Constitution, laws, or treaties of

the United States.” The courts have taken this language to

mean that federal courts can order federal prisons to stop

acting in an unconstitutional way. You can bring a claim for

an injunction in the same lawsuit as your FTCA and Bivens

Claims.

FTCA CLAIM

BIVENS CLAIM

TYPE OF

INJURY

State Tort

(examples:

assault, battery,

medical

negligence)

Constitutional

Violation

WHO TO SUE

The United

States

The Guards who

are responsible

for what

happened to you

EXHAUSTION

REQUIRED?

Yes. Must file an

administrative

claim with BOP

before suing

Yes. Must

use prison’s

administrative

grievance system

DAMAGES

AVAILABLE?

Yes, from the

United States

treasury

Yes, from the

individual

defendants

QUALIFIED

IMMUNITY

APPLIES?

Yes

14 | CHAPTER 2 – OVERVIEW OF THE TYPES OF LAWSUITS AND THE PRISON LITIGATION REFORM ACT

Brief Summary of the Prison

Litigation Reform Act (PLRA)

The PLRA is an anti-prisoner statute which became law in

1996 and has made it much harder for prisoners to gain

relief in the federal courts. While you will learn more about

the PLRA in the following chapters, this section provides a

brief outline of its major parts, or “provisions,” so that you

keep them in mind as you start to plan your lawsuit. The full

text of several important sections of the PLRA are included

in Appendix F. One important thing to keep in mind is that

most of these provisions only apply to suits filed while you

are in prison. If you want to sue for damages after you are

released, you will not need to worry about these rules.

1. Injunctive Relief

18 U.S.C. § 3626 limits the “injunctive relief” (also called

“prospective relief”) that is available in prison cases.

Injunctive relief is a court order to make the prison do

something differently or stop doing something altogether.

For example, if the prison you are held in says you can only

pray alone, and you file a suit asking that the prison change

their policy to let you pray in a group, that is a case for

injunctive relief. Injunctive relief and the changes in its

availability under the PLRA are discussed in Chapter Four.

2. Exhaustion of Administrative Remedies

42 U.S.C. § 1997(e)(a) states that “[n]o action shall be

brought with respect to prison conditions[…]by a prisoner

confined in any jail, prison, or other correctional facility until

such administrative remedies as are available are exhausted.”

This is known as the “exhaustion” requirement. It is very

important. If you try to sue a prison official about anything

they have done to you, the court will dismiss your case unless

you have first used the administrative grievance system at

your prison to raise the issue you want to sue over. You also

have to appeal that grievance as far as possible. You will learn

more about exhaustion in Chapter Five, Section A, Part 2.

3. Mental or Emotional Injury

The PLRA also states that “[n]o Federal civil action may be

brought by a prisoner confined in a jail, prison, or other

correctional facility, for mental or emotional injury suffered

while in custody without a prior showing of physical injury

or the commission of a sexual act.”42 U.S.C.A. § 1997e(e).

Courts disagree about whether this allows you to sue for

money damages for a constitutional violation that does not

cause physical injury or involve sexual abuse. The different

interpretations of this provision are explained in detail in

Chapter Four, Section C, Part 2. If you are suing to change a

prison policy, you do not need to worry about this provision.

4. Attorney’s Fees

Usually, if you win a Section 1983 case and you have an

attorney, the defendants will have to pay your attorney for

the work they did on your case. However, the PLRA limits

the court’s ability to make the prison officials you sue pay

for “attorney’s fees” if you win your case. While this will

not affect you if you are suing without the assistance of an

attorney, it is part of the reason why so few attorneys are

willing to represent prisoners.

5. Screening, Dismissal, and Waiver of Reply

The PLRA allows for courts to dismiss a prisoner’s case very

soon after filing if the judge decides the case is “frivolous,”

“malicious,” does not state a claim, or seeks damages from a

defendant with immunity. The court can do this before

requiring the defendant to answer your complaint. This is

discussed further in Chapter Six, Section B.

6. Filing Fees and the Three Strikes Provision

Courts charge everyone fees when they file a lawsuit.

However, poor people are not required to pay all these

fees up front. Under the PLRA, if you have had three prior

lawsuits dismissed as “frivolous, malicious, or failing to

state a claim for relief,” you may not proceed “in forma

pauperis” (which means “as a poor person”) and will have to

pay your fees up front. There is an exception for prisoners

who are “in imminent danger of serious physical injury.”

Chapter Five, Section C, Part 2 describes how to file “in

forma pauperis papers” and provides more information

about the three strikes provision.

15 | CHAPTER 3 – YOUR RIGHTS IN PRISON

CHAPTER THREE:

Your Rights in Prison

This chapter provides information about your rights in

prison. We mostly focus on constitutional rights but

provide some information about federal and state

statutory rights as well. Sections A through G explain what

types of actions violate prisoners’ rights, and Sections H

through K provide information for specific groups of

prisoners, including women, transgender people, pretrial

detainees and immigration detainees. Finally, Section L

provides an introduction to international law protections

for people in prison.

Chapter Three: Table of Contents

Section A ........ Your First Amendment Right to Freedom

of Speech and Association

Section B ................. Your Right to Practice Your Religion

Section C ...... Your Right to be Free from Discrimination

Section D ................. Your Procedural Due Process Rights

Regarding Punishment, Administrative

Transfers, and Segregation

Section E ................. Your Right to Privacy and to be Free

from Unreasonable Searches and Seizures

Section F ....................... Your Right to be Free from Cruel

and Unusual Punishment

Section G .............................. Your Right to Use the Courts

Section H ........ Issues of Importance to Women in Prison

Section I ........... Issues of Importance to LGBTQ+ People

and People Living with HIV/AIDS

Section J ....... Issues of Importance to Pretrial Detainees

Section K ............... Issues of Importance to Non-Citizens

and Immigration Detainees

Section L .............................. Protection of Prisoners Under

International Law

“The Rule” and “The Basics” Boxes

Throughout this chapter, you will see small text boxes

entitled “the rule” and “the basics.” The “rule” boxes set

forth the actual legal standard that a court will apply to

consider your case. We have included these only in those

places where there is a clear legal rule. The “basics” boxes

are summaries of the practical impact of the law on

common prison issues. They are not legal standards.

Be very careful to check for changes in the law when you

use this chapter (and the rest of the JLH). This Handbook

was completely revised and updated between 2018 and

2019. However, one of the exciting but frustrating things

about the law is that it is constantly changing. New court

decisions and laws will change the legal landscape

significantly in the future.

It is important to make sure a case is still “good law,” which

is known as “Shepardizing.” This is explained in Chapter

Seven. You can also write to prisoners’ rights and legal

organizations listed in Appendix I for help. Groups which

can’t represent you may still be able to help with some

research or advice.

The online version of this handbook has hyperlinks for

some cases. These are accessible at the JLH website, and

the links are included in case a relative or friend can print

out relevant materials and mail them to you.

Some cases have legal citations to Lexis, which is a paid

legal research service. Sometimes cases only have a Lexis

citation and no other legal citation. Where possible, we

have provided a free copy of the original opinions for these

cases on the JLH website so you do not need to pay to

access them. We have tried to make all that we can

available. A relative or friend on the outside can access

these in one place and have them printed and sent to you.

It is an additional step, but it should make these cases

more accessible to you than they would normally be. The

website is: http://jailhouselaw.org

Your First Amendment Right to

Freedom of Speech and Association

The Turner Rule: Under the First Amendment, a prison

regulation that stops you from speaking, expressing

yourself, or interacting with other people must be

reasonably related to a legitimate government interest.

The court will consider whether the regulation leaves

open other ways for you to express yourself, how the

regulation impacts other prisoners and prison

resources, and whether there are easy alternatives to

the regulation that would not restrict your rights as

much.

The First Amendment protects everybody’s right to

freedom of speech and association. Freedom of speech

and association includes the right to read books and

magazines, the right to call or write to your family and

friends, the right to criticize the government or state

officials, and much more. However, in prison those rights

are restricted because of the prison’s need for security and

16 | CHAPTER 3 – YOUR RIGHTS IN PRISON

administrative ease. Because of this, it is often very hard

for a prisoner to win a First Amendment case.

Most prison First Amendment issues are governed by a

legal standard developed in a case called Turner v. Safley,

482 U.S. 78 (1987). In Turner, prisoners in Missouri

brought a class action lawsuit challenging a regulation that

limited the ability of people in prison to marry or write

letters to each other. The Supreme Court used the case to

establish a four-part test for First Amendment claims.

Under this test, a court decides whether prison policy or

practice is constitutional by asking four questions:

THE TURNER TEST

QUESTION 1: Is the regulation reasonably related

to a legitimate, neutral government interest?

“Reasonably related” means that the rule is at least

somewhat likely to do whatever it is intended to do. A

rule banning a book on bomb-making is reasonably

related to the prison’s goal of security. However, a rule

banning all novels is not.

“Neutral government interest” means that the prison’s

goal must not be related to dislike of a particular idea

or group. Increasing prison security is a neutral and

legitimate goal. Encouraging prisoners to practice a

certain religion, to stop criticizing the prison

administration, or to wear their hair a certain way are

not neutral or legitimate goals. The prison can’t pick

and choose certain books or ideas or people unless it

has a “neutral” reason, like security, for doing so.

QUESTION 2: Does the regulation leave open

another way for you to exercise your constitutional

rights? This means the prison can’t have a rule that

keeps you from expressing yourself altogether. For

example, prison officials can stop the media from

conducting face-to-face interviews with people in

prison as long as prisoners have other ways (like mail)

to communicate with the media. Pell v. Procunier 417

U.S. 817 (1974).

QUESTION 3: How does the regulation impact

other prisoners, prison guards or officials, and prison

resources? This question allows the court to consider

how much it would cost in terms of money and staff

time to change the regulation or practice in question.

For example, one court held that it is constitutional to

prevent prisoners from calling anyone whose number is

not on their list of ten permitted numbers because it

would take prison staff a long time to do the necessary

background checks on additional numbers. Pope v.

Hightower, 101 F.3d 1382 (11th Cir. 1996).

This question is not always just about money. It also

requires the court to take into consideration whether

changing the regulation would pose a risk to other

prisoners or staff or create a “ripple effect” causing

other problems in the prison. Fraise v. Terhune, 283.

F.3d 506, 520 (3d Cir. 2002).

QUESTION. 4: Are there obvious, easy alternatives

to the regulation that would not restrict your right to

free expression? This part of the test allows a person in

prison to suggest an easy way for the prison to achieve

their goal without restricting prisoners’ rights. Not

every suggestion will work. For example, one court held

that it is constitutional to ban letters between two

people in two different facilities after one of the two

sent a threatening letter to the other’s Superintendent.

The court ruled that monitoring this type of

correspondence is not an obvious or easy alternative to

banning it. U.S. v. Felipe, 148 F.3d 101 (2d Cir. 1998).

You will want to keep these four questions in mind as you

read the following sections on the First Amendment.

1. Access to Reading Materials

The Basics: Prison Officials can keep you from

getting or reading books that they think are

dangerous or pornographic. They can also make

you get all books straight from the publisher.

The First Amendment protects your right to get reading

material like books and magazines. This doesn’t mean that

you can have any book you want. Your right is limited by

the prison’s interest in maintaining order and security, and

promoting rehabilitation. Until 1989, the Supreme Court

required prisons to prove that banning material was

necessary to meet government interests in prison order,

security, and rehabilitation. This standard was from a case

called Procunier v. Martinez, 416 U.S. 396 (1974), and it

gave people in prison fairly strong protection of their right

to get books. However, since then the Supreme Court has

become much more conservative and has given prisons

greater power to restrict your First Amendment rights.

Now a prison can keep you from having magazines and

books as long as it meets the Turner test, explained above.

This change happened in an important Supreme Court case

called Thornburgh v. Abbott, 490 U.S. 401 (1989). If you

feel that your right to have reading materials is being

violated, you should probably start your research by

reading Thornburgh v. Abbott.

17 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Why Read Cases?

Sometimes in this Handbook we suggest that you read

court cases. While we have tried to summarize the law

for you, the cases we suggest will give you much more

detailed information and will help you figure out

whether you have a good legal claim. Chapter Seven

explains how to find cases in the law library based on

their “citation.” You can also ask the library clerk for

help finding a case. Chapter Seven gives helpful tips on

how to get the most out of reading a case.

Finally, Chapter Seven contains an explanation of the

court systems and how cases are used as grounds for

court decisions. Be sure to read it if you are going to do

any legal research. Remember that federal courts in

one state do not always follow decisions by federal

courts in other states.

While the Turner standard is less favorable to prisoners, it

still provides some protection. Prison officials need to

justify their policies in some way. If they can’t, the

regulation may be struck down. Prisons can’t just ban

books and magazines randomly.

Courts also require prisons to follow fair procedures to ban

a publication. A prison cannot maintain a list of excluded

publications or decide that no materials from a particular

organization will be allowed in. It must decide about each

book or magazine on a case-by-case basis. This is true even

if a prison official already knows that the book or magazine

comes from an organization they don’t approve of.

Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997). Some

type of notice from the prison is usually required as well.

For example, some prisons require the warden to tell you

when they reject a book or magazine sent to you, and to

give the publisher or sender a copy of the rejection letter.

Courts may require that the prison have a procedure so

that you, or the publisher or sender, can appeal the

decision.

Prison officials cannot censor material just because it

contains religious, philosophical, political, social, or

unpopular content. They can only censor material if they

believe it may cause disorder or violence, or hurt a

prisoner’s rehabilitation. In Greybuffalo v. Kingston, 581 F.

Supp. 2d 1034 (W.D. Wisc. 2007) for example, a man in

the Wisconsin Dept. of Corrections was punished for

having a quote about freedom from a Native American

chief in his cell, with the initials A.I.M. “A.I.M.” stands for

the “American Indian Movement,” which is a civil rights

movement dating back to the 1960s. The court ruled that

it was unreasonable to think the material created any

threat to prison security and found that the prison had

violated Greybuffalo’s First Amendment rights. However,

cases like this are rare because the Turner standard gives

prison wardens broad discretion. Most courts will believe a

prison official who says that a book or magazine creates a

threat to prison security. It is important to remember that

sometimes decisions are inconsistent among different

courts.

Courts have allowed prisons to ban reading materials that

advocate racial superiority and violence against people of

another race or religion. Stefanow v. McFadden, 103 F.3d

1466 (9th Cir. 1996); Chriceol v. Phillips, 169 F.3d 313 (5th

Cir. 1999). One court allowed special inspection of a

prisoner’s mail after he received a book with a suspicious

title, even though the book was just an economics

textbook. Duamutef v. Holllins, 297 F.3d 108 (2d Cir. 2002).

Another court decided that a prison could ban people from

receiving the Physician’s Desk Reference in the mail

because it contains information about drugs, even though

the same book was available in the prison library. Munson

v. Gaetz, 673 F.3d 630 (7th Cir. 2012).

Prison officials are normally allowed to ban an entire

offending publication, as opposed to just removing the

sections in question. Shabazz v. Parsons, 127 F. 3d 1246

(10th Cir. 1997). However, this is not always the case. In

2011, Louisiana prisons were not allowed to ban a Nation

of Islam newspaper when objectionable pages could be

deleted. Leonard v. Louisiana, 449 Fed. Appx. 386 (5th Cir.

2011).

Prisons must also abide by the Fourteenth Amendment,

which guarantees equal protection of the laws to all

citizens. This means that, for example, a prison cannot ban

access to materials targeted to an Black audience if they

do not ban similar materials popular among white people.

See Section C of this Chapter for more information on

equal protection claims.

Lots of cases about access to reading material involve

sexually explicit materials. Some courts have said that

people in prison have a right to non-obscene, sexually

explicit material that is commercially produced (as opposed

to, for example, nude pictures of spouses or lovers). Other

courts have allowed total bans on any publication

portraying sexual activity or featuring frontal nudity. Mauro

v. Arpaio, 188 F.3d 1054 (9th Cir. 1999). One court found

that blurred or censored nude photos could be barred.

Woods v. Director's Review Comm., 2012 U.S. Dist. LEXIS

44805 (S.D. Tex. 2012). Bans on sexually explicit materials

might go too far if they ban works of literature merely

describing intercourse. In one case a court said a ban went

too far when it removed works like Ulysses and Lady

Chatterley’s Lover from a prison library. Couch v. Jabe, 737

F. Supp. 2d 561 (W.D. Va. 2010).

As Section I Part 5 of this Chapter explains, bans on

lesbian, gay, bisexual, transgender, queer, or intersex

(“LGBTQ+”) reading material that is not sexually explicit

can also be challenged. However, materials deemed a

threat to security or order, or likely to provoke anti-LGBTQ

violence, can be lawfully withheld. One example of a case

like this is Willson v. Buss, 370 F. Supp. 2d 782, 783 (N.D.

Ind. 2005). In that case a court upheld a ban on “blatantly

homosexual” materials to minimize prisoner on prisoner

violence.

18 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Requiring that Publications Come from Publishers

A prison can usually require that publications come directly

from a publisher or bookstore, allegedly to limit smuggling

and contraband. Bell v. Wolfish, 441 U.S. 520 (1979).

However, some courts have found these safety concerns

only apply to hardcopy books, and found that access to

newspapers, magazines, and paperback books should not

be restricted. In Hurd v. Williams, 755 F.2d 306 (3d Cir.

1985), for example, a court held that the security problem

presented by the binding of hardback books seems

inapplicable to newspapers and potentially the binding of

other paperback books. And in Keenan v. Hall, 135 F.3d

1318 (9th Cir. 1998) a court noted that in Bell, the

Supreme Court relied on the fact that prisoners were

allowed other reading material besides hardback books

(e.g. magazines and softback books), such that the

compelling security interest that justified the publisher-

only rule for hardback books might not justify a ban on

other reading materials

Censorship of this Handbook

In Virginia and New Mexico, prison officials tried to ban

people from receiving copies of this handbook.

However, following lawsuits, these bans were struck

down, and the Virginia DOC even agreed to put copies

of the JLH in all of its prison law libraries. White v. Dona

Ana County Detention Center, 2011 WL 13291138 (D.

N.M. 2011) is one of these cases. A prisoner was

denied The Jailhouse Lawyer’s Handbook because

prisoners were not allowed to receive books in the

mail, but the district court held that the Turner test

weighed in favor of the prisoner regarding: the prison’s

blanket prohibition on magazines and newspapers,

mailed books, newsletters, mailed items without a

return address, and on mailed items that include

“copies”.

If the JLH is banned from your prison, please write CCR

or the NLG! Please include any documentation from

prison officials notifying you or others at the prison

that it has been banned. And THANK YOU to the

people who brought this to our attention!

2. Free Expression of Political Beliefs

The Basics: You can believe whatever you want,

but the prison may be able to stop you from

writing, talking, or organizing around your beliefs.

You have the right to your political beliefs. This means that

prison officials may not punish you simply because they

disagree with your political beliefs. Sostre v. McGinnis, 442

F.2d 178 (2d Cir. 1971); Sczerbaty v. Oswald, 341 F. Supp.

571 (S.D.N.Y. 1972). However, the prison can limit your

ability to express your beliefs. Any prison restriction on

your right to express your beliefs must satisfy the Turner

test.

Prison officials may be able to limit what you write and

publish in prison, but not all of these limitations will pass

the Turner standard. For example, the state of

Pennsylvania had a prison rule that kept prisoners from

carrying on businesses or professions in prison. The court

found that the rule was not reasonably related to

legitimate governmental interests when it kept Mumia

Abu-Jamal from continuing his journalism career. Abu-

Jamal v Price, 154 F.3d 128 (3d Cir. 1998). The court relied

on evidence that (1) the rule was enforced against Mumia,

at least in part, because of the content of his writing, and

not because of security concerns; (2) his writing did not

create a greater burden within the prison than any other

prisoner’s writing; and (3) there were obvious, easy

alternatives to the rule that would address security

concerns. Another successful case is Jordan v. Pugh, 504 F.

Supp. 2d 1109 (D. Co. 2007). In that case, a prisoner at the

highest security federal prison in the country (ADX

Florence) successfully challenged a Bureau of Prisons rule

that said prisoners can’t publish under a byline or act as

reporters. The prison said the rule was important to keep a

prisoner who published material from becoming a “big

shot” at the prison and getting too much influence over

other prisoners. However, the prisoner had a former

warden testify as an expert for him. The expert convinced

the court that this “big shot” theory had no actual support

and had been abandoned by prison administrators. It was

important under Turner that ADX Florence’s rule was

absolute—prisoners had no other way to publish articles.

However, regulations limiting prisoners from publishing

their work may be constitutional in other situations. In a

case called Hendrix v. Evans, 715 F. Supp. 897 (N.D. Ind.

1989), the court held that a prison could stop a prisoner

from publishing leaflets to be distributed to the general

public about a new law because prisoners still had other

ways to inform the public about the issue, such as by

individual letters.

Often the prison will rely on “security concerns” to justify

censorship. In Pittman v. Hutto, 594 F.2d 407 (4th Cir.

1979), the court held that prison officials did not violate

the constitution when they refused to allow publication of

an issue of a magazine prepared by people in prison

because they had a reasonable belief that the issue might

disrupt prison order and security.

Some courts will examine the “security” reason more

closely than others to see if it is real or just an excuse. For

example, in Castle v. Clymer, 15 F. Supp. 2d 640 (E.D. Pa.

1998), the court held that prison officials violated the

constitution when they transferred a prisoner in response

to letters he had written to a journalist. The letters

mentioned the prisoner’s view that proposed prison

regulations would lead to prison riots. The court found that

because there was no security risk, the transfer was

unreasonable.

Prison officials can ban petitions, like those asking for

improvements in prison conditions, as long as prisoners

have other ways to voice their complaints, like through the

prison grievance system. Duamutef v. O’Keefe, 98 F.3d 22

(2d Cir. 1996). Officials can stop a prisoner from forming

19 | CHAPTER 3 – YOUR RIGHTS IN PRISON

an association or union of prisoners, because the courts

have decided that it is reasonable to conclude that such

organizing activity would threaten prison security. Brooks v.

Wainwright, 439 F. Supp. 1335 (M.D. Fl. 1977). In one very

important case, the Supreme Court upheld a prison’s ban

on union meetings, solicitation of other prisoners to join

the union, and bulk mailings from the union to prisoners, as

long as there were other ways for prisoners to complain to

prison officials and for the union to communicate with

prisoners. Jones v. North Carolina Prisoners’ Labor Union,

Inc., 433 U.S. 119 (1977).

Finally, lots of times prisons describe organizing among

people in prison as “gang activity” and courts are usually

pretty deferential to those security concerns. In one case, a

person in prison was punished for “gang activity” for

having a handwritten copy of material from a book about

the Black Panther Party, even though the book itself was

checked out from the prison library. Toston v. Thurmer, 689

F.3d 828 (7th Cir. 2012).

When speech is directed outside the prison, restrictions

may be easier to strike down. For example, after Mumia

Abu-Jamal prerecorded a commencement speech for a

college, Pennsylvania passed a law to prohibit similar

speeches in the future, based on “revictimization.” This is

the idea that victims of personal injury crimes are harmed

when people in prison exercise the right to free speech. A

court said the law violated the First Amendment because it

limited speech based on its content. Abu-Jamal v. Kane,

105 F. Supp. 3d 448 (M.D. Penn. 2015).

3. Limits on Censorship of Mail

The Basics: The prison usually can’t stop you from

speaking your mind in your letters to people outside

the prison. The prison can keep other people from

writing you things it considers dangerous. Prison guards

can read your letters and look in them to make sure

there is no contraband.

The First Amendment protects your right to send and

receive letters. Many years ago, prison officials were

required to meet a strict test to justify their needs and

interests before courts would allow them to interfere with

mail. Today, the court still uses this test for mail prisoners

send out of the prison but allows prison officials more

control over mail that goes into the prison.

a. Outgoing Mail

The Rule: The regulation must protect an

“important or substantial interest” of the prison

and be necessary and essential to achieving

that interest.

In order to censor the letters you send to people outside

prison, prison officials must be able to prove that the

censorship is necessary to protect an “important or

substantial” interest of the prison. Examples of important

interests are: maintaining prison order, preventing criminal

activity, and preventing escapes. The prison officials must

be able to show that their regulations are actually

“necessary and essential” to achieving this important goal,

not just that the regulation is intended to achieve that goal.

The regulations cannot restrict your rights any more than is

required to meet the goal. Procunier v. Martinez, 416 U.S.

396 (1974). This test is better for you than Turner, but

unfortunately it only applies to outgoing mail.

Under the Martinez rule, a prison official cannot censor your

mail just because it makes rude comments about the prison

or prison staff. Bressman v. Farrier, 825 F. Supp. 231 (N.D.

Iowa 1993). In one case, Harrison v. Institutional Gang of

Investigations, No. C 07-3824, 2010 U.S. Dist. LEXIS 14944

(N.D. Cal. Feb. 22, 2010), Marcus Harrison sued Pelican Bay

prison officials after they took his outgoing mail because it

included information about the Black August Memorial, the

New Afrikan Collective Think Tank, and the George Jackson

University. The prison argued that the material was related

to a prison gang called the Black Guerilla Family. Mr.

Harrison won, and the court ruled that the prison had failed

to make a substantial showing that the material was likely to

incite violence or related to a prison gang.

However, some restrictions on outgoing mail are allowed.

Courts have allowed bans on “letter kiting,” which means

including a letter from someone else with your letter or

sending a letter to someone in an envelope with another

prisoner’s name. Malsh v. Garcia, 971 F. Supp 133 (S.D.N.Y.

1997). Some prisons and jails have imposed rules limiting

prisoners to writing only postcards, as opposed to closed

letters. In 2010 the ACLU brought a First Amendment

challenge to this type of policy at the El Paso County Jail in

Arizona, and the jail quickly agreed to change the rule.

Martinez v. Maketa, No. 10-CV-02242, 2011 WL 2222129

(D. Co. June 7, 2011).

In one case, a court upheld a ban on gang symbols in

outgoing mail on grounds of a governmental interest in

rehabilitation. The court gave “substantial deference” to

prison officials to decide what is a gang symbol. The court

also said that the outgoing mail was not “constructive,

wholesome contact” that would foster reintegration into

society. Koutnik v. Brown, 456 F.3d 777 (7th Cir. 2006).

If a prisoner has used the mail in the past to attempt to

commit a crime or harass someone, that may be an

important factor. So for example, in Hammer v. Saffle, No.

91-7038, 1991 U.S. App. LEXIS 28730 (10th Cir. Nov. 29,

1991), the court upheld a prison rule limiting a prisoner to

sending mail to people on an approved list after he was

found to have used the mail to make death threats and

extort money.

Courts usually allow guards to read or look in your

outgoing mail, especially for contraband. Courts explain

that looking in a letter does not violate the First

Amendment, because it is different from censorship. Altizer

v. Deeds, 191 F.3d 540 (4th Cir. 1999). Courts have said

that a visual inspection is closely related to the legitimate

interest of a prison in preventing prisoners from

disseminating offensive or harmful materials. Witherow v.

Paff, 52 F.3d 264 (9th Cir. 1995).

20 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Courts have also generally upheld limitations on the

amount of postage you can have at one time and the

amount of free postage they will provide to prisoners who

cannot afford it for non-legal mail. Johnson v. Goord, 445

F.3d 532 (2d Cir. 2006).

In one case, a court held that the First Amendment was

not violated by a rule prohibiting solicitation of pen pals.

The court accepted the prison’s argument that bulk

mailings to find pen pals could be used for scams. Perry v.

Sec'y, Fla. Dep't of Corr., 664 F.3d 1359 (11th Cir. 2011).

b. Incoming Mail

The Rule: The Turner test applies.

Censorship of incoming mail is governed by the Turner

test. As you learned in Section A of this chapter, the

Turner test requires that the regulation in question be

“reasonably related” to a “legitimate” government interest.

This means that while your rights are still protected to

some extent, prisons can put a lot of restrictions on

incoming mail. Courts have allowed restrictions on

incoming packages on the grounds that they can easily

hide contraband and looking through them would use up

too many prison resources. Weiler v. Purkett, 137 F.3d

1047 (8th Cir. 1998). Items that by themselves are not a

threat to prison security can also be taken by prison

officials if they contain contraband. Steffey v. Orman, 461

F.3d 1218 (10th Cir. 2006). Courts have also allowed

restrictions on mail between prisoners. Turner v. Safley, 482

U.S. 78 (1987).

A prison must follow special procedures to censor your

mail. You should be notified if a letter addressed to you is

returned to the sender. Your right to be notified is a “due

process” right, recognized by Procunier v. Martinez. Due

process rights are discussed later in this Chapter, in

Sections D and G. The author of the letter sent to you

should have an administrative avenue to challenge the

censorship. The official who responds to the administrative

challenge cannot be the person who originally censored

the mail in question. In most places, the same rule applies

to packages, not just letters. Bonner v. Outlaw, 552 F.3d

673 (8th Cir. 2009).

Some prisons and jails have imposed rules limiting

prisoners to receiving only postcards (different from the

outgoing-mail rule discussed above). Some courts have

held that these policies are unconstitutional under Turner

and serve no valid penological objectives. Prison Legal News

v. Columbia County, 942 F. Supp. 2d 1068 (D. Or. 2013).

But other courts have allowed postcard-only policies on

the basis of reducing contraband. Althouse v. Palm Beach

County Sheriff’s Office, No. 12-80135-CIV-MARRA, 2013

U.S. Dist. LEXIS 18602 (S.D. Fla. Feb. 11, 2013). If you are

challenging a postcard-only policy for incoming mail,

thoroughly consider the Turner factors from Section A, and

make sure the prison backs up any claims that a postcard-

only policy is “rationally related” to enhanced security.

One delay or some other relatively short-term disruption in

mail delivery that is not related to the content of your

letters does not violate the First Amendment. Sizemore v.

Williford, 829 F.2d 608 (7th Cir. 1987).

c. Legal Mail

Special rules apply to mail between you and your attorney,

and to mail you send to non-judicial government bodies or

officials. This mail is called “privileged mail,” “legal mail,” or

“special mail” and is protected by your constitutional right

to seek legal counsel as well as by the “attorney-client

privilege.” The attorney-client privilege means that the

things you write or say to your attorney, or they write or

say to you, are secret.

Prisons officials cannot read your legal mail. But they can

open it in your presence to inspect it for contraband.

Castillo v. Cook County Mail Room, 990 F.2d 304 (7th Cir.

1993); Bieregu v. Reno, 59 F.3d 1445 (3d Cir. 1995). If they

open it outside your presence, this may violate the First

Amendment, because it chills your right to communicate

confidentially with your lawyer. Al-Amin v. Smith, 511 F.3d

1317 (11th Cir. 2008), Jones v. Brown, 461 F.3d 353 (3d

Cir. 2006).

Even if a prison restricts most of your correspondence

with other prisoners, you may be allowed to send and get

mail from a prisoner who is a jailhouse lawyer. For more

information about this, read Section G about your right to

access the court.

Different prisons have different procedures for marking

incoming and outgoing legal and special mail. Often,

incoming mail from an attorney must bear the address of a

licensed attorney and be marked on the envelope as “legal

mail.” If not, it will not be treated as privileged. Some

prisons place even more requirements on you and require

you to request ahead of time that legal mail be opened

only in your presence, and your attorney must have

identified themself to the prison in advance. U.S. v. Stotts,

925 F.2d 83 (4th Cir. 1991); Boswell v. Mayor, 169 F.3d

384 (6th Cir. 1999); Gardner v. Howard; 109 F.3d 427 (8th

Cir. 1997).

4. Access to the Telephone

The Basics: Most of the time, you have a right to

make some phone calls, but the prison can limit the

amount of calls you can make and can monitor

those calls.

Your right to talk with friends and family on the telephone

gets some protection under the First Amendment.

However, courts do not all agree on how much telephone

access prisoners must be allowed. Prisons may limit the

number of calls you make. The prison can also limit how

long you talk. Courts disagree on how strict these limits

can be. Most courts agree that prison officials can restrict

your telephone privileges in “a reasonable manner.”

McMaster v. Pung, 984 F.2d 948 (8th Cir. 1993).

21 | CHAPTER 3 – YOUR RIGHTS IN PRISON

There is no right to private telephone calls with family and

friends. Some courts have said this is because people in

prison do not have a reasonable expectation of privacy

under the Fourth Amendment. U.S. v. Balon, 384 F.3d 38

(2d Cir. 2004). See Section E of this Chapter for more

information about your privacy rights under the Fourth

Amendment.

Other courts have held that prisoners who are told that

they are being monitored consent to giving up their

privacy. U.S. v. Morin, 437 F.3d 777 (8th Cir. 2006); U.S. v.

Footman, 215 F.3d 145 (1st Cir. 2000). In other words, if

there is a sign under the phone saying that “all calls are

monitored” or it’s in the prison’s manual or its policies, it

doesn’t violate your rights for the prison to listen in.

One exception is that prison officials cannot listen in on

calls with your attorney. If there is a process in your prison

for requesting an unmonitored legal call and the prison still

monitors them, courts may find that your expectation of

privacy has been violated. Robinson v. Gunja, 92 Fed. Appx

624 (10th Cir. 2004). However, if you don’t follow your

prison’s procedure for making a legal call, and simply use

the regular phone, some courts will conclude that you

waived your attorney-client privilege by having the

conversation after you were “told” of the monitoring by

the sign or prison policies.

Prisons are generally allowed to place more severe

restrictions on telephone access for prisoners who are

confined to Special Housing Units for disciplinary reasons

as long as they can show that these restrictions are

reasonably related to legitimate security concerns about

these prisoners. You can also lose telephone access as

punishment for breaking prison rules.

In general, prisons are allowed to limit the number of

different people whom you can call, and to require you to

by the prison. Pope v. Hightower, 101 F.3d 1382 (11th Cir.

1996); Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994).

The prison can make you pay for your telephone calls. This

can be a serious burden on prisoners and their family

members, especially when states enter into private

contracts with phone companies which force prisoners or

their families to pay much more for their phone calls than

what people pay outside of prison. Challenges to these

types of contracts or to excessive telephone charges in

general have not been successful. See Arsberry v. Illinois,

244 F.3d 558 (7th Cir. 2001); Walton v. New York State

Dept. of Correctional Services, 869 N.Y.S.2d 661 (2008). But

at least one court has held that this type of arrangement

might violate prisoners’ (and their loves ones’) First

Amendment rights. Byrd v. Goord, No. 00-cv-2135 U.S.

Dist. LEXIS 18544 (S.D.N.Y. Aug. 29, 2005).

5. Access to the Internet

The Basics: The Turner test applies to Internet

communication. Prison Officials can keep you from

accessing the Internet.

People in prison do not have a right to computers or

Internet access. Carmony v. County of Sacramento, No. CIV

S-05-1679, 2008 U.S. Dist. LEXIS 11137 (E.D. Cal. Feb. 14,

2008). The Bureau of Prisons has a system called the Trust

Fund Limited Inmate Computer System (TRULINCS) which

makes a form of e-mail available to prisoners. But even

when a prison system allows e-mail generally, they can still

restrict it without violating the First Amendment. In one

unpublished decision, Solan v. Zickefoose, a person in prison

was barred from using TRULINCS e-mail because he was a

computer expert and was previously punished for misusing

computers. The Third Circuit held that the restriction

passed the Turner test because there were other

alternatives to e-mail, like letters, visits, or the telephone.

Solan v. Zickefoose, 530 Fed. Appx. 109 (3d Cir. 2013).

Courts have also accepted arguments that surveillance of

TRULINCS uses up resources so saving money is a reason

to restrict e-mail access. Gatch v. Walton, No. 13-cv-1168-

MJR, 2013 U.S. Dist. LEXIS 171940 (S.D. Ill. Dec. 5, 2013).

Some people in prison may try to tell people outside prison

to post things on the Internet. An example would be telling

someone to make a Facebook or Twitter post. Several

states have laws banning this kind of indirect access to the

Internet. Texas, for example, prevents prisoners from using

any social media through a third party. Courts have taken

different approaches to the question. One district court in

Arizona held a third-party social media access law

unconstitutional. Canadian Coalition Against the Death

Penalty v. Ryan, 269 F. Supp. 2d 1199 (D. Ariz. 2003).

There are not many cases on this issue.

Using social media like Facebook directly from prison can

often lead to severe disciplinary actions and loss of

privileges including loss of telephone, visitation, and good

time. Those penalties can be just as severe if you use a

third party to post online and your state bans this, so it is

important to check whether your state bans third-party

social media use before having someone post for you.

Some prisons ban people in prison from receiving printouts

of Internet pages in the mail. In one case, Clement v. Cal.

Dep’t. of Corrections, a prisoner at Pelican Bay State Prison

successfully challenged a policy banning materials printed

from the Internet. The prison defended the ban by claiming

that printed Internet materials increased the burden of

mail volume and could be used to send encoded messages.

However, the Ninth Circuit held that those concerns were

arbitrary. Clement v. Cal. Dep't of Corr., 364 F.3d 1148 (9th

Cir. 2004). Other courts have held similarly. However,

courts have also upheld such policies. Starr v. Coulombe,

368 Fed. Appx. 156 (1st Cir. 2009).

6. Your Right to Receive Visits from Family

and Friends and to Maintain Relationships in

Prison.

The Basics: The prison can limit your visits in lots

of ways, but probably can’t permanently ban you

from getting visits.

22 | CHAPTER 3 – YOUR RIGHTS IN PRISON

If you are being denied visitation in prison, there are

several different claims you can make. You can argue that

denying you visits or restricting your visits violates your

right to freedom of association under the First

Amendment, your right to be free from cruel and unusual

punishment under the Eighth Amendment, and your right

to substantive due process under the Fifth and Fourteenth

Amendments. Under each of these claims, the prison will

probably respond by claiming that the restriction you

challenge is related to maintaining order and security. If

you bring your claim under the First Amendment or the

due process clause, the court will look to the Turner test to

see if the prison rule is valid. If you bring your claim under

the Eighth Amendment, the court will look at the standard

described in Section F of this Chapter. You can make all of

these arguments in one case.

a. Access to Visits

In 2003, the Supreme Court considered how much prisons

can restrict visitation in a case called Overton v. Bazzetta,

539 U.S. 126 (2003). The case involved a Michigan

Department of Corrections’ rule that prohibited visits by

kids other than a prisoner’s sibling or child. The rule also

said that former prisoners couldn’t visit current prisoners.

Lastly, the rule said that any prisoner who had two drug

violations in prison would have all of their visitation

privileges suspended for two years. A group of prisoners

and their friends and family challenged the rule based on

all of the First, Eighth, and Fourteenth Amendment

theories mentioned earlier. The Court stated that the right

to “intimate association” is not completely terminated by

imprisonment and considered the regulations under the

Turner standard. The Court decided that all of these prison

rules were reasonably related to valid penological interests,

so they passed the Turner test. The Court accepted the

prison’s explanation that allowing only children and siblings

under the age of 18 protects minors from misconduct,

reduces the number of visitors, and minimizes disruption

by children. The prison rationalized preventing former

prisoners from visiting as a way to maintain prison security

and prevent future crime. It explained restricting visitation

for prisoners with two drug violations as a way to

discourage drug use. Such prisoners, the Court explained,

are still able to write or call people, so they were not

completely cut off from their friends and family. In

considering the Eighth Amendment claim, the Court said

that the two-year ban was “not a dramatic departure from

accepted standards for conditions of confinement [and it

did not] create inhumane prison conditions, deprive

prisoners of basic necessities, or fail to protect their health

or safety. Nor does it involve the infliction of pain or injury,

or deliberate indifference to the risk that it might occur.”

Under this precedent, it is hard to successfully challenge

restrictions on visitation. In general, limitations on a

prisoner's visitation rights are acceptable if the prison has

valid “penological objectives such as rehabilitation and the

maintenance of security and order.” Bellamy v. Bradley, 729

F.2d 416, 420 (6th Cir. 1984). See also Pitts v. Gramiak, No.

5:14-CV-43-MTT-CHW, 2014 U.S. Dist. LEXIS 65400 (M.D.

Ga. May 13, 2014); Lynott v. Henderson, 610 F.2d 340 (11th

Cir. 1980); King v. Caruso, 542 F. Supp. 2d 703 (E.D. Mich.

2008). The Overton case didn’t overrule the old cases about

visit restrictions, because most of the old cases also used the

Turner standard, or something like it. But most courts don’t

look very critically at restrictions on visitation.

There are a few exceptions. Prisoners who are subject to

complete bans on visits probably have the best chance of a

successful challenge. In Hallal v. Hopkins, 947 F. Supp. 978

(S.D. Miss. 1995) for example, a prisoner and his wife filed

a pro se lawsuit challenging conditions and policies at the

Madison County Detention Center, including a complete

ban on visits by children under twelve. The court ordered

an evidentiary hearing to decide the factual basis for the

ban, and whether it was justified by security needs. And in

one recent case, Ryerse v. Caruso, No. 1:08-cv-516, 2009

U.S. Dist. LEXIS 82839 (W.D. Mich. July 20, 2009), a

prisoner, his mother and his children sued over a prison

policy that permanently denied him all visits after he was

convicted of smuggling contraband into the prison. The

Court allowed the case to move forward, citing the

Supreme Court’s statement in Overton v. Bazetta that a

permanent ban on all visitation might be unconstitutional.

Courts probably will allow a ban on visitation by minors if

the prisoner's crime involved minors, Morton v. Hall, 455 F.

Supp. 2d 1066 (C.D. Cal. 2006), and courts also allow

transferring a person to a prison far from home or family,

even though this makes visitation very difficult. Olim v.

Wakinekona, 103 S. Ct. 1741 (1983). One court allowed

temporary suspension of visits of minors after a person in

prison had a sexual phone call with his wife when his child

was on the phone (even though the prisoner claimed that

he did not know). Dunn v. Castro, 621 F.3d 1196 (9th Cir.

2010). Also, prisons can require visitors to be pre-

approved and can restrict the type of contact you have

during a contact visit, like how close you can sit and when

you can hug or kiss.

In another case, a person in prison was denied visitation

privileges for two years after a guard claimed he saw the

prisoner put something in his mouth and swallow. Even

though a contraband search turned up nothing and he was

not charged with a disciplinary offense, the court dismissed

his case challenging the visitation ban. Williams v. Ozmint,

716 F.3d 801 (4th Cir. 2013).

Visitation Rights of LGBTQ+ People in Custody

LGBTQ+ people can also bring challenges if they are

subjected to more restrictive visitation policies than other

people in custody. For more background, see Section I Part

1 of this Chapter.

Other Issues

Many courts agree that a blanket policy of strip-searching

prisoners after contact visits is constitutional. Wood v. Hancock

County Sheriff's Dept., 354 F.3d 57 (1st Cir. 2003). See Section

E of this Chapter for more details about strip searches.

A new issue is the use of video visitation systems, which

are now being used in over 500 prisons around the

country. Where this technology is not yet in place, courts

have not found that people in prison have a right to video

23 | CHAPTER 3 – YOUR RIGHTS IN PRISON

visitation. Young v. Scott, No: 2:16-cv-44-FtM-38MRM,

2017 U.S. Dist. LEXIS 135598 (M.D. Fla. Aug. 24, 2017).

The use of video conferencing has also made people worry that

prisons might use it as an excuse to limit in-person visitation.

We expect more cases about this issue in the future.

Some prisons are employing scanning technologies for

prisoners and visitors. Challenges against the use of these

technologies are unlikely to succeed, so long as the devices

are used to achieve a government interest (such as finding

contraband) and are minimally invasive and not used to

harass. In one case, Zboralski v. Sanders, No. 06 C 3772,

2010 U.S. Dist. LEXIS 79362 (N.D. Ill. July 29, 2010), a

visitor sued after receiving a ‘Rapiscan’ backscatter x-ray

radiation device in order to visit her husband. The court

found no Fourth Amendment violation because there was

little intrusiveness and no evidence of harm by the search,

weighed against an interest in screening visitors.

b. Caring for Your Child in Prison

If you have children, being incarcerated almost always

means being separated from them, and this is likely to

impose a substantial burden on your relationship. There

have not been many court cases about your right to care

for your child while you are in prison. In general, states do

not allow incarcerated mothers or fathers to care for their

children, even infants. However, some states have tried to

make parenting in prison easier.

No matter what state you are in, you can take steps to

maintain your relationship with your child. If possible, you

should privately arrange to have someone you know care

for your children and plan visiting times. If a family

member is willing but cannot afford to care for your child,

they may be able to get assistance from the state. If your

child is in foster care, state statutes often require the

foster care agency to actively support your parental

relationship by updating you on your child’s development,

allowing you to participate in planning for your child’s

future and health, and bringing your child to visit (unless

the child lives in another state).

As a prisoner, however, you face the possibility that your

parental rights could be “terminated.” The federal Adoption

and Safe Families Act requires the state to move to

“terminate,” or end, your parental rights if your child has

been in foster care for 15 of the last 22 months. There are

exceptions if the child is being cared for by a relative or

there is a good reason why termination is not in the best

interests of the child. 42 U.S.C. § 675(5)(E).

The Supreme Court held in Santosky v. Kramer, 455 U.S. 745

(1982), that in order to terminate your parental rights, the

state must show that you are an unfit parent by “clear and

convincing evidence.” What it means to be an unfit parent

varies from state to state, so you should check your state’s

statutes. Many states have held that the fact that you are in

prison does not necessarily make you unfit. An example of

some of these cases are: In re R.I.S., 614 Pa. 275 (Pa. 2011);

In re Interest of Josiah T., 17 Neb. App. 919 (Neb. 2009); B.C.

v. Florida Dept. of Children & Families, 887 So.2d 1046 (Fla.

2004); In re Parental Rights of J.L.N., 118 Nev. 621 (Nev.

2002). However, states don’t like long term foster care, so if

your sentence is long (more than 5 years) you may be in

danger of having your parental rights terminated unless you

can find a private placement for your child.

You may want to write to the judge to request to be present

at any court hearings regarding your child’s care, including

foster care status hearings and parental termination

proceedings. Although in Lassiter v. Department of Social

Services of Durham County North Carolina, 453 U.S. 927

(1981) the Supreme Court said there is no constitutional

right to a lawyer at parental termination proceedings, most

states do guarantee a lawyer, so you should request one.

The American Bar Association maintains a list of right to

counsel statutes. For some examples, you can read Texas

Family Code Annotated § 107.013(a)(1); Arkansas Code

Annotated § 9-27- 316(h)(1) (Supp. 2003); and In re B., 285

N.E.2d 288 (N.Y. 1972).

To protect your parental rights, you should participate in

planning for your child as much as possible, contact your

child’s caseworker frequently if your child is in foster care,

make efforts to arrange visiting times, and keep a detailed

record of all visits, phone calls, and letters between you

and your child or related to your child’s care.

You should also participate in any parenting classes or

treatment programs at your facility that will help show that

you will be able to be a good parent when you get out,

especially if they are suggested by your child’s caseworker.

When you go to court, you can emphasize this participation

to try to get the court to look beyond your crime.

Your Right to Practice Your

Religion

The Basics: You have the right to practice your

religion if it doesn’t interfere with prison security.

Your freedom of religion is protected by the First and

Fourteenth Amendments of the U.S. Constitution and by

several federal statutes. There are five ways you can

challenge a restriction on your religious freedom: the Free

Exercise Clause and the Establishment Clause of the First

Amendment, the Fourteenth Amendment, the Religious

Freedom Restoration Act (RFRA) and the Religious Land Use

and Institutionalized Persons Act (RLUIPA). They are each

discussed below.

1. Free Exercise Clause

The Rule: Your Freedom to practice your religion

under the free exercise clause can be limited based

on the Turner Standard (described in Section A).

24 | CHAPTER 3 – YOUR RIGHTS IN PRISON

The first way to challenge violations of your right to

religious activity is through the Free Exercise Clause of the

First Amendment. The First Amendment to the United

States Constitution states: “Congress shall make no law

respecting an establishment of religion, or prohibiting the

free exercise thereof…”

The second half of that sentence is known as the Free

Exercise Clause, and it protects your right to practice your

religion.

To make a free exercise claim you must be able to show

the court that your belief is both religious and sincere.

Different courts have different definitions of “religion,” but

they generally agree that your beliefs do not have to be

associated with a traditional or even an established religion

to be “religious.” Africa v. Commonwealth of Pennsylvania,

662 F.2d 1025 (3d Cir. 1981); Love v. Reed, 216 F.3d 682

(8th Cir. 2000). It is important to understand how “religion”

is defined in your District or Circuit court before bringing

your case.

Courts judge your religious “sincerity” by looking at how

well you know the teachings of your religion and how

closely you follow your religion’s rules. However, you don’t

have to follow every single rule of your religion. And your

belief doesn’t have to be the same as everyone else’s in

your religion. LaFevers v. Saffle, 936 F.2d 1117 (10th Cir.

1991). Courts will usually listen to what a prison chaplain

or clergyperson says about your religious sincerity.

Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997).

If a court determines that your belief is both religious and

sincere, it will next apply the Turner test. This means that

the court will balance your constitutional right to practice

your religion against the prison’s interests in order,

security, and efficiency. Prison officials cannot prohibit you

from practicing your religion without a reason. To win, you

will have to show that a restriction is not “reasonably

related to a penological interest,” under the Turner test

described in Section A. Courts often follow the decisions

of prison officials, but any restriction on the free exercise

of religion is still required to meet the four-part Turner test

before it will be upheld. In O’Lone v. Estate of Shabazz, 482

U.S. 342 (1987), the Court applied the Turner test, and

allowed a prison to limit worship services to specific days

because prisoners were still offered other means of

practicing their religion.

2. Establishment Clause

The first half of the First Amendment sentence quoted

above is called the Establishment Clause, and it means that

the government can’t encourage people to be religious or

choose one religion over another. Different Circuit Courts

currently rely on two different legal tests in deciding

whether a prison action or rule that endorses or supports a

particular religion violates the constitution.

Test #1: The prison rule or practice is OK if it is

designed for a purpose that is not religious, does

not have the main effect of advancing or setting

back any religion and does not encourage excessive

government entanglement with religion.

Test #2: The prison rule or practice is OK if it is

does not force you to support or participate in a

religion.

Under both tests, you must first show that the prison or its

officials acted in a way that endorsed, supported, or

affiliated themselves in some way with a religion.

The first test was developed in Lemon v. Kurtzman, 403 U.S.

602 (1971). This test says that to be valid under the

Constitution, a regulation or action 1) must be designed for a

purpose that is not religious; 2) cannot have a main effect of

advancing or setting back any religion; and 3) cannot

encourage excessive government entanglement with religion.

The second test, developed in Lee v. Weisman, 505 U.S.

577 (1992), can be stated more simply: it prohibits the

government from forcing you to support or participate in

any religion.

> If you think you may have an establishment clause claim,

the first thing you should do is research in your law library

which test your Circuit court follows, and read a few cases

applying that test.

NOTE: It is very rare to win an Establishment Clause

case in prison, so you should probably try one or more

of the other four options in this section along with it.

Ways to Protect Your Religious Freedom

1. The Free Exercise Clause of the First Amendment

protects your right to follow the practices of your

religion, like eating kosher food, covering your hair, or

praying at a certain time;

2 . The Establishment Clause of the First Amendment

keeps the government from encouraging you to follow

a certain religion, or be religious;

3. The Fourteenth Amendment means that the

government can’t discriminate against you or treat you

poorly because of your religion;

4. The Religious Freedom Restoration Act provides added

protection for prisoners in federal custody; and

5. The Religious Land Use and Institutionalized Persons

Act provides additional protection for all prisoners.

For each type of challenge, a court will balance your

constitutional rights against the prisons’ interest in

security and administration.

25 | CHAPTER 3 – YOUR RIGHTS IN PRISON

3. Fourteenth Amendment Protection of

Religion

Another source of protection for religious practice is the

Fourteenth Amendment. It provides all individuals,

including prisoners, with “equal protection under the law.”

This means that a prison cannot make special rules or give

special benefits to members of only one religion or group

of religions without a reason. We talk about the legal

standard to show discrimination in detail in Section C. You

should read that section carefully if you think you might

have a religious discrimination claim.

The prison can treat members of one religion differently if

it has a reason that isn’t about the religion. Benjamin v.

Coughlin, 905 F.2d 571 (2d Cir. 1990). For example, it is

OK for a prison to provide better facilities and services to a

religion with more followers. Cruz v. Beto, 405 U.S. 319

(1972). A prison can have full-time chaplains for religions

with more followers and not for other, less popular

religions. Hartmann v. Cal. Dep't of Corr. and Rehab., 707

F.3d 1114 (9th Cir. 2013).

4. Religious Freedom Restoration Act (RFRA)

and Religious Land Use and Institutionalized

Persons Act (RLUIPA)

In addition to the protections provided by the Constitution,

there are two federal statutes that protect the religious

rights of prisoners: The Religious Freedom Restoration Act

(RFRA) and the Religious Land Use and Institutionalized

Persons Act (RLUIPA).

The Rule: A prison or prison official can only

substantially burden a prisoner’s exercise of religion if

the regulation is in furtherance of a compelling

government interest and the restriction is the least

restrictive means of furthering that compelling interest.

Both the RFRA and RLUIPA provide prisoners with more

protection of religious freedom than the First Amendment.

Specifically, the RFRA states that the government can only

“substantially burden a person’s exercise of religion” if two

conditions are met. First, the government restriction must

be “in furtherance of a compelling governmental interest.”

Second, the government must prove that its restriction is

the “least restrictive means of furthering that compelling

interest.”

This is a much stricter test than the Turner standard

discussed earlier in this chapter. However, the Supreme

Court struck down the RFRA as it applies to state prisoners

in a 1997 case, City of Boerne v. Flores, 521 U.S. 507

(1997). This means that you cannot use the RFRA if you

are a state prisoner.

The Supreme Court did not overrule the RFRA as it applies

to the federal government, and most courts have held that

you can use it to sue federal agencies like the Federal

Bureau of Prisons. If you are a federal prisoner and you

think your right to practice your religion has been violated,

you can write a separate claim in your complaint under the

Religious Freedom Restoration Act.

In 2000, Congress passed the Religious Land Use and

Institutionalized Persons Act (RLUIPA), to deal with the fact

that state prisoners could no longer use the RFRA. The

standard is the same. If a prison cannot show that their

rule passes both parts of this test, a court will find that

they have violated the RLUIPA.

The RLUIPA is different than the RFRA only in that it

applies only to programs or activities that receive money

from the federal government. This financial assistance

gives Congress the right to pass laws that it might not

otherwise be able to pass. In 2005, the U.S. Supreme Court

found RLUIPA constitutional in Cutter v. Wilkinson, 544

U.S. 709 (2005). The Court held that facilities that accept

federal funds cannot deny prisoners the necessary

accommodations to engage in activities for the practice of

their own religious beliefs.

All state correctional systems accept federal funding, so it

is a good idea to bring a claim under RLUIPA if you believe

that your right to exercise your religion has been unfairly

restricted.

NOTE: While you can sue federal officials for money

damages under RFRA, you cannot get money damages

through a RLUIPA claim.

5. Common Issues Related to Religious

Accommodations

The following are brief descriptions of the types of issues

that often come up in cases about prisoners’ right to

religious freedom.

> Religious services and meetings with clergy: You have the

right to meet with a religious leader and to attend religious

services of your faith. You may meet with a clergyperson of

a particular faith even if you weren’t a member of that faith

before entering prison. However, courts have allowed

prisons to restrict your rights based on the prison’s interests

in order, security, and efficiency. The bottom line is that

while you are not entitled to unlimited meetings, you have a

right to a “reasonable opportunity” to attend services or

meet with a religious leader. Courts have upheld

interruptions in religious participation as long as they were

not “substantial.”

> Personal grooming and hygiene: The Supreme Court in

2015 held that a prison policy preventing a Muslim prisoner

from growing a half-inch beard in accordance with his beliefs

violated RLUIPA. Holt v. Hobbs, 135 S. Ct. 853 (2015). A

short beard could not reasonably be used to hide

contraband. Some courts have since gone further than Holt

to allow four-inch facial hair. Ali v. Stephens, 822 F.3d 776

(5th Cir. 2016). But courts have also accepted limits on hair

growth. The Eleventh Circuit upheld a policy preventing

people in prison following Native American religion from

keeping hair long and unshorn. The court found that a short-

hair policy was the least-restrictive means of keeping costs

26 | CHAPTER 3 – YOUR RIGHTS IN PRISON

and risks down, including identification and contraband.

Knight v. Thompson, 797 F.3d 934 (11th Cir. 2015). Usually a

prison will say that its grooming policies serve interests in

health and prisoner identification. However, if there is an

alternative way to maintain those security concerns, some

courts have found that the regulation might infringe on the

prisoner’s religious practice. Benjamin v. Coughlin, 905 F.2d

571 (2d Cir. 1990); Smith v. Ozmint, 578 F.3d 246 (4th Cir.

2009).

> Headwear: Prior to the passage of RLUIPA, which

provides more protection than the First Amendment,

courts generally accepted prison regulations restricting

religious headwear in common areas. Standing Deer v.

Carlson, 831 F.2d 1525 (9th Cir. 1987). However, under

RLUIPA courts have upheld the right to wear religious

headwear such as kufi despite prison objections based on

contraband or costs. Ali v. Stephens, 822 F.3d 776 (5th Cir.

2016). You may challenge a headwear accommodation if it

is not enforced equally against all religions. Wilson v.

Moore, 270 F. Supp. 2d 1328 (N.D. Fla. 2003).

> Special diets: Special religious diets often raise issues of

cost, and sometimes also raise questions related to the

Establishment Clause, which prohibits endorsement of one

religion above others. Prisons cannot make prisoners

choose between religious practice and adequate nutrition.

Nelson v. Miller, 570 F.3d 868 (9th Cir. 2009). Courts have

often required prisons to accommodate prisoners’ religious

diets, but usually allow them to do so in a way that is least

costly or difficult for them. Ashelman v. Wawrzaszek, 111

F.3d 674 (9th Cir. 1997); Beerheide v. Suthers, 286 F.3d

1179 (10th Cir. 2002); Abdulhaseeb v. Calbone, 600 F.3d

1301, 1320 (10th Cir. 2010); Makin v. Colorado Dept. of

Corrections, 183 F.3d 1205 (10th Cir. 1999). One court

allowed a case to proceed on whether Native American

prisoners had a right to buffalo meat and other traditional

foods for a once-a-year powwow. Haight v. Thompson, 763

F.3d 554 (6th Cir. 2014). If there is an alternative way for a

prisoner to exercise his dietary beliefs, like by choosing

vegetarian options, courts will usually not find a violation.

Williams v. Morton, 343 F.3d 212 (3d Cir. 2003). One court

upheld the right not to drink water during religious fasting,

in the case of a Muslim prisoner who was fasting during

Ramadan but was punished for refusing a urine test. The

court held that the prison had to move the urine test to

non-fasting hours. Holland v. Goord, 758 F.3d 215 (2d Cir.

2014).

> Name changes: People who convert in prison may want

to change their name. Prisoners have a First Amendment

right to change their names for religious reasons, but

prisons may require them to use both their old and new

names. In Hakim v. Hicks, 223 F.3d 1244 (11th Cir. 2000),

for example, a court decided that a prisoner’s rights had

not been violated when his religious name was placed on

the back of his identification card. Other cases like this are

Ali v. Dixon, 912 F.2d 86 (4th Cir. 1990) and Imam Ali

Abdullah v. Cannery, 634 F.2d 339 (6th Cir. 1980). The

procedure for getting a name change is usually controlled

by state law, rather than the Constitution. More

information about name changes is available in Section 1

of this chapter, on the rights of LGBTQ+ prisoners.

Courts have addressed many other issues related to

religion. In Native American Council of Tribes v. Weber, 750

F.3d 742 (8th Cir. 2014), a court held that a blanket ban on

tobacco use violated the rights of Native American

religious practitioners to use tobacco in ceremonies. In

Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999), a court

held that the prison could ban a piece of religious mail

because it had the potential to produce violence by

advocating racial or religious hatred. In Shaffer v. Saffle,

148 F.3d 1180 (10th Cir. 1998), the court decided that a

law requiring DNA sampling did not violate a prisoner’s

religious rights because it applied to all prisoners. The right

to possess religious objects is discussed in Morrison v.

Garraghty, 239 F.3d 648 (4th Cir. 2001). Some objects can

be prohibited based on interests of safety, security, and

discipline, such as in McFaul v. Valenzuela, 684 F.3d 564

(5th Cir. 2012) where a court allowed a prison to ban neo-

Pagan medallions.

Your Right to be Free from

Discrimination

The Rule: Any claim for discrimination must show

that the regulation has both a discriminatory effect and

intent. If there is discriminatory effect and intent, the

court will use strict, intermediate, or rational-basis

scrutiny to decide if the practice is constitutional.

Which test it uses depends on whether you are

complaining about race, religion, gender or some other

form of discrimination.

What this means in practice is that prison officials

cannot treat you differently because of your race,

religion, ethnicity or gender and the prison can’t

segregate prisoners by race, ethnicity or religion except

in very limited circumstances. However, proving

discrimination is hard.

The Fourteenth Amendment to the Constitution guarantees

everyone “equal protection of the law.” Equal protection

means that a prison cannot treat some prisoners differently

than it treats others without a reason. How good of a reason

the prison needs varies depending on what kind of

discrimination is at issue. The courts are much more critical

of laws that discriminate against people based on “suspect

classifications.” The most important suspect classification is

race. For that reason, courts are very strict in reviewing laws

that treat people of one race differently than another. Such

laws are subjected to a type of review called “strict scrutiny”

and are frequently struck down.

Other suspect classifications include ethnicity and religion.

Suspect classifications target groups that are (1) a “discrete

27 | CHAPTER 3 – YOUR RIGHTS IN PRISON

or insular minority,” (2) have a trait they cannot change,

also called an “immutable trait,” (3) have been historically

discriminated against, and (4) cannot protect themselves

through the political process. The Supreme Court

discussed each of these factors in a case called City of

Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). In

that case, the Supreme Court decided that people with

developmental disabilities are not entitled to suspect

classification status.

The Supreme Court has applied an intermediate level of

scrutiny to groups who need more protection than usual,

but not quite as much as the most suspect classifications.

Some courts refer to such groups as “quasi-suspect.” Sex

and/or gender is a “quasi-suspect” classification. Quasi-

suspect classifications are subject to an intermediate level

of scrutiny that is sometimes called “heightened scrutiny.”

Some lower courts have found that discrimination against

LGBTQ+ status is also subject to heightened or

intermediate scrutiny, but the Supreme Court has not yet

weighed in. For more discussion about the equal

protection rights of LGBTQ+ people, visit Section I Part 1.

LEVEL OF

SCRUTINY

GOVERNMENT

INTEREST OR

OBJECTIVE

RELATION TO

GOVERNMENT

INTEREST

STRICT

SCRUTINY

(racial

discrimination)

Compelling

Narrowly

tailored

HEIGHTENED/

INTERMEDIATE

SCRUTINY (sex,

gender and, in

some circuits,

LGBTQ+ status)

Important

Substantially

RATIONAL

BASIS (other)

Legitimate

Rationally

1. Freedom from Racial Discrimination

Racial discrimination and racial segregation by prison

authorities are unconstitutional under the Equal Protection

Clause of the Fourteenth Amendment. Washington v. Lee,

263 F. Supp. 327 (M.D. Ala. 1966). For example, prisons

cannot prevent Black prisoners from subscribing to

magazines and newspapers aimed at a Black audience.

Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968). Nor can

they segregate prisoners by race in their cells. Sockwell v.

Phelps, 20 F.3d 187 (5th Cir. 1994). The Supreme Court

stated that racial segregation in prison cannot be used as a

proxy (a stand-in) for gang membership or violence

without passing “strict scrutiny”—which is defined several

paragraphs below and in the chart on the previous page.

The easiest type of equal protection claim to bring is a

challenge to a policy that is explicitly race based, for

example, if a prison has a written policy of segregating

prisoners by race. It is rare to come across written policies

of that nature these days. More likely, you will be

challenging a policy or practice that doesn’t actually say

anything about race but has the effect of treating Black

prisoners different than white prisoners, for example. For

this type of claim there are two essential points to prove:

(1) the prison rule had the effect of discriminating against

you and (2) discriminatory purpose or intent was at least

part of the reason for the rule. David K. v. Lane, 839 F.2d

1265 (7th Cir. 1988).

The first part is usually easier to prove: in a challenge to an

unwritten segregation policy, for example, you could show

that all the prisoners on your unit are Black. Proving intent

to discriminate is harder, because prison officials will often

come up with various excuses to explain away what looks

like discrimination. You will need to show that you are

being treated differently because of your race. If you have

direct proof of discriminatory intent—like the warden who

decides which unit prisoners go to has made racist

comments—you should include that in your complaint.

However, if you don’t have any direct proof of

discriminatory intent, you can argue that discrimination is

the only possible reason for the treatment you are

experiencing. For example, a federal court in Alabama

decided that the Constitution had been violated because it

could not find any non-discriminatory reason for the fact

that Black people consistently made up a greater

proportion of those detained in Alabama’s segregation unit

than those detained in Alabama’s prisons generally. McCray

v. Bennett, 467 F. Supp. 187 (M.D. Ala. 1978).

However, proving a case like this is not easy, and will

probably require expert witnesses and statistical analysis.

One great example is Santiago v. Miles, 774 F. Supp. 775

(W.D.N.Y. 1991). In that case, the prisoners showed

through statistical data that the prison was made up of

mostly Black and Latino men, but white prisoners received

better housing and job assignments and had better

disciplinary hearing outcomes for similar infractions. The

Court decided that discriminatory intent was the only

possible explanation for what was going on in the prison.

On the other hand, in Betts v. McCaughtry, 827 F. Supp.

1400 (W.D. Wisc. 1993) a different court held that prison

officials did not violate the Constitution when they

censored certain cassettes, most of which were Black

musicians, because there was not enough evidence that

they intended to discriminate against Black people.

Even if you successfully prove discriminatory effect and

intent, courts may allow racial segregation or

discrimination if prison officials can show that it passes

“strict scrutiny.” Strict scrutiny is another two-step process

where the prison officials will have to show that the

segregation or discrimination is being done to advance a

“compelling government interest” and the way the prison is

achieving that interest is “narrowly tailored.” Johnson v.

California, 543 U.S. 499 (2005). This means that the prison

must have a very good reason for the rule and the rule

must directly fix the problem that the rule is designed to

solve.

Johnson is an important case to read if you are considering

a segregation claim. In Johnson, the Supreme Court

28 | CHAPTER 3 – YOUR RIGHTS IN PRISON

considered a California policy that segregated prisoners by

race for the first 60 days of any transfer. The Court

decided in Johnson that the prison’s concern about gang

violence was a compelling government interest. (Courts

often find “gang violence” to be a very good reason for

rules.) However, the Court said that California’s rule did

not address the problem of gangs and violence in a way

that was narrowly tailored because segregating prisoners

without looking at their disciplinary history or gang

connections affected all prisoners, not just those who were

in gangs or who were violent. The Court stated the prison

should have made a case-by-case decision about who to

segregate. The Court also said that not all gang violence

happens because people of different races are housed

together, so the rule was not narrowly tailored.

NOTE: The California policy in Johnson is one of the

rare policies described earlier that is explicitly based on

race.

A vague fear of racial violence is not a sufficient

justification for a broad policy of racial segregation. For

example, in Sockwell v. Phelps, 20 F.3d 187 (5th Cir. 1994),

the court did not accept the argument that there might be

an increase in violence if people of different races shared

two-person cells, since the rest of the prison was

integrated. Another court allowed an equal protection

claim to go forward where all Black prisoners were

segregated and kept in lockdown in response to violence

that only involved a few Black prisoners. Richardson v.

Runnels, 594 F.3d 666 (9th Cir. 2010). However, some

courts have held that a brief period of racial segregation,

like during a lockdown or another emergency where the

safety of members of one racial group is an issue, is OK.

Fischer v. Ellegood, 238 Fed. Appx. 428 (11th Cir. 2007).

Most courts have held that racial epithets or other racially

based verbal abuse do not violate the Constitution.

2. Freedom from Sex and Gender

Discrimination

The Rule: Policies or practices that treat people

differently based on their sex, gender, and in some

circuits, LGBTQ+ status, must be substantially related

to important governmental interests.

The Equal Protection Clause of the Fourteenth

Amendment also prohibits discrimination based on sex and

gender. Men and women are protected under the rule, and

so are LGBTQ+ people according to a growing number of

courts.

To prevail on a claim, you will have to show that you were

treated differently than others on account of your sex,

gender, or LGBTQ status for reasons that were not

“substantially related to a sufficiently important

government interest.” City of Cleburne, Tex. v. Cleburne

Living Ctr., 473 U.S. 432, 441 (1985). This is “heightened

scrutiny” as described above.

a. The “Similarly Situated” Requirement

To make an equal protection claim, you must first show

that the people you wish to compare are “similarly

situated” for the purposes of the claim you are bringing.

“Similarly situated” means that there are no differences

between two people that could explain the different

treatment they receive.

While it is unconstitutional to treat people who are in the

same situation differently, it is acceptable to treat people

in different situations differently. Courts will look at

several factors to decide whether people are “similarly

situated,” including number of people in prison, average

sentence, security classification, and special characteristics

such as violent tendencies or experiences of abuse. In

Victory v. Berks County, 2019 WL 211568 (E. D. Pa. Jan. 15,

2019), the court found the female “trusty” prisoner

similarly situated to male “trusty” prisoners, because Berks

County applied a risk-management equation to all

prisoners, men and women, to determine who should get

“trusty” status.

Unfortunately, courts very often decide on the basis of

these factors that male and female prisoners are not

similarly situated. Mathis v. Monza, 530 Fed. Appx. 124 (3d

Cir. 2013); Keegan v. Smith, 100 F.3d 644 (8th Cir. 1996);

Klinger v. Dept. of Corrections, 31 F.3d 727 (8th Cir. 1994).

And as Section I, Part 2 explains, LGBTQ people making

“similarly situated” arguments face their own unique

challenges.

b. Proving Discriminatory Intent

If you successfully show that you were treated differently

than “similarly situated” people, next you must show that

prison officials treated you differently based on your sex,

gender, or LGBTQ status, and not for a different, legitimate

reason. Courts will use a different test for this depending

on whether the action you are challenging is “gender-

based” or “gender-neutral.” These two terms are explained

below.

Gender-based classifications: Policies and actions are

“gender-based” if prison officials make clear that different

standards apply based on your sex, gender, or LGBTQ

status. For example, a policy that says all women will be

sent to childcare training and all men will be sent to

vocational training is “gender-based.” Judges look very

carefully at gender-based rules. The government must

show the distinctions being drawn are “substantially

related to important governmental objectives.” Mississippi

University for Women v. Hogan, 458 U.S. 718, 724 (1982);

Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990). This

is known as “heightened” or “intermediate” scrutiny.

Heightened scrutiny also applies to actions by corrections

officers that single you out based on sex/gender.

NOTE: This is a less strict standard than “strict scrutiny”

which is used for racial discrimination, described in Part

1 of this Section.

29 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Gender-neutral classifications: A “gender-neutral” policy

or practice is one that does not actually say anything about

gender, but still has the effect of discriminating against

people. One example is a prison system that has a rule that

only prisons with 2,000 prisoners or more get college

programs, where women’s prisons are too small to qualify.

If the action challenged is “gender-neutral” then the courts

use a less strict standard of review. The court asks whether

the rule is “rationally related to legitimate government

interests,” or whether, instead, it shows an intent to

discriminate on the basis of gender. Jackson v. Thornburgh,

907 F.2d 194 (D.C. Cir. 1990).

There are two important considerations to keep in mind

about these tests:

1. Any type of government interest—whether it’s

“important” or “legitimate”—cannot be based on

stereotypes or outdated ideas about gender. Pitts v.

Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989). For example,

the court will not accept a government interest of

protecting one gender because it is “inherently weaker”

than the other gender. Glover v. Johnson, 478 F. Supp 1075

(E.D. Mich. 1979).

Men in prison can also bring claims based on gender

stereotypes. For example, Sassman v. Brown, 99 F. Supp. 3d

1223 (E.D. Ca. 2015) involved a California alternatives-to-

incarceration program that was open to all women, but

only open to men who are the primary caregivers of

dependent children. A male prisoner sued, claiming that

the program violated his right to equal protection. The

court found the rule unconstitutional and made the

program open to men and women equally.

2. It is not always obvious whether a prison’s action is

gender-based or gender-neutral, and courts disagree on

how to read regulations or policies. Often, there will be

two regulations at play. The first regulation assigns people

to specific prisons on the basis of their sex or gender.

Outside of the context of placement of transgender

prisoners (discussed in Section I, Part 2), courts have rarely

held that this kind of segregation is discrimination. The

second regulation assigns certain programs or facilities to

prisons on the basis of such factors as size, security level,

or average length of prisoner sentence. These second

types of regulations do not appear to be gender-based;

they seem to be based on characteristics of the prisons

alone. However, they often result in different treatment of

people in prison based on gender.

Some courts have been reluctant to find that prison rules

are gender-based when they do not explicitly distinguish

between men, women, or LGBTQ+ people when it comes

to how the prison facility is run. Klinger v. Dept. of

Corrections, 31 F.3d 727 (8th Cir. 1994); Jackson v.

Thornburgh, 907 F.2d 194 (D.C. Cir. 1990). Other courts,

however, have read the requirement more favorably to

prisoners. They see that, in reality, gender-neutral

regulations about programming interact with gender-based

assignment of prisoners to specific prisons, which makes

the regulations gender based. (“Programming” means the

kinds of activities that prisoners are allowed or required to

engage in, such as work, education, etc.) One example of

this is Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989).

3. Freedom from Other Forms of

Discrimination

If you believe you are being unfairly singled out for

mistreatment, but it is not based on your race, ethnicity,

gender, or some other suspect or quasi-suspect factor, you

can still make an equal protection claim. However, that

claim will be very hard to win. For example, in Graziano v.

Pataki, 689 F.3d 110, 117 (2d Cir. 2012) a court said

treating "violent offenders" differently from other

offenders did not violate equal protection.

To win your case, you will need to show that you are being

treated differently than other prisoners and that your

treatment is not rationally related to a legitimate

governmental purpose. One area where people in prison

have had some success is when people are treated

differently based on sexual orientation. A good example of

a successful case is Doe v. Sparks, 73 F. Supp. 227 (W.D.

Pa. 1990). In that case, the court held that it was irrational

for a prison to ban same-sex boyfriends and girlfriends

from non-contact prison visits. In another case, Davis v.

Prison Health Services, 679 F.3d 433 (6th Cir. 2012), an

appeals court allowed a case about a prisoner who was

removed from a work program due to his sexual

orientation.

On the other hand, in Vega v. Lareau, No. 9:04-cv-00750-

GTS-ATB, 2010 U.S. Dist. LEXIS 66431 (N.D.N.Y. Mar. 16,

2010), a prisoner said he was harassed and discriminated

against because a guard thought he was gay. The court

held that the prisoner failed to prove the mistreatment

happened because the guard thought he was gay. Instead,

the court believed the guard, who claimed he thought the

prisoner was involved in a romantic relationship with

another prisoner, and that created a security concern.

Your Procedural Due Process

Rights Regarding Punishment,

Administrative Transfers, and

Segregation

The Rule: If the prison subjects you to treatment or

conditions that are an atypical and significant hardship

in relation to the ordinary incidents of prison life, they

must provide you with some level of process.

What this means in practice is you can only challenge a

transfer or punishment in prison if it is extremely and

unusually harsh, or if it is done to get back at you for

something you have the right to do.

30 | CHAPTER 3 – YOUR RIGHTS IN PRISON

The Due Process Clause of the Fourteenth Amendment

prohibits a state from depriving “any person of life, liberty

or property without due process of law.” There are two

parts to this clause: “substantive due process” and

“procedural due process.” This section deals only with

procedural due process.

Your right to procedural due process means that the prison

must provide you with some amount of protection (like a

hearing or a notice) if the prison does something that

harms your life, liberty, or property. Discipline, placement

in segregation, transfers to extremely restrictive prisons,

and loss of good time credit are all things that the prison

can do to you that might violate due process if they are

done without procedural protections, like a hearing.

Procedural due process has two parts: first you have to

show that you have been deprived of a liberty interest and

second, you have to show that you should have gotten

more procedure than you received.

You only have a liberty interest if the prison’s actions

interfere with or violate your constitutionally protected

rights, such as First Amendment rights, or if the prison

treats you in a way that is much worse than is normal for

prisoners. If a court finds that you don’t have a liberty

interest, then the prison doesn’t have to provide you with

any process at all.

1. Due Process Rights of People in Prison

Two important Supreme Court cases govern due process

rights for prisoners:

> In the first case, Wolff v. McDonnell, 418 U.S. 539 (1974),

the Supreme Court found that when prisoners lose good

time credits because of a disciplinary offense, they are

entitled to: (1) written notice of the disciplinary violation;

(2) the right to call witnesses at their hearing; (3) assistance

in preparing for the hearing; (4) a written statement of the

reasons for being found guilty; and (5) a fair and impartial

decision-maker in the hearing.

> The second important Supreme Court case, Sandin v.

Conner, 515 U.S. 472 (1995), sharply limits the decision of

Wolff, so due process protection only applies to discipline

that makes a prisoner’s time in prison longer (like by taking

away his good time credits) or treatment that leads to an

“atypical and significant hardship on the prisoner in

relation to the ordinary incidents of prison life.” In Sandin,

a prisoner was placed in disciplinary segregation for 30

days. The Supreme Court found that the prisoner had no

liberty interest, because 30 days in disciplinary segregation

is not an unusual or harsh punishment. “Significant

hardship” means that treatment must be really awful, not

just uncomfortable or annoying.

Beware!

You cannot bring a procedural due process challenge to

a disciplinary proceeding that took away good time, or

otherwise lengthened your time in prison, unless you

first exhaust your administrative remedies, and, for

state or local prisoners, also exhaust state judicial

remedies. If you are unsuccessful, you can then file a

petition for a writ of habeas corpus in federal court.

This important but confusing concept comes from a

Supreme Court case called Edwards v. Balisok, 520 U.S.

641 (1997). In Edwards, a person in prison challenged

the conduct of his hearing examiner, stating that the

examiner hid evidence that would have helped him and

didn’t question witnesses adequately. At the hearing,

the prisoner was sentenced to time in solitary and loss

of good time credits. The Court held that, if what the

prisoner said was true, it would mean that the result of

his disciplinary hearing would have to be reversed and

his good time credits would have to be given back to

him. This would affect the length of his confinement,

and a challenge like that can only be brought if the

prisoner can show that their disciplinary conviction has

already been overturned in a state proceeding.

If you are challenging a disciplinary decision that does

not affect the length of your confinement, or just

seeking fairer procedures in the future, you should not

be affected by the Edwards decision. Read Muhammad

v. Close, 540 U.S. 749 (2004) and Wilkinson v. Dotson,

544 U.S. 74 (2005), for more on this issue.

If you want to argue that your rights were violated in a

prison disciplinary proceeding because you did not receive

the procedures laid out in Wolff, you must first show that

the punishment you received either prolonged your

sentence (for example, it took away good time credits) or

was extremely harsh. Frequently, short periods of

disciplinary confinement, “keeplock,” or loss of privileges

will not be considered harsh enough to create a liberty

interest. For example, in Key v. McKinney, 176 F.3d 1083

(8th Cr. 1999), the court found that 24 hours in shackles

was not severe enough to violate due process.

Different circuit courts have taken very different

approaches to the question of whether prolonged

placement in disciplinary or administrative segregation is

atypical and significant. In the Second Circuit, more than

188 days in solitary confinement is severe enough to

create a liberty interest. J.S. v. T'Kach, 714 F.3d 99 (2d Cir.

2013). In contrast, in Griffin v. Vaugn, 112 F.3d 703 (3d Cir.

1997), the Third Circuit held that 15 months in

administrative segregation is not atypical and significant.

While courts in different circuits have very different

interpretations, there does seem to be a recent trend that

compares the segregation sentence in question to a

“typical” stay in administrative or disciplinary segregation.

If you can show that you have been sent to segregation for

longer than is typical, you may be able to succeed in your

claim. This is hard to do because courts rarely cite any

31 | CHAPTER 3 – YOUR RIGHTS IN PRISON

evidence about what is typical. One of the authors of this

handbook wrote a law review article that you may find

useful to cite on this issue, because it provides evidence

about “typical” stays in segregation in the federal prison

system and in various state systems. If you are put in

segregation for longer than a year you may want to try

citing this article for evidence that your sentence in

segregation is longer than typical, and you should be

entitled to due process protections: Rachel Meeropol,

Communication Management Units: The Role of Duration

and Selectivity in the Sandin v. Conner Liberty Interest Test,

1 U.C.L.A. Crim. Just. L. Rev. 35, 49-51 (2017). The

following text box lists average stays in segregation in

different jurisdictions, from the article, and from a study

done by Yale Law School called: “Time-In-Cell: The ASCA-

Liman 2014 National Survey of Administrative Segregation

in Prison.”

Average Time in Segregation

In the BOP, the typical stay in segregation is 3.98

weeks. Only 7.85% of people in BOP custody spend

more than 20 weeks in segregation in an 18-month

period.

In Alaska, Arkansas, D.C., Iowa, Kentucky,

Massachusetts, Missouri, Montana, North Carolina,

Pennsylvania, and South Carolina, the majority of

people put in segregation were held there less than 90

days.

Less than 10% of prisoners put in segregation in Alaska,

Colorado, D.C., Iowa, Kentucky, Massachusetts,

Missouri, Montana, and North Carolina were held there

for more than a year.

Length of time in segregation is not the only thing that

matters, the severity of the conditions matters a lot too.

For example, in Palmer v. Richards, 364 F.3d 60 (2d Cir.

2004), a court held that 77 days under aggravated

conditions could be atypical and significant. Gillis v. Litscher,

468 F.3d 495 (7th Cir. 2006) and Mitchell v. Horn, 318 F.3d

523 (3d Cir. 2003) are other good cases examining short

placement in very bad conditions.

Although Sandin changed the law in important ways, the

Supreme Court did not say it was overruling Wolff. This

means that when you can show that there is a liberty

interest at stake, even though it is much harder to prove

under Sandin, the rights guaranteed by Wolff still apply. In

other words, if a decision by prison officials results in

conditions that are severe enough to meet the “significant

and atypical” standard, or prolongs your time in prison, the

prison must give you procedures like a hearing and a

chance to present evidence.

Courts have found violations in a person’s due process

rights when people in prison are disciplined without the

chance to get witness testimony, have a hearing, or

present evidence. Courts have also found due process

violations when punishment is based on vague claims of

gang affiliation. Some cases in which these types of claims

were successfully made are: Ayers v. Ryan, 152 F.3d 77 (2d

Cir. 1998); Taylor v. Rodriguez, 238 F.3d 188 (2d Cir. 2001);

and Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir.

1999).

2. Transfers and Segregation

If you are transferred to a different facility or to a different

location within a prison, the same standard in Sandin v.

Connor applies: you must show that the transfer resulted in

conditions that were a significant or atypical departure

from the ordinary incidents of prison life. Given the fact

that the new prison will likely be similar to prisons

everywhere, it is very hard to win on such a claim. In

Meachum v. Fano, 427 U.S. 215 (1976) the Supreme Court

decided that a transfer from a medium security prison to a

maximum-security prison did not create a liberty interest.

Similarly, in Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997), a

court said that transfer from a minimum-security facility to

a maximum-security facility did not create a liberty

interest.

However, you may have a case if you are transferred to a

super-maximum security facility where conditions are way

harsher than most prisons, or to a Communication

Management Unit (CMU) where contact with family and

the outside world is very limited. The Supreme Court

considered transfer to a Supermax in Wilkinson v. Austin,

545 U.S. 209 (2005). The conditions were so harsh at the

Supermax (almost no human contact, 24-hour lighting, no

outside recreation, etc), that the Court found a liberty

interest.

Despite Wilkinson, in a case called Rezaq v. Nalley, 677

F.3d 1001 (10th Cir. 2012), the Tenth Circuit said that

there was no atypical and significant hardship in being

transferred to the federal supermax prison, “ADX,” in

Colorado. The court based its ruling, in part, on a finding

that it was reasonable to put the prisoner who brought the

case in ADX. We think this is an improper way to decide

the issue and fails to follow what the Supreme Court has

said. Hopefully that case will be overruled in the future. If

it is not, prisoners in the 10th Circuit should know that

they will have a particularly hard time bringing a due

process claim about segregation.

If you are transferred to an unusual unit, or are subject to

strange restrictions, an important due process case to read

is Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016). That case

involved prisoners challenging their placement in a

“Communications Management Unit” where prisoners

were segregated from the general population, received

very few phone calls and were not allowed contact visits.

The court found that conditions in a CMU are not as harsh

as in segregation, but prisoners were held there for years

at a time. The court also thought it was important that very

few prisoners were singled out for placement in the unit.

The court decided that CMU prisoners have a liberty

interest in avoiding the CMU and are entitled to due

process protections when sent there, because of how long

they might be stuck in a CMU, and how unusual it is to be

sent there.

32 | CHAPTER 3 – YOUR RIGHTS IN PRISON

One good state court case you might want to read is

Schuyler v. Roberts, 285 Kan. 677 (2008). In Schuyler, the

Supreme Court of Kansas considered a prisoner’s due

process challenge to his classification as a sex offender

even though he had not been convicted on that charge,

nor had he been disciplined while incarcerated for

inappropriate sexual behavior. Because of the sex offender

status, the prisoner lost work privileges, had to transfer to

another facility, and had to register as a sex offender upon

release. Additionally, he would lose other privileges if he

refused to participate in the program. The court found a

liberty interest.

You may also have a right to procedural protections if you

are transferred out of the prison system entirely. In Vitek v.

Jones, 445 U.S. 480 (1980), the Supreme Court found a

liberty interest when a prisoner was involuntary removed

from the prison to a medical hospital for mandatory mental

health treatment. But there may not be a liberty interest

under Vitek where a transfer to a mental health facility is

temporary and for evaluation. Green v. Dormire, 691 F.3d

917 (8th Cir. 2012).

If a court finds that you have a liberty interest in avoiding

transfer to a more restrictive unit, or to administrative

segregation, or to some other supposedly non-disciplinary

segregated confinement, you will have some due process

rights, but these rights are more limited that what is

required for a disciplinary proceeding. The Supreme Court

has found that, in general, a formal or “adversarial” hearing

is not necessary for putting prisoners in administrative

segregation. All you get is notice and a chance to present

your views informally. This was decided in Hewitt v. Helms,

459 U.S. 460 (1983), the most important case on

administrative segregation. Recently, an appeals court said

that prisoners kept in solitary confinement on death row

after their sentences have been vacated are entitled to

these types of procedures. Williams v. Sec’y Penn. Dep’t of

Corr., 848 F.3d 549 (3d Cir. 2017).

There may be other ways of challenging transfers and

administrative segregation as well. For example, a prison

can’t transfer you to punish you for complaining or to keep

you from filing a lawsuit. Prison officials must not use

transfers or segregation to restrict your access to the

courts. For an example of this type of claim, read Allah v.

Seiverling, 229 F.3d 220 (3d Cir. 2000) and Section G of

this Chapter. And in some states, you can challenge

disciplinary confinement or other kinds of segregation in

state court by showing that the officials failed to follow

their own rules in placing you there.

Your Right to Privacy and to be

Free from Unreasonable Searches

and Seizures

The Rule: Strip searches must be reasonably

related to a legitimate penological interest and not

done in a humiliating manner.

What this means in practice is that prison officials can

search your cell whenever they want but there are

some limits on when and how they can strip search

you.

1. Your Fourth Amendment Rights related to

Searches

The Fourth Amendment forbids the government from

conducting “unreasonable searches and seizures.” Outside

of prison, this means that a police officer or F.B.I. agent

cannot come into your home or search your body without

your consent or a search warrant, unless it is an

emergency. However, the Fourth Amendment only

protects places or things in which you have a “reasonable

expectation of privacy.” In the outside world, this means

that if you have your window shades wide open, you can’t

expect somebody not to look in, so a cop can too.

In Hudson v. Palmer, 468 U.S. 517 (1984), the Supreme

Court held that people in prison don’t have a reasonable

expectation of privacy in their cells, so prison officials can

search cells as a routine matter without any particular

justification, and without having to produce anything like a

search warrant.

This doesn’t mean that all cell searches are OK. If a prison

official searches your cell just to harass you or for some

other reason that is not justified by a penological need, this

may be a Fourth Amendment violation. However, to get a

court to believe that the “purpose” of a search was

harassment, you will need some truly shocking facts. For

example, in Scher v. Engelke, 943 F.2d 921 (8th Cir. 1991), a

prison guard searched a prisoner's cell 10 times in 19 days

and left the cell in disarray after three of these searches.

There is more protection against strip searches. While

people have no expectation of privacy in their prison cells,

they retain a “limited expectation of privacy” in their

bodies. Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (en

banc). In analyzing body cavity searches, strip searches, or

any invasions of bodily privacy, a court will balance the

need for the search against the invasion of privacy the

search involves. Strip searches are generally allowed but

many courts state that the searches must be related to

legitimate penological interests and cannot be excessive or

used to harass, intimidate, or punish. In Jean-Laurent v.

Wilkenson, 540 F. Supp. 2d 501 (S.D.N.Y 2008), for

33 | CHAPTER 3 – YOUR RIGHTS IN PRISON

example, one court stated that a second strip search might

be unconstitutional because the prisoner was under the

constant supervision of guards since the first search. In

another case, a court found that body-cavity searches

three times a day of prisoners in segregation served no

valid penological interest because it was impossible that

prisoners in segregation could smuggle contraband in three

times a day. Parkell v. Danberg, 833 F.3d 313 (3d Cir. 2016).

Prisoners seem to have had the most success when the

searches were conducted by, or in front of, guards of the

opposite gender. For example, in Hayes v. Marriott, 70 F.3d

1144 (10th Cir. 1995), the court held that a body cavity

search of a male prisoner in front of female guards stated a

claim for a Fourth Amendment violation because there was

no security need to do it that way. In Cornwell v. Dahlberg,

963 F.2d 912 (6th Cir. 1992), the court recognized a male

prisoner’s Fourth Amendment claim based on a strip

search done outdoors, in front of several female guards. In

Byrd v. Maricopa Cnty. Sheriff's Dep’t., 629 F.3d 1135 (9th

Cir. 2011) (en banc), an appeals court held that a strip

search of a male prisoner by a female officer violated the

Fourth Amendment where the search involved intimate

contact and ten to fifteen non-participating officers

watched the search, and at least one person videotaped

the search. This rule is not limited to strip searches. Where

a female prisoner had a documented history of sexual

abuse but was forced by male guards to endure pat-down

searches that sometimes included inappropriate touching

and unwarranted sexual advances, an appeals court found

that the circumstances could violate the Fourth

Amendment’s prohibition against unreasonable searches

and its more general guarantee of a right to some measure

of bodily privacy. Colman v. Vasquez, 142 F. Supp. 2d 226

(D. Conn. 2001). In Fortner v. Thomas, 983 F.2d 1024 (11th

Cir. 1993), the court recognized a claim by male prisoners

who were observed by female guards while they showered

and went to the bathroom. In Kent v. Johnson, 821 F.2d

1220 (6th Cir. 1987), an appeals court refused to dismiss a

prisoner’s complaint that stated female prison guards

routinely saw male prisoners naked, showering, and using

the toilet.

Even when the search is not done by or in front of a

person of the opposite gender, however, you may be able

to show a Fourth Amendment violation if there was no

reasonable justification for the invasive search.

Unfortunately, many courts have held that strip searches

after contact visits are constitutional. Additionally, courts

have held strip searches that are accompanied by officer

misconduct (like name calling or other verbal abuse) usually

do not violate the prisoner’s constitutional rights if there is

no physical injury. This may, however, be actionable under

state tort law and should always be reported and

investigated. We discuss this more in Section F, Part 2 of

this chapter. Strip searches involving sexual assault or

inappropriate touching are discussed below.

The law is slightly better for pretrial detainees, so if you

have not been convicted yet, read Section J of this

Chapter, on the rights of pretrial detainees. Special rules

also apply to searches if you are transgender, so be sure to

read Section I, Part 2 of this Chapter.

2. Your Fourteenth Amendment Right to

Medical Privacy

Some courts have found that a constitutional right to

privacy exists under the Fourteenth Amendment when it

comes to sensitive medical information like your mental

health information or HIV status. For instance, In Hunnicutt

v. Armstrong, 152 Fed. App’x 34 (2d. Cir. 2005), an appeals

court found that a plaintiff whose mental health issues

were discussed in front of other prisoners and non-

healthcare staff had adequately alleged a privacy violation.

Collectively, these cases establish that prison staff may not

disclose a prisoner’s HIV status or psychiatric history

without need.

But courts have been reluctant to find privacy violations

where medical information is disclosed to government

officials. Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994)

(allowing HIV disclosure to other corrections officials)

Seaton v. Mayberg, 610 F.3d 530 (9th Cir. 2010) (allowing

disclosure of sensitive health information to state DAs).

Qualified immunity can also make it difficult for you to

seek monetary damages for a privacy breach since the law

on privacy is evolving. You will also need to show that you

were physically hurt in order to recover damages under the

PLRA. This problem is described in Chapter Four, Section

C, Part 2.

The federal HIPAA statute also protects medical records

from improper disclosure, but you cannot sue officials for a

HIPAA breach. Instead, you can cite HIPAA violations as

evidence that your constitutional privacy rights were

violated.

Additional privacy rights that apply to LGBTQ+ people and

people living with HIV/AIDS are discussed in Section I,

below.

Your Right to be Free from Cruel

and Unusual Punishment

The Eighth Amendment forbids “cruel and unusual

punishment” and is probably the most important

amendment for prisoners. It has been interpreted to

prohibit excessive force and guard brutality, as well as

unsanitary, dangerous, or overly restrictive conditions. It is

also the source for your right to medical care in prison.

34 | CHAPTER 3 – YOUR RIGHTS IN PRISON

1. Your Right to Be Free from Physical

Brutality and Sexual Assault by Prison Staff

The Rule: A use of force is excessive and violates

the Eighth Amendment when it is not applied in an

effort to maintain or restore discipline, but is used to

maliciously and sadistically cause harm. Where a prison

official is responsible for unnecessary and wanton

infliction of pain, the Eighth Amendment has been

violated.

What this means in practice is that guards do NOT have

the right to beat you or harm you unless their action is

considered justified given the situation.

a. Use of Excessive Force and Physical Brutality by

Prison Officials

“Excessive force” is any physical contact by a guard that is

meant to cause harm rather than keep order.

“Excessive force” by prison guards is cruel and unusual

punishment. In a very important Supreme Court case called

Hudson v. McMillian, 503 U.S. 1 (1992), the Court found a

violation of the Eighth Amendment when prison officials

punched and kicked a prisoner, leaving him with minor

bruises, swelling of his face and mouth, and loose teeth.

The Court held that a guard’s use of force violates the

Eighth Amendment when it is not applied “in a good faith

effort to maintain or restore discipline,” but instead is used

to “maliciously and sadistically cause harm.” To prevail

under Hudson, a two-part test applies. First you must

show that prison officials “acted with a sufficiently

culpable state of mind” (the subjective element)—i.e., not

for a legitimate penological purpose, but “maliciously and

sadistically for the very purpose of causing harm,” and (2)

the harm caused was more than “de minimis”. “De minimis”

means so trivial it’s not even worth considering.

In applying this test to excessive force claims, judges may

consider:

> The need for force;

> Whether the amount of force used was justified given

the need;

> How serious the need for force appeared to the

guards;

> Whether the guard made efforts to use as little force

as necessary; and

> How badly you were hurt.

This means that to win on an excessive-force claim, you

will have to show that more force was used against you

than was justified given the situation, but you do not have

to show injury. It is usually enough to show some harm,

even if it is relatively minor. In 2010 the Supreme Court

made it clear that a prisoner can win an excessive force

case even if they are not seriously injured. Wilkins v. Gaddy,

559 U.S. 34 (2010). In Wilkins, the Supreme Court

explained that a beating is excessive force, even if it

doesn’t result in injuries that require medical care. De

minimis harm, on the other hand, is something like a push

or a shove that does not inflict pain or injury.

The most important thing to prove is “whether force was

applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.”

This is about the “state of mind” of prison officials.

“Maliciously and sadistically” means harm that is cruel,

done for the purpose of hurting someone, and is uncalled-

for. You can meet this requirement by showing that the

force used was not a necessary or reasonable part of

keeping order.

For example, one court found an Eighth Amendment

violation when an officer repeatedly hit a prisoner even

though the prisoner had immediately obeyed an order to

lie face down on the floor and was already being restrained

by four other officers. Estate of Davis by Ostenfeld v. Delo,

115 F.3d 1388 (8th Cir. 1997). In another successful case,

the prisoner was handcuffed and hit several times in the

head and shoulders while in a kneeling position. Brown v.

Lippard, 472 F.3d 384 (5th Cir. 2006). On the other hand,

the Ninth Circuit held that there was no Eighth

Amendment violation when a prisoner was shot in the

neck during a major prison disturbance because the court

found that the officer was trying to restore order. Jeffers v.

Gomez, 267 F.3d 895 (9th Cir. 2001). The Eighth Circuit

said pepper spraying a prisoner’s genitals was not

excessive force when the prison said he was refusing

orders to submit to wrist restraints and being unruly. Ward

v. Smith, 844 F.3d 717 (8th Cir. 2016).

With mechanical restraints, you might be able to bring an

“excessive force” claim even if the prison says the

treatment is just a “condition of confinement” (which is a

separate category and discussed below). For example, in

Young v. Martin, 801 F.3d 172 (3d Cir. 2015), an appeals

court applied the excessive-force test when a prisoner was

forced into a restraint chair and remained naked there for

fourteen hours.

Unfortunately, many courts have found that prison officials

who only make verbal threats of physical harm do not violate

the Eighth Amendment. See Walton v. Terry, 38 F. App'x 363,

364–65 (9th Cir. 2002) (“verbal threats do not constitute cruel

and unusual punishment.”); Turner v. Mull, 784 F.3d 485, 492

(8th Cir. 2015) (threatening to drown plaintiff without taking

further action was not unconstitutional). But in Lisle v.

Welborn, 933 F.3d 705, 710 (7th Cir. 2019), the Seventh

Circuit found that a plaintiff who was taunted for his failed

suicide attempts and encouraged to try again had a valid

Eighth Amendment claim.

NOTE: As with many of the other types of claims

described in this Handbook, please remember that a

constitutional claim in federal court is not your only

option. In a guard brutality case, it may be simpler to

bring a “tort” case in state court.

35 | CHAPTER 3 – YOUR RIGHTS IN PRISON

b. Sexual Assault and Abuse by Prison Officials

Rape and sexual assault by prison staff also violates the

Eighth Amendment. See Schwenk v. Hartford, 204 F.3d

1187, 1197 (9th Cir. 2000) (sexual assaults by guards

violate the Eighth Amendment “regardless of the gender of

the guard or of the prisoner”); Smith v. Cochran, 339 F.3d

1205 (10th Cir. 2003) (assault by prison work program

supervisor violates the Eighth Amendment).

For sexual assault by prison officials, the two-part test

from Hudson v. McMillian, 503 U.S. 1 (1992) applies.

However, this test can be easier to meet here because

sexual assault is very harmful and violates contemporary

standards of decency without a legitimate penological

purpose, even in cases where there is no physical injury.

See Wilkins v. Gaddy, 559 U.S. 34, 40 (2010) (explaining

claims can proceed even if physical injury is “de minimis”).

Sexual abuse that falls short of rape can violate the Eighth

Amendment as well. Some courts like the Second and

Eleventh Circuits require the sexual abuse to be “severe or

repetitive” in order for plaintiffs to prevail. See Sconiers v.

Lockhart, 946 F.3d 1256, 1266–67 (11th Cir. 2020),

Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). But one

severe, isolated incident can meet this standard.

In Daskalea v. District of Columbia, 227 F.3d 433 (D.C. Cir.

2000), a court of appeals upheld a prisoner’s Eighth

Amendment claim where she was forced to do a striptease

in front of all the prisoners and officers at her facility. The

court found deliberate indifference based on the plaintiff’s

repeated filing of grievance claims and letters to officials

seeking help, as well as the widespread and ongoing

pattern of harassment and sexual assault at the facility.

The District argued that it was not deliberately indifferent

because it had a policy in place prohibiting such behavior,

but the court rejected this argument because it found that

no prisoner had ever received a copy of the policy, only a

few employees remembered receiving it, and it had never

been posted anywhere in the facility.

A pat or strip search can violate the Eighth Amendment

too if conducted in a sexual manner to humiliate a prisoner

(Fourth Amendment claims for searches are discussed in

Section E above). One good case to read for this issue is

Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). That case

involved a guard searching a prisoner by grabbing his

genitals and taunting him. The Second Circuit said that

intentionally touching genitalia or intimate areas for the

officer’s pleasure or to humiliate the prisoner violates the

Eighth Amendment. Another is Sconiers v. Lockhart, 946

F.3d 1256, 1266–67 (11th Cir. 2020), where an appeals

court found that a guard who shoved his finger into the

plaintiff’s anus outside the context of an approved body-

cavity search violated the Eighth Amendment.

But in Berryhill v. Schriro, 137 F.3d 1073 (8th Cir. 1998), a

court rejected the Eighth Amendment claim of a plaintiff

who was briefly touched on the buttocks by prison staff in

an attempt to embarrass him, without any accompanying

sexual advances.

You can bring a claim for commission of a sexual act under

the PLRA even if it does not result in physical injury. For

purposes of this exception, 18 U.S.C. § 2246 defines a

sexual act as follows:

A. contact between the penis and the vulva or the penis

and the anus, and…contact involving the penis occurs

upon penetration, however slight;

B. contact between the mouth and the penis, the mouth

and the vulva, or the mouth and the anus;

C. the penetration, however slight, of the anal or genital

opening of another by a hand or finger or by any object,

with an intent to abuse, humiliate, harass, degrade, or

arouse or gratify the sexual desire of any person; or

D. the intentional touching, not through the clothing, of

the genitalia of another person who has not attained the

age of 16 years with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify the sexual desire of any

person.

For more on the PLRA’s physical injury requirement that

applies in cases that do not involve sexual assault, read

Chapter Four, Section C.

Rape and sexual assault can also result in criminal

prosecution of the guard or person responsible. Congress

and most states have passed laws criminalizing rape or

sexual assault of a prisoner by a correctional officer. See

18 U.S.C. §§ 2242 and 2243 (making prison sexual assault

unlawful). The Washington College of Law’s Project on

Addressing Prison Rape has put together a survey of all

state criminal laws prohibiting sexual abuse of individuals

in custody at

https://www.wcl.american.edu/impact/initiatives-

programs/endsilence/research-guidance/.

If you are assaulted or witness an assault, consider

reporting it immediately and you may also want to think

about preserving potential evidence like DNA samples and

the clothes you wore during the assault.

c. Sexual Harassment and Verbal Abuse by Guards

In rare cases, sexually explicit comments and verbal abuse

by prison officials can also violate the Eighth Amendment.

See Hudson v. Palmer, 468 U.S. 517, 530 (1984) (stating

“calculated harassment unrelated to prison needs” can also

violate the Eighth Amendment). But it is a difficult standard

to meet. Just as courts do not always recognize the

seriousness of sexual harassment outside of prison, they

do not acknowledge the harm that verbal sexual abuse or

less invasive sexual touching can cause in prison. Courts

often call sexual harassment by prison guards “outrageous”

or “reprehensible” but do not find it unconstitutional. This

is unfortunate.

In Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015), the

Seventh Circuit found that prison officials who made lewd

sexual comments and gestures and called the plaintiff a

“punk, fag, sissy, and queer” may have violated the Eighth

Amendment because the conduct caused the plaintiff

36 | CHAPTER 3 – YOUR RIGHTS IN PRISON

severe psychological harm, and being labeled LGBTQ+

increased his risk of abuse and assault.

Other cases failed to find Eighth Amendment violations

despite noting the seriously inappropriate behavior of

prison officials. For example, one court found that it was

not cruel and unusual punishment when a corrections

official repeatedly made sexual comments about a female

prisoner’s body to her, including one instance when he

entered her cell while she was sleeping and commented on

her breasts. Adkins v. Rodriguez, 59 F.3d 1034 (10th Cir.

1995).

But not all courts have been so insensitive to the effects of

sexual harassment. In Women Prisoners of District of

Columbia Department of Corrections v. District of Columbia,

93 F.3d 910 (D.C. Cir. 1996), the court upheld a decision

ordering a prison to adopt a new sexual harassment policy

that prohibited conduct including: “(1) all unwelcome

sexual activity directed by any DCDC employee at a

prisoner including acts of sexual intercourse, oral sex, or

sexual touching, and any attempt to commit these acts;

and (2) all unwelcome sexual advances, requests for sexual

favors, and other unwelcome verbal or physical conduct of

a sexual nature directed by any DCDC employee at a

prisoner.” Id. at 933.

d. “Consensual” Sex between Prisoners and Guards

Courts disagree about whether a correctional officer can

be held liable for having sex with a prisoner when the

prisoner consents to the act. In Carrigan v. Davis, 70 F.

Supp. 2d 448 (D. Del. 1999), a federal court in Delaware

held that a guard had violated the Eighth Amendment by

engaging in vaginal intercourse with a prisoner under his

supervision, whether or not she had consented. The court

relied on Delaware state law that made it a crime for a

correctional officer to have sex with a prisoner, whether or

not it was consensual.

In Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997), however,

the Eighth Circuit found that consensual sex does not

constitute cruel and unusual punishment because it does

not cause any pain, according to that court’s definition.

Other cases like this are Graham v. Sheriff of Logan County,

741 F.3d 1118 (10th Cir. 2013) and McGregor v. Jarvis, No.

9:08-CV-770, 2010 U.S. Dist. LEXIS 97408 (N.D.N.Y. Aug.

20, 2010).

The Ninth Circuit has looked at the issue differently. In

Wood v. Beauclair, 692 F.3d 1041 (9th Cir. 2012) the court

explained that because the relationship between officers

and prisoners is coercive, the court assumes that a prisoner

cannot consent unless the officers prove otherwise. This

means the burden is on the officers to give proof that no

coercion occurred.

Today, the federal government and most states have

statutes making it a crime for a correctional employee to

have intercourse with a person in prison, regardless of

whether or not that person consents. A federal law, 18

U.S.C. § 2243, criminalizes sexual intercourse or other

physical conduct between an officer and prisoner in any

federal prison. You can check out the resources listed

earlier in this section for state laws on sexual contact

between guards and prisoners.

e. Challenging Prison Supervisors and Prison Policies

If you are a victim of sexual abuse in prison, you may wish

to sue not only the person who abused you but also that

person’s supervisors. Or, you may want to challenge some

of your prison’s policies. You can sue prison supervisors for

allowing you to be raped or assaulted by a guard or

another prisoner under the deliberate-indifference

standard explained in the next section.

If you are considering this type of case, be sure to read the

section on special issues about suing supervisors in

Chapter Four, Section D.

In one major case, women in prison successfully

challenged the policies regarding sexual harassment in

Washington, D.C. prisons. The court in that case, Women

Prisoners of District of Columbia Department of Corrections v.

District of Columbia, 93 F.3d 910 (D.C. Cir. 1996), ordered

the prison to implement a new prisoner grievance

procedure so that prisoners could report sexual

harassment confidentially and get a prompt response, and

to start a confidential hotline for women to report

instances of abuse, and to create a mandatory training

program on sexual harassment for all corrections officers

in D.C. prisons.

States also may be liable for sexual abuse if facilities have a

policy and practice of permitting male staff to view and

supervise incarcerated women, especially in isolated or

remote settings, without female staff present. Cash v. Erie

County, No. 04-CV-0182C(F), 2007 U.S. Dist. LEXIS 50129

(W.D.N.Y. July 10, 2007). You may also want to read a

later decision in the same case: Cash v. Erie County, 654

F.3d 324 (2d Cir. 2011).

In another case, however, women in prison attempted but

failed to challenge a county’s policies regarding sexual

harassment after they were sexually abused by a prison

employee. The court held that a municipality can only be

accountable for an Eighth Amendment violation when it

shows deliberate indifference and explained that

deliberate indifference only exists where a municipality has

actual notice that its actions or failures to act will result in

a constitutional violation, or when it is highly predictable

that a constitutional violation will occur. Since the county

in this case did provide training programs addressing

sexual harassment and prisoner-officer relations to the

officer convicted of abuse, the court did not find deliberate

indifference. Barney v. Pulsipher, 143 F.3d 1299 (10th Cir.

1998).

Finally, if you have been sexually assaulted in detention,

you may want to obtain a copy of Just Detention

International’s booklet, Hope for Healing: Information for

Survivors of Sexual Assault in Detention (2009) at

https://www.prearesourcecenter.org/sites/default/files/li

brary/hopeforhealingweb.pdf, or by writing to Just

37 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Detention International, 3325 Wilshire Boulevard, Suite

340, Los Angeles, CA 90010.

2. Your Right to Be Free from Physical and

Sexual Assault by Other Incarcerated People

Everyone has a right to be free from physical and sexual

assault in prison, including at the hands of other

incarcerated people. This was established in an important

Supreme Court case called Farmer v. Brennan, 511 U.S. 825

(1994), which found that “prison officials have a duty . . . to

protect prisoners from violence at the hands of other

prisoners” under the Eighth Amendment, including

violence in the form of sexual assault. Id. at 833.

To bring a failure-to-protect claim regarding physical or

sexual assault, you need to show “deliberate indifference.”

This requires proof that:

1. Guards knew that there was a substantial risk you

would be seriously harmed; and

2. They failed to respond reasonably to protect you.

If you feel you’re at risk, do not wait until you are attacked

to ask for help or protection, such as placement in

protective custody. That way, prison officials will be on

notice of your risk and will have a duty to respond.

a. Failure to Protect from Prisoner Sexual Assault

Prison officials who do not take reasonable steps to

protect you from sexual assault by other prisoners violate

your clearly established rights under the Eighth

Amendment and Farmer v. Brennan, 511 U.S. 825 (1994).

Here, Farmer’s familiar two-part test applies: First, you

must show prison officials knew you stood a substantial

risk of serious harm from assault. Second, you must show

they did not take reasonable steps to protect you.

To argue that prison officials unreasonably disregarded an

excessive risk to your safety, it can be helpful to mention if

prison officials violated your prison’s own policies on

safety and sexual assault prevention. It may also be useful

to mention the Prison Rape Elimination Act of 2000, 42

U.S.C. § 15601 et seq., and its implementing regulations,

28 C.F.R. § 115 et seq. (collectively “PREA”). PREA

instructs federal and state prisons, jails, lockups, and

immigration detention centers to adopt a zero-tolerance

approach to sexual abuse. PREA also details steps that

prison officials can take to protect vulnerable people in

custody, such as LGBTQ+ people and people with a history

of sexual abuse.

Although PREA does not offer a legal remedy for

violations, you can use it to support your Eighth

Amendment claim by citing it as evidence that prison

officials knew of but disregarded your substantial risk of

harm.

b. Failure to Protect from Prisoner Physical Abuse

You can also use Farmer v. Brennan’s two-part test to sue

prison officials under the Eighth Amendment if they fail to

protect you from being attacked by another incarcerated

person. In Harper v. Dourrette, 107 Fed. Appx. 444 (5th Cir.

2004), a court explained that it is not reasonable for guards

to do nothing after a prisoner has reported a substantial

risk of injury.

Sometimes a court will find that prison officials acted

reasonably, even if they knew of a substantial risk, and

failed to prevent a prisoner from being harmed. In Walls v.

Tadman, 762 F.3d 778 (8th Cir. 2014), a prisoner who

reported a risk of attack was placed in protective custody

and then told the guards there was no longer a risk and

asked to go back to general population. The prison did so,

and he was attacked while in general population. The

Eighth Circuit Court of Appeals ruled against his failure-to-

protect claim because it found the guards acted reasonably

given the prisoner’s request. And in Longoria v. Texas, 473

F. 3d 586 (5th Cir. 2006), the court ruled that prison

officials did not have to endanger their own safety to

protect a plaintiff who was being stabbed.

If you are at risk of assault but are denied protective

custody because of a disability, you may be able to bring a

claim under the Americans with Disabilities Act (ADA). In

Bradley v. Wexford, Inc., 2019 Dist. LEXIS 115532 (D.D. Ill.

2019), a plaintiff’s ADA claim was allowed to go forward

when he was denied access to protective custody because

he was a wheelchair user.

3. Your Right to Decent Conditions in Prison

The Rule: Prison officials violate the Eighth

Amendment when they act with deliberate indifference

to a prison condition that exposes a prisoner to an

unreasonable risk of serious harm or deprives a

prisoner of a basic human need.

What this means in practice is that you have a right to

humane conditions in prison. Conditions that are harsh

but not harmful do not violate the Constitution.

The Eighth Amendment’s prohibition of cruel and unusual

punishment protects your right to safe and humane

conditions in prison. You can challenge prison conditions

that are unsafe or that deprive you of a “basic human

need,” such as shelter, food, exercise, clothing, sanitation,

and hygiene. However, the standard for unconstitutional

conditions is high: courts allow conditions that are

“restrictive and even harsh.” Rhodes v. Chapman, 452 U.S.

337, 346 (1981). You must have evidence of conditions

that are serious and extreme.

To challenge prison conditions using the Eighth

Amendment, you must meet both “objective” and

“subjective” requirements. Farmer v. Brennan, 511 U.S. 825

(1994); Wilson v. Seiter, 501 U.S. 294 (1991). To meet the

objective Eighth Amendment standard, you need to show

that you were deprived of a basic human need or exposed

to serious harm. Under the subjective part of the test, you

usually must show that the prison official you are suing

knew you were being deprived or harmed and did not

respond reasonably. You must also show how you were

38 | CHAPTER 3 – YOUR RIGHTS IN PRISON

injured and prove that the denial of a basic need caused

your injury.

Under the objective part of the test, the court will look at

whether the condition or conditions you are challenging

could seriously affect your health or safety. In considering

a condition, a court will think about how bad it is and how

long it has lasted. Barney v. Pulsipher, 143 F.3d 1299 (10th

Cir. 1998). You must show that you were injured either

physically or psychologically, though courts do not agree

on how severe the injury must be. You may challenge

conditions even without an injury if you can show that the

condition puts you at serious risk for an injury in the

future, like secondhand smoke. Helling v. McKinney, 509

U.S. 25 (1993).

Under the subjective part of the test, you must show that

the official you are suing acted with “deliberate

indifference.” Wilson v. Seiter, 501 U.S. 294 (1991). This is

an important legal term. It means that the official knew of

the condition and did not respond to it in a reasonable

manner. Farmer v. Brennan, 511 U.S. 825 (1994). One way

to show this is by proving that the condition was so

obvious that the official must either know about it or be

purposefully ignoring it. Courts will also consider any

complaints or grievance reports that you or other prisoners

have filed, Vance v. Peters, 97 F.3d 987 (7th Cir. 1996), as

well as prison records that refer to the problem. Prison

officials cannot ignore a problem once it is brought to their

attention.

Prison officials may try to argue that the prison does not

have enough money to fix problems, but courts have

generally not accepted this defense. Carty v. Turnbull, 144

F. Supp. 2d 395 (D.V.I. 2001). It is important to note that

while there is a subjective component to Eighth

Amendment claims, you do not need to show why prison

officials acted as they did.

Remember that courts disagree on whether the Prison

Litigation Reform Act (PLRA) means that you can’t get

damages if you only prove emotional or mental injury

without any physical injury. This provision will not affect a

lawsuit that tries to change conditions (injunctive relief).

However, it may be difficult to get money damages for

exposure to unsafe or overly restrictive conditions unless

they have caused you a physical injury. The courts are not

in agreement on this issue, so you may want to just include

these claims anyway and hope for the best.

Below are some of the most common Eighth Amendment

challenges to prison conditions. Remember, to prevail on a

claim for any of these, you must show both subjective and

objective evidence.

> Food: Prisons are required to serve food that is

nutritious and prepared under clean conditions. Robles v.

Coughlin, 725 F.2d 12 (2d Cir. 1983). Meals cannot be

denied as retaliation, since denying meals (usually several

meals; one denial will most likely not succeed) can be a

deprivation of a life necessity, violating the Eight

Amendment. Foster v. Runnels, 554 F.3d 807 (9th Cir

2009). However, as long as the prison diet meets

nutritional standards, prisons can serve pretty much

whatever they want, including prison “loaf.” Prisons must

provide a special diet for prisoners whose health requires

it. Byrd v. Wilson, 701 F.2d 592 (6th Cir. 2013).

> Exercise: Prisons must provide prisoners with

opportunities for exercise outside of their cells. Keenan v.

Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Delaney v.

DeTella, 256 F.3d 679 (7th Cir. 2001). Courts have not

agreed upon the minimum amount of time for exercise

required, and it may be different depending on whether

you are in the general population or segregation. One

court considered three hours per week adequate, Hosna v.

Groose, 80 F.3d 298, 306 (8th Cir. 1996), while another

approved of just one hour per week for a maximum-

security prisoner, Bailey v. Shillinger, 828 F.2d 651 (10th

Cir. 1987). Some circuits have determined that prisoners

cannot be deprived of outdoor exercise for long periods of

time. Hearns v. Terhune, 413 F.3d 1036 (9th Cir. 2005).

Prisons must provide adequate space and equipment for

exercise, but again, there is no clear standard for this. It is

generally acceptable to limit exercise opportunities for a

short time or during emergencies.

> Air Quality and Temperature: Prisoners have

successfully challenged air quality when it posed a serious

danger to their health, particularly in cases of secondhand

smoke, Talal v. White, 403 F.3d 423 (6th Cir. 2005);

Alvarado v. Litscher, 267 F.3d 648 (7th Cir. 2001); asbestos,

LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998) and radon

gas, Vega v. Semple, 963 F.3d 259 (2d Cir. 2020). While you

are not entitled to a specific air temperature, you should

not be subjected to extreme heat or cold, and should be

given bedding and clothing appropriate for the

temperature. Bibbs v. Early, 541 F.3d 267 (5th Cir. 2008);

Gaston v. Coughlin, 249 F.3d 156 (2d Cir. 2001).

> Sanitation and Personal Hygiene: Prisoners are entitled

to sanitary toilet facilities, proper trash procedures, no

roach or rat infestations, and basic supplies such as

toothbrushes, toothpaste, soap, sanitary napkins, razors,

and cleaning products. Womble v. Chrisman, 770 F. App'x

918, 925 (10th Cir. 2019) (denial of clean toilets &

showers); Fountain v. Rupert, 819 F. App'x 215, 219 (5th

Cir. 2020) (unsanitary conditions and inadequate nutrition);

Gillis v. Litscher, 468 F.3d 488 (7th Cir. 2006) (denial of

mattress, bedding, clothing, soap); DeSpain v. Uphoff, 264

F.3d 965 (10th Cir. 2001) (repeated floodings). In Taylor v.

Riojas, 141 S. Ct. 52 (2020), the Supreme Court ruled that

holding a prisoner in a cell covered in feces even for just a

few days violated clearly established Eighth Amendment

rights, such that money damages were available.

> Overcrowding: Although overcrowding is one of the

most common problems in U.S. prisons, it is not considered

unconstitutional on its own. Rhodes v. Chapman, 452 U.S.

337 (1981); C.H. v. Sullivan, 920 F.2d 483 (8th Cir. 1990).

However, overcrowding is unconstitutional when it leads

to other problems. The Supreme Court struck down

overcrowding in California’s prisons in Brown v. Plata, 563

U.S. 493 (2011). The prisons were at 200% of design

capacity and this led to the prison system’s inability to

provide medical and mental health care, dozens of sick

39 | CHAPTER 3 – YOUR RIGHTS IN PRISON

prisoners held together awaiting medical treatment, and

preventable deaths occurring once per week on average. If

you wish to challenge overcrowding, you must show that it

has caused a serious deprivation of basic human needs

such as food, safety, or sanitation. French v. Owens, 777

F.2d 1250 (7th Cir. 1985); Toussaint v. Yockey, 722 F.2d

1490 (9th Cir. 1984).

> Rehabilitative Programs: In general, prisons are not

required to provide counseling services like drug or alcohol

rehabilitation to prisoners unless they are juveniles,

mentally ill, or received rehabilitative services as part of

their sentence. Women Prisoners of District of Columbia

Dept. of Corrections v. District of Columbia, 93 F.3d 910

(D.C. Cir. 1996).

> Solitary Confinement: Although the Supreme Court has

not yet decided whether long-term solitary confinement

violates the Eighth Amendment, the Court has stated that

the duration of solitary confinement “cannot be ignored in

deciding whether the confinement meets constitutional

standards.” Hutto v. Finney, 437 U.S. 678, 686 (1978). The

Supreme Court has also said that the standards of “human

dignity” set by the Eighth Amendment are not fixed but

should evolve and “acquire meaning as public opinion

becomes enlightened by humane justice.” Hall v. Florida,

572 U.S. 701, 708 (2014). In non-binding opinions, Justice

Anthony Kennedy has said, “[y]ears on end of near-total

isolation exact a terrible price.” Davis v. Ayala, 135 S. Ct.

2187, 2210 (2015) (Kennedy, J., concurring). Justice

Stephen Breyer has said, “it is well documented that . . .

prolonged solitary confinement produces numerous

deleterious harms.” Glossip v. Gross, 135 S. Ct. 2726, 2765

(2015) (Breyer, J., dissenting). Finally, Justice Sonia

Sotomayor has said, “we do know that solitary

confinement imprints on those it clutches a wide range of

psychological scars.” Apodaca v. Raemisch, 139 S. Ct. 5

(2018) (Sotomayor, J. concurring in denial of certiorari).

These quotes are not binding because they were not from

the court’s main opinions, but they are still helpful to

mention.

Other federal courts have been willing to rule that

solitary confinement violates the Eighth Amendment

when it lasts a long time. In Young v. Martin, 801 F.3d

172 n. 8 (3rd Cir. 2015), an appeals court said that six-

year solitary confinement “raises serious concerns under

the Eighth Amendment’s conditions of confinement test.”

In Johnson v. Wetzel, 209 F. Supp. 3d 766 (M.D. Pa.

2016), the court ordered that a plaintiff be moved out of

solitary confinement and into the general population

because long-term solitary confinement was likely a

violation of his Eighth Amendment rights. In Porter v.

Clarke, 290 F. Supp. 3d 518, 530-31 (E.D. Va. 2018), the

court found that plaintiffs kept in prolonged solitary

confinement on death row had a valid Eighth

Amendment claim because “prolonged isolation and lack

of stimulation can have devastating psychological and

emotional consequences,” and that “it would defy logic to

suggest that [defendants] were unaware of the potential

harm that lack of human interaction on death row could

cause.” The court stated that because of the Eighth

Amendment’s incorporation of contemporary standards

of decency and the “rapidly evolving information

available about the potential harmful effects of solitary

confinement,” it was not bound by old court decisions

denying Eighth Amendment claims.

In another important case, Ashker v. Brown, No. C 09-5796

CW, 2013 U.S. Dist. LEXIS 51148 (N.D. Cal. Apr. 9, 2013),

ten prisoners at Pelican Bay State Prison in California

brought a class action challenging decades in solitary

confinement. The plaintiffs complained of prolonged

isolation, lack of stimuli, and serious psychological pain and

suffering. The officials were put on notice because of

administrative grievances, written complaints, and hunger

strikes. The court allowed the Eighth Amendment claim to

go forward, and the case ultimately settled after the state

agreed to end indefinite solitary confinement in California.

The judge referred to the agreement as both innovative

and humane.

Solitary confinement can also violate the Eighth

Amendment if you can show it has harmed your physical or

mental health. In Jones El v. Burge, 164 F. Supp. 2d 1096

(W.D. Wisc. 2001), the court found that that constant

isolation, illumination, and other sensory deprivation for

prisoners with serious mental health issues violates the

Eighth Amendment. In cases where this argument failed,

the prisoners were not able to prove the subjective

element—that the prison knew the conditions were making

their mental illness worse. Scarver v. Litscher, 434 F.3d 972

(7th Cir. 2006).

In recent years, the U.S. Department of Justice (DOJ) has

acknowledged that solitary confinement causes harm. In a

2014 report, the DOJ stated that long-term use of solitary

confinement on mentally ill prisoners “violate[s] the Eighth

Amendment’s prohibition against ‘cruel and unusual

punishments.’” DOJ Investigation of the Pa. Dep't of Corr.

Use of Solitary Confinement on Prisoners with Serious

Mental Illness and/or Intellectual Disabilities, which can be

accessed on the internet at

https://www.justice.gov/sites/default/files/crt/legacy/20

14/02/25/pdoc_finding_2-24-14.pdf. In a 2016 report,

the DOJ recommended that incarcerated people be

housed in the “least restrictive setting necessary” to ensure

their safety, and that stated juveniles, women who are

pregnant or post-partum, and people with serious mental

illness not be placed in solitary confinement at all. DOJ

U.S. Department of Justice Report and Recommendations

Concerning the Use of Restrictive Housing (Jan. 2016),

https://www.justice.gov/archives/dag/file/815551/downl

oad. While both the 2014 and 2016 reports are non-

binding, they contain powerful statements from the DOJ.

> Other Conditions: Prisoners have also successfully

challenged problems with lighting and fire safety, Hoptowit

v. Spellman, 753 F.2d 779 (9th Cir. 1985); sleep

deprivation, Walker v. Schult, 717 F.3d 119 (2d Cir. 2013);

furnishings, Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000);

accommodation of physical disabilities, Bradley v. Puckett,

157 F.3d 1022 (5th Cir. 1998); unsafe work requirements,

Fruit v. Norris, 905 F.2d 1147 (8th Cir. 1990); as well as

other inadequate or inhumane conditions.

40 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Instead of challenging a particular condition, you may also

bring an Eighth Amendment suit on a “totality of the

conditions” theory. You can do this on your own or as part

of a class action lawsuit. Using this theory, you can argue

that even though certain conditions might not be

unconstitutional on their own, they add up to create an

overall effect that is unconstitutional. Palmer v. Johnson,

193 F.3d 346 (5th Cir. 1999). The Supreme Court has

limited this argument to cases where multiple conditions

add up to create a single, identifiable harm, Wilson v. Seiter,

501 U.S. 294 (1991), but the courts disagree on exactly

what that means.

4. Your Right to Medical Care

The Rule: Prison officials may not act with

deliberate indifference to a serious medical need.

What that means in practice is that the prison must

provide you with medical care if you need it, but the

Eighth Amendment does not protect you from medical

malpractice.

The Eighth Amendment protects your right to get medical

care. The Constitution guarantees prisoners this right, even

though it does not guarantee medical care to people

outside of prison. The Supreme Court explained that this is

because “[a]n inmate must rely on prison authorities to

treat his medical needs; if the authorities fail to do so,

those needs will not be met.” Estelle v. Gamble, 429 U.S. 97,

103 (1976). Unfortunately, the Eighth Amendment does

not guarantee you the same level of medical care you

might choose if you were not in prison.

If you feel that your right to adequate medical care has

been violated, the Constitution is not the only source of

your legal rights. You can bring claims under your state

constitution or state statutes relating to medical care or

the treatment of prisoners. You can also bring a medical

malpractice suit in state court. If you are a federal prisoner,

you might also bring a claim in federal court under the

Federal Tort Claims Act. However, this section will focus

exclusively on your right to medical care under the U.S.

Constitution.

To succeed in an Eighth Amendment challenge to the

medical care in your prison, you must show three things.

These are:

1. You had a serious medical need;

2. Prison officials showed “deliberate indifference”

to your serious medical need; and

3. This deliberate indifference caused your injury.

Estelle v. Gamble, 429 U.S. 97 (1976). These requirements

are described in more detail below.

a. Serious Medical Need

Under the Eighth Amendment, you are entitled to medical

care for “serious medical needs.” Serious medical needs

can relate to “physical, dental, and mental health.” Edmo v.

Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019).

Some courts describe a serious medical need as “one that

has been diagnosed by a physician as mandating treatment

or one that is so obvious that even a layperson would

easily recognize the necessity for a doctor's attention.” Hill

v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th

Cir. 1994); Youmans v. Gagnon, 626 F.3d 557 (11th Cir.

2010). Courts usually agree that a prisoner can show a

serious medical need if the “failure to treat a prisoner’s

condition could result in further significant injury or the

‘unnecessary and wanton infliction of pain.’” Estelle v.

Gamble, 429 U.S. 97, 104 (1976); Jett v. Penner, 439 F.3d

1091, 1096 (9th Cir. 2006). In other words, if a doctor says

you need treatment, or your need is obvious, then it is

probably a “serious medical need.”

Courts generally agree that the existence of a serious

medical need depends on the facts surrounding each

person. Smith v. Carpenter, 316 F.3d 178 (2d Cir. 2003). A

condition may not be a serious medical need in one

situation but could be a serious medical need in another.

Chronic conditions like diabetes, HIV, AIDS, hepatitis,

epilepsy, and hypertension are serious medical needs, for

which you deserve medical attention and care. Brown v.

Johnson, 387 F.3d 1344 (11th Cir. 2004) is a nice example

of a court deciding that HIV and hepatitis are serious

medical needs.

In considering whether you have a serious medical need,

the court will look at several factors, including:

> Whether a reasonable doctor or patient would

consider the need worthy of comment or treatment;

> Whether the condition significantly affects daily

activities; and

> Whether you have chronic and serious pain.

For more on these factors, a good case to read is Brock v.

Wright, 315 F.3d 158 (2d Cir. 2003).

The right to adequate medical care also includes “a right to

psychiatric and mental health care, and a right to be

protected from self-inflicted injuries, including suicide.”

Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir.

1994). Other decisions recognizing the right to mental

health care include Gibson v. County of Washoe, 290 F.3d

1175, 1187 (9th Cir. 2002), Clark-Murphy v. Foreback, 439

F.3d 280, 292 (6th Cir. 2006) and Meriwether v. Faulkner,

821 F.2d 408, 413 (7th Cir. 1987).

Several courts have held that a risk of suicide is a serious

medical need for the purposes of the Eighth Amendment.

Estate of Cole by Pardue v. Fromm, 94 F.3d 254 (7th Cir.

1996); Gregoire v. Class, 236 F.3d 413 (8th Cir. 2000).

41 | CHAPTER 3 – YOUR RIGHTS IN PRISON

It is important that you keep detailed records of your

condition and inform prison medical staff of exactly how

you are suffering.

b. Deliberate Indifference

To satisfy the “subjective” portion of the Eighth Amendment

standard, you must show that prison officials treated you

with deliberate indifference. This means, (1) prison officials

knew about your serious medical need, and (2) the prison

officials failed to respond reasonably to it. Estelle, 429 U.S. at

104; Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997).

To show that prison officials knew about your medical

needs, you will need to describe all the ways you tried to

notify prison officials about your medical condition and

treatment needs, by submitting grievances and medical

requests. This means that any time you experience a

serious medical issue, you should keep careful records of

your efforts. You should take advantage of sick-call

procedures at your prison and report your condition even

if you do not think officials will help you. You should keep

notes of the dates that you requested medical assistance

and the identification of the prison officials. You should

describe the medical complaint that you had and the effect

that any delays had on your health. You should include

these details in your formal grievances and complaints.

Prison officials who know about your serious medical

needs must provide treatment “at a level reasonably

commensurate with modern medical science and of a

quality acceptable within prudent professional standards.”

United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987).

This means that treatment decisions are unconstitutional

and inadequate when they are “far afield of accepted

professional standards.” Arnett v. Webster, 658 F.3d 742,

751 (7th Cir. 2011).

Courts most often find deliberate indifference when:

> A prison doctor fails to respond appropriately or does

not respond at all to your serious medical needs. Scott v.

Ambani, 577 F.3d 642 (6th Cir 2009); Spruill v. Gillis, 372

F.3d 218 (3d Cir. 2004); Meloy v. Bachmeier, 302 F.3d 845

(8th Cir. 2002).

> Prison doctors or officials delay or deny giving you

medically necessary mental, medical, or dental care, or a

medical diet. Grieveson v. Anderson, 538 F.3d 763, 779 (7th

Cir.2008) (1.5 day delay in treating broken nose); Smith v.

Knox Cnty. Jail, 666 F.3d 1037 (7th Cir. 2012) (5 day delay

providing emergency medical care); Brown v. District of

Columbia, 514 F.3d 1279 (D.C. Cir. 2008) (2 month delay

on medical care); Harrison v. Barkley, 219 F.3d 132, 138 (2d

Cir. 2000) (one year delay for dental care); Byrd v. Wilson,

701 F.2d 592 (6th Cir. 2013) (medical diet).

> Prisons adopt policies that restrict access to medical

treatment on a blanket basis, regardless of individual need.

Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011), Johnson v.

Wright, 412 F.3d 398 (2d Cir. 2005);

> When non-medical officials interfere with the treatment

that your doctor has ordered. Estelle, 429 U.S. at 104-05;

Lopez v. Smith, 203 F.3d 1122 (9th Cir 2000).

The easiest cases to win are cases where you are

completely denied medical treatment, but you can also

bring an Eighth Amendment claim saying treatment you

are currently receiving is inadequate. Here, one good case

to cite is Ancata v. Prison Health Servs., Inc., 769 F.2d 700,

704 (11th Cir. 1985), which stated “medical care . . . so

cursory as to amount to no treatment at all may violate the

[Eighth] Amendment.” Another is Chance v. Armstrong, 143

F.3d 698, 703 (2d Cir. 1998), which stated that a prison

official or medical practitioner “may be deliberately

indifferent if he or she consciously chooses ‘an easier and

less efficacious’ treatment plan.”

Prisons cannot deny you medical treatment just because it

is new or expensive, like Hepatitis C treatment or complex

surgeries. Allah v. Thomas, 679 F. App’x 216, 220–21 (3d

Cir. 2017) and Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011)

are two good cases about the right to Hepatitis C

treatment even though it is expensive. And in Edmo v.

Corizon, Inc., 935 F.3d 757 (9th Cir. 2019) a court ruled

that a transgender prisoner was entitled to gender-

confirmation surgery, regardless of cost.

Although prison officials generally can rely on the

treatment recommendations that prison doctors give them,

prison officials can still be held liable for denying you

treatment if the need would be obvious to anyone. For

example, in McRaven v. Sanders, 577 F.3d 974 (8th Cir.

2009) a court found that prison officials could not deny

hospitalization to an unconscious person who overdosed

just because a nurse recommended against it.

Unfortunately, courts do not usually require prison medical

staff to give you the best possible care. For example, one

court did not find a violation when prison medical staff

followed the doctor’s orders about what to do with a

prisoner who had been beaten. Even though the prisoner

complained several times and the prisoner’s condition was

more serious than the doctor had recognized, there was no

violation of the Eighth Amendment. Perkins v. Lawson, 312

F.3d 872 (7th Cir. 2002). Another court found that there

was not deliberate indifference in a case where a patient

received thirteen medical examinations in one year, even

though he claimed that a muscular condition in his back did

not improve. Jones v. Norris, 310 F.3d 610 (8th Cir. 2002).

Even if there is a delay in treatment, you may still need to

show that the doctor knew better. In Whiting v. Wexford

Health Sources, Inc., 839 F.3d 658 (7th Cir. 2016), the court

found no deliberate indifference when a doctor tried to

treat a prisoner’s undiagnosed cancer with antibiotics,

saying instead that the doctor’s approach was reasonable.

c. Causation

You must show that you suffered some harm or injury as a

result of the prison official’s deliberate indifference. If

officials failed to respond to your complaints about serious

pain but the pain went away on its own, you will not

succeed in a constitutional challenge. For example, courts

42 | CHAPTER 3 – YOUR RIGHTS IN PRISON

have said that short interruptions of otherwise adequate

treatment of serious conditions like epilepsy and arthritis

may not violate the Eighth Amendment. Bilal v. White, 494

Fed. Appx. 143 (2d Cir. 2012).

In some situations, you may wish to challenge your prison’s

medical care system as a whole and not just the care or

lack of care that you received in response to a particular

medical need. These systemic challenges to prison medical

care systems are also governed by the deliberate

indifference standard. For example, in Parsons v. Ryan, 754

F.3d 657 (9th Cir. 2014), Arizona prisoners brought a class

action challenging terrible medical, mental, and dental

health care provided by a private company operating in the

prisons. The case eventually settled for important changes.

Successful cases have also challenged the medical

screening procedures for new prisoners, the screening

policies or staffing for prisoners seeking care, and the

disease control policies of prisons. Hutto v. Finney, 437 U.S.

678 (1978).

Remember, you cannot bring an Eighth Amendment

challenge to medical care just because it was negligent

(such as if a doctor tries to help you but accidentally makes

you worse) or because you disagree with the type of

treatment a doctor gave you. You might be able to bring

those sorts of claims through other means, such as state

medical malpractice laws.

d. The COVID-19 Pandemic

Many people in prison and detention have sought release

from prison based on the risk to their health posed by the

COVID-19 pandemic. For example, in Martinez-Brooks v.

Easter, 459 F. Supp. 3d 411 (D. Ct. 2020), people in

Danbury federal prison in Connecticut filed a class action

Habeas lawsuit to challenge the prison’s failure to

adequately protect them from catching the virus under the

Eighth Amendment. A “Habeas” lawsuit is different from a

1983 or Bivens action in that it allows a prisoner to ask for

release from prison as a form of relief. In the Danbury case,

the prisoners first got a temporary restraining order from

the judge, ordering the warden to identify medically

vulnerable prisoners and create standards for release to

home confinement. Temporary restraining orders are

described in chapter four. The case settled a few months

later, creating a process for court review of decisions

about home confinement for all medically vulnerable

prisoners.

Some federal prisoners have also succeeded in filing

individual cases for compassionate release based on

medical vulnerability to COVID-19. One example is United

States v. Young, 460 F. Supp. 3d. 71 (D. Ma. 2020). Not all

COVID-19 cases are about release. In Seth v. McDonough,

461 F.Supp.3d 242 (D. Md. 2020), a class of men detained

in a county correctional facility won injunctive relief

forcing the jail to improve COVID-19 precautions, like

testing, protective equipment, and cleaning.

Many cases have been less successful, however, and as

this handbook goes to print, this is a quickly changing area

of law with a lot of procedural complications. So if you are

considering a COVID-19 related case, you will want to

read as many cases as you can find in your circuit and

district to figure out your best chance of success.

Your Right to Use the Courts

The Basics: Prisoners have a fundamental right to

access and use the court system.

Just like people on the outside, people in prison have a

fundamental constitutional right to use the court system.

This right is based on the First, Fifth, and Fourteenth

Amendments to the Constitution. Under the First

Amendment, you have the right to “petition the

government for a redress of grievances,” and under the

Fifth and Fourteenth Amendments, you have a right to

“due process of law.” Put together, these provisions mean

that you must have the opportunity to go to court if you

think your rights have been violated. This right is referred

to as the “right of access to the courts.” Unfortunately,

doing legal work in prison can be dangerous, as well as

difficult, so it is important to KNOW YOUR RIGHTS!

A terrible but common consequence of prisoner activism is

harassment by prison officials. Officials have been known

to block the preparation and filing of lawsuits, refuse to

mail legal papers, take away legal research materials, and

deny access to law books, all in an attempt to stop the

public and the courts from learning about prisoner issues

and complaints. Officials in these situations are worried

about any actions that threaten to change conditions

within the prison walls or limit their power. In particular,

officials may seek to punish those who have gained legal

skills and try to help their fellow prisoners with legal

matters. Prisoners with legal skills can be particularly

threatening to prison management who would like to limit

the education and political training of those in prison.

Some jailhouse lawyers report that officials have taken

away their possessions, put them in solitary confinement

on false charges, denied them parole, or transferred them

to other facilities where they were no longer able to

communicate with the prisoners they had been helping.

With this in mind, it is very important for those of you who

are interested in both legal and political activism to keep in

contact with people in the outside world. One way to do

this is by making contact with people and organizations in

the outside community who do prisoners’ rights or other

civil rights work. You can also try to find and contact

reporters who may be sensitive to, and interested in,

prison issues. These can include newspapers, broadcast

television and radio shows, and online websites. It is

always possible that organizing from the outside aimed at

the correct pressure points within prison management can

have a dramatic effect on conditions for you on the inside.

43 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Certain court decisions that have established standards for

prisoner legal rights can be powerful weapons in your

activism efforts. These decisions can act as strong

evidence to persuade others that your complaints are

legitimate and reasonable, and most of all, can win in a

court of law. It is sometimes possible to use favorable

court rulings to support your position in non-legal

challenges, such as negotiations with prison officials or in

administrative requests for protective orders, as well as

providing a basis for a lawsuit when other methods may

not achieve your desired goals.

The Supreme Court established that prisoners have a

fundamental right to access the courts in a series of

important cases, including Ex parte Hull, 312 U.S. 546

(1941), Johnson v. Avery, 383 U.S. 483 (1969), and Bounds

v. Smith, 430 U.S. 817 (1977). This right allows you to file a

Section 1983 or Bivens Claim, habeas petitions, or to work

on your criminal case. The right is so fundamental that it

requires a prison to fund a way for you to have meaningful

access to the court. Prisons can do this in different ways.

They can give you access to a decent law library OR they

can hire people to help you with your cases.

However, the right of access to the courts has very serious

limitations thanks to a Supreme Court case called Lewis v.

Casey, 518 U.S. 343 (1996). This case states that a prisoner

cannot claim he was denied his right of access to the

courts unless he shows an “actual injury.” For you to show

“actual injury,” you have to prove that prison officials or

prison policy stopped you from being able to assert a

“nonfrivolous claim.” In other words, even if your prison

isn’t allowing you to use the law library and isn’t giving you

legal help, you still can’t necessarily win a lawsuit about it.

To win, courts usually require you to show that you had a

legitimate claim or case that you lost, or were unable to

bring, due to some action by prison officials, or due to the

inadequacy of your access to legal assistance.

You can show actual injury in a lot of different ways. In

Myers v. Hundley, 101 F.3d 542 (8th Cir. 1996), for

example, the court held that a prison policy requiring

prisoners to choose between purchasing hygiene supplies

and stamps to file legal documents might violate the right

to access the courts if it caused a prisoner to miss a filing

deadline. And in Benjamin v. Kerik, 102 F. Supp. 2d 157

(S.D.N.Y. 2000), the court found actual injury (though it

ultimately denied relief) when a prisoner could not locate

cases cited by defendants in the prison law library, and

thus could not fully respond to his adversary’s motion.

The unfortunate problem of Lewis v. Casey is that some

courts will only recognize “actual injury” if you have lost

your suit or missed a filing deadline because of inadequate

access. Other courts, however, allow access to the court

claims based on “impairment” of a legal claim, even if the

case is not lost. For example, in Cody v. Weber, 256 F.3d

764 (8th Cir. 2001), the court found “actual injury” based

on the advantage defendants gained by reading a plaintiff’s

confidential legal material.

The most common areas of litigation around court access

include your right to:

> Talk to and meet with lawyers and legal workers;

> Get reasonable access to law books;

> Obtain legal help from other prisoners or help other

prisoners; and

> Be free from retaliation based on legal activity.

1. The Right to Talk and Meet with Lawyers

and Legal Workers

For pretrial detainees or other prisoners with pending

criminal cases, the Sixth Amendment right to counsel

protects your right to see your attorney, and the Lewis v.

Casey actual-injury requirement does not apply.

Prisoners without pending criminal cases have a due

process right to meet with a lawyer. However, as explained

above, that right is limited by the Lewis v. Casey actual-

injury requirement.

Fortunately you also have a First Amendment free speech

right to talk to a lawyer (in a visit or a telephone call) that is

separate from your right to access a court and is NOT

subject to the “actual-injury requirement.” Al-Amin v. Smith,

511 F.3d 1317 (11th Cir. 2008).

Lewis v. Casey

It is important to keep the Lewis v. Casey “actual injury”

requirement in mind as you read the rest of this

chapter. It applies to almost all of the following rights

related to access to the courts, and it means that many

cases on access to courts from before 1996 are of

somewhat limited usefulness. Those cases can still help

you understand the content of the right of access to

the court, but unless denial of the right has led to injury

under Lewis v. Casey, you will not be able to win.

When prisons impose restrictions on the timing, length,

and conditions of attorney visits, those restrictions will be

reviewed under the Turner standard described earlier in

this chapter. For example, in Lopez v. Cook, No. 2:03-cv-

1605, 2014 WL 1488518 (E.D.Ca. Apr. 15, 2014), a court

ruled that a blanket ban on contact visits between a

prisoner and his lawyer violated the First Amendment.

On the other hand, in Suciu v. Washington, No. 12-12316,

2012 WL 4839924 (E.D.Mich. Oct. 11, 2012), a court held

that restricting legal visits to certain days and times did not

violate the First Amendment.

Other important ways to communicate with a lawyer are

through legal calls and legal mail. Your right to confidential

conversation and communication with your lawyer is

explained in Section A of this chapter and is also subject to

Turner analysis.

2. The Right to Access to a Law Library

If your prison decides to have a law library to fulfill the

requirements under Bounds, you can then ask the

44 | CHAPTER 3 – YOUR RIGHTS IN PRISON

question: Is the law library adequate? A law library should

have the books that prisoners are likely to need. The lower

courts have established some guidelines as to what books

should be in the library. Remember, under Lewis v. Casey,

you can’t sue over an inadequate law library unless it has

hurt your non-frivolous lawsuit or habeas petition.

Books That Should Be Available in Law Libraries:

> Relevant state and federal statutes

> State and federal law reporters from the past few

decades

> Shepard’s Citations

> Basic treatises on habeas corpus, prisoners’ civil rights,

and criminal law

Federal courts have also required that prison libraries

provide tables and chairs, be of adequate size, and be

open for prisoners to use for a reasonable amount of

time. This does not mean that people in prison get

immediate access or unlimited research time. Limitations

that are too restrictive may constitute a denial of your

right of access to the courts, but only if you show that

these problems caused actual injury. The Nebraska

Supreme Court said it was okay to limit law library access

to an hour, when it could be extended by an hour

showing a special need or deadline. Payne v. Nebraska

Dep’t of Corr., 288 Neb. 330 (Neb. 2014). The court said

that law libraries are just for legal research and taking

notes, and that writing can be done in cells.

If the denial of access to the law library is somehow

connected to another violation of your constitutional

rights, you might not have to show that the denial harmed

your lawsuit. For example, in Salahuddin v. Goord, 467 F.3d

263 (2d Cir 2006), a prisoner was not allowed to go to

religious services on the days he went to the law library.

The case was primarily about free exercise of religion, so

the prisoner did not have to meet the actual-injury

requirement. However, the court still considered the case

to be, in part, about access to the library. Similarly, in

Kaufman v. Schneiter, 474 F. Supp. 2d 1014 (W.D. Wisc.

2007), the court found an Eighth Amendment violation

when a prisoner was forced to choose between using

limited out-of-cell time for exercise or for access to the law

library.

Prisoners who cannot visit the law library because they are

in disciplinary segregation or other extra-restrictive

conditions must have meaningful access to the courts

some other way. Some prisons use a system where

prisoners request a specific book and that book is

delivered to the prisoner’s cell. This system makes research

very hard and time-consuming, and some courts have held

that, without additional measures, such systems violate a

prisoner’s right to access the courts. Trujillo v. Williams, 465

F.3d 1210 (10th Cir. 2006); Marange v. Fontenot, 879 F.

Supp. 679 (E.D. Tex. 1995).

Some access cases have been successful. The Ninth Circuit

held in favor of one prisoner who was not allowed to go to

the law library because of prison lockdowns and as a result

was not able to file a brief within a 30-day deadline, and

lost his appeal. Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010).

But in another case, a court said a library restriction during

a two-month lockdown was okay where the prisoner was

given alternate access, which was a small cage for two

hours at a time with a copy of the California Criminal Law

Practice and Procedures text. Lopez v. Athey, No. 1:11-cv-

02075, 2014 U.S. Dist. LEXIS 28144 (E.D. Cal. Mar. 4,

2014).

It is possible in rare cases that interfering with legal access

might be a reason to get court deadlines extended. The

Tenth Circuit Court of Appeals said that ‘extraordinary

circumstances’ could be used to extend a deadline, which

is also called “equitable tolling.” United States v. Galbadon,

522 F.3d 1121 (10th Cir. 2008).

3. Getting Help from a Jailhouse Lawyer and

Providing Help to Other Prisoners

You have a right to get legal help from other prisoners

unless the prison “provides some reasonable alternative to

assist prisoners in the preparation of petitions.” Johnson v.

Avery, 393 U.S. 483 (1969). This means that if you have no

other way to work on your lawsuit, you can insist on

getting help from another prisoner. In Johnson, the

Supreme Court held that the prison could not stop

prisoners from helping each other write legal documents

because no other legal resources were available.

If you have other ways to access the court, like a law

library or a paralegal program, the state can restrict

communications between prisoners under the Turner test

if “the regulation…is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78 (1987)

(See Section A for more discussion). The Supreme Court

has held that jailhouse lawyers do not receive any

additional First Amendment protection, and the Turner

test applies even for legal communications. Therefore, if

prison officials have a “legitimate penological interest,”

they can regulate communications between jailhouse

lawyers and other prisoners. Shaw v. Murphy, 532 U.S. 223

(2001).

Courts vary in what they consider “reasonable” regulation.

Johnson itself states that “limitations on the time and

location” of jailhouse lawyers’ activities are permissible.

The Sixth Circuit Court of Appeals said that it was OK to

ban meetings in a prisoner’s cell and require a jailhouse

lawyer to only meet with prisoner-clients in the library.

Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984). The Eighth

Circuit Court of Appeals upheld a ban on communication

when, due to a transfer, a jailhouse lawyer was separated

from his prisoner-client. Goff v. Nix, 113 F.3d 887 (8th Cir.

1997). However, the Goff court did require state officials

to allow jailhouse lawyers to return a prisoner’s legal

documents after the transfer.

While a state can regulate jailhouse lawyers, it can’t ban

them altogether if prisoners have no other means of access

to the court. In Bear v. Kautzky, 305 F.3d 802 (8th Cir.

2002), for example, the court found an access-to-courts

45 | CHAPTER 3 – YOUR RIGHTS IN PRISON

violation when a prison banned prisoners who had no

other way to get legal help from speaking to jailhouse

lawyers.

The right of access to the court is a right that belongs to

the person in need of legal services. It does not mean that

you have a right to be a jailhouse lawyer or provide legal

services. Gibbs v. Hopkins, 10 F.3d 373 (6th Cir. 1993);

Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996). Since jailhouse

lawyers are usually not licensed lawyers, they generally do

not have the right to represent prisoners in court or file

legal documents with the court, and conversations

between jailhouse lawyers and prisoner-clients are not

usually privileged. Bonacci v. Kindt, 868 F.2d 1442 (5th Cir.

1989); Storseth v. Spellman 654 F.2d 1349 (9th Cir. 1981).

Furthermore, the right to counsel does not give a prisoner

the right to choose who he wants as a lawyer. Gometz v.

Henman, 807 F.2d 113 (7th Cir. 1986). And jailhouse

lawyers don’t get any special protection from rules that

may impact communication with clients. Rather, courts will

apply the Turner test described in Section A. Shaw v.

Murphy, 532 U.S. 223 (2001).

Some courts require a jailhouse lawyer to get permission

from prison officials before helping another prisoner. For

example, a New York state court held that the prison could

punish a prisoner for helping another prisoner write to the

FBI without first getting permission from the other

prisoner or authorization from the law librarian. Rivera v.

Coughlin, 620 N.Y.S.2d 505 (App. Div. 1994).

In re Morales may be a helpful case to reference if you are

trying to defend the work of jailhouse lawyers. In that case,

a prisoner was charged with the unauthorized practice of

law for acting as a jailhouse lawyer. The Vermont Supreme

Court dismissed the charges, saying that they were

overbroad. The court discussed the important role played

by jailhouse lawyers, saying they are “a well-established

fixture in the legal system.” In re Morales, 2016 VT 85 (Vt.

2016).

Being a jailhouse lawyer will not protect you from transfer,

although the transfer may be unconstitutional if it hurts

the case of the prisoner you are helping. For more on this,

compare Buise v. Hudkins, 584 F.2d 223 (7th Cir. 1978)

with Adams v. James, 784 F.2d 1077 (11th Cir. 1986). The

prison may reasonably limit the number of law books you

are allowed to have in your cell. Finally, jailhouse lawyers

have no right to receive payment for their assistance.

Johnson v. Avery, 393 U.S. 483 (1969).

4. Dealing with Retaliation

If you file a civil rights claim against the warden, a

particular guard, or some other prison official, there is a

chance that they will try to threaten you or scare you away

from continuing with your suit. Retaliation can take many

forms. In the past, prisoners have been placed in

administrative segregation without cause, denied proper

food or hygiene materials, transferred to another prison,

and had their legal papers intercepted. Some have been

physically assaulted. Most forms of retaliation are illegal,

and you may be able to sue to get relief.

In many states, you may be transferred to another

correctional facility or briefly put in administrative

segregation for a number of reasons. Olim v. Wakinekona,

460 U.S. 238 (1983). However, you cannot be put into

administrative segregation solely to punish you for filing a

lawsuit. Cleggett v. Pate, 229 F. Supp. 818 (N.D. Ill. 1964).

Nor can you be transferred to punish you for filing a

lawsuit, whether for yourself, or for someone else.

Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999). Of

course, there are other, more subtle things that officers

can do to harass you. Perhaps your mail will be lost, your

food served cold, or your turn in the exercise yard

forgotten. One of these small events may not be enough to

make a claim of retaliation, but if it keeps happening, it

may be enough to make a claim of a “campaign of

harassment.” Calhoun v. Hargone, 312 F.3d 730 (5th Cir.

2002); Witte v. Wisconsin Dept. of Corrections, 434 F.3d

1031 (7th Cir. 2006) (prison doctor subjected to a

campaign of harassment for testifying for prisoners).

To prove that the warden or a correctional officer has

illegally retaliated against you for filing a lawsuit, you must

show three things:

You were doing something you had a

constitutional right to do, which is called

“protected conduct.” Filing a Section 1983 claim

or a grievance is an example of “protected

conduct” as part of your First Amendment rights;

What the prison official(s) did to you, which is

called an “adverse action,” was so bad that it

would stop an “average person” from continuing

with their suit; and

There is a “causal connection.” That means the

officer did what they did because of what you

were doing. Or, in legal terms: the prison official’s

adverse action was directly related to your

protected conduct.

If you show these three things, the officer will have to

show that they would have taken the same action against

you regardless of your lawsuit.

EXAMPLE: An officer learns that you have filed suit

against the warden and throws you into administrative

segregation to keep you away from law books or other

prisoners who might help you in your suit. The

“protected action” is you filing a lawsuit against the

warden; the “adverse action” is you being placed in the

hole. You would have a valid claim of retaliation unless

the officer had some other reason for putting you in

the hole, like you had just gotten into a fight with

another prisoner.

In one case, a prisoner was able to prove that there was a

policy or custom of retaliating against prisoners who

helped other prisoners exercise their right of access to the

courts. The retaliation violated their First Amendment

rights. Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001).

46 | CHAPTER 3 – YOUR RIGHTS IN PRISON

An important case to look at is Perez v. Gates, No. 13-cv-

05359-VC, 2015 U.S. Dist. LEXIS 127009 (N.D. Cal. Sept.

22, 2015). In that case, guards retaliated against a prisoner

for joining hunger strikes at Pelican Bay and for writings

that were critical of DOC incarceration practices. Several

guards acted together to trash the prisoner’s cell and

confiscate legal papers. The court allowed the case to

continue on retaliation claims. The case went to trial and a

federal jury found that the defendants violated the

prisoner’s First Amendment rights and were liable for

$25,000 total in damages, which included punitive

damages.

Be aware that some courts break the three-part test into

five parts, but the substance is basically the same. For

example, in Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

Cir. 2005) the court explained that retaliation claims

require “five basic elements: (1) an assertion that a state

actor took some adverse action against an inmate (2)

because of (3) that prisoner’s protected conduct, and that

such action (4) chilled the inmate’s exercise of his First

Amendment rights, and (5) the action did not reasonably

advance a legitimate correctional goal.”

It is possible—but not easy—to get a preliminary injunction

to keep correctional officers from threatening or harming

you or any of your witnesses in an upcoming trial. Valvano

v. McGrath, 325 F. Supp. 408 (E.D.N.Y. 1970). Preliminary

injunctions are discussed in Chapter Four, Section B. It is

also a federal crime for state actors (the prison officials) to

threaten or assault witnesses in federal litigation. 18 U.S.C.

§ 1512 (a)(2). Also remember that groups of prisoners are

allowed to bring class action suits if many of them are

regularly deprived of their constitutional rights. You have

strength in numbers—it cannot hurt to enlist the help of

friends inside and outside prison. If you can get somebody

on the outside to contact the media or the prison

administration on your behalf, it may remind prison

officials that others are out there watching out for you,

and it may scare them away from engaging in particularly

repressive tactics.

Finally, remember that even when you think it would be

pointless or go through the prison’s formal complaint

system, the PLRA still requires you to do so. If you

complain and a guard or someone else threatens you, you

still have to go through all available prison grievance and

appeal procedures before the court will consider your

Section 1983 claim. Booth v. Churner, 532 U.S. 731 (2001).

Issues of Importance to Women in

Prison

As you learned in Section C, women in prison have the

same rights under the U.S. Constitution as everyone else.

But even though the number of women in prison continues

to grow, most cases involving prisoners have been about

male prisoners and their needs.

This section discusses some issues of special concern to

women in prison, including gynecological care, prenatal

care (medical care during pregnancy), abortion, and privacy

from observation and searches. For discussion on the

needs of transgender women, see Section I.

1. Medical Care

As you learned in Section F, Part 4 of this chapter, your

right to medical care is guaranteed by the Eighth

Amendment, which prohibits cruel and unusual

punishment. To make a claim for an Eighth Amendment

medical-care violation, you must show a “serious medical

need” and a prison official must have shown “deliberate

indifference” to that need.

Despite these rights, women in prison often do not get the

medical care they need. In Todaro v. Ward, 565 F.2d 48 (2d

Cir. 1977), for example, a class of women in prison argued

that their prison’s medical system violated constitutional

standards. The court applied the “deliberate indifference”

test and determined that by not properly screening

women’s health problems and poorly administering prison

health services, the prison had denied or unreasonably

delayed prisoners’ access to proper medical care in

violation of the Eighth Amendment. The court ordered the

prison to take specific steps to improve its medical

services.

a. Proper Care for Women in Prison

Most courts have not yet considered how to judge the

level of medical care women in prison need, including

pregnant women. However, state and local regulations

sometimes require certain medical services, such as a

physical exam, for every new prisoner. Under federal law,

all federal prisoners are entitled to a medical screening,

with appropriate record keeping, that meets guidelines

issued by the Bureau of Prisons. 28 CFR §§ 522.20 -

522.21.

If you are unsure about your own medical needs or want to

challenge the medical care you have received, you may

want to take a look at some guidelines for women’s health

published by national medical associations. The Jailhouse

Lawyer’s Manual from Columbia University provides a

good summary of the medical services and tests that

national guidelines recommend for women. Information on

how to order the Columbia Jailhouse Lawyer’s Manual is

available in Appendix K.

While a court cannot enforce these guidelines, a judge may

be willing to take them into account, especially since there

is not that much case law in this area.

b. Medical Needs of Pregnant Women

Women who are pregnant require special medical care,

called “prenatal care,” to ensure that they deliver healthy

babies. Many pregnant women experience complications

during their pregnancy. With immediate and appropriate

47 | CHAPTER 3 – YOUR RIGHTS IN PRISON

medical care, these complications can be resolved, and

women can go on to have healthy pregnancies and babies.

When these complications are ignored, however, they can

lead to miscarriages, premature or risky labor, and future

reproductive health problems for the pregnant woman

involved.

Challenging inadequate prenatal care in court

The two-part test for inadequate medical care under the

Eighth Amendment raises some special questions in the

area of prenatal care:

> Is pregnancy a serious medical need? Complications

during pregnancy, like pain or vaginal bleeding, are serious

medical needs. Coopers v. Rogers, 968 F. Supp. 2d 1121

(M.D.Ala 2013). But courts disagree whether a healthy

pregnancy is a “serious medical need.” One court said that

pregnancy is not a serious medical need if a doctor has not

identified any special need for care and when it would not

be obvious to an average person that there is a problem.

Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997). In a case

about a prisoner’s right to an abortion, however, another

court stated that pregnancy is different from other medical

issues and is a “serious medical need,” even when there are

no complications or abnormalities. Monmouth County

Correctional Institution Inmates v. Lanzaro, 834 F.2d 326 (3d

Cir. 1987).

> What counts as deliberate indifference? If you

experienced major complications during your pregnancy, a

court is likely to find that you had a serious medical need,

but the court must still decide whether a prison official

who denied you appropriate care showed deliberate

indifference to your needs. In Coleman v. Rahija, 114 F.3d

778 (8th Cir. 1997), the court found that a prison nurse

showed deliberate indifference when she ignored requests

to transfer a pregnant prisoner in early labor to a hospital,

leaving the prisoner to give birth in severe pain on the

floor of her prison cell. The court held that the nurse must

have known of the prisoner’s serious medical need

because the signs of her preterm labor were obvious and

because the nurse had access to the prisoner’s medical

records, which documented a history of multiple

pregnancies, all with serious complications. In Goebert v.

Lee County, 510 F.3d 1312 (11th Cir. 2007), the court

found that a pregnant pretrial detainee’s rights were

violated when she did not get medical care for 11 days

while leaking amniotic fluid and ultimately had a stillbirth.

In some cases, a prison official’s supervisor can be found

guilty of deliberate indifference when the official violates a

prisoner’s rights, even if the supervisor was not aware of

the particular incident in question. In Boswell v. Sherburne

County, 849 F.2d 1117 (8th Cir. 1988), the court found a

possibility of deliberate indifference among both the jailers

who repeatedly ignored a pregnant pretrial detainee’s

complaints of severe vaginal bleeding and their

supervisors, even though the supervisors were not directly

involved. The court relied on the fact that the supervisors

encouraged jailers to use their own untrained medical

judgment and to reduce the jail’s medical costs, even when

it put pretrial detainees’ health at risk.

You should be aware, however, that it is very difficult in

general to succeed on a claim that a supervisor is liable to

you for a violation of your rights. For a detailed

explanation of when you may be able to bring a claim

against a supervisor, see Chapter 4, Section D of this

Handbook.

Is it legal to shackle a pregnant prisoner?

It is a sad fact that prisons sometimes shackle pregnant

prisoners. At least one court has held that a prison cannot

use any restraints on a woman during labor, delivery, or

recovery from delivery, and cannot use any restraints while

transporting a woman in her third trimester of pregnancy

unless that woman has a history of escape or assault, in

which case only handcuffs are allowed. Women Prisoners of

the District of Columbia Dept. of Corrections v. District of

Columbia, 93 F.3d 910 (D.C. Cir. 1996). Another good case

on this issue is Nelson v. Correction Medical Services, 583

F.3d 522 (8th Cir. 2009), in which a woman prisoner who

was forced to endure the final stages of labor and delivery

while shackled was entitled to go to trial against the guard

who shackled her. In 2011, another court relied on Nelson

to say that women should not be shackled during labor or

post-partum recovery and that prisons must provide

women with medically necessary devices, such as breast

pumps, when prescribed by doctors. Villegas v. Metro. Gov’t

of Davidson Cnty., 789 F. Supp. 2d 895 (M.D. Tenn. 2011).

Some cases have led to settlements, such as a case that

settled in 2014 for $130,000 against the Nevada

Department of Corrections after a prisoner was shackled

from labor to delivery, and her medically prescribed breast-

milk pump was taken. Nabors v. Navada Dep’t of Corr., No.

2:12-cv-01044-LRH-VCF (D. Nv. 2014). And in 2012, a

federal judge approved a $4.1 million settlement in a class-

action suit against Cook County, Illinois, after 80 women

sued over in-custody births where the women were

shackled.

It may be helpful to reference these cases, as well as a

June 15, 2010 resolution by the American Medical

Association (AMA) which prohibits the use of restraints on

a female prisoner “in labor, delivering her baby or

recuperating from the delivery.” AMA Resolution 203(A-

10).

2. Your Right to an Abortion in Prison

The Basics You cannot be forced to have an

abortion you don’t want, and you must be allowed an

abortion if you want one. If you are being denied an

abortion you want, or forced to have one you don’t

want, you may want to contact the ACLU Reproductive

Freedom Project. Their address is listed in Appendix I.

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court

upheld a woman’s right to choose to have an abortion

under the Fourteenth Amendment, which protects certain

fundamental rights to privacy. Almost twenty years later, in

Planned Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833 (1992), the court once again upheld the right

to an abortion, but also held that the state can limit this

48 | CHAPTER 3 – YOUR RIGHTS IN PRISON

right in certain ways to promote childbirth. The state can

require women to do certain things, as long as those

limitations did not place an “undue burden” on a woman’s

right to choose abortion. For example, the state can make

a woman wait a certain period of time before having an

abortion, or it may be able to require a parent’s permission

if the woman is a minor. The court defined an “undue

burden” as “a state regulation that has the purpose or

effect of placing a substantial obstacle in the path of a

woman seeking an abortion.” Casey, 505 U.S. at 877.

A woman in prison may challenge an official’s failure to

provide her access to an abortion in one of two ways. First,

she can claim a violation of her fundamental right to

privacy under the Fourteenth Amendment. Second, she

can claim a violation of her Eighth Amendment right to

medical care, using the two-part test described above.

Each of these approaches has been successful, but they

can also be challenging for a number of reasons.

a. Fourteenth Amendment Claims

If the prison has a policy that limits your ability to get an

abortion in any way, you can challenge that policy under

the Fourteenth Amendment. In deciding if the policy is

constitutional, the court will use the Turner standard,

described in Section A of this Chapter.

One important case is Monmouth County Correctional

Institution Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987).

In that case, a prison policy required pregnant women to

get a doctor to state that an abortion was medically

necessary or get a court order before it would allow the

prisoner to obtain an abortion. The Court held that this

violated both the Fourteenth Amendment and Eighth

Amendment. The Monmouth court applied the four-part

Turner reasonableness test to the prison policy in question

and determined that the women in prison’s Fourteenth

Amendment rights outweighed any claim of legitimate

penological interest that might explain the policy.

The court addressed each part of the test as follows:

> Is there a valid, reasonable connection between the

prison regulation and a legitimate, neutral state interest

used to justify the regulation? The court found that the

regulation had no valid relationship to a legitimate security

interest. It pointed out that maximum- and minimum-

security prisoners could receive “medically necessary”

services without a court order, but that even minimum-

security prisoners had to receive a court order to seek an

abortion.

> Is there another way for prisoners to exercise the

constitutional right being limited under the regulation? The

court found no other way for prisoners to exercise their

right to an abortion under the regulation. It argued that

maximum-security prisoners would be unlikely to be

released for an abortion by court order and could not get

an abortion in the prison. While minimum-security

prisoners might receive the release order for an abortion,

the court argued that the likelihood of delay in the process

was too big a risk, since women are unable to have

abortions legally past a certain point in their pregnancy.

> How would eliminating the court-ordered release

requirement for prisoner abortions impact prison

resources, administrators, and other prisoners? The court

noted that although allowing prisoners access to abortions

imposed some costs on the prison, giving prisoners proper

prenatal care and access to hospitals for delivery imposes

equal costs, so eliminating the regulation would not be too

costly for the prison. The court also noted that while a

prison must help fund abortions for prisoners who cannot

pay for them, it is not obligated to pay for all abortion

services.

> Are there less restrictive ways for the government to

promote its interests? In other words, is the regulation an

exaggerated response to the government’s interests?

Finally, the court ruled that the regulation was an

exaggerated response to questionable financial and

administrative burdens because it had nothing to do with

prison security and because plaintiffs were simply asking

the prison to accommodate the medical needs of all

pregnant prisoners, not just those who wished to give

birth.

Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008) is another

very positive case. There, a class of women seeking

elective abortions sued over a Missouri Department of

Corrections policy that denied pregnant prisoners

transport to receive elective abortions. The department

defended the policy by citing a security concern: that

protests and conditions at abortion clinics posed a risk to

guards and prisoners. The Court decided this concern was

legitimate, and that, under the first Turner question, the

ban on transport did rationally advance the concern.

However, under Turner question two, the Court found that

the transport ban entirely eliminated access to abortion,

which weighed very heavily against the constitutionality of

the rule. After considering the final two Turner factors, the

court determined that the rule violated the Fourteenth

Amendment and had to be struck down.

Not all Fourteenth Amendment claims have been

successful. One bad case is Victoria W. v. Larpenter, 369

F.3d 475 (5th Cir. 2004). That case involved an unwritten

prison policy requiring pregnant women to obtain a court

order allowing transport for an elective abortion. The court

found that the prison’s policy of requiring prisoners to seek

and receive a court order before allowing them to be

released for non-emergency medical services met the

Turner v. Safley test for reasonableness. On the other hand,

in Doe v. Arpaio, 214 Ariz. 237 (Ct. App. Ariz. 2007),

women in prison sued after they were denied access to

abortions without a court order. The Arizona Court of

Appeals upheld a decision to strike down the jail’s policy of

requiring court orders for abortions because it served no

legitimate penological purpose.

b. Eighth Amendment Claims

While a Fourteenth Amendment due process claim is a

more likely way to win an abortion case, prisoners have

49 | CHAPTER 3 – YOUR RIGHTS IN PRISON

also had success with Eighth Amendment claims. However,

proving both a serious medical need and deliberate

indifference can be difficult.

Is abortion a serious medical need?

When an abortion is necessary to preserve your life or

health, it is without question a “serious medical need.” The

debate among courts centers on abortions that are

“elective”—that is, abortions that are not medically

necessary to preserve a woman’s health or save her life.

In Monmouth, the Court of Appeals determined that

abortions are a serious medical need whether or not they

are medically necessary to protect the health of the

woman. The Court rejected the argument that only a

painful or serious injury counts as a serious medical need,

and noted the unique nature of pregnancy. Even when an

abortion is elective, the court decided, it is always a serious

medical need because delaying an abortion for too long or

denying one altogether is an irreversible action. Without

fast medical attention, a woman who wants to exercise her

right to have an abortion cannot do so.

Not all courts have agreed with the Monmouth decision,

and the case law on whether an elective abortion is a

serious medical need is different in different states. For

example, in Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008),

described above, the appellate court reversed the district

court’s decision that the Missouri policy violated the Eighth

Amendment. The court decided that because an elective

abortion is not medically necessary, it is not a serious

medical need.

When is the failure to provide access to abortion

deliberate indifference?

Proving deliberate indifference can also be hard. Courts

seem to disagree about the standard for deliberate

indifference when it comes to abortion. Some courts find

only negligence (which is not a violation of a constitutional

right) even when it seems like a prison official knew of a

prisoner’s request for and right to an abortion. For

example, in Bryant v. Maffuci, 923 F.2d 979 (2d Cir. 1991),

the court held that prison officials had only been negligent

in failing to schedule an abortion for a pregnant prisoner

until it was too late for her to have one under New York

law, even though, as the dissent noted, the prisoner

requested an abortion upon her arrival to prison and every

day thereafter, and the medical staff had measured the

duration of her pregnancy so far and marked her file as an

“EMERGENCY.”

It can be especially difficult to prove deliberate

indifference when the actions of many officials are

involved. In Gibson v. Matthews, 926 F.2d 532 (6th Cir.

1991), a federal judge sentenced a pregnant woman to

prison and, based on the prisoner’s repeated requests for

an abortion, requested that she be provided with an

abortion as soon as possible. After several days of travel,

Ms. Gibson reached her assigned facility and learned that

no abortions were performed there. When she finally

arrived at a facility that did perform abortions, she was told

that it was too late in her pregnancy to arrange an

abortion. The court held that the denial of Ms. Gibson’s

abortion could not be attributed to any particular official,

and was only negligence, not deliberate indifference.

2. Discrimination Towards Women in Prison

In addition to the sexism and bias that exists outside

prison, women often experience discrimination because

they are a minority population in prison. While the

population of women in prison has grown much larger over

the past few years, women still are at risk for being lumped

together in one prison with other prisoners from all levels

of security classification because there are fewer women’s

prisons. They will sometimes be sent much farther away

from their homes than men because there are no women’s

prisons nearby. The ACLU report Worse than Second-Class:

Solitary Confinement of Women in the United States (April

2014) documented the effects that time spent in solitary

confinement has on women in prison. States that provide

treatment and educational programs for male prisoners

usually provide fewer programs for women because it is

very expensive to provide so many programs for so few

women.

Faced with these inequalities, women have brought

successful suits against state prison officials using an equal

protection argument. For example, in a landmark class

action case in Michigan, Glover v. Johnson, 478 F. Supp.

1075 (E.D. Mich. 1979), women challenged the educational

opportunities, vocational training, prison industry and work

pass programs, wage rates, and library facilities they were

provided as compared to those male prisoners were

provided. Although prison officials tried to argue that it

was impractical and too expensive to provide the smaller

population of women the same level of services that they

provided to men, the court ruled in favor of the women.

The judge ordered the prison to undertake a series of

reforms, and the court oversaw these reform efforts for

close to twenty years, often stepping in to enforce its

decision when it became clear that the prison was not

following the Glover court’s orders. Also, in Victory v. Berks

County, 2019 WL 211568 (E. D. Pa. Jan. 15, 2019) a

federal court ruled in favor of a woman with “trusty”

security status, whose conditions of confinement were far

more restrictive than those allowed for male “trusty”

prisoners.

For more information on how to bring equal protection

claims, reread Section C in this chapter.

3. Observations and Searches by Male Guards

Many women in prison feel uncomfortable or anxious

when they are observed or searched by male guards. The

Prison Rape Elimination Act (PREA), 28 C.F.R. § 115.15,

limits cross-gender viewing, pat-downs, and strip-searches

to “exigent circumstances” and requires that all such

searches be documented. You can’t enforce PREA in the

courts, but you can use it as evidence of community

standards or to show that prison officials are aware of the

risk of harm from cross-gender pat searches. The

Constitution provides you with some protection from

these searches: the Fourth Amendment protects your right

to privacy from unreasonable searches, while the Eighth

50 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Amendment protects your right to be free from cruel and

unusual punishment. However, as with other constitutional

rights, your Fourth and Eighth Amendment rights must be

weighed against the prison’s interests in security and

efficiency. It is also important to understand that since the

federal government prohibits employment discrimination

based on gender, courts are reluctant to prevent men from

doing a certain type of work in prisons simply because they

are men.

Title VII of the United States Code, a federal law, forbids

employment discrimination against someone because of

their gender. 42 U.S.C. § 2000e et seq. This means that, in

general, an employer cannot refuse to hire someone for a

certain job or give someone a promotion because of their

gender. The only exception to this rule is when there is a

strong reason, not based on stereotypes about gender, to

believe that a person of one gender could not perform the

job or would undermine the goal of the work. In the

language of the statute, it must be “reasonably necessary”

to have an employee of a specific gender; if this is the case,

gender is considered a “BFOQ” which stands for “bona fide

occupational qualification.” If the court finds a BFOQ, that

means it is legitimate to take gender into account.

Many courts have weighed prisoners’ privacy interests

against the need to prevent discrimination in our society

and decided that preventing discrimination is a more

serious concern. For example, in Johnson v. Phelan, 69 F.3d

144 (7th Cir. 1995), a case about women guards in men’s

prisons, the court expressed concern that women would

get stuck with office jobs and decided that gender is not a

BFOQ. In Torres v. Wisconsin Department of Health and

Human Services, 859 F.2d 1523 (7th Cir. 1988), however,

the same court found it acceptable that a women’s

maximum-security prison did not allow men to work as

security guards because the administrators of the women’s

prison had determined that male guards might harm the

women in prison’s rehabilitation. According to the court,

Johnson and Torres are not inconsistent even though they

reached different conclusions about a similar question,

because in each case the court deferred to the expertise of

prison administrators.

There was a similar result in Everson v. Michigan

Department of Corrections, 391 F.3d 737 (6th Cir. 2004).

There, the court considered a decision by the Michigan

Department of Corrections to ban men from certain

positions at women’s prisons in reaction to widespread

sexual abuse of prisoners. Male guards sued the prison

unsuccessfully. The court deferred to prison officials and

found that gender was a BFOQ.

Courts have reached similar conclusions, like in Teamsters

Local Union No. 117 v. Wash. Dep’t Corr., 789 F.3d 979 (9th

Cir. 2015), where the court looked at a Washington policy

of having female-only correctional positions after the state

faced years of problems in women’s prisons. The court said

that because of the history and documented allegations of

abuse, plus interests in privacy and prevention of sexual

assault, gender qualified as a BFOQ in that case.

Although many courts have recognized that strip searches

and pat downs by guards of the opposite sex can be

uncomfortable and even humiliating, courts do not usually

consider these searches cruel and unusual punishment. In

one important case, however, a court found that pat-down

searches of female prisoners by male guards did violate the

Eighth Amendment because the searches led the women

to experience severe emotional harm and suffering. The

court based its argument on statistics showing that 85% of

women in that particular prison had been abused by men

during their lives. Since the superintendent knew these

statistics and had been warned that pat-downs could lead

to psychological trauma in women who had been abused,

and since the superintendent could not show that the

searches were necessary for security reasons, the court

called the search policy “wanton and unnecessary” and

held it unconstitutional. Jordan v. Gardner, 986 F.2d 1521

(9th Cir. 1993). There are also some good cases about

cross-gender strip searches done in unreasonable ways in

Section E of this Chapter.

The Department of Justice National Standards on the

PREA includes a ban on cross-gender pat-down searches

of female prisoners. 28 C.F.R. § 115.15.

NOTE: These standards are non-binding, do not apply

to states, and cannot be the basis for a lawsuit. But you

may want to mention them to support your argument

that constitutional rights were violated.

Courts are more likely to uphold invasions of your privacy

by male prison guards when there is an emergency

situation. For example, the Jordan court did not prohibit all

cross-gender searches of prisoners, despite the women’s

histories of abuse; it only found “random” and

“suspicionless” searches by male guards unconstitutional.

In contrast, another court approved of a visual body cavity

search performed on a male prisoner in front of female

correctional officers because the officer performing the

search believed the situation to be an emergency, even

though it was not. Cookish v. Powell. 945 F.2d 441 (1st Cir.

1991).

Issues of Importance to LGBTQ+

People and People Living with

HIV/AIDS

Although prisons often fail to recognize the beauty,

diversity and complexity of our lived experiences, this

section offers tools and information that lesbian, gay,

bisexual, transgender, queer, or intersex (“LGBTQ+")

people and people living with HIV/AIDS can use to fight

against the ignorance, discrimination, and violence in

prison. Law and society have a long way to go until there is

true liberation for all people, but that day will come.

51 | CHAPTER 3 – YOUR RIGHTS IN PRISON

There are several organizations involved in this movement,

so you may want to contact one of them before beginning

any case. They are listed in Appendix I.

Section I: Table of Contents

Part 1 ..................... Right to Be Free from Discrimination

Part 2 ...................... Protection from Violence and Abuse

Part 3 ....................................... Rights to Facility Placement

Part 4 .................................................... Rights to Healthcare

Part 5 ............................. Right to Free Gender Expression

Part 6 .................................................................. Other Rights

This Section describes legal issues that may be important

to LGBTQ+ prisoners. Unfortunately, the law operates in

binary terms, and cases cited in this handbook will often

use outdated and derogatory language like homosexual or

transsexual and may conflate gender and gender identity

for sexual orientation.

People who are intersex or have differences of sexual

development (DSDs) (i.e., bodies that do not seem

“typically” male or female) may have some challenges in

prison that are similar to those that LGBTQ+ people face.

Where we could, we have also talked about some cases

brought by people with intersex conditions in prison.

1. Your Right to Be Protected from

Discrimination

a. Discrimination Generally

In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court

affirmed that the Equal Protection Clause protects

LGBTQ+ people from discrimination. In a landmark

decision, Bostock v. Clayton County, 140 S. Ct. 1731 (2020),

the Supreme Court also ruled that discrimination against

LGBTQ+ people is a form of sex discrimination, just like

discrimination against women or men.

These decisions did not address whether discrimination

against LGBTQ+ people is subject to “heightened” scrutiny

(sometimes called “intermediate” scrutiny), which would

make discrimination easier to prove. As you will recall from

Section C on equal protection, “heightened scrutiny” is a

much better standard than rational basis review, because it

requires the prison to prove that its policy is substantially

related to an important government interest.

But a growing number of other courts have found that

discrimination against LGBTQ+ people is subject to

heightened scrutiny, just like other forms of discrimination

based on sex and gender.

For instance, in Windsor v. United States, 699 F.3d 169 (2d

Cir. 2012), an appeals court found that lesbian and gay

people are a quasi-suspect class whose discrimination

claims should receive heightened scrutiny based on four

traditional factors considered by the Supreme Court: (1)

whether lesbian and gay people have suffered a history of

persecution; (2) whether being gay or lesbian makes

people less able to contribute to society; (3) whether

lesbian and gay people are part of a discrete group that has

“obvious, immutable, or distinguishing characteristics”; and

(4) whether lesbian or gay people are a politically

weakened minority group. This decision was affirmed by

the Supreme Court on other grounds, based on a due

process theory, in United States v. Windsor, 570 U.S. 744

(2013).

In SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471,

481 (9th Cir. 2014), another appeals court reached the

same conclusion and ruled that sexual orientation

discrimination is subject to heightened scrutiny.

A number of courts have held that transgender people are

also a quasi-suspect class that receive heightened scrutiny.

Some of these cases are: Grimm v. Gloucester Cty. Sch. Bd.,

972 F.3d 586 (4th Cir. 2020); Adams v. Sch. Bd. of St. Johns

Cty., 968 F.3d 1286 (11th Cir. 2020); Karnoski v. Trump,

926 F.3d 1180 (9th Cir. 2019); and Whitaker v. Kenosha

Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir.

2017).

But not all courts have been willing to apply heightened

scrutiny to LGBTQ+ discrimination claims.

The following table lists the rules that apply based on your

jurisdiction. Circuits with good appellate decisions appear

in bold. Keep in mind that many of the “bad decisions”

were issued before many of the Supreme Court’s

important LGBTQ+ rights decisions. Old cases decided

before the Court’s same-sex marriage decisions appear

with one asterisk, and even older cases decided before the

Court’s Lawrence v. Texas decision which struck down laws

that made same-sex intimacy illegal appear with two

asterisks. You may want to mention this if one of these old

cases is cited in a brief against you.

52 | CHAPTER 3 – YOUR RIGHTS IN PRISON

QUESTION:

YES:

NO:

MAYBE:

(i.e., some good decisions

from district courts):

Does

Heightened/

Intermediate

Scrutiny Apply

to Transgender

Discrimination

Claims?

Fourth Circuit: Grimm v.

Gloucester Cty. Sch. Bd., 972

F.3d 586 (4th Cir. 2020)

Sixth Circuit: Bd. of Educ. of the

Highland Local Sch. Dist. v.

United States Dep't of Educ.,

208 F. Supp. 3d 850, 854 (S.D.

Ohio 2016)

Seventh Circuit: Whitaker v.

Kenosha Unified Sch. Dist. No. 1

Bd. of Educ., 858 F.3d 1034

(7th Cir. 2017)

Ninth Circuit: Karnoski v.

Trump, 926 F.3d 1180 (9th Cir.

2019); Hecox v. Little, No. 1:20-

CV-00184-DCN, 2020 WL

4760138 (D. Idaho Aug. 17,

2020)

Eleventh Circuit: Adams v. Sch.

Bd. of St. Johns Cty., 968 F.3d

1286 (11th Cir. 2020); Glenn v.

Brumby, 663 F.3d 1312 (11th

Cir. 2011)

Second Circuit: Windsor v.

United States, 699 F.3d 169 (2d

Cir. 2012)

Ninth Circuit: SmithKline

Beecham Corp. v. Abbott Labs.,

740 F.3d 471 (9th Cir. 2014)

Tenth Circuit: Etsitty v. Utah

Transit Auth., 502 F.3d 1215,

1220 (10th Cir. 2007)*

First Circuit: Cook v. Gates, 528

F.3d 42 (1st Cir. 2008)*

Fourth Circuit: Veney v. Wyche,

293 F.3d 726 (4th Cir. 2002)**

Fifth Circuit: Johnson v.

Johnson, 385 F.3d 503, 532

(5th Cir. 2004)*

Sixth Circuit: Ondo v. City of

Cleveland, 795 F.3d 597 (6th

Cir. 2015)

Seventh Circuit: Schroeder v.

Hamilton Sch. Dist., 282 F.3d

946 (7th Cir. 2002)*

Eighth Circuit: Richenberg v.

Perry, 97 F.3d 256 (8th Cir.

1996)**

Tenth Circuit: Price-Cornelison

v. Brooks, 524 F.3d 1103 (10th

Cir. 2008)*

Eleventh Circuit: Lofton v. Sec'y

of Dep't of Children & Family

Servs., 358 F.3d 804 (11th Cir.

2004)*

First Circuit: Doe v.

Massachusetts Dep't of

Correction, No. CV 17-12255-

RGS, 2018 WL 2994403 (D.

Mass. June 14, 2018)(Yes)

Second Circuit: Adkins v. City of

New York, 143 F. Supp. 3d 134

(S.D.N.Y. 2015)(Yes)

Third Circuit: Evancho v. Pine-

Richland Sch. Dist., 237 F. Supp.

3d 267 (W.D. Pa. 2017) (Yes);

A.H. v. Minersville Area Sch.

Dist., 408 F. Supp. 3d 536

(M.D. Pa. 2019)(Yes)

Unclear because there are no

recent, relevant decisions: Fifth

Circuit & Eighth Circuit

Third Circuit: Whitewood v.

Wolf, 992 F. Supp. 2d 410

(M.D. Pa. 2014)(Yes)

If you live in a Circuit that uses heightened scrutiny to review claims of discrimination against LGBTQ+ people, it should

be easier for you bring equal protection challenges. But if you do not, that’s okay too. You can still bring equal protection

claims to challenge your treatment under the rational-basis test, discussed in Section C Part 2.

53 | CHAPTER 3 – YOUR RIGHTS IN PRISON

b. Job/Program Discrimination

If you think you were denied or removed from a prison job

or program because you are LGBTQ+, you may be able to

bring an equal protection claim. Although it arose outside

the prison context, a good case to cite is the Supreme

Court’s decision in Bostock v. Clayton County, 140 S. Ct.

1731 (2020), which found that discrimination against

LGBTQ+ workers is unlawful sex discrimination.

Even prior to Bostock, courts have found that equal

protection claims brought by LGBTQ+ people denied

prison jobs and program participation may succeed. In

Davis v. Prison Health Services, 679 F.3d 433 (6th Cir.

2012), Johnson v. Knable, 1988 WL 119136 (4th Cir. 1988),

and Counce v. Kemma, 2005 WL 579588 (W.D. Mo. 2005),

courts ruled that LGBTQ+ plaintiffs who were denied

prison work assignment because of their sexual orientation

had a valid equal protection claim. In Holmes v. Artuz, No.

95 Civ. 2309 (SS), 1995 WL 634995 (S.D.N.Y. Oct. 26,

1995), the Court also rejected a policy denying mess hall

jobs to “overt homosexual[s]” on equal protection grounds,

writing: “A person’s sexual orientation, standing alone,

does not reasonably, rationally or self-evidently

implicate…security concerns.” The Court also rejected the

argument that the employment ban was necessary to

prevent “potential disciplinary and security problems”

among prisoners biased against LGBTQ+ people.

In McKibben v McMahon, 2015 WL 10382396 (C.D. Cal.

2015), LGBTQ+ prisoners successfully brought a class

action challenging their denial of educational opportunities,

including occupational training and GED classes, and drug

rehab programs.

To prevail on your equal protection claim, you will have to

show an actual injury, such as attempting to participate in a

program and being denied. In Bass v. Santa Clara Dept. of

Corrections Sup’rs, 1994 WL 618554 (N.D. Cal. Oct. 27,

1994), the court rejected a case brought by nine LGBTQ+

prisoners who alleged they were barred from participating

in prison programs but had never actually tried to join and

been denied.

Due process claims challenging the denial of a job or

program are unlikely to succeed because prisoners do not

have a constitutionally protected interest in their prison

jobs.

However, if being denied access to prison programs is

preventing you from earning good time credits that could

lead to an early release, you can try to argue your due

process rights are being violated because of your liberty

interest in earning a reduced sentence. A good case to cite

is the Supreme Court’s decision in Wolff v. McDonnell, 418

U.S. 539 (1974), which found that prisoners have a liberty

interest in good time credits, so due process applies. Be

aware though, when considering whether a prisoner has a

liberty interest in the opportunity to earn good time credit,

the law differs from state to state and depends on the

nature of the state’s good time credit regulations. For

example, in Stine v. Fox, 731 Fed.Appx. 767 (10th Cir.

2018), a court held there was no liberty interest in

unearned good time credit in the Bureau of Prisons.

Similarly, in Abed v. Armstrong, 209 F.3d 63 (2d Cir. 2000),

a court held that Connecticut prison officials have

discretion in awarding good time credit, so prisoners there

have no liberty interest in unearned credit. On the other

hand, in Montgomery v. Anderson, 262 F.3d 641 (7th Cir.

2001), a court found that Indiana law does create a liberty

interest in one’s good time credit classification, which

controls the rate at which you can earn good time credit.

Finally, there could be a basis for a First Amendment claim

if you were not allowed into or were kicked out of a

program because of your gender expression, political belief

in LGBTQ+ rights, or your objection to the mistreatment of

LGBTQ+ prisoners. For instance, in Holmes v. Artuz, cited

above, the judge allowed a First Amendment claim on the

theory that the prisoner was retaliated against after

complaining about unfair treatment for LGBTQ+ prisoners.

c. Marriage and Visitation for LGBTQ+ People in

Prison

In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court

held that incarcerated people have a constitutionally

protected right to marry. In Obergefell v. Hodges, 135 S. Ct.

2584 (2015), the Supreme Court ruled that bans on same-

sex marriage are unconstitutional. Then, in Bostock v.

Clayton Country, 140 S. Ct. 1731 (2020), the Supreme

Court held that discrimination against LGBTQ+ workers is

unlawful sex discrimination—a ruling that extends beyond

the workplace. Together, these cases mean that LGBTQ+

people in prison have a fundamental right to marry, and

same-sex couples must be treated the same as other

couples by prisons in all fifty states.

If your spouse is not incarcerated, a prison cannot restrict

visitation simply because you are a same-sex couple. Often

the prison will argue it has many reasons for denying a

visitor, but if the main reason is to “rehabilitate your

homosexuality,” you have strong grounds to challenge the

decision because restrictions on visitors must have a

“legitimate penological purpose.” You should cite to

Obergefell, and also Lawrence v. Texas, 539 U.S. 558

(2003), the Supreme Court case that found sex between

consenting adults in private should no longer be

considered a crime just because the people having sex are

LGBTQ+. After Lawrence and Obergefell, disapproval of

same-sex relationships is not a valid reason to bar visitors.

Although there is no constitutional right to conjugal visits,

same-sex conjugal visits are allowed in at least two states:

California and New York. If your state allows opposite-sex

conjugal visits but bans them for same-sex couples, cite

Bostock and argue the prison is violating your right to

equal protection by engaging in sex discrimination.

Regardless of whether you and your partner are married,

you can also bring an equal protection claim if you are

treated differently than opposite-sex couples. In Whitmire

v. Arizona, 298 F.3d 1134 (9th Cir. 2002), the Ninth Circuit

ruled that a gay couple had a valid equal protection claim

when they were banned from hugging and kissing during

jail visits while straight couples were allowed to. And in

Doe v. Sparks, 733 F. Supp. 227 (W.D. Pa. 1990), a court

54 | CHAPTER 3 – YOUR RIGHTS IN PRISON

struck down a ban on prison visits by the boyfriends and

girlfriends of LGBTQ+ people on equal protection grounds

despite its alleged aim of preventing anti-LGBTQ+ violence

within the prison.

Marriages and Relationships with Other LGBTQ+

Prisoners

Following Obergefell, at least one LGBTQ+ couple has

successfully challenged a rule barring them from marrying

in prison. See Barnes v. Lawrence, No. 19-CV-00806-SMY,

2019 WL 6117721 (S.D. Ill. Nov. 18, 2019) (citing Turner

and Obergefell). However, virtually every prison system

has rules saying that sex between prisoners is not allowed,

even when it is consensual. Courts have upheld these

rules. See Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002)

(citing health and security concerns). Unfortunately, some

prison systems, such as Massachusetts, even have policies

stating that consensual sex between prisoners should be

treated as a form of sexual abuse. Some prison systems

also have rules against kissing, holding hands, or hugging.

And prisons generally have the power to transfer you away

from your partner, friend, or lover, to keep you from

writing to one another, and to keep you from being

affectionate so long as it is “reasonably related to

legitimate penological interests” under Turner’s four-part

test (1987).

Because the Supreme Court’s decision in Lawrence v. Texas,

539 U.S. 558 (2003) concerned same-sex intimacy in the

home, it has not been interpreted to confer a more

generalized right to consensual sex in prison. See Morales

v. Pallito, 2014 WL 1758163 (D. Vt. 2014) (ruling that

sexual intimacy between prisoners is not constitutionally

protected by Lawrence).

2. Your Right to be Free from Sexual and

Physical Violence

LGBTQ+ prisoners are often more vulnerable than other

prisoners to physical assault, harassment, and sexual

violence. Having a body or gender that does not match

dominant norms can be challenging outside of prison. On

the inside, the close quarters, reduced privacy, and power

dynamics can present more problems. The system often

increases the risks faced by transgender people by

assigning transgender women to male prisons. Prison

employees may be unaware of the needs of incarcerated

transgender individuals. All too often, they are part of the

problem, ‘looking the other way’ when violence happens,

or they are directly abusing transgender people. But as this

section explains, you do not have to suffer in silence.

a. Abuse by Prison Officials

As Section F Part 2 of this Chapter explains, the Eighth

Amendment protects you from physical and sexual abuse

involving prison guards and staff. Whether an incident of

objectionable sexual touching meets the objective

component of an Eighth Amendment claim will depend on

what Circuit you are in, how serious the touching was, and

whether it was a single incident or happened repeatedly.

One example of a successful case is Schwenk v. Hartford,

204 F.3d 1187 (9th Cir. 2000). In that case, a court ruled in

favor of a transgender woman in prison who claimed a

guard ground his exposed penis into her buttocks after she

refused his demand for oral sex, allowing her to make an

Eighth Amendment argument.

LGBTQ+ people in prison have also brought successful

cases challenging physical brutality and assault by guards.

In Morris v. Trevino, 301 F. App'x 310, 313 (5th Cir. 2008),

an appeals court ruled that a gay plaintiff who suffered

bruises and mental anguish after being punched, hit, and

brutally handcuffed because he was gay had a valid Eighth

Amendment excessive force claim. And in a New York

state case, a transgender prisoner, Misty LaCroix, brought

suit after New York prison guards punched and kicked her

while saying anti-transgender slurs, all without provocation

and while other guards failed to intervene. That case

settled for $80,000 in February 2015. There is no

published decision from this case, but you can cite a New

York Times article that includes the settlement to support

attempts to settle your own case. Tom Robbins, “A Brutal

Beating Wakes Attica’s Ghosts,” NY Times, Feb. 28, 2015.

b. Abuse from Other Incarcerated People

LGBTQ+ people have a constitutional right to be protected

from sexual violence and assault in prison according to

Farmer v. Brennan, 511 U.S. 825 (1994), a case that was

brought by a transgender woman who was sexually

assaulted in a men’s prison. This right extends to abuse by

guards as well as other prisoners. Because of Farmer, the

right is also “clearly established,” meaning you can recover

damages as a form of compensation.

As Section F Part 1 explains in greater detail, to hold a

prison official liable if you are attacked by another

prisoner, you will need to show that the prison officials (1)

knew you faced a substantial risk for assault or serious

harm, but (2) failed to take reasonable steps to protect you.

If you are a gay person or a transgender woman housed in

a men’s prison, you can try to claim that prison officials

knew you faced a substantial risk of sexual assault because

“the risk was obvious.” Farmer, 511 U.S. at 842. Another

good case to cite is Lojan v. Crumbsie, No. 7:12-cv-00320-

VB, 2013 U.S. Dist. LEXIS 15590 (S.D.N.Y. Jan. 25, 2013),

where a court held that mere knowledge that a prisoner

was transgender was enough to put prison officials on

notice that she was susceptible to physical attack. In a

recent case out of Washington D.C., the district court held

that a jury could infer that two guards knew that the

plaintiff, a transgender woman, faced a substantial risk of

rape when they placed her alone in a cell with a man for an

extended period of time. Doe v. D.C., 215 F. Supp. 3d 62

(D.D.C. 2016).

Some courts have also inferred that prison officials knew

of the risk facing LGBTQ+ plaintiffs based on their

appearance, small size, youthfulness, or reputation as a

drag queen or “known homosexual.” Taylor v. Mich. Dept. of

Corrections, 69 F.3d 76 (6th Cir. 1995), Jones v. Banks, 878

F. Supp. 107 (N.D. Ill. 1995). And in Howard v. Waide, 534

F.3d 1227, 1238 (10th Cir. 2008), a court found that prison

55 | CHAPTER 3 – YOUR RIGHTS IN PRISON

officials should have known a plaintiff who was “openly

gay and slight of build” would face an increased risk of

harm. But if prison officials are not aware you are

LGBTQ+, this claim will fail. See Ramos v. Hamblin, 840

F.3d 442, 445 (7th Cir. 2016).

Another way to demonstrate notice is showing that

corrections officials at your facility received policies and

reports documenting the vulnerability of LGBTQ+ people

in prisons. This strategy worked in Zollicoffer v. Livingston,

169 F. Supp. 3d 687, 696 (S.D. Tex. 2016), where the

Court also noted that “gay and transgender prisoners are

vulnerable to abuse in prison.” And in Shaw v. District of

Columbia, 944 F.Supp.2d 43 (D.D.C. 2013), a court found

that reports, regulations, and guidelines concerning the

treatment of transgender people put prison officials on

notice of a transgender woman’s risk of harm while housed

in men’s facilities.

If you want to try and make a similar argument, cite to the

Prison Rape Elimination Act of 2000, 42 U.S.C. § 15601 et

seq. and the federal PREA Standards, 28 C.F.R. § 115 et

seq. Together these laws are often referred to as “PREA”.

PREA explains that LGBTQ+ and intersex people are

especially vulnerable to sexual violence in custody and

mandates that prisons adopt special safeguards and

screening protocols to protect them. Also see if your

prison has issued PREA policies on their own. Appendix E

has summaries of a few state policies.

You may also want to cite the DOJ Bureau of Justice

Statistics, Sexual Victimization in Prisons and Jails

Reported by Inmates, 2011–12, Supplemental Tables:

Prevalence of Sexual Victimization Among Transgender

Adult Inmates (2014), which show that transgender people

are 10 times more likely to be assaulted in prison, and that

40% of transgender people have been sexually assaulted in

prison compared to 4% of the general population.

If you have reported previous abuse or harassment in

prison to officials, that will probably be enough to show

knowledge of the risk. A good case to cite here is Diamond

v. Owens, 131 F.Supp.3d 1346 (M.D. Ga. 2015).

Another good case is Greene v. Bowles, 361 F.3d 290 (6th

Cir. 2004). In that case a transgender plaintiff made it past

summary judgment on her claim against a prison warden.

She sued the warden for failing to protect her from a

maximum-security prisoner who beat her with a fifty-

pound fire extinguisher. The court found that she provided

enough facts to show the warden knew about the risk to

her safety because of her “vulnerability as a transsexual”

and her attacker’s reputation as a “predator.”

Other “failure to protect” cases have led to settlements,

such as in the case of Lorenzo Carl Paynes, a California

prisoner who reached a $5,000 settlement in 2010 after

prison staff overlooked him being assaulted in his cell. In

other case, Jackie Tates was paid $58,000 in a settlement

with Sacramento County after being assaulted by a male

prisoner whom personnel let access her cell.

Along with proving notice of a risk to your safety, you will

also have to show that the guard did not take reasonable

steps to protect you. If the guard took any action, like

writing up the matter or processing a complaint you

submitted, the court might say the guard didn’t disregard

the risk to your safety. In Williams v. Wetzel, 827 F. App'x

158, 161 (3d Cir. 2020), the Third Circuit denied an Eighth

Amendment claim by a gay man who was assaulted three

times because the prison took some safety measures,

including transferring and separating him from would-be

assailants, even though these steps proved inadequate.

And in Johnson v. Johnson, 385 F. 3d 503 (5th Cir. 2004),

the Fifth Circuit held that an officer who “referred the

matter for further investigation” might have done enough

to not be liable to a gay prisoner who claimed to have been

forced into sexual servitude by a prison gang.

LGBTQ+ people can also bring challenges under the Equal

Protection Clause where prison officials failed to protect

them from violence because of their LGBTQ+ status,

which is a form of bias. Johnson v. Taylor, No. 18 C 5263,

2020 WL 5891401 (N.D. Ill. Oct. 5, 2020).

As with all the other types of claims discussed in this

handbook, you can always consider bringing a case in state

court as well. For a good example of a state claim about

violence endured by a prisoner, see Giraldo v. California

Dept. of Corrections and Rehabilitation, 168 Cal.App.4th 231

(1st Dist. 2008). Ms. Giraldo, a transgender woman,

successfully sued prison guards under California state law

after she was repeatedly raped and abused by other

prisoners. In another case in Florida, a jury awarded

$40,000 to a transgender pretrial detainee who was raped

in jail and sued Orange County for negligence. D.B. v.

Orange Cnty, No. 2012-CA-19811-0 (Fl. Cir. Ct. 2012).

b. Sexual Harassment and Verbal Abuse

Humiliation and verbal harassment of LGBTQ+ people in

custody takes many forms. At one prison, transgender

women in prison reported being forced to walk topless

through a sea of male prisoners to get their clothes each

week. Other people in prison face frequent transphobic

slurs and solicitations for sex.

Some courts have found sexual harassment and verbal

abuse by prison guards can violate the Constitution if it

puts LGBTQ+ prisoners at a high risk of physical or sexual

assault, or psychological harm. In Beal v. Foster, 803 F.3d

356 (7th Cir. 2015), a court allowed an Eighth Amendment

claim to go forward when guards called the plaintiff a

“punk, faggot, sissy and queer” in front of other prisoners

and increased his likelihood of assault. And in Hughes v.

Farris, 809 F.3d 330 (7th Cir. 2015), a plaintiff who

received an “onslaught of homophobic epithets, including

‘sissy, faggot, bitch, whore, slut’” succeeded in bringing an

equal protection claim against officers at his facility. The

Court also stated, “The equal protection clause protects

against both sexual harassment by a state actor under

color of state law, and discrimination on the basis of sexual

orientation.” Id. at 334.

56 | CHAPTER 3 – YOUR RIGHTS IN PRISON

However, some courts have found that verbal comments

alone cannot be a constitutional violation. For example, in

Murray v. U.S. Bureau of Prisons, 106 F.3d 401 (6th Cir.

1997), a transgender plaintiff tried to sue over a series of

harassing comments about her bodily appearance and her

presumed sexual preference. The court dismissed the

claim, saying that verbal abuse alone does not rise to the

level of “unnecessary and wanton infliction of pain”

necessary for an Eighth Amendment violation.

Cases like these are an unfortunate reminder that sexual

harassment and verbal abuse claims can be difficult to

litigate. To learn about the legal arguments available to

you, reread Section F Part 2 of this Chapter.

c. Access to Protective Custody

Most prisons have a process available to ask for placement

in segregation if you fear for your safety. If you are refused

protective custody by officers who know you are at risk for

harm in general population, you may have a valid Eighth

Amendment claim. In Wright v. Miller, 561 F. App'x 551

(7th Cir. 2014), an appeals court found that a gay plaintiff

and ex-gang member had a valid Eighth Amendment claim

when officials denied him protective custody despite

knowing that he would be at risk in general population.

And in A.K. v. Annucci, 17 CV 769 (VB), 2018 WL 4372673,

2018 U.S. Dist. LEXIS 156455 (S.D.N.Y. Sep. 13, 2018), a

court found that a transgender woman who suffered an

initial sexual assault and then endured others after being

denied protective custody had a valid Eighth Amendment

claim against several corrections officers.

In Cole v. Tredway, 2016 U.S. LEXIS 169178 (S.D. Ill. 2016)

however, a court said that prison officials did not have

knowledge of a substantial risk of serious harm when an

incarcerated transgender woman told those officials that

she had been verbally harassed, subjected to sexually

suggestive gestures, and propositioned for sex, but “[did]

not claim anyone threatened involuntary sexual contact.”

Similarly, in Escobar v. Frio Cty., 2019 U.S. Dist. LEXIS

120031 (W.D. Tex. 2019), the court said that although

prison officials knew that the plaintiff was gay, that

“homosexuals generally face more risk of sexual assault,”

and that “homosexual inmates are often housed separately

to protect them from sexual violence,” this was not enough

to establish knowledge of a substantial risk of serious

harm.

If you are denied protective custody because of your

gender, sexual orientation, or race, you might also have an

equal protection claim against prison officials. In Johnson v.

Johnson, 385 F.3d 503 (5th Cir. 2004), an effeminate gay

male prisoner was repeatedly raped by other prisoners. He

asked for help from guards over and over again and asked

to be held in “safekeeping” or put in protective custody.

The prison kept him in general population and told him to

learn to “f*** or fight.” He brought a case against the

officials for violation of his Eighth Amendment and equal

protection rights. When discussing the equal protection

claim, the court stated that if the officials denied him

protection because he was gay, that would violate equal

protection. Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir.

2004). Equal protection claims are discussed in Section C

and Section I Part 1 of this chapter.

While you are in protective custody, the federal PREA

standards require prisons to give you access to programs,

education, and other opportunities to the greatest extent

possible.

d. Cross-Gender Strip Searches

Section E of this Chapter summarizes the law about

searches in prison, and Section H, Part 3 includes

information about cross-gender strip searches. However,

when it comes to searches, transgender and intersex

people in prison have additional rights.

PREA mandates that searches of transgender and intersex

people in prison be respectfully and professionally done

and prohibits the use of searches solely to determine a

person’s gender. Some states, like California and

Connecticut, have also passed good policies on

transgender searches or PREA policies of their own, so ask

if your state has one.

Transgender people have successfully challenged cross-

gender strip searches in a handful of occasions. In Doe v.

Massachusetts Dep't of Correction, No. CV 17-12255-RGS,

2018 WL 1156227 (D. Mass. Mar. 5, 2018), a court

ordered prison officials in Massachusetts to use female

guards when conducting strip searches of a transgender

woman wherever possible. In another case, Shaw v. District

of Columbia, 944 F. Supp. 2d 43 (D.D.C. 2013), a court

found that a transgender woman who was strip-searched

by male prison staff had alleged a clearly established

violation of her Fourth Amendment rights. The court

applied analysis from cross-gender strip searches and

mentioned Byrd v. Maricopa Cnty. Sheriff's Dep’t., 629 F.3d

1135 (9th Cir. 2011). In that case, an appeals court held

that a strip search of a male prisoner by a female officer

that involved intimate contact with the genitalia violated

the Fourth Amendment.

In Schneider v. San Francisco, No. 3:97-cv-02203 (N.D. Cal.

1999), a transgender woman successfully challenged being

strip searched to determine her gender and was awarded

$750,000 in damages at a jury trial. There does not appear

to be a reported opinion from this case. In another good

case, Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987),

a court allowed a transgender woman to proceed with an

Eighth Amendment claim after she was strip searched

before a group of guards who sought to humiliate and

harass her. In that case, the court emphasized that the

Eighth Amendment protects against bodily searches that

are malicious and have no security purpose.

On the other hand, in Doe v. Balaam, 524 F. Supp.2d 1238

(D. Nev. 2007), a transgender man lost his case challenging

a strip search. After he was arrested for a misdemeanor, he

told the police that he was transgender. he was forced to

strip in front of several officers before he was released on

his own recognizance. The court found that the search was

OK because the officers had reasonable suspicion that he

was concealing “contraband” in his crotch area. The court

57 | CHAPTER 3 – YOUR RIGHTS IN PRISON

agreed with the officers who claimed that they had no way

of knowing if the man was being truthful that what was in

his pants was a rolled-up sock.

e. Shower Privacy

The federal PREA standards state that transgender people

should be given the opportunity to shower separately from

others in prison. 28 C.F.R. § 115.42(f). Although the PREA

guidelines are difficult to enforce, a few plaintiffs have

brought cases that successfully challenged communal

showering on grounds it increased their risk of physical or

psychological harm.

In Doe v. Massachusetts Dep't of Correction, No. CV 17-

12255-RGS, 2018 WL 1156227, at *2 (D. Mass. Mar. 5,

2018), a transgender woman won a court order granting

her access to a private shower for purposes of safety. And

in Balsewicz v. Pawlyk, 963 F.3d 650 (7th Cir. 2020), an

appeals court found that a transgender woman who was

attacked after being denied access to private showers had

a valid Eighth Amendment claim. But in Campbell v. Bruce,

No. 17-CV-775-JDP, 2019 WL 4758367, at *1 (W.D. Wis.

Sept. 30, 2019), a court denied the Eighth Amendment

claim of a transgender plaintiff who was denied access to

private showers on three occasions, but usually received

them.

A few people have also brought cases seeking access to

private showers for medical reasons. In Thompson v.

Lengerich, 798 F. App'x 204 (10th Cir. 2019), an appeals

court found that a man with Post-Traumatic Stress

Disorder (PTSD) who was denied access to private

showers had a valid Eighth Amendment claim since he was

forced to choose between his hygiene and his mental

wellbeing. The Court also found that he had a valid equal

protection claim if prisoners with similar privacy needs

were given access to private showers while he was not.

But in Kokinda v. Pennsylvania Dep't of Corr., 779 F. App'x

938 (3d Cir. 2019), an appeals court rejected an Eighth

Amendment shower privacy claim brought by a non-

LGBTQ+ person who requested them due to his obsessive-

compulsive disorder (OCD).

3. Your Right to Facility Placements

a. Placement in male or female facilities

As Section I Part 2 explains, prison officials have an

obligation to keep LGBTQ+ people safe from harm. But for

transgender and intersex people, facility placements are a

big component of safety. For a very long time, transgender

and intersex people were placed in male or female facilities

based only on their sex assigned at birth, regardless of

their gender identity, despite the risks to their safety.

Getting placed in a facility based on your gender as a

transgender person is still very difficult, but today there

are more resources to help you.

It may also be possible to challenge your facility placement

in court, though we recommend you speak to a lawyer

first. We discuss those types of claims below, and a list of

legal organizations that serve LGBTQ+ people appears in

Appendix I.

The Federal Prison Rape Elimination Act

The federal PREA standards require that the decision to

place transgender and intersex people in women’s or men’s

facilities must be made on an individualized, “case-by-case

basis,” to ensure the person’s safety. 28 C.F.R. § 115.42(c).

“Any written policy or actual practice that assigns

transgender or intersex prisoners to gender-specific

facilities, housing units, or programs based solely on their

external genital anatomy violates the standard.” See PREA

Resource Center, at https://www.prearesourcecenter.org/.

PREA also instructs prisons to give “serious consideration”

to transgender and intersex people’s own preferences

regarding housing and safety. 28 C.F.R. § 115.42(e).

Prisons are also supposed to review transgender and

intersex housing placements twice a year, or when issues

arise, and make adjustments as needed. 28 C.F.R. §

115.42(d).

Although you cannot bring a lawsuit for a violation of

PREA, you can use PREA and PREA violations as evidence

to support an Eighth Amendment failure-to-protect claim

by saying they show your prison isn’t taking reasonable

steps to protect you despite knowing of the risks you face

as a transgender or intersex person.

Unfortunately, a small handful of states, including Texas,

have refused to implement PREA at all.

State Policies on Facility Placement

A growing number of prison systems have adopted their

own PREA policies and polices on transgender and intersex

housing placements. Some states, including California,

Connecticut, and Massachusetts, now allow transgender

women to be housed in female facilities, regardless of their

surgery status. States are adopting new policies all the

time, so be sure to see what policies may apply to your

facility. You can also check Appendix E for more.

Challenging Housing Placements in Court

Some transgender women have brought lawsuits against

prison officials for categorizing them as men and placing

them in male facilities rather than treating them as women

and placing them in female facilities. But these cases are

very difficult to win. So far, there have only been a handful

of successful cases. This is a novel and quickly developing

area of the law where lots of lawyers are interested in

pushing for progress. If you are thinking of bringing a

challenge of this nature, we encourage you to reach out to

the organizations listed in Appendix I for assistance.

In a recent important case, Tay v. Dennison, 457 F. Supp. 3d

657 (S.D. Ill. 2020), a court granted a preliminary injunction

to a transgender woman who challenged her placement in

men’s prisons where she was abused and attacked under

the Eighth Amendment and the Equal Protection Clause.

58 | CHAPTER 3 – YOUR RIGHTS IN PRISON

In another important case, Doe v. Massachusetts Dep't of

Correction, No. CV 17-12255-RGS, 2018 WL 2994403 (D.

Mass. June 14, 2018), a court ruled that a transgender

prisoner who was denied placement in a women’s prison

solely because of her birth-assigned sex had valid equal

protection and due process claims. Regarding due process,

the court stated that housing transgender women in men’s

prisons imposed an “atypical and significant hardship.” For

more on due process claims, see Section D.

Another case that survived dismissal and successfully

reached a settlement involved a transgender woman who

challenged her cross-gender search and detention in a

male prison under the Fourth and Fifth Amendments, Shaw

v. District of Columbia, 944 F. Supp. 2d 43 (D.D.C. 2013),.

The court reasoned that transgender women were just like

any other women, so placing the transgender plaintiff in

men’s prisons clearly violated the law.

Unfortunately, the majority of these types of cases have

been unsuccessful. In Guzman-Martinez v. Corr. Corp. of

Am., No. CV 11-02390-PHX-NVW, 2012 U.S. Dist. LEXIS

97356 (D. Ariz. July 13, 2012), a court stated that a

transgender woman could not recover damages because

she “does not have a clearly established constitutional right

to be housed in a women's detention facility or in a single-

occupancy cell in a men's detention facility, or to be

released from detention based solely on her status as a

transgender woman.”

A non-transgender woman with an intersex condition

brought a lawsuit because she was placed with men and

strip searched by male guards. The court ruled against her,

saying that she could not prove that the sheriff was

“deliberately indifferent” because he seemed to have

mistakenly thought that she was a man. The court also said

that she could not prove a “sufficiently serious deprivation”

because she did not say that she had physical injuries.

Tucker v. Evans, No. 07-CV-14429, 2009 U.S. Dist. LEXIS

23450 (E.D. Mich. Mar. 24, 2009).

On one occasion, a non-transgender woman brought a

lawsuit because a transgender woman was housed with

her in a female facility. The plaintiff, a non-transgender

woman, argued that a transgender woman should not be

housed with her and that prison officials were violating her

privacy rights. The court ruled against the plaintiff and said

that the prison officials were not liable for placing a

transgender woman in a female facility with her. Crosby v.

Reynolds, 763 F. Supp. 666 (D. Me. 1991).

Strategies other than lawsuits may have a chance. For

example, working with others to convince a prison system

to make new policies for classifying transgender people in

prison may lead to change. Or, trying to find a friendly

doctor or psychologist who will explain to prison officials

why you should be placed in a particular facility could help.

b. Placement in involuntary segregation

Above, we talked about situations when transgender

people may want to be put in protective custody. But

other times transgender and intersex people in prison end

up in segregation against their will, sometimes as

punishment, sometimes for “protection,” and sometimes

because prison officials cannot decide what gender they

should consider the person. If you are in some form of

segregation or restrictive housing and don’t want to be,

there are a few different ways to challenge your

placement. Remember, in a lawsuit you don’t have to pick

just one theory. You can and should include all the theories

that you think might have some real chance of working.

Equal Protection Arguments

If you are treated differently than other prisoners by being

put in segregation when other prisoners would not, you

can challenge this treatment under the Equal Protection

Clause. The requirements for an equal protection claim are

laid out above in Section C and Section F Part 2 of this

chapter.

There have been a few very important victories in this

area. In Adkins v. City of New York, 143 F. Supp. 3d 134

(S.D.N.Y. 2015), a court ruled that heightened scrutiny

applies to prison officials’ decisions concerning the

placement and treatment of transgender people in

custody. In two other good cases, Tates v. Blanas, No. S-

00-2539, 2003 U.S. Dist. LEXIS 26029 (E.D. Cal. Mar. 6,

2003) and Medina-Tejada v. Sacramento County, No. Civ.S-

04-138, 2006 U.S. Dist. LEXIS 7331 (E.D. Cal. Feb. 24,

2006), courts ruled that placing transgender women in

“Total Separation” or “T-Sep” was unconstitutional because

it treated transgender people worse than others and

placed them in a part of the facility reserved for the most

dangerous and violent prisoners.

Other challenges have not gone as well. In Murray v. U.S.

Bureau of Prisoners, 106 F.3d 401 (6th Cir. 1997), a court

said a transgender woman’s rights were not violated when

she was placed in segregation on several occasions, both

to protect her and as a form of discipline for refusing to

wear the bra prison officials had ordered her to wear. In

Dack v. Gatchell, 2006 U.S. Dist. LEXIS 52575 (W.D. Wash.

2006), the court denied a transgender woman’s equal

protection claim because prison officials argued that the

woman’s placement in solitary confinement was for her

safety and therefore was not discriminatory.

In Mitchell v. Price, No. 11-CV-260-WMC, 2014 U.S. Dist.

LEXIS 171561 (W.D. Wis. Dec. 11, 2014), an equal

protection challenge failed when a transgender person in

prison was sent to segregation, since the court found that

the transfer was no different punishment than that

received by other prisoners who break rules. However, the

court did let a claim stand against one defendant because

that defendant knew about the transgender prisoner’s

special needs.

Finally, in a case that did not concern solitary confinement

exactly, Veney v. Wyche, 293 F.3d 726, 733 (4th Cir. 2002),

the Fourth Circuit upheld a prison policy that denied

cellmates to gay people, and placed them in single-

occupancy cells instead, on grounds that it reduced friction

between prisoners as well as the opportunity for sexual

activity.

59 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Due Process Arguments

In certain situations, prisoners are entitled to “procedural

due process” before being placed in segregation.

Procedural due process and the “significant and atypical”

test are explained in Section D of this Chapter.

In Farmer v. Kavanaugh, 494 F. Supp. 2d 345 (D. Md. 2007),

a transgender woman named Dee Farmer challenged her

transfer to a supermax facility after another prisoner said

she was trying to steal the identity of a warden. The court

said that her due process rights were violated because

supermax was so harsh and isolating, and said that she

should have been given a chance to oppose her transfer.

However, these cases are frequently hard to win. In Estate

of DiMarco v. Wyoming Dept. of Corrections, 473 F.3d 1334

(10th Cir. 2007), for example, the Tenth Circuit found that

an intersex plaintiff who was kept in administrative

segregation for 14 months—the entire time they were in

prison—did not have a valid due process claim.

Eighth Amendment Arguments

* Deliberate Indifference to a Serious Medical Need

Isolation can hurt anyone’s mental health, but it can be

especially dangerous for people with certain psychiatric

disabilities. If prison officials know that you have a serious

medical need that isolation makes worse and ignore that

need, you might have a claim. The general requirements

for these types of claims are described in Part 4 of Section

F, above.

If you have a diagnosis of gender dysphoria and being

placed in segregation prevents you from accessing

hormone therapy, mental health services, or other

transition-related care, you may be able to make an Eighth

Amendment claim based on that deprivation. These claims

are not always successful, however. In Hampton v. Baldwin,

2018 U.S. Dist. LEXIS 190682 (S.D. Ill. 2018), a court

rejected the Eighth Amendment claim of a transgender

plaintiff who was denied access to her prison’s transgender

support group after being placed in segregation.

* Basic Needs and Cruel and Unusual Punishment

Section F, Part 3 of this chapter explains your right to have

your basic needs met in prison. If you have been placed in

segregation and are not allowed to have basic things, like

food, showers, or exercise, you might be able to bring a

case based on your right to be free from cruel and unusual

punishment. If you are kept in solitary confinement for an

extended period of time, you might also be able to bring a

case based on the duration of your confinement.

In Meriweather v. Faulkner, 821 F.2d 408 (7th Cir. 1987), a

transgender woman serving a thirty-five-year sentence

challenged her placement in administrative segregation.

The court said that placing her in administrative

segregation might be cruel and unusual punishment

because it was for such a long period of time. Section F,

Part 3 lists several other cases that might be helpful in

bringing this kind of claim.

c. HIV/AIDS Segregation

People living with HIV/AIDS are also more likely to be

segregated or isolated from the general population. For

years, courts upheld HIV segregation as constitutional.

Some examples of these bad decisions are: Onishea v.

Hopper, 171 F.3d 1289 (11th Cir. 1999); Camarillo v.

McCarthy, 998 F.2d 638, 640 (9th Cir. 1993); Moore v.

Mabus, 976 F.2d 268, 271 (5th Cir. 1992); and Muhammad

v. Carlson, 845 F.2d 175 (8th Cir.1988).

But in Henderson v. Thomas, 891 F. Supp. 2d 1296 (M.D.

Ala. 2012), however, the district court found that a policy

of segregating incarcerated people on the basis of HIV-

positive status violated their rights under the Americans

with Disabilities Act. For a little more information about

the Americans with Disabilities Act, re-read Chapter 2.

Policy Arguments

The Prison Rape Elimination Act (PREA), which is discussed

in Part 2 of this section, limits the use of involuntary

protective custody and requires prison officials to consider

all available alternatives. 28 C.F.R. § 115.42(f). PREA does

not have a private cause of action—meaning you cannot

bring a lawsuit based on it being violated—but you can use

it to support your legal claims by using it as evidence of

contemporary standards of decency or to show what

prison officials should know. In Brown v. Patuxent, OAH

No. DPSC-IG0-002V¬14-33232 (M.D. 2015), an

administrative law judge in Maryland ruled against prison

officials for placing a transgender woman in solitary

confinement for sixty-six days where they watched her

shower and encouraged her to commit suicide. The Judge

held that Maryland had to create and implement policies

and trainings in accordance with PREA and awarded the

woman $5,000 in damages

It may also be helpful to mention the National Institute of

Corrections, Policy Review and Development Guide:

Lesbian, Gay, Bisexual, Transgender, and Intersex Persons

in Custodial Settings (2013), which states “Administrative

segregation, and the ensuing isolation from the general

population for purposes of ‘safety,’ often exacerbates

mental health conditions such as depression or gender

dysphoria.”

Additionally, you might mention the 2016 guidelines issued

by the Department of Justice (DOJ), called “Report and

Recommendations Concerning the Use of Restrictive

Housing.” The report states that “[i]nmates who are LGBTI

or whose appearance or manner does not conform to

traditional gender expectations should not be placed in

restrictive housing solely on the basis of such identification

or status.” The report also says that “correctional officials

can sometimes avoid the unnecessary use of restrictive

housing for protective custody by making different

classification assignments,” and that correction officers

must choose facility and program assignments “on a case-

by-case basis…giving serious consideration to the inmate’s

own views.” The DOJ’s report is not binding on courts, but

it may be persuasive.

60 | CHAPTER 3 – YOUR RIGHTS IN PRISON

4. Your Right to Health Care

a. Your Right to Mental and Medical Health Care

Generally

LGBTQ+ people in custody have a right to receive

treatment for their serious medical and mental health

needs. In Lucas v. Chalk, 785 F. App'x 288, 291–92 (6th Cir.

2019), an appeals court held that denying medical or

mental health treatment to LGBTQ+ survivors of sexual

abuse because of their sexual orientation violates the

Eighth Amendment and the Fourteenth Amendment Equal

Protection Clause, even under rational-basis review.

If you are a person living with HIV/AIDS, you also have a

constitutional right to medical care. One good case to cite

is Morales Feliciano v. Rullan, 378 F.3d 42 (1st Cir. 2004),

where an appeals court found that completely denying

people HIV medication violates the Eighth Amendment.

However, if prison officials just miss a few doses of your

HIV medication, that probably is not enough to bring a

constitutional claim since it is unlikely to cause you serious

harm. Smith v. Carpenter, 316 F.3d 178 (2d Cir. 2003).

5. Your Right to Gender-Affirming Medical

Care and Free Gender Expression

Transgender people in prison also have a constitutional

right to gender-affirming medical care under the Eighth

Amendment. To succeed, you will probably need to

convince prison officials that you have gender dysphoria

(formerly known as “gender identity disorder” or

“transsexualism”). The American Psychiatric Association’s

Diagnostic and Statistical Manual of Mental Disorders

defines gender dysphoria as “a difference between one’s

experience/expressed gender and assigned gender.”

Most courts agree that gender dysphoria (“GD”) is a

serious medical need that prison officials must treat in

some fashion. Examples of some of these good cases are:

Rosati v. Igbinoso, 791 F.3d 1037 (9th Cir. 2015); De’Lonta

v. Johnson, 708 F.3d 520 (4th Cir. 2013); Battista v. Clarke,

645 F.3d 449 (1st Cir. 2011); Fields v. Smith, 653 F.3d 550

(7th Cir. 2011); White v. Farrier, 849 F.2d 322 (8th Cir.

1988); and Brown v. Zavaras, 63 F.3d 970 (10th Cir. 1995)

Some transgender people find a GD diagnosis to be helpful

in understanding and explaining trans experience. Others,

however, consider this diagnosis to be offensive or

stigmatizing, and feel frustrated by having to fit their

experience into a medical and mental health framework. If

that is true for you, try to think of GD diagnoses as a tool

that can help you get your gender-related healthcare

needs met.

If you have never gotten a formal diagnosis, try to get

evaluated by prison mental health and medical staff by

submitting a grievance or medical request that asks for a

gender dysphoria evaluation and treatment. If you hit

roadblocks or delays, be persistent and consider filing

grievances and possibly even a lawsuit. Be sure to explain

how you feel about your gender and how long you have

felt that way, any attempts you may have made to live and

appear as the gender you identify with, your GD treatment

needs, and the ways that not being able to get treatment

has affected you.

Once you have a GD diagnosis, you can use it to access

treatment. Treatment for gender dysphoria can include

hormone therapy, changes in gender expression, gender-

confirmation surgery, sometimes called gender-affirmation

surgery (GAS) or sex-reassignment surgery (SRS), and

individual or group mental health counselling to support

and affirm your transition.

If you feel that your GD treatment needs are not being

met, be sure to exhaust your administrative remedies by

filing grievances.

a. Challenging Gender Dysphoria Treatment Denials

Generally

Denying transgender people medically necessary GD

treatment can violate the Eighth Amendment. Examples of

good cases are: Rosati v. Igbinoso, 791 F.3d 1037 (9th Cir.

2015); De’Lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013);

Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011); Fields v.

Smith, 653 F.3d 550 (7th Cir. 2011); White v. Farrier, 849

F.2d 322 (8th Cir. 1988); and Brown v. Zavaras, 63 F.3d

970 (10th Cir. 1995). To win this kind of case, you must

show that prison officials were deliberately indifferent to

your GD treatment needs.

Before trying to file a lawsuit on your own, consider

writing to a legal organization that serves the LGBTQ+

community to see if they can help you. A list of these

organizations appears in the Appendix I. Also be sure to re-

read Chapter 3, Section F, Part 4, which discusses the

deliberate indifference standard in detail. You will need to

show that prison officials (1) knew you had a GD diagnosis

or knew you needed to be evaluated for GD and (2) denied

or delayed giving you medically necessary treatment in

ways that put you at a substantial risk of serious harm.

Here, harm means the physical and psychological side

effects of untreated GD, which can include depression,

anxiety, mental anguish, hormone withdrawal, self-harm,

self-castration attempts, or suicidal thoughts. And

“medically necessary treatment” means treatment that is

individualized and effectively manages your GD symptoms.

Edmo v. Corizon, Inc., 935 F.3d 757(9th Cir. 2019), cert.

denied No. 19-1280, 2020 WL 6037411 (U.S. Oct. 13,

2020). In De’Lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013),

for example, a court decided that self-harm and self-

castration attempts that were side effects of a plaintiff’s

untreated GD are also “serious medical needs” that

required medical treatment.

The easiest cases to bring are when you are being denied

any forms of GD treatment whatsoever. For example, in

Johnson v. Kruse, No. 17-cv-237-JPG, 2017 U.S. Dist. LEXIS

143138 (S.D. Ill. Sept. 5, 2017), the court found that a

transgender plaintiff had a valid Eighth Amendment claim

when her requests for medical treatment (including hair

removal products) were ignored, and her warden said he

would “not entertain the transgender bull crap.” And in

Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995), an

61 | CHAPTER 3 – YOUR RIGHTS IN PRISON

appeals court found that denying people with GD any

treatment whatsoever could violate the Eighth

Amendment.

If you are receiving some GD treatment in prison, but the

treatment is inadequate, you may also have a claim. But

the road will be much harder because courts do not like to

second guess the treatment recommendations of prison

doctors. In one bad case, Koselik v. Spencer, 774 F.3d 63

(1st Cir. 2014), an appeals court ruled that a prison’s

decision to provide Michelle Kosilek hormone therapy,

facial hair removal, feminine clothing, antidepressants, and

psychotherapy instead of gender confirmation surgery did

not give rise to an Eighth Amendment violation, since it

was not the court’s place to second-guess the judgment of

prison medical professionals. In another bad case, Lamb v.

Norwood, 899 F.3d 1159, 1163 (10th Cir. 2018), an

appeals court found that a transgender woman who was

already receiving counseling and hormone therapy was not

entitled to anything more, “even if [that] is subpar or

different from what [she] wants.” And although a court

found a transgender woman had a valid Eighth

Amendment claim in Diamond v. Owens, 131 F.Supp.3d

1346 (M.D. Ga. 2015), when she was denied GD treatment

like hormone therapy and just given psychiatric drugs and

counselling instead, the Third Circuit rejected a nearly

identical claim in Smith v. Hayman, 489 F. App'x 544, 547

(3d Cir. 2012), which found that denying hormone therapy

but providing counseling was sufficient under the Eighth

Amendment.

To prevail on a claim that the treatment you are already

receiving is constitutionally inadequate, you generally will

need to show that (1) you are still having bad GD

symptoms and (2) prison staff knew more treatment was

needed. For instance, in Edmo v. Corizon, Inc., 935 F.3d 757

(9th Cir. 2019) and De'Lonta v. Angelone, 330 F.3d 630,

634 (4th Cir. 2003), appeals courts found that transgender

women who repeatedly attempted to harm themselves had

a valid Eighth Amendment claim because the behavior put

prison officials on notice that their GD was not being

properly treated. And in In Hicklin v. Precynthe, 2018 U.S.

Dist. LEXIS 21516, 2018 WL 806764 (E.D. Mo. 2018), the

court found that “some treatment”—in this case,

psychiatric care—was constitutionally inadequate because

the plaintiff continued to have severe GD symptoms like

depression, anxiety, and thoughts of self-harm.

If you are successful, you may be able to start receiving the

gender-affirming healthcare you need. You also may be

able to recover damages by arguing that qualified

immunity (discussed in Chapter Four, Section D, Part 2)

does not apply. A good case to cite is Diamond v. Owens,

131 F.Supp.3d 1346 (M.D. Ga. 2015), which found that the

right to GD treatment was clearly established based on

Estelle v. Gamble, 429 U.S. 97 (1976), because it is like any

other medical condition. Another good case to cite is South

v. Gomez, No. 99-15976, 2000 U.S. App. LEXIS 3200 (9th

Cir. Feb. 25, 2000). There, a transgender woman sued

prison officials after they stopped her female-hormone

therapy. The guards asked the court to dismiss South’s

claim because of qualified immunity, but the appeals court

refused.

The WPATH Standards

People who bring successful Eighth Amendment medical

claims often use the WPATH Standards of Care for the

Health of Transsexual, Transgender & Gender-

Nonconforming People (“WPATH Standards”) in making

their legal arguments. The WPATH Standards are the

internationally accepted medical standards for the

treatment of gender dysphoria, and they explain that

hormone therapy, “changes in gender expression and role,”

and gender confirmation surgery are all forms of GD

treatment that people may need. If you cite the WPATH

Standards in court, you should note in your legal papers

that the National Commission on Correctional Healthcare,

U.S. Department of Justice, National Institute of

Corrections, and medical associations agree that the

WPATH Standards apply to the treatment of GD in

prisons. So do many courts. In a case called Edmo v.

Corizon, Inc., 935 F.3d 757, 769 (9th Cir. 2019), cert.

denied, No. 19-1280, 2020 WL 6037411 (U.S. Oct. 13,

2020), an appeals court affirmed that the WPATH

Standards apply in prisons and listed lots of other court

cases that agreed.

In another case, De’lonta v. Johnson, 708 F.3d 520, 526

(4th Cir. 2013), an appeals court ruled that only following

the WPATH Standards in part could be inadequate. The

Court stated: “just because [defendants] have provided [a

transgender person] with some treatment consistent with

the [WPATH] Standards of Care, it does not follow that

they have necessarily provided [them] with constitutionally

adequate treatment.”

Freeze Frame Policies and Treatment Bans

If a prison categorically bans or limits the GD treatment

available to you, that may also be enough to show an

Eighth Amendment violation. For example, in Allard v.

Gomez, 9 Fed. Appx 793 (9th Cir. 2001), an appeals court

held that denying treatment to an incarcerated trans

woman based on a blanket policy, rather than on an

individualized medical evaluation, was “deliberate

indifference to a serious medical need” and violated the

Eighth Amendment. Similarly, in Fields v. Smith, 653 F.3d

550 (7th Cir. 2011), an appeals court found that a prison

policy that banned hormone therapy and transition-related

surgery for anyone in custody violated the Eighth

Amendment, just like a policy that banned “all effective

cancer treatments” in prison. The Court also rejected the

argument that GD treatment was too expensive to

provide, noting that hormone therapy and surgery are

often cheaper than other medical treatments that prisons

provide.

“Freeze-frame” policies that only allow you to receive the

GD treatment you received prior to prison can also violate

the Eighth Amendment because they limit treatment

regardless of need and make it impossible for newly

diagnosed people to get care. Here, it is helpful to cite the

U.S. Department of Justice’s Statement of Interest in

Diamond v. Owens (2015), which described freeze-frame

62 | CHAPTER 3 – YOUR RIGHTS IN PRISON

policies as “facially unconstitutional.”

https://www.justice.gov/file/387296/download.

b. Gaining Access to Hormone Therapy

If you are a transgender person with a gender-dysphoria

diagnosis, you also may be entitled to hormone therapy

under the Eighth Amendment. To prevail, you should argue

that you asked for hormone therapy, prison officials knew

that hormone therapy is medically necessary treatment for

your gender dysphoria, and that you will suffer serious

harm if denied.

In 2015, the U.S. Department of Justice released a

Statement of Interest stating that prison officials must

treat gender dysphoria just as they would any other

medical condition and provide hormone therapy to people

as needed. You can access the statement here:

https://www.justice.gov/file/387296/download. Since

then, many state DOCs have adopted policies providing

hormone therapy to transgender people in custody. Read

our Appendix E to learn about policies that may apply in

your state.

Many courts have also found that denying hormone

therapy to people who need it is unconstitutional. Good

cases to cite are Kothmann v. Rosario, 558 F. App’x 907

(11th Cir. 2014); Battista v. Clarke, 645 F.3d 449 (1st Cir.

2011); Fields v. Smith, 653 F.3d 550 (7th Cir. 2011); Allard

v. Gomez, 9 F. App'x 793, 794 (9th Cir. 2001); Diamond v.

Owens, 131 F.Supp.3d 1346 (M.D. Ga. 2015); and Phillips v.

Michigan Department of Corrections, 731 F. Supp. 792

(W.D. Mich. 1990).

But bad cases exist as well. In Druley v. Patton, 601 F.

App'x 632, 635 (10th Cir. 2015), the Tenth Circuit, which

covers Wyoming, Colorado, Utah, New Mexico, Kansas,

and Oklahoma, stated that denying people hormone

therapy does not violate the Eighth Amendment because

hormone therapy is “medically controversial.” If you are

incarcerated in one of those states, you still may be able to

get hormone therapy because some DOCs provide it

voluntarily. But you will face difficulties if you try to sue.

c. Clothing, Grooming, and Social Transition

If you are transgender, expressing your gender

authentically may also feel necessary to your survival and

well-being. If so, you can try to submit grievances telling

prison officials that your gender expression is a medically

necessary form of GD treatment. You can also ask for

accommodations to grow or cut your hair, remove facial

and body hair, and access gender-affirming undergarments

and commissary items.

Be sure to see if your facility has a good transgender

healthcare policy that includes gender expression. For

instance, the BOP Program Statement 5200.04 allows

transgender people in federal prisons to have

undergarments of their identified gender even if they are

not housed with prisoners of that gender. Other states

have adopted good policies that give transgender people

access to gender-affirming commissary items. Our

Appendix E summarizes policies from a few other DOCs

and will be updated to include others over time.

Otherwise, if your prison does not take steps to

accommodate you, you can try to bring a lawsuit. Below

we discuss Constitutional claims you can try to bring

related to your gender-expression needs. Though not

discussed here, there may also be state law claims that you

can bring. In Doe v. Bell, 194 Misc.2d 774 (N.Y. Sup. Ct.

2003), a young transgender woman in foster care won a

case against her group home when they would not let her

wear feminine clothes. The court said that not allowing her

to wear clothes that matched her identity violated the

state law against discrimination on the basis of disability.

Just be sure to think carefully before you try to file a

lawsuit on these issues. Because prison officials can

generally restrict clothing and grooming due to safety and

prison administration concerns, the law may not be on

your side and you may face an uphill battle. And as

explained in Chapter 5, Section C, Part 2, if your lawsuit is

dismissed as frivolous, it counts as a strike under the PLRA.

Eighth Amendment Arguments

Eighth Amendment claims are some of the most promising

when it comes to getting allowances for your gender

expression. To succeed on an Eighth Amendment claim,

prison officials must be aware of your need for gender-

expression accommodations and the fact that denying

them is causing you harm.

The easiest way to win a claim regarding your gender

expression is to get at least one prison healthcare provider

to agree that gender-expression changes are treatment for

your GD. For example, in Hicklin v. Precynthe, 2018 U.S.

Dist. LEXIS 21516, 2018 WL 806764 (E.D. Mo. 2018), the

court ordered prison officials to provide a transgender

woman GD treatment including hormone therapy,

electrolysis, and access to transition-related commissary

items, in part because prison doctors admitted she needed

it but took no action. And in Alexander v. Weiner, 841 F.

Supp. 2d 486 (D. Mass. 2012), a court found that a

transgender plaintiff had a valid Eighth Amendment claim

when prison doctors recommended that she receive laser

hair removal three times but prison officials ignored them.

Another good way to gain access to gender-expression

accommodations is to challenge bad prison policies that

limit your access to treatment. In Soneeya v. Spencer 851 F.

Supp. 2d 228 (D. Mass. 2012), a court found that a blanket

policy that prohibited hair removal and other GD

treatments violated the Eighth Amendment. The court said

that the law requires that incarcerated people receive

individualized assessments of medical needs and that a

prison rule prohibiting specific treatments shows that the

prison has failed to provide those individualized

assessments. Another good case is Konitzer v. Frank, No.

03-cv-717, 2010 U.S. Dist. LEXIS 45648 (E.D. Wis. May

10, 2010), where a court found that a transgender woman

who was denied access to hormone therapy as well as

clothing and grooming items like bras and makeup had a

valid Eighth Amendment claim.

63 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Another good case is Tates v. Blanas, No. CIV S-00-2539

OMP P, 2003 U.S. Dist. LEXIS 26029 (E.D. Cal. Mar. 6,

2003), where the court decided that access to a bra cannot

be denied simply because a person is housed in a male

facility. The facility, and its medical staff, must weigh the

possibility that a bra could be misused as a weapon against

any medical or psychological harm denying access to a bra

may cause.

But Eighth Amendment arguments aren’t always

successful. In Keohane v. Fla. Dep't of Corr. Sec'y, 952 F.3d

1257 (11th Cir. 2020), the Eleventh Circuit ruled that

prison officials who refused to accommodate a

transgender person's social transitioning requests did not

violate the Eighth Amendment because the request

presented serious security concerns and there were

conflicting medical opinions on the need for treatment. In

Campbell v. Kallas, 936 F.3d 536 (7th Cir. 2019), the

Seventh Circuit expressed doubt about whether denying

people electrolysis and makeup violates the Eighth

Amendment. And in Murray v. U.S. Bureau of Prisons, 106

F.3d 401 (6th Cir. 1997), the Sixth Circuit rejected the

Eighth Amendment claim challenging the denial of hair and

skin-care products, stating “cosmetic products are not

among the minimal civilized measure of life's necessities.”

Because it is very difficult to win cases seeking gender-

expression accommodations in court, it is best to speak to

a lawyer before trying to file your own lawsuit. A list of

legal organizations that serve LGBTQ+ people appears in

the Appendix I.

Equal Protection Arguments

Clothing and grooming policies that prevent transgender

people from expressing their gender authentically are

difficult to challenge under the Equal Protection Clause,

even if they seem like obvious gender-based

discrimination. In one important case, Doe v. Mass. Dep’t of

Corr., 17-12255-RGS, 2018 WL 2994403 (D. Mass 2018),

a district court did find that discrimination against an

incarcerated trans woman on the basis of her transgender

status was gender-discrimination under the Fourteenth

Amendment, and that her treatment by DOC officials

should be compared to treatment of other incarcerated

women.

Unfortunately, most courts have compared the treatment

of transgender people to the treatment of other people in

their facility. This means if no one in a male facility is

allowed to have long hair, some courts have said there is

no discrimination against a transgender woman in that

facility who is also not allowed to have long hair. For

instance, in Wolfe v. Horn, 130 F. Supp. 2d 648, 654 (E.D.

Pa. 2001), a court stated that addressing a transgender

woman by her deadname and prohibiting her from wearing

makeup or feminine clothing did not violate the Equal

Protection Clause since there was no evidence that she

was treated differently than other prisoners.

There could be a greater chance of success in a claim

about transgender people who are treated differently from

other people in their facility. For example, if non-

transgender men in a facility are not punished for having

long hair but transgender women in the facility are, the

transgender women may be able to state an equal

protection claim. The general requirements for an equal

protection claim are explained in Section C and Section F

Part 2 of this chapter.

Something to keep in mind is that courts disagree about

whether equal protection claims based on gender

discrimination are subject to the Turner test. If courts in

your jurisdiction apply the Turner factors to incarcerated

people’s gender discrimination claims, an equal protection

claim will be much more difficult to win. The Turner test is

described in detail in Section A, above.

First Amendment Arguments

Another way you can try to get accommodations for your

gender expression is by arguing the clothes you wear, the

way you do your hair, and whether or not you shave

certain parts of your body are protected First Amendment

“speech.” Section A of this Chapter talks about freedom of

speech and association in prison, so be sure to review.

In Brown v. Kroll, No. 8:17CV294, 2018 WL 2363955, at

*10 (D. Neb. May 24, 2018), a court acknowledged that a

transgender woman’s decision to “chang[e] her name and

wear[] a bra as expressions of her transgender identity

constitute protected speech under the First Amendment.”

The Court also explained that if a transgender person was

punished or retaliated against by prison officials for

engaging in these forms of speech, it could be unlawful

First Amendment retaliation. (The woman ultimately lost

her case because she could not prove retaliation).

In Renee v. Neal, U.S. Dist. LEXIS 158533, 2018 WL

4468968 (N.D. Ind., Sept. 17, 2018) the court

acknowledged that a prison’s denial to an incarcerated

trans woman of access to feminine clothing, feminine

hygiene products, makeup, and other items available to

people incarcerated in women’s prisons might amount to

denial of the First Amendment right to freedom of

expression. The court allowed Ms. Renee’s First

Amendment claim to survive summary judgment but also

said that prison officials might have “legitimate reasons”

under the Turner test for not allowing Ms. Renee to

purchase these items.

Unfortunately, under the Turner test courts will generally

find that there are many ways to express yourself, and that

restrictions on clothing and grooming are reasonably

related to prison interests in safety and security. The

Turner test is discussed in Section A.

d. Gaining Access to Gender-Confirmation Surgery

Courts are increasingly open to the argument that denying

gender-confirmation surgery to people in need can violate

the Eighth Amendment. In one very important case, Edmo

v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019), cert. denied,

No. 19-1280, 2020 WL 6037411 (U.S. Oct. 13, 2020), an

appeals court ordered prison officials in Idaho to provide

gender confirmation surgery to a transgender woman who

still had severe GD symptoms after spending years on

64 | CHAPTER 3 – YOUR RIGHTS IN PRISON

hormone therapy. The Supreme Court also denied a

request from the DOC to review the case.

In Campbell v. Kallas, No. 16-CV-261-JDP, 2020 WL

7230235 (W.D. Wis. Dec. 8, 2020), a court ordered prison

officials to provide gender confirmation surgery to a

transgender woman in Wisconsin whose gender dysphoria

did not improve from hormone therapy alone.

And in Fisher v. Fed. Bureau of Prisons, 484 F. Supp. 3d 521,

544 (N.D. Ohio 2020), a case involving a transgender

woman within the BOP, a court held that denying gender-

confirmation surgery to people based on a blanket policy

violates the Eighth Amendment.

In Norsworthy v. Beard, 87 F. Supp. 3d 1164 (E.D. Cal.

2015) and Quine v. Beard, 14-cv-02726-JST (N.D. Cal.

2015), a federal court also ordered gender-confirmation

surgery for two transgender women incarcerated in

California. At the time of the lawsuits, both plaintiffs were

having severe dysphoria symptoms, like psychological pain

and self-harm, despite being on hormone therapy for

years. Prison psychologists also admitted that surgery was

recommended for both women. Following the decisions,

Ms. Norsworthy was released, but Ms. Quine became the

first transgender woman in the country to receive surgery

in prison.

Courts have also allowed cases challenging the denial of

gender confirmation surgery to go forward when those

denials are made without consulting an expert on gender

dysphoria. For example, in Rosati v. Igbinoso, 791 F.3d

1037 (9th Cir. 2015), a court found that a prisoner stated a

cause of action under the Eighth Amendment based on

denial of request for gender confirmation surgery. A

transgender prisoner was only evaluated by a physician

assistant rather than someone with experience with

gender dysphoria. And in De’Lonta v. Johnson, 708 F.3d

520 (4th Cir. 2013), an appeals court stated that prison

officials could not refuse surgery to a transgender plaintiff

without having her needs evaluated by a gender dysphoria

specialist.

Despite these good decisions, surgery cases are still very

difficult to win. In Kosilek v. Spencer, 774 F.3d 63 (1st Cir.

2014), an appeals court rejected a surgery-denial claim

from a transgender plaintiff who was already receiving

hormone therapy, psychotherapy, electrolysis, and

feminine clothing and accessories for her GD. The court

stated that it should not second-guess prison healthcare

providers who thought the plaintiff’s existing GD

treatment was adequate.

And in Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019), the

Fifth Circuit issued a terrible decision upholding Texas’s

blanket ban on gender confirmation surgery under the

Eighth Amendment on grounds that surgery is a

“controversial” form of treatment. And in Williams v. Kelly,

818 F. App'x 353, 354 (5th Cir. 2020), the Fifth Circuit

rejected a surgery claim from a transgender person in

Louisiana, based on the Gibson decision. Unfortunately,

because these are appellate decisions, surgery cases

brought by people incarcerated in Texas, Mississippi, and

Louisiana are almost certain to fail.

Because surgery cases are difficult to bring, it can be

helpful to speak to a lawyer before trying to file your own

lawsuit. A list of legal organizations you can try reaching

out to and who serve LGBTQ+ people appears in the

Appendix I. Because cases granting surgery are also a new

development, monetary damages may not be available

because of qualified immunity. In Campbell v. Kallas, 936

F.3d 536 (7th Cir. 2019), although the transgender plaintiff

was ultimately able to receive the gender confirmation

surgery she requested, the Seventh Circuit stated the right

was not yet clearly established as needed for qualified

immunity. Qualified immunity is discussed in Chapter Four,

Section D, Part 2.

e. Changing Your Name and Gender Marker

Trans people can seek to change their name and gender

markers on state-identification documents like driver’s

licenses, passports, birth certificates, and social security

cards. Unfortunately, a few states ban gender-marker

changes on birth certificates altogether.

Changing your name and gender at the same time can be

more affordable and convenient, though you can also do

so separately.

Below is a general overview of the process, but be sure to

read our Appendix E for more resources since name and

gender marker rules vary from state to state.

Gender Marker Changes on State ID

To change your gender on your driver’s license, most

states will require some sort of doctor’s letter stating you

have had “appropriate clinical treatment for gender

transition.” What appropriate clinical treatment means is

between you and your doctor, and non-surgical treatment

like hormone therapy or counseling is typically sufficient.

Most states do not make you go into detail about the

treatment you’ve received in your letter, but a few states

still require proof of some form of surgical treatment in

order to change your drivers’ license, and most states

require proof of surgery to update your birth certificate.

The surgeries that qualify here may vary.

In some states, you can also petition for a court order

saying that your gender has changed if you provide proof

from a doctor about your gender transition. These court

orders can help you change your gender on birth

certificates and other identity documents, but completing

the process may be easiest once you leave prison.

Ohio and Tennessee are the only states that currently ban

gender marker changes on birth certificates under all

circumstances. If you are from one of those states, you

may be able to bring a legal challenge. In 2018, Idaho’s ban

on gender changes was struck down as unconstitutional

under the Equal Protection Clause. F.V. v. Barron, 286 F.

Supp. 3d 1131, 1139 (D. Idaho 2018). The laws in Ohio

and Tennessee may also have changed since the printing

of this handbook in 2021.

65 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Name Changes

The name change process varies from state to state, but it

usually requires submitting (1) a court petition explaining

why you want to change your name, (2) information about

your criminal record, and (3) a copy of your birth

certificate. You may also have to “publish” your name

change by putting an announcement in your local

newspaper, although a transgender person who argued

that transgender people were at high risk for hate violence

was able to get this “publication” requirement waived. In re

E.P.L. 26 Misc.3d 336 (Sup. Ct. Westchester Co. 2009).

Some states also schedule a short hearing about your

name change to ask you a few questions. If this happens,

tell the court that you are incarcerated to get advice on

how to proceed.

Unfortunately, some states make it difficult for people with

felony convictions to change their names, but rules will

vary state to state, and depend on your offense. For a list

of updated rules, see Appendix E.

If you live in a state that limits name changes, you may be

able to bring a court challenge. In In re Gammett, Case No.

CV-NC-06-03094 (Oct. 3, 2006), an Idaho court ruled that

a criminal record alone was not a legitimate reason to deny

a name change to an incarcerated transgender woman. In

re Ely, No. M2000-01937-COA-R3-CV, 2004 WL 383304

(Tenn. Ct. App Mar. 1, 2004), a court in Tennessee did the

same. In re Crushelow, 926 P.2d 833 (Utah 1996), the Utah

Supreme Court found that name change requests from

prisoners cannot be denied simply because of general

concerns about confusion. And in In re Riley, 103 N.E.3d

767 (2018), a transgender woman who was incarcerated

for life without parole was able to overturn a decision

claiming that her name-change request would violate the

public interest or create an administrative burden.

If you are denied a name change specifically because you

are transgender, you should be able to appeal. In Leonard v.

Commonwealth, 821 S.E.2d 551 (2018) and In re Brown,

770 S.E.2d 495 (2015), the Virginia Supreme Court struck

down lower court decisions that denied name changes to

incarcerated transgender people and explained, “the fact

that an applicant is transgender and is changing their name

to reflect a change in their gender identity cannot be the

sole basis for a finding by a trial court that such an

application is frivolous and lacks good cause.” In re Brown,

at 497. In Norsworthy v. Beard, 87 F. Supp. 3d 1104 (N.D.

Cal. 2015), a court found that prison officials who deny

name changes specifically because a person is transgender

might violate the Equal Protection Clause.

If you are transgender, providing medical information like a

doctors’ note can be useful to explain why you need a

name change, but it is not required. So if a judge asks you,

you can object. And you should never be forced to prove

you’ve had transition-related surgery.

Advocates seeking to make it easier for transgender

people to obtain name and gender changes in prisons and

jails successfully lobbied for a good law in Delaware that

allows for name changes based on gender identity. See

Del. Code Ann. tit. 10, § 5901 (2015).

Even if you live in a state where you are able to obtain a

legal name change while incarcerated, prisons may refuse

to update your name in prison records. Lawsuits

challenging these policies usually fail, but positive change

is possible through legislation.

California recently passed a law that requires that prison

officials to update your prison records to reflect legal name

and gender changes, although your deadname may be

listed as an alias. Cal. Civ. Proc. Code § 1279.5 (2017).

For more information on the name-change rules that apply

in your state, read our Appendix E.

6. Your Other Rights in Custody

a. Your Right to Confidentiality

Courts in the Second Circuit, Third Circuit, Sixth Circuit,

and Tenth Circuit have found that disclosing a person’s

HIV status can be an unconstitutional privacy violation if it

is not reasonably related to a legitimate penological

objective. Some good cases barring disclosure to relatives,

employers, and other prisoners are: Herring v. Keenan, 218

F.3d 1171 (10th Cir. 2000); Powell v. Schriver, 175 F.3d 107

(2d Cir. 1999); Doe v. Delie, 257 F.3d 309 (3d Cir. 2001);

and Moore v. Prevo, 379 Fed. App’x 425 (6th Cir. 2010).

In Hunnicutt v. Armstrong, 152 Fed. App’x 34 (2d Cir. 2005),

an appeals court found that a person whose mental health

issues were discussed in front of other prisoners and non-

healthcare staff had adequately alleged a privacy violation.

Collectively, these cases establish that prison staff may not

disclose a person’s HIV status or psychiatric history

without need. Just be sure to cite the Fourteenth

Amendment when you’re making your claim. In Doe v.

Chastan, No. CIV S08-2091-CMK-P, 2008 WL 5423278

(E.D. Cal. Dec. 29, 2008), a court rejected the HIV privacy

claim of a plaintiff who tried to bring her claim under the

Eighth Amendment.

A handful of courts have also found that a right to privacy

exists under the Eighth and Fourteenth Amendment for

information concerning a person’s gender identity and

sexual orientation, since LGBTQ+ people in custody face a

greater risk of assault. In Powell v. Schriver, 175 F.3d 107

(2d Cir. 1999), a court ruled that prison officials had a duty

to keep a prisoner’s transgender status confidential from

the prison population “to preserve…medical confidentiality,

as well as [prevent] hostility and intolerance from others.”

In Thomas v. D.C., 887 F. Supp. 1 (D.D.C. 1995), a case

involving an Eighth Amendment claim by a gay plaintiff,

the court stated, “in the prison context…one can think of

few acts that could be more likely to lead to physical injury

than spreading rumors of homosexuality.” And in Sterling v.

Borough of Minersville, 232 F.3d 190 (3d Cir. 1990) and

Johnson v. Riggs, 2005 WL 2249874 (E.D. Wis. 2005),

courts found that disclosing a person’s sexual orientation

information could violate Fourteenth constitutional privacy

rights as well. However, no violation was found in a case

where disclosure of a person’s transgender status was

limited to prison medical providers. Smith v Hayman, 2010

WL 9488822 (D. N.J. 2010).

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Another useful case to cite may be Love v. Johnson, 146 F.

Supp. 3d 848 (E.D. Mich. 2015), where a court held that a

lawsuit could proceed over a Michigan state policy forcing

transgender individuals to have state IDs that did not

accurately say their gender. Citing Powell v. Schriver, the

court agreed that forcing transgender individuals to reveal

they are transgender “directly implicates their fundamental

right of privacy.”

These cases do not prevent you from disclosing your HIV

status or the fact that you are LGBTQ+ to others

voluntarily. Also, not all courts have been willing to find

constitutional privacy violations. In Anderson v. Romero, 72

F.3d 518, 525 (7th Cir. 1995), the court found that safety

concerns justified disclosure of a prisoner’s HIV status to

officers and others like the prison barber. Courts have also

been reluctant to find privacy violations where medical

information is disclosed to government officials. So in Doe

v. Wigginton, 21 F.3d 733 (6th Cir. 1994) a court allowed

HIV disclosure to other corrections officials, and in Seaton

v. Mayberg, 610 F.3d 530 (9th Cir. 2010), a court allowed

disclosure to the state DA.

For more discussion, visit Chapter 3, Section E.

b. Access to LGBTQ+-Related Reading Material

The Supreme Court has not specifically addressed a

prisoner’s right to reading material with LGBTQ+ related

content. Cases relating to prisoners’ right to receive books

and magazines generally can help you figure out when you

have a right to receive reading materials with transgender

content. For information about the general rules that

apply, review Section A, Part 1 under the heading, “Access

to Reading Materials.”

If you decide to bring a First Amendment lawsuit

challenging denial of reading material, prison officials will

probably argue that they are banning a publication because

it is a threat to safety and order in prison. When prison

officials want to stop prisoners from receiving LGBTQ+

material, they may argue that other prisoners will see this

material, think the person who has it is LGBTQ+, and

target that person for violence.

However, this rationale was rejected in Espinoza v. Wilson,

814 F.2d 1093 (6th Cir. 1987), where the plaintiff’s

LGBTQ+ identity was not a secret. Courts have also found

that bans on mail from LGBTQ-rights organizations are

banned under the First Amendment. For example, in Cole v.

Johnson, 2015 WL 435047 (S.D. Ill. 2015), a court held that

a prison needed to deliver the mail to plaintiff or offer a

reason as to why it was prohibited because the mail being

withheld was from a transgender rights organization, and

content-based restrictions on prisoner mail can violate the

First Amendment. Still, prison officials may try to make

vague arguments about safety and will often win in the

case of sexually explicit material.

You may want to reference 2011 BOP Program Statement

5266.11 on incoming publications, which was updated to

remove a ban on “homosexual material,” and amended to

state that “Publications concerning research or opinions on

sexual, health, or reproductive issues, or covering the

activities of gay rights organizations or gay religious

groups, for example, should be admitted unless they are

otherwise a threat to legitimate institution interests.”

While the regulations do not directly address transgender

rights and applies only to federal prisons, you may want to

mention the guidelines as evidence that bans on any

LGBTQ+ materials are improper and do not serve a

legitimate purpose.

Issues of Importance to Pretrial

Detainees

The Rule: Jail conditions must not be punitive or an

exaggerated response to a security need.

In practice, pretrial detainees have most of the same

rights as convicted people. Below we describe some of

the biggest differences.

Not everybody who is incarcerated in a prison or jail has

been convicted. Many people are held in jail before their

trial and are referred to in the Handbook as “pretrial

detainees.” As a practical matter, different legal standards

for treatment of detainees don’t usually lead to different

outcomes for detainees and convicted prisoners. But

sometimes the difference matters.

As you know from the above sections, the Eighth

Amendment prohibits cruel and unusual punishment. This

protection only applies to people who have already been

convicted. Since detainees have not been convicted, they

may not be punished at all until proven guilty. One legal

result of this is that jail conditions for pretrial detainees are

reviewed by courts under the Fifth or Fourteenth

Amendment Due Process Clause, not the Eighth

Amendment prohibition of cruel and unusual punishment.

The most important case for pretrial detainees is Bell v.

Wolfish, 441 U.S. 520 (1979), which was a challenge to the

conditions of confinement in a federal jail in New York. In

Bell, the Court held that jail conditions that amount to

punishment of the detainee violate due process. The Court

explained that there is a difference between punishment,

which is unconstitutional, and regulations that, while

unpleasant, have a valid administrative or security purpose.

It held that regulations that are “reasonably related” to the

institution’s interest in maintaining jail security are not

unconstitutional punishment, even if they cause

discomfort. This is why detainees can be put into punitive

segregation or SHU.

You can prove that poor conditions or restrictive

regulations are unconstitutional punishment in two

different ways:

67 | CHAPTER 3 – YOUR RIGHTS IN PRISON

by showing that the prison administration or

individual guard intended to punish you, or

by showing that the regulation is not reasonably

related to a legitimate goal. This can be because

the regulation doesn’t have any purpose or

because it is overly restrictive or an exaggerated

response to a real concern. On example of a case

like this is Pierce v. County of Orange, 526 F.3d

1190 (9th Cir. 2008). In that case, a court held

there was no legitimate reason for pretrial

detainees in SHU to only get 90 minutes of

exercise per week.

As with the Turner standard (discussed in Section A) for

convicted prisoners, courts defer to jail officials in

analyzing what is a “legitimate concern.” Security is a

legitimate concern of jail officials, too. This is why many jail

conditions can be like those in prison.

Although the standard in Bell for analyzing the claims of

pretrial detainees is well-established, the courts are not in

agreement as to whether the content of that standard is

actually any different from the content of the Eighth

Amendment standard explained in Section F. In City of

Revere v. Massachusetts General Hospital, 463 U.S. 239

(1983), the Supreme Court held that pretrial detainees

have due process rights that are “at least as great” as the

Eighth Amendment protections available to prisoners.

However, when faced with claims by pretrial detainees,

many courts simply compare the cases to Eighth

Amendment cases. If you are a pretrial detainee, you

should start by reading Bell v. Wolfish, and then research

how courts in your circuit have applied that standard.

One major and recent difference between pretrial

detainees and convicted prisoners is in what state of mind

prison officials must show for you to win your claim. In a

very important case named Kingsley v. Hendrickson, 135 S.

Ct. 2466 (2015), the court considered an excessive force

claim by a pretrial detainee. The court held that a detainee

can win an excessive force claim if the force used against

him was objectively excessive. A detainee doesn’t need to

prove that the officer was malicious or sadistic. This is an

easier standard to meet than the standard for convicted

prisoners, who have to show intent to cause suffering or

punishment.

Some courts have applied Kingsley’s reasoning to other

issues outside the excessive force context. For example, in

Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir.

2016) a court held that a pretrial detainee bringing a

failure-to-protect claim also only needs to show objective

unreasonableness. In Hardeman v. Curran, 933 F.3d 816

(7th Cir. 2019), a court extended this objective-only

standard to a conditions-of-confinement claim brought by

pretrial detainees who were forced to live for three days

without clean water. In Gordon v. County of Orange, 888

F.3d 1118 (9th Cir. 2018) a court applied the objective

standard to a pretrial detainee’s medical care claim. And in

Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2006) a court held

that pretrial detainees only need to show objective

unreasonableness for a conditions-of-confinement claim.

However, not all the courts agree that Kingsley should be

extended in this way. An example of a bad decision limiting

Kingsley is Whitney v. City of St. Louis, Missouri, 887 F.3d

857 (8th Cir. 2018).

Unfortunately, not all the recent legal developments for

pretrial detainees have been good. In Florence v. Bd. of

Chosen Freeholders of Cty. of Burlington, 566 U.S. 318

(2012), the Supreme Court decided that it is constitutional

to strip search all detainees upon admission to jail even

without reasonable suspicion they had contraband. Some

lower courts had previously found these kinds of

suspicionless searches of detainees unconstitutional. But

after Florence, those cases are no longer good law.

Despite the Supreme Court’s decision in Florence, pretrial

detainees may have more protection from some types of

searches than convicted prisoners. One good case to read

is Lopez v. Youngblood, 609 F. Supp. 2d 1125 (E.D. Cal.

2009), in which a court held it was unconstitutional to strip

search detainees in a group. The jail tried to justify the

group strip search as necessary for administrative ease.

The court disagreed, stating that administrative burdens

and inconvenience do not justify constitutional violations.

The Second Circuit has also stated that pretrial detainees

retain a limited expectation of privacy under the Fourth

Amendment that protects them from searches that are not

done for legitimate security reasons. This means that the

jail cannot search your cell looking for evidence to use

against you in trial; they can only search for contraband or

other risks to jail security. United States v. Cohen, 796 F.2d

20 (2d Cir. 1986). Other courts do not agree with the

Second Circuit on this.

In a few states, under state law, pretrial detainees retain a

similar “limited but legitimate expectation of privacy…[if]

the search of the pretrial detainee's cell is…solely for the

purpose of uncovering incriminating evidence which could

be used against the detainee at trial, rather than out of

concern for any legitimate prison objectives.” State v.

Henderson, 271 Ga. 264, 267 (1999). See also Rogers v.

State, 783 So.2d 980 (Fla. 2001).

One other area in which pretrial detainees may get more

protection is around procedural due-process challenges to

placement in segregation. Most courts have held that

Sandin v. Connor (discussed in Section D of this chapter)

does not apply to detainees, so they don’t need to meet

the “atypical and significant hardship” standard. For

example, in Mitchell v. Dupnik, 75 F.3d 517 (9th Cir. 1996),

one appellate court held that pretrial detainees may be

subject to disciplinary segregation only after a due process

hearing to determine whether they have violated any rule,

regardless of whether the conditions in segregation are so

serious and unusual as to create a liberty interest. Another

good case on this issue is Williamson v. Stirling, 912 F.3d

154 (4th Cir. 2018), involving a pretrial detainee held for

three years in solitary confinement for one threat.

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Issues of Importance to Non-

Citizens and Immigration Detainees

Since Congress changed the immigration laws in 1996,

more and more non-citizens are being held in detention

centers or jails during their immigration cases, or while

they are waiting for deportation, even though they are not

convicted criminals or even pretrial detainees. When a

person is held in custody by the Immigration and Customs

Enforcement agency (ICE) they are called “immigration

detainees” rather than prisoners.

NOTE FOR NON-CITIZENS SERVING PRISON

SENTENCES:

One important thing to be aware of as a non-citizen is

that if you have been convicted of certain qualifying

crimes (as defined by federal immigration law), you may

be deportable after you have served your sentence.

Regardless of your immigration status, non-citizens can

be removed for criminal convictions. This area of law is

complicated, and something you should discuss with an

attorney who specializes in immigration law.

If you are ordered removed while serving your criminal

sentence or if you are fighting your immigration case while

in prison, you could be detained after you have finished

serving your sentence and held for an uncertain period of

time before you are deported from the country or your

immigration case is decided.

As an immigration detainee, you have most of the same

constitutional rights to decent treatment as citizens do.

Like pretrial detainees, immigration detainees can

challenge the conditions of their confinement under the

Due Process Clause of the Fifth Amendment, which

protects any person in custody from conditions that

amount to punishment. See Wong Wing v. United States,

163 U.S. 228 (1896).

Immigration detainees in federal facilities may have trouble

bringing constitutional claims for money damages because

of the changes in Bivens actions describe in Chapter 2,

Section D. Most of the cases described below involve

immigration detainees held in state or local facilities, or

suing to change their conditions rather than suing to get

money.

The Supreme Court has not yet determined what due

process standard should be used to analyze conditions and

abuse challenges by people in immigration detention.

Some courts have acknowledged that it is not yet clear

how immigration detainees’ claims should be treated. In

Preval v. Reno, 203 F.3d 821 (4th Cir. 2000), the Fourth

Circuit reversed a lower court ruling on a case brought by

immigration detainees because the district court had

dismissed their claims using the standard for pretrial

detainees without giving the detainees the opportunity to

argue about the correct standard.

That said, most courts have held that such challenges

should be analyzed under the Bell standard for pretrial

detainees, discussed above. For an example of this point of

view, read E.D. v. Sharkey, 928 F.3d 299 (3d Cir. 2019). In

E.D. the court allowed a female immigration detainee to

sue a guard for sexual assault, and the guard’s supervisors

for failure to protect. Other recent cases analogizing to

pretrial detainees are Charles v. Orange County, 925 F.3d

73 (2d Cir. 2019) and Chavero-Linares v. Smith, 782 F.3d

1038 (8th Cir. 2015). In considering due process claims by

immigration detainees, the courts have stated that the

Eighth Amendment sets a floor for those rights. This means

that immigration detainees have at least that much

protection under the Eighth Amendment. It is not clear if

they have more.

If you are an immigration detainee, you may want to argue

that you deserve a standard that is more protective of your

rights than the standard for pretrial detainees or convicted

prisoners because you are a civil detainee and have not

gotten the usual protections that courts give defendants in

the criminal justice system. Some courts have explicitly

stated that the Eighth Amendment “does not set a ceiling”

on due process rights. In other words, immigration

detainees may get more protection under the Due Process

Clause than convicted prisoners get from the Eighth

Amendment. This means that some conditions courts find

lawful for prisoners, might not be lawful for detainees.

Crosby v. Georgeakopoulos, No. 03-5232, 2005 U.S. Dist.

LEXIS 32238 (D.N.J. June 24, 2005). One case applying a

civil standard for due process claims by immigration

detainees is In re Kumar, 402 F. Supp. 3d 377 (W.D. Tx.

2019).

Although not a case involving immigration detainees, in

Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), a court

decided that conditions for other “civil detainees,” those

who have a mental illness or face civil commitment for a

sex offense, must be better than conditions for pretrial

criminal detainees. If people facing civil commitment are

held in the same conditions as criminal detainees, the

Ninth Circuit will presume the conditions are punitive, and

thus unlawful. If you are an immigration detainee held in a

jail or prison, or if your conditions are identical or more

restrictive than conditions for pretrial detainees or

prisoners, you may want to argue that the court should

presume your conditions are punitive and unconstitutional.

You should look at cases from your jurisdiction to see

which approach, if any, courts in your area have taken.

You can also argue that, because the correct standard is

unclear, the court should appoint an attorney to represent

you. You may have a good chance of getting appointed a

lawyer if you are an immigration detainee held in a private

facility, as that raises multiple complex questions of law. In

Agyeman v. CCA, 390 F.3d 1101 (9th Cir. 2004), for

example, the Ninth Circuit said the lower court abused its

discretion when it did not appoint counsel to an

immigration detainee who sued a private corporation

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because the case was very complex. See also Sanusi v.

Immigration and Naturalization Service, 100 Fed. Appx. 49

(2d Cir. 2004).

Examples of the types of cases detainees can bring

under the Due Process Clause:

> Restrictive or inhumane conditions of confinement.

> Use of excessive force by guards.

> Problems with food, exercise, or sanitation.

> Failure to provide adequate medical care.

The law is even less clear for non-citizens who are arrested

while entering the United States without a valid visa, or

who are arrested after entering without inspection. These

people are called “inadmissible,” and the government

sometimes argues they should get even less legal

protection than other non-citizens. One of the first cases

to address this issue was Lynch v. Cannatella, 810 F.2d

1363 (5th Cir. 1987). In Lynch, sixteen Jamaican

stowaways claimed that they were abused while in the

custody of the New Orleans harbor police. For ten days

they were locked in a short-term detention cell without

beds, mattresses, pillows, or heaters. Defendants kept

them handcuffed and forced them to work while shackled.

The police hosed them down with fire hoses, beat them,

shot them with a stun gas, and locked them in shipping

containers.

When the non-citizens sued, the defendants in Lynch

argued that “inadmissible” aliens have “virtually no

constitutional rights.” The Fifth Circuit disagreed and held

that due process protects “persons” whether or not they

are citizens or legal residents. The court held that

immigration detainees are “entitled under the due process

clauses of the Fifth and Fourteenth Amendments to be

free of gross physical abuse at the hands of state or federal

officials.”

Unfortunately, some courts have taken this language to be

the outer limit of due process protection for inadmissible

aliens. For an example of this type of reasoning, read Adras

v. Nelson, 917 F.2d 1552 (11th Cir. 1990). We think that all

detainees should be protected from far more than “gross

physical abuse,” whether they are inadmissible or

deportable, and urge you not to use this standard in your

papers. If the defendants in your case use this standard,

you could point out that it doesn’t make sense to offer civil

immigration detainees less protection than convicted

criminals get under the Eighth Amendment.

There are almost no cases addressing the application of

the Fourth Amendment’s prohibition on “unreasonable

searches and seizures” to immigration detainees. Because

searches can be based on similar security concerns in all

types of detention, most courts treat prisoners, pretrial

detainees, and immigration detainees the same, although

those who have not been convicted of a crime may have

somewhat more success in challenging the worst searches,

like strip or body cavity searches. One unlawful search

case involving an immigration detainee is Al-Shahin v. DHS,

No. 06-5261, 2007 U.S. Dist. LEXIS 75018 (D.N.J. Oct. 4,

2007).

Under Immigration and Customs Enforcement’s (ICE) 2011

Performance-Based National Detention Standards

(PBNDS), strip searches in immigration detention centers

are prohibited unless there’s a reasonable suspicion of

contraband possession. An updated guideline also calls for

strip searches to be performed by staff of the same gender

as the detainee and for transgender individuals to choose

the gender of the staff member conducting a body-cavity

search. Like other regulations in this book, these are

guidelines rather than binding rules, so you cannot sue to

enforce them. Instead, you can use them as evidence of

what is reasonable and what is not. When using such

guidelines, you should also check to see if your individual

facility has a different policy in place.

A 2013 case brought by immigration detainees against the

Department of Homeland Security (DHS) and ICE alleged

that their First Amendment rights were violated because

telephone services are unduly restrictive and expensive,

limiting the contact of immigration detainees with counsel.

The case, Lyon v. Immigration and Customs Enforcement, No.

C-13-5878 (N.D. Cal. 2014), was certified as a class action

in 2014, and settled in 2016 with ICE agreeing to provide

greater access to phones and free pro bono immigration

attorneys. More information on the settlement is available

at: https://www.aclunc.org/news/aclu-settlement-ice-

will-allow-immigrants-held-detention-use-functional-

telephones-contacting.

Also, similarly to pretrial detainees, the law about

placement in segregation without due process may be

better for immigration detainees than for convicted

prisoners. One good case to read on this issue is Bromfield

v. McBurney, No. 07-cv-5226RBL, 2008 U.S. Dist. LEXIS

11844 (W.D. Wash. Jan 14, 2008).

Prison Litigation Reform Act (PLRA) and Exhaustion

Requirements

Every circuit court to address the issue has held that the

PLRA does not apply to immigration detainees because

they are not “prisoners” within the meaning of the Act.

This means that the restrictive provisions of the PLRA

discussed in Chapter 2, Section E and throughout this

handbook do not apply to you, including the exhaustion

requirement, filing fees, and three strikes provisions. Some

examples of these cases include Ojo v. INS, 106 F.3d 680

(5th Cir. 1997); LaFontant v. INS, 135 F.3d 158 (D.C. Cir.

1998); Preval v. Reno, 203 F.3d 821 (4th Cir. 2000);

Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002). See also

70 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Page v. Torrey, 201 F.3d 1136 (9th Cir. 1999); Troville v.

Venz, 303 F.3d 1256 (11th Cir. 2002); Perkins v. Hedricks,

340 F.3d 582 (8th Cir. 2003) (holding that the PLRA does

not apply to people who have been civilly committed).

However, that doesn’t mean you can ignore the detention

center grievance system or the Immigration and Customs

Enforcement (ICE) administrative complaint process.

Before Congress passed the PLRA, courts created their

own exhaustion requirements, and those may apply to you.

The Supreme Court held in McCarthy v. Madigan, 503 U.S.

140 (1992), that courts need to balance a person’s right to

go to court to sue over injustice against an institution’s

interest in having you use whatever grievance system they

have set up. Under this balancing test, there are three

arguments you can make to allow you into court before

exhausting: (1) if exhaustion would somehow hurt your

ability to sue, for example because it might take too long;

(2) if the institution’s grievance system can’t give you what

you want, for example money damages; or (3) if the

institution is biased or has already decided the issue

against you. Still, it is safer to use or try to use any

grievance system that ICE or the jail or detention center

has before you sue.

Protection of Prisoners Under

International Law

Along with the United States Constitution, your state

constitution, and federal and state laws, another potential

source of protection for prisoners is international law.

Using international law in United States courts can be

complicated and controversial so you may not want to

attempt it without a lawyer. Some judges may be hostile to

even the mention of international law.

International law gets more recognition in the United

Nations (UN). Also, many countries in North and South

America are part of the Organization of American States

(OAS), which has its own human rights system which is

talked about below. These different systems have

procedures which you might be able to use to help in your

case.

The UN or the OAS human rights system might be able to

address either your individual case or widespread prison

conditions. While these strategies are not binding in the

way that court decisions are, they may help bring

awareness to your treatment and encourage authorities to

address your case. They can be a low-cost supplement to

highlight violations of rights. This section will outline some

basic facts about international law and provide you with

resources in case you want to explore the area further. A

very important article to read is William Quigley and Sara

Godchaux, Prisoner Human Rights Advocacy, 16 Loy. J.

Pub. Int. L. 359 (2015), available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=270

2550. Many of the topics discussed below are drawn from

that article, and it goes into more depth.

Also, while you will probably be unable to sue directly

under human rights treaties, each treaty has a treaty body

that monitors whether the United States is following the

rules set out in the treaties. You can contact a human

rights group, like Human Rights Watch, and ask for help

sending a letter to one of those bodies.

Human Rights Watch is an organization that monitors the

conditions in prisons and publishes reports on prisons.

They answer mail from prisoners, and they also send free

reports that you can use to support your legal claims. Their

contact information is in Appendix I.

1. Sources of International Legal Protection

There are two main sources of international law:

“customary international law” and treaties. Customary

international law is unwritten law based on certain

principles that are generally accepted worldwide. Treaties

are written agreements between countries that set

international legal standards. Under Article VI, section 2 of

the United States Constitution, treaties are part of the

“supreme law” of the land. Customary and treaty-based

international law are both supposed to be enforceable in

the United States, but this is often controversial.

Customary international law prohibits practices that violate

generally accepted human rights standards, such as

slavery, state-sponsored murders and kidnappings, torture,

arbitrary detention, and systematic racial discrimination.

Restatement (Third) of Foreign Relations Law, Section 702

(1987). United States’ courts have recognized that some of

these practices violate customary international law. For

example, in Filartiga v. Pena-Irala 630 F.2d 876 (2d Cir.

1980), the court recognized that torture violates

customary international law.

Prisoners are guaranteed human rights under many

sources of international law, including the 1948 Universal

Declaration of Human Rights (UDHR), which guarantees

that “[n]o one shall be subjected to torture or to cruel,

inhuman or degrading treatment or punishment.” The

UDHR was the first time that the fundamental rights of

people were agreed upon by the international community.

The UDHR lays out many basic rights, including rights to

life, liberty, and security, and the right to an adequate

standard of living. The 1976 International Covenant on

Civil and Political Rights (ICCPR) also contains numerous

protections for prisoners, including requiring that “[a]ll

persons deprived of their liberty shall be treated with

humanity and with respect for the inherent dignity of the

human person.”

71 | CHAPTER 3 – YOUR RIGHTS IN PRISON

There are two steps for a country to become party to an

international treaty: signing and ratifying. The United

States has ratified the ICCPR but did so with many

exceptions (which are called “reservations”), and Congress

has not yet passed laws to implement it. The United States

has many reservations to human rights treaties that limit

your ability to use them to their full potential. This is one

reason why courts will rarely accept arguments based on

treaties.

The Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (CAT) was enacted

in 1984 to prohibit intentional infliction of severe physical

or mental pain. The U.S. also ratified the Convention on

the Elimination of All Forms of Racial Discrimination

(CERD), which prohibits racial and ethnic discrimination.

The United Nations has endorsed Standard Minimum Rules

for the Treatment of Prisoners. The standards cover prison

conditions, including treatment, healthcare, restraints,

food, and searches. The rules were updated in 2015 and

named the “Nelson Mandela Rules.” They do not have the

force of law in the United States, but they are an important

reference point.

It is extremely difficult to bring a successful international

claim in a United States court. However, some prisoners

have found it useful to discuss international standards in

suits based on more established domestic law. For

example, one state court referred to standards set out in

the International Covenant on Civil and Political Rights

when deciding that searches of prisoners by guards of the

opposite sex violated their rights under the Eighth

Amendment. Sterling v. Cupp, 625 P.2d 123, 131 n.21 (Or.

1981). The First Circuit Court of Appeals acknowledged

that “the Supreme Court and lower federal courts have

frequently consulted the ICCPR as an interpretive tool to

determine important issues in the area of human rights

law.” Garcia v. Sessions, 856 F.3d 27, 60 (1st Cir. 2017).

In Atkins v. Virginia, 536 U.S. 304 (2002), the Court struck

down the death penalty for the intellectually disabled,

noting that the practice was “overwhelmingly disapproved”

in the world community. Later, in Roper v. Simmons, 125 S.

Ct. 1183 (2005), the court relied even more heavily on

international law and practice when it struck down the

death penalty for juvenile offenders. In fact, even in her

dissent from the court’s ruling in Roper, Justice O’Connor

acknowledged that international law and practice was

relevant to the court’s analysis when she observed: “Over

the course of nearly half a century, the court has

consistently referred to foreign and international law as

relevant to its assessment of evolving standards of

decency…At least, the existence of an international

consensus of this nature can serve to confirm the

reasonableness of a consonant and genuine American

consensus.”

2. Filing a Complaint to the United Nations

Special Rapporteur on Torture

The main way that prisoners can file an individual human

rights complaint is directly to the U.N. Special Rapporteur

on Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (Special Rapporteur on Torture).

The United Nations has 38 human rights experts who

report on specific themes of human rights, and each expert

is called a Special Rapporteur. The expert on prison human

rights issues is the Special Rapporteur on Torture.

The Special Rapporteur may get involved in cases of

prolonged detention without communication, solitary

confinement, torturous conditions, denial of medical

treatment and nutrition, means of restraint contrary to

international standards, and threats of excessive force by

officials. The Special Rapporteur on Torture has repeatedly

criticized numerous U.S. prison practices, including the use

of solitary confinement on many types of people including

juveniles, individuals with disabilities, those serving life

sentences or on death row, and pregnant and

breastfeeding women.

Keep in mind that the Special Rapporteur does not have

enforcement power. Filing a complaint with them is not

like filing a lawsuit. However, the Special Rapporteurs are

an important opportunity for advocacy, organizing, and

drawing attention to abuses you have suffered.

Here are a few examples of times when the Special

Rapporteur was able to get involved and helped in cases:

In 2009, the Special Rapporteur investigated widespread

reports of pregnant women in U.S. jails and prisons being

restrained by their ankles and wrists while being

transported to the hospital and undergoing childbirth.

Since then, many states have passed laws and regulations

banning this practice.

In 2010, the Special Rapporteur on Torture was asked to

investigate use of electric shock and indefinite restraints in

treating juveniles in a residential program in Canton,

Massachusetts. The Rapporteur looked into it and asked

the U.S. government to investigate and respond. As a

result, new regulations were put in place to prevent that

type of treatment.

In March 2012, twenty California prisoners and fifteen

organizations filed a complaint to the Special Rapporteur

on Torture on behalf of 4,000 prisoners held in isolated

segregation. The outreach to the Rapporteur was part of a

broader organizing effort that included a federal lawsuit by

the Center for Constitutional Rights and a peaceful hunger

strike by thousands of prisoners to protest solitary

confinement. The federal lawsuit and the organizing

eventually led to a settlement ending the use of indefinite

solitary confinement in California prisons.

72 | CHAPTER 3 – YOUR RIGHTS IN PRISON

Even just getting the Special Rapporteur to ask questions

about a prisoner’s treatment can sometimes play an

important part of a larger advocacy or legal strategy. For

example, in 2012, a human rights complaint was filed on

behalf of Russell Maroon Shoatz, a Pennsylvania prisoner

who had spent twenty-one years in solitary confinement.

The Rapporteur also called on U.S. authorities to end

solitary confinement of a Louisiana man, Albert Woodfox,

after four decades. Woodfox was released in 2016.

Finally, the Rapporteur asked the U.S. to investigate the

detention of Daniel Chong by the Drug Enforcement

Administration (DEA) who was arrested for smoking

marijuana and left handcuffed in a small cell for days

without food or water.

If you would like to file a complaint with the Special

Rapporteur, you have to fill out a model questionnaire and

answer the questions. This can be completed either by you

or by representatives. That model questionnaire is

attached as Appendix G to this Handbook. The address of

the Special Rapporteur is:

Special Rapporteur on Torture

c/o Office of the High Commissioner for Human Rights

United Nations Office at Geneva

CH-1211 Geneva 10, Switzerland

3. Sending a Petition to the Inter-American

Commission on Human Rights (IACHR)

The United States is a member of the Organization of

American States (OAS), and is bound to the provisions of

the American Declaration on the Rights and Duties of Man.

This is a human rights system that is regional to the

Americas, unlike the United Nations or other treaties

which are global. The Inter-American Commission on

Human Rights is an independent part of the OAS that

looks at possible human rights violations in the Americas.

Individuals can present petitions to the Commission once

available remedies have been pursued and exhausted in

domestic courts.

This means that you can only file a complaint to the IACHR

after you have gone through the U.S. legal system.

Complaints need to be filed six months after exhausting

domestic legal remedies or showing that remedies are

futile. The IACHR publishes a helpful informational

brochure, available at

https://www.oas.org/en/iachr/docs/pdf/howto.pdf.

Once a petition is filed, the IACHR decides whether or not

the petition meets its requirements. If it does, then the

IACHR contacts the United States for a response.

NOTE: The IACHR process is non-binding, and the

United States has a history of not following its

obligations under the process. But like the Special

Rapporteur mentioned above, the process could be

part of bringing attention to your case.

73 | CHAPTER 4 – WHO TO SUE and WHAT TO ASK FOR

CHAPTER FOUR:

Who to Sue and What to Ask for

Now that you know your rights under the Constitution, the

next step is figuring out how to put together your lawsuit.

You will need to decide what you want the court to do,

who to include as plaintiffs, and who to sue.

What to Ask for in Your Lawsuit

If you bring a lawsuit under Section 1983, you can ask for

three things: money damages, a declaratory judgment, or

an injunction. You don’t have to ask for just one—you can

ask for two or all three. In the legal world, all three of these

options are called “relief.”

> Money damages are awarded by the court to make

defendants pay you money to make up for harm you

suffered in the past. Punitive damages may be awarded to

punish defendants for especially bad conduct.

> An injunction is a court order that directs prison officials

to make changes in your prison conditions and/or stop

ongoing conduct that the court finds to be illegal.

> A declaratory judgment is when a court makes a decision

that explains your legal rights and the legal duties and

obligations of the prison officials. However, the court

doesn’t order the prison to do or stop doing anything. If

you get a declaratory judgment and the prison doesn’t

follow it, you can then ask the court for an injunction to

make them do so.

Courts usually issue a declaratory judgment and an

injunction together. However, it is also possible for a court

to issue only the declaratory judgment and let the prison

officials decide what actions will comply with the

declaratory judgment.

A court will only issue an injunction if it feels that money

damages will not fix whatever has harmed you. For

instance, if you have to continue living in the unsafe

conditions you sued over, money damages will not make

those conditions any safer.

Section B of this chapter talks about injunctions in more

detail, including when you can get an injunction, what it

can cover, and how to enforce it. Section C of this Chapter

explains money damages, Section D explains who you can

sue (the “defendants”) and Section E explains settlements.

If you are part of a group of prisoners who want a

declaratory judgment and injunctive relief (and sometimes

money damages) from a court, you can ask the court to

make the lawsuit a class action. This kind of lawsuit joins

together all people who have been harmed in the same

way as you at the same prison or jail. There are very

specific requirements for bringing a class action lawsuit.

These requirements will be discussed in Section F of this

chapter.

Chapter Four: Table of Contents

Section A ......................... What to Ask for in Your Lawsuit

Section B ................................................................ Injunctions

Section C ..................................................... Money Damages

Section D .................................................. Who You Can Sue

Section E .............................................................. Settlements

Section F ............................................................ Class Actions

When you think about what kind of relief you want, it is

important to keep in mind that release from prison or a

sentence reduction is not usually available in a Section

1983 or Bivens lawsuit. Additionally, you cannot use these

kinds of lawsuits to request the reinstatement of good-

conduct-time credits that have been unconstitutionally

taken from you. Preiser v. Rodriguez, 411 U.S. 475 (1973).

You can only challenge the fact or the length of your

prison sentence through a writ of habeas corpus. A writ of

habeas corpus requires that you go through your state

court system before seeking relief from a federal court, or

through remedies that may be available from the court that

sentenced you, like a motion for compassionate release.

A detailed discussion of the writ of habeas corpus is

beyond the scope of this Handbook. But see Appendix K

for some books and resources on habeas corpus.

Injunctions

An injunction is an order issued by a court that tells the

defendant to do or not do some act or acts. The court can

order the defendants to stop doing harmful and

unconstitutional things to you. It can require the

defendants to act in a way that will prevent them from

violating your rights in the future. If the defendants don’t

follow the court’s order, as set out in the injunction, they

can be held in “contempt” by the court that issued the

injunction. Contempt means that the judge can order the

defendants fined or jailed.

74 | CHAPTER 4 – WHO TO SUE and WHAT TO ASK FOR

In considering whether to ask for an injunction in your

lawsuit, you should think about the harm you have

suffered and identify whether it happened just once, is still

happening, or is likely to happen again soon. You may be

able to get an injunction if the harm is continuing or is very

likely to happen again soon.

The Supreme Court, in Lewis v. Casey, 518 U.S. 343 (1996),

stated that in order to get an injunction, a prisoner must

show “actual or imminent injury.” In this context, “injury”

does not have to mean physical damage to your body. It

just means that you are, or will be, worse off because of

the illegal acts of the prison staff, such as: your mail isn’t

sent out, your books are taken away, or you have to live in

a strip cell.

What Is an Injunction?

An injunction is an order issued by a court that tells the

defendant to do or not do something. You can get an

injunction to stop the defendants from harming you. Or

you can get an injunction to make the defendants do

something to improve conditions or care in the prison.

Sometimes an injunction is referred to as “prospective

relief.” You can ask for an injunction if you are

experiencing any of the following:

> Overcrowded, unsafe, or extremely harsh conditions;

> A pattern of guard brutality or harassment;

> Inadequate medical care; or

> Continuing violation of any of your rights.

“Actual or imminent injury” means that you have to show

the court that you are being harmed in some way, or that it

is likely that you will be harmed very soon. It is not enough

to show that there is something wrong in your prison. To

get an injunction, you must show that you are being

harmed or are likely to be harmed by whatever it is that is

wrong.

An injunction is only appropriate if the injury you face is

ongoing. For example, if you are currently imprisoned in a

severely overcrowded prison, that is a current and ongoing

harm, and you can request an injunction.

On the other hand, if the overcrowding just happened for a

week or two, and you do not have a good reason to

believe that it is likely to happen again in the near future,

you should not request an injunction. An example of harm

that is not ongoing is being beaten once by a guard. Unless

the guard threatens to beat you again, or engages in a

pattern of violence, there is nothing that the court can

order the prison officials to do that will fix the abuses that

you suffered in the past. That situation is better dealt with

by asking for money damages.

1. Preliminary Injunctions and Permanent

Injunctions

Most injunctions are called permanent injunctions. The

court can only give you a permanent injunction at the end

of your lawsuit. However, lawsuits take a very long time,

and many prisoners can’t wait years for the court to decide

whether to grant them a permanent injunction. Perhaps

you are facing serious injury or even death. In a case like

that, you can ask the court for a preliminary injunction.

You can get a preliminary injunction much faster than a

permanent injunction and it protects you while the court is

considering your case and deciding whether or not you will

get a permanent injunction.

There are four things that you have to show to win a

preliminary injunction:

You are likely to show at trial that the defendants

violated your rights;

You are likely to suffer irreparable harm if you do

not receive a preliminary injunction. “Irreparable

harm” means an injury that can never be fixed;

The threat of harm that you face is greater than

the harm the prison officials will face if you get a

preliminary injunction; and

A preliminary injunction will serve the public

interest.

Chapter Five includes sample documents to show how to

seek a preliminary injunction.

If you are successful in winning your preliminary

injunction, the battle is unfortunately not over. Under the

PLRA, the preliminary injunction lasts only 90 days from

the date that the court issues it. This usually means that

you have to hope that you are able to win your permanent

injunction within those 90 days. As stated before, lawsuits

take a long time, and it is unlikely that this will happen. You

can get the preliminary injunction extended for additional

90-day periods if you can show the same conditions still

exist. Mayweathers v. Newland, 258 F.3d 930 (9th Cir.

2001).

Even a permanent injunction is not actually permanent

under the PLRA. After the first two years of a permanent

injunction, defendants can challenge it every year. To keep

the injunction, you will have to show that without it, your

rights would still be violated. Under the PLRA you will have

to convince the court that continuing the injunction is

“necessary to correct a current or ongoing violation” of

your rights and that you still meet the requirements for an

injunction listed above.

But don’t let this stop you from filing for an injunction. It is

very likely that if you win an injunction, but are faced with

it ending under the PLRA, you will be able to find a lawyer

to help you.

75 | CHAPTER 4 – WHO TO SUE and WHAT TO ASK FOR

2. Exhaustion and Injunctions

You must also consider the “exhaustion” requirements of

the PLRA. “Exhaustion” means that you must complete

your prison’s grievance system or other administrative

remedy designated for your problem, such as a disciplinary

appeal, before filing a lawsuit. You will learn more about

this in Chapter Five, Section A. It is smart to use the prison

grievance system while you are working on your lawsuit.

If you have an emergency situation and you do not have

time to use the prison grievance system, you can request a

preliminary injunction anyway. Usually, you will have to

exhaust your prison’s administrative remedies while you

are getting relief through the injunction. One case to read

on this issue is Jackson v. District of Columbia, 254 F.3d 262

(D.C. Cir. 2001). That case states that the court can only

protect prisoners with a preliminary injunction while the

court waits for them to exhaust grievance procedures.

Fletcher v. Menard Correctional Center, 623 F.3d 1171 (7th

Cir. 2010) is another very good case to read on this issue.

There, the court held that a grievance system is not

“available” such that you have to exhaust it, if there is no

way you could possibly get relief in time to keep you from

being injured.

To get a preliminary injunction without having exhausted

the prison grievance system, you will have to show the

court that if you are forced to wait until after using the

prison grievance system to sue, you will be irreparably

harmed. Irreparable harm is an injury that would cause

permanent injury or damage that cannot be fixed by

money or some other form of relief. In your complaint,

explain what that harm is. Ongoing pain is an example of

irreparable harm, as are many ongoing violations of your

constitutional rights.

3. Temporary Restraining Orders

There is another means of relief that you can get even

faster than a preliminary injunction, called a “temporary

restraining order” or “TRO.” Sometimes you can get a TRO

before the prison officials are even aware of the lawsuit.

These are issued in emergency situations and only last for

a short period of time.

A TRO is very difficult to get, especially without a lawyer.

Rule 65 of the Federal Rules of Civil Procedure sets out the

standard for a TRO. To get one you must show that you

will suffer “immediate and irreparable injury, loss or

damage” if the court doesn’t help you before the other side

has a chance to respond.

Chapter Five has a sample TRO request.

Money Damages

In a Section 1983 or Bivens lawsuit, the court can order

prison officials to give you money to make up for the harm

you suffered when your rights were violated. You can get

money damages instead of, or in addition to, an injunction.

You may want an injunction against some of the people

you sue and money damages from others, or both. This

section explains when and how to get money damages.

1. The Three Types of Money Damages

There are three types of money damages. The first type is

an award of nominal damages. Nominal damages are

frequently just $1, or some other very small sum of money.

Nominal damages are awarded when you have proven a

violation of your rights, but you have not shown any actual

harm that can be compensated.

You are most likely to win a significant amount of money if

you suffered an actual physical injury. The officials who are

responsible should pay you for medical and other

expenses, for any wages you lost, for the value of any part

of your body or physical functioning which cannot be

replaced or restored, and for your “pain and suffering.”

These are called compensatory damages. The idea behind

compensatory damages is to try and get you back to the

condition you were in before you were injured.

The third type of damages you may be able to get is

punitive damages. To get punitive damages, you need to

show that the defendants’ actions were “motivated by evil

motive or intent” or involved “reckless or callous

indifference to your rights.” In other words, the officials

hurt you on purpose or did something so clearly

dangerous, they must have known it was likely to hurt you.

An example of a prisoner getting punitive damages can be

found in Smith v. Wade, 461 U.S. 30 (1983). In that case,

Mr. Wade had been moved into protective custody in his

prison after having been assaulted by other prisoners. A

prison guard moved two other prisoners into Mr. Wade’s

cell, one of whom had recently beaten and killed another

prisoner. Mr. Wade’s cellmates harassed, beat, and sexually

assaulted him. The court found that the guard’s conduct in

placing Mr. Wade in a situation the guard knew was likely

to expose him to serious physical harm satisfied the

standard for punitive damages. Mr. Wade won $25,000 in

compensatory damages and $5,000 in punitive damages.

Not all punitive damage awards require physical assault.

Some courts and juries have awarded punitive damages for

violations of other constitutional rights based on a showing

of “evil intent” by prison officials. One example is Siggers-El

v. Barlow, 433 F. Supp. 2d 811 (E.D. Mich. 2006). In that

case a prisoner received $200,000 in punitive damages

after he was transferred in retaliation for complaining to

the warden about a prison official who harassed the

prisoner and refused to put in the routine paperwork the

prisoner needed to pay his appellate lawyer. The transfer

76 | CHAPTER 4 – WHO TO SUE and WHAT TO ASK FOR

ended up causing the prisoner to lose a very good prison

job and contact with his family. That prisoner also received

$19,000 in compensatory damages.

The point of punitive damages is to punish members of the

prison staff who violate your rights and to set an example

to discourage other prison staff from acting illegally in the

future. Therefore, the court usually won’t impose punitive

damages for one incident unless you show that the

defendants acted especially maliciously. You may also win

punitive damages if you show there has been a pattern of

abuse or that there is a need to deter similar abuse in the

future.

Just because you are able to prove your case and win

compensatory damages, does not automatically mean you

will win punitive damages. For instance, in Coleman v.

Rahija, 114 F.3d 778 (8th Cir. 1997), Ms. Coleman was able

to win $1000 in compensatory damages by proving that

she was illegally denied medical treatment, but she did not

win punitive damages. In that case, Ms. Coleman had a

history of premature and complicated pregnancies and was

experiencing severe pain and bleeding in connection with

her premature labor. Nurse Rahija, the nurse on duty at

Ms. Coleman’s prison, was aware of Ms. Coleman’s medical

history. Nurse Rahija examined Ms. Coleman and

determined that Ms. Coleman could be in early labor.

However, she delayed Ms. Coleman’s transfer to a hospital

for several hours. The court ruled that Nurse Rahija’s

actions reached the standard of “deliberate indifference”

and therefore violated the Eighth Amendment but were

not bad enough to show that she acted with “callous

indifference” as required for punitive damages.

Even though you may not always get punitive damages, if

you are suing for a violation of your rights and you have to

prove deliberate indifference or excessive force to win

your claim, it probably makes sense to ask for punitive

damages, too. The standards for deliberate indifference

and excessive force are discussed in Chapter Three.

2. Damages Under the PLRA

If you have not been physically hurt or sexually assaulted,

the PLRA makes it harder to get damages. The PLRA states

No federal civil action may be brought by a prisoner

confined in a jail, prison, or another correctional facility for

mental or emotional injury suffered while in custody

without a prior showing of physical injury or the

commission of a sexual act.

This means that you cannot get money for the way

something makes you feel unless you are also seeking

money for a physical injury or sexual abuse. Most courts

have interpreted this statement to only affect claims for

compensatory damages. This interpretation is explained in

Thompson v. Carter, 284 F.3d 411 (2d Cir. 2002). So in

most jurisdictions, you can still bring a claim for nominal or

punitive damages for any kind of harm. And you can still

try to get an injunction. Other cases to read on this issue

are Harris v. Garner, 190 F.3d 1279 (11th Cir. 1999)

(injunctive relief) and Royal v. Kautzky, 375 F.3d 720 (8th

Cir. 2004) and Calhoun v. DeTella, 319 F.3d 936 (7th Cir.

2003) (nominal and punitive damages). Some of these

courts have explained their interpretation by saying that

otherwise, this section of the PLRA would be

unconstitutional.

However, a few courts have held that this provision of the

PLRA also bars punitive damages for emotional injuries. In

Al-Amin v. Smith, 637 F.3d 1192 (11th Cir. 2011), for

example, a court ruled against punitive damages in the

absence of physical injury.

Another area in which courts disagree is whether a claim of

a constitutional violation is a claim for “mental or

emotional injury.” Courts are split about whether violations

of your constitutional rights are eligible for compensation

if there isn’t physical injury. About half of the circuits,

including the Third, Eighth, Tenth, and Eleventh, are

stricter about the physical injury requirement. That means

that you can’t get compensation unless you were

physically injured or meet the exact requirements of a

‘sexual act’ under the Violence Against Women Act

(available at 18 U.S.C. § 2246).

On the other hand, the Second, Sixth, Seventh, Ninth, and

District of Columbia Circuits are less strict about the

physical injury requirement. Harms from violating your

constitutional rights are a form of injury that are not simply

mental or emotional and therefore they are not excluded

by the PLRA. Two good cases that explain the difference

between constitutional and emotional injuries are King v.

Zamira, 788 F.3d 207, 213 (6th Cir. 2015) and Aref v.

Lynch, 833 F.3d 242 (D.C. Cir. 2016).

There are a lot of cases on this issue. One example is Canell

v. Lightner, 143 F.3d 1210 (9th Cir. 1998). In that case, the

Ninth Circuit stated that the plaintiff was “not asserting a

claim for 'mental or emotional injury.' He is asserting a

claim for a violation of his First Amendment rights. The

deprivation of First Amendment rights entitles a plaintiff to

judicial relief wholly aside from any physical injury he can

show or any mental or emotional injury he may have

incurred. Therefore, § 1997e(e)[of the PLRA] does not

apply to First Amendment claims regardless of the form of

relief sought.”

Other good cases on this issue are Robinson v. Page, 170

F.3d 747 (7th Cir. 1999); Thompson v. Carter, 284 F.3d 411

(2d Cir. 2002); and Cockroft v. Kirkland, 548 F. Supp. 2d

767 (N.D. Cal. 2008). As one court explained, because

“First Amendment violations rarely, if ever, result in

physical injuries, construction of the PLRA against recovery

of damages would defeat congressional intent and render

constitutional protections meaningless. If § 1997e(e) is

applied to foreclose recovery in First Amendment actions,

it would place the First Amendment itself “on shaky

constitutional ground.” Siggers-El v. Barlow, 433 F. Supp. 2d

811, 816 (E.D. Mich. 2006).

77 | CHAPTER 4 – WHO TO SUE and WHAT TO ASK FOR

Money Damages

> You can get nominal damages if your rights have been

violated.

> You can get compensatory damages to make up for

physical, sexual, or other harm you were caused.

> You can get punitive damages to punish guards or

other officials who hurt you on purpose.

Other courts have disagreed with this approach and state

that the PLRA bars damages for constitutional claims. One

example is Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000),

where the court held that a complaint about denial of

religious services was only mental or emotional. Similarly,

in Sisney v. Reisch, 674 F.3d 839 (8th Cir. 2012) a court

would not give compensatory damages to a Jewish

prisoner for denial of a requests to eat meals in a succah.

And in Pearson v. Welborn, 471 F.3d 732 (7th Cir. 2006) a

court denied damages for isolation without a physical

injury.

Different courts have different standards as to what

qualifies as physical injury. The physical injury has to be

greater than “de minimis” which means “very minor,” but it

does not have to be severe. For example, in a case called

Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997), a guard

twisted a prisoner’s ear, and it was bruised and sore for

three days. The court held that this was not enough of a

physical injury. However, the court noted that a prisoner

does not need to show a “significant” injury. Many courts

do not have clear precedent on what kind of injury is

enough. Some good cases holding less-then-severe injury

is enough are: Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002),

Grenning v. Miller-Stout, 739 F.3d 1235 (9th Cir. 2014),

Taylor v. Stevens, 946 F.3d 211 (5th Cir. 2019), and Payne v.

Parnell, 246 Fed. Appx. 884 (5th Cir. 2007).

Another important PLRA category is sexual abuse cases. In

2013 Congress passed the Violence Against Women Act,

which changed the rules under the PLRA to make some

types of sexual abuse count for damages. Before, it was

difficult for victims of sexual abuse in prison to get

compensation if they didn’t have physical signs of the

abuse. A “sexual act” is defined by 18 U.S.C. § 2246(2) as

intercourse, oral sex, intentional penetration, or intentional

touching (not through clothing) of the genitals of a person

younger than 16. That means that these types of abuse

don’t need to meet the physical injury requirement under

the PLRA.

Sexual assault that does not meet this definition will be

considered under the “physical injury” requirement. Courts

have taken different approaches about whether

inappropriate touching meets the physical injury

requirement. For example, in Woods v. United States, No.

1:14-cv-00713, 2015 U.S. Dist. LEXIS 175855 (N.D. Ala.

Dec. 11, 2015), a court said that sexual pat downs and

inappropriate touching don’t meet the PLRA’s physical

injury requirement or the definition of a “sexual act.” But

another court in Cleveland v. Curry, No. 07-cv-02809-NJV,

2014 U.S. Dist. LEXIS 22402 (N.D. Cal. Feb. 21, 2014) said

that “any type of sexual assault is ‘always’ deeply offensive

to human dignity. . . . [P]laintiffs seeking compensatory

damages for the violation of certain constitutional rights

are not subject to the PLRA’s physical injury requirement.”

Id. at 24.

3. Deciding How Much Money to Ask For

It is difficult to decide how much in compensatory and/or

punitive damages you should request from the court. You

should think carefully about asking for huge amounts of

money, like millions of dollars, because the judge may be

less likely to take your claim seriously if you do not ask for

an appropriate amount. You can estimate a number for

your compensatory damages by thinking about what your

injury cost you. For example, try and come up with the

amount of medical expenses you are likely to face in the

future, or wages you have lost or will lose because you

cannot work. Also, think about the effect your injury has

had on your life. How long have you suffered? Are you

permanently injured? In what specific ways were you

harmed? You can look up cases in your circuit involving

injuries that are similar to your own and see what the court

awarded those prisoners.

Who You Can Sue

In your complaint you have to name at least one

defendant. But if you want, you can name more than one.

You should include all of the people or entities that were

responsible for the harm that you suffered. You must have

a good reason to sue someone. People who were not

involved in violating your rights cannot be sued under

Section 1983 for damages.

Every defendant you sue must have acted “under color of

state law” as you learned in Chapter Two, Section A, Part

2. What this means is that each prison official who was

responsible for your injury must have acted while working

at your prison or otherwise “on duty.” This can include

anyone who is involved in running your prison. You can

sue the people who work in your prison, such as guards, as

well as the people that provide services to prisoners, such

as nurses or doctors.

You have to prove that each defendant in your case acted

or failed to act in a way that led to the violation of your

rights. This is called “causation.” For example, if a guard

illegally beats you and violates your rights, they cause your

injury. The guard’s supervisor could also be liable for

violating your rights if you can show that the supervisor

made or carried out a “policy” or “practice” that led to the

violation of your rights. So let’s say that the prison warden,

who is the supervisor of the guard who beat you,

instructed their guards to beat prisoners anytime that they

did not follow orders. In this instance, the warden didn’t

actually beat you themselves, but they are responsible for

creating a policy that led to the beatings.

78 | CHAPTER 4 – WHO TO SUE and WHAT TO ASK FOR

Sometimes, a supervisor may also be sued for ignoring or

failing to react to a widespread health or safety problem.

For example, if the warden was aware that guards refused

to let prisoners eat on a regular basis and did not do

anything to stop it, you might be able to sue the warden as

well as the guards, arguing all of them were deliberately

indifferent.

In 2009 the Supreme Court decided a case called Ashcroft

v. Iqbal, 556 U.S. 662 (2009), that may limit the ways in

which supervisors can be sued for ignoring illegal action.

Some courts are interpreting Iqbal to limit a plaintiff’s right

to sue a supervisor who ignored illegal action by a guard

they supervised. Other courts have found that ignoring

illegal action is still a ground for suit after Iqbal. This issue

is discussed in more detail in Part 2 of this section.

You also have to decide whether you are suing a

defendant in their “individual capacity,” “official capacity,”

or both. If you are suing for damages under Section 1983,

you should sue defendants in their individual or personal

capacity. You are still saying that they acted under color of

law, but you are seeking damages against them personally.

If you are suing for injunctive relief under Section 1983,

you should sue the defendants in their official capacity.

You can sue defendants in both their individual and official

capacities if you are asking for both damages and

injunctive relief.

There are legal differences between who you can sue in an

action for an injunction and who you can sue for money

damages. A discussion of these differences follows below.

It is important to keep in mind that you can sue for an

injunction and money damages together in one lawsuit.

If you don’t know the name of a guard or other prison

official who has harmed you, you can sue one or more

“John Doe” defendants. If you sue a John Doe, you will

need to find out their identity as soon as possible, before

the statute of limitations runs out on your claim. You can

do this by asking the court for “Doe discovery.” Discovery

is explained below.

1. Who to Sue for an Injunction

The purpose of an injunction is to change conditions in

your prison by making prison officials take some action or

stop doing something that violates your rights. In this kind

of lawsuit, you need to sue the officials in charge.

You cannot sue a state or a state agency directly. This

means you can’t sue “The New York State Department of

Correctional Services” or New York State itself for either

an injunction or for money damages. Pennhurst State School

& Hosp. v. Halderman, 465 U.S. 89 (1984).

Naming Your Defendants:

> Sue prison guards or administrators in their

“individual capacity” if you want money damages.

> Sue prison guards or administrators in their “official

capacity” if you want an injunction.

If you want both, sue everybody in their “individual and

official capacities.”

You will learn where to state that you are suing

someone in their individual or official capacity in

Chapter Five.

But, when you sue state-employed prison officials in their

official capacities, this can force the state and its state

agencies to respect your rights. For that reason, you need

to sue the person at the prison who has the ability to make

whatever change you want. This might be the warden, or a

counselor, or a unit manager. If you are asking for an

injunction, make sure you sue high-ranking officials at your

prison, and mention the titles of the prison officials who

you are suing as well as their names.

Although you can’t sue a state, you can sue a municipality

directly for an injunction. A “municipality” is a city, town,

county, or other kind of local government. This is called a

“Monell claim” because it first succeeded in an important

case called Monell v. Dept. of Social Services of the City of

New York, 436 U.S. 659 (1978). You can sue a city, or any

other municipality, for an injunction or damages where the

violation of your rights was the product of a city’s official

policy or unofficial custom. Pembaur v. Cincinnati, 475 U.S.

469 (1986). Be warned that proving a policy or custom is

hard unless the policy is actually written down.

You are unlikely to win against a municipality if your injury

was the result of one specific event or was caused by only

one prison or jail official. You will be in a better position to

win against a municipality if you can show that the

municipality was guilty of a pattern of abuse that resulted

in the violation of your rights or if it had a policy that

caused the violation.

Remember that you can still get an injunction against the

prison or jail officials even if you can’t get one directly

against the municipality. Name everyone who you want to

hold liable.

2. Who to Sue for Money Damages:

The Problem of “Qualified Immunity”

If you want to sue for money damages, you have to sue

the prison officials who violated your rights in their

individual capacity (personally). As with injunctions, you

cannot sue your state or the prison itself.

The biggest hurdle in suing prison officials for money

damages is the doctrine of qualified immunity. Qualified

immunity is a form of legal protection given to government

officials. If a court rules that the prison officials you are

suing are protected by qualified immunity, that will be the

79 | CHAPTER 4 – WHO TO SUE and WHAT TO ASK FOR

end of your lawsuit for damages. However, qualified

immunity does not protect defendants from an injunction!

To overcome qualified immunity and to get money

damages, your complaint (explained in detail in Chapter

Five) must include facts that show that:

> Your constitutional rights were violated;

> The right that was violated was “clearly established”; and

> The defendant was personally responsible for the

violation of your rights. This is called the “personal

involvement” requirement.

For a right to be clearly established, prison officials must

have fair warning that their actions in a situation were

illegal. Prison officials are allowed to make reasonable

mistakes. A prison official may act illegally and still be free

from liability if they couldn’t be expected to know better

because the law in that area is unclear. However, an

official can be held responsible if they knew (or should

have known) that they were acting illegally. The main

Supreme Court cases on this topic are Saucier v. Katz, 533

U.S. 194 (2001) and Harlow v. Fitzgerald, 457 U.S. 800

(1982). Most states will require you to show that a

reasonable prison official would know that their actions

were unconstitutional. Prison Legal News v. Lehman, 397

F.3d 692 (9th Cir. 2005). You should cite to cases that are

similar to yours to show that the prison and guards should

have known (or did know) that they were violating your

rights. The prison or guards are going to argue that the law

is not clearly established and you want to show laws,

prison regulations, or cases to prove that it is. Taylor v.

Riojas, 141 S. Ct. 52 (2020) is a good recent Supreme Court

case on this issue. There, the Court held that no reasonable

officer could possibly think it was lawful to put a prisoner

in a cell covered in feces.

The personal involvement requirement means that you can

only get damages from officials or guards who actually

personally violated your rights. Prison supervisors or other

high-level officials (like the state prison commissioner)

cannot be held liable for a violation of your rights just

because they are responsible for supervising or employing

the guards who actually violated your rights. Holding a

supervisor responsible just because they are a supervisor is

called “respondeat superior” and it is not allowed in

Section 1983 claims.

Before 2009, the law was clear that you can hold

supervisors responsible on the following theories:

> The supervisor directly participated in the violation;

> The supervisor learned of the violation of your rights and

failed to do anything to fix the situation;

> The supervisor created a policy or custom allowing or

encouraging the illegal acts; or

> The supervisor failed to adequately train or supervise

their subordinates.

One case discussing this kind of liability is Colon v.

Coughlin, 58 F.3d 865 (2d Cir. 1995). In Colon, the court

held that a letter from a prisoner to the prison

superintendent was not enough to establish the

superintendent’s personal involvement. In another case,

Valdes v. Crosby, 450 F.3d 1231 (11th Cir. 2006), the court

allowed suit against a warden who had been warned by

the previous warden about a correctional officer’s violent

behavior. Hardy v. District of Columbia, 601 F. Supp. 2d 182

(D.C. Dist. 2009) is a case that talks about supervisory

liability for failure to supervise or a lack of training.

Since the Supreme Court’s decision in Ashcroft v. Iqbal, 129

S. Ct. 1937 (2009), most courts still allow these forms of

liability, but a few courts are more restrictive. One bad

case on this is Dodds v. Richardson, 614 F.3d 1185 (10th

Cir. 2010). Good cases to read include: Peatross v. City of

Memphis, 818 F.3d 233 (6th Cir. 2016), Haywood v.

Hathaway, 842 F.3d 1026 (7th Cir. 2016) and Starr v. Baca,

652 F.3d 1202 (9th Cir. 2011).

Some public officials have what is called absolute

immunity. Unlike qualified immunity, absolute immunity is

a complete bar to lawsuit. Because of this doctrine, you

cannot sue a judge, a legislator, or anyone else acting “as

an integral part of the judicial or legislative process” no

matter what they have done.

You may also be worried that the prison officials you want

to sue do not seem to have enough money to pay you. But

in most cases any money damages that the court orders

the prison officials to pay will actually be paid by their

employers: the prison, the state, or the state agency that

runs the prison. This is called “indemnification.”

Finally, although there are different rules as to which

remedies you can ask for from specific defendants, you can

still ask for an injunction and money damages in the same

complaint. For example, you can sue a guard in their

individual capacity (for money damages) and their official

capacity (for an injunction) in the same lawsuit.

3. What Happens to Your Money Damages

If you win money damages, the PLRA contains rules that

may affect your award before you get it. The PLRA states:

“[A]ny compensatory damages…shall be paid directly to

satisfy any outstanding restitution orders pending against

the prisoner. The remainder…shall be forwarded to the

prisoner.”

This means that if you are awarded compensatory

damages after a successful suit, any debts you have

towards the victim of your crime will be automatically paid

out of your award before you get your money. This rule

does not apply to punitive damages.

The PLRA also states that if you are awarded damages,

“reasonable efforts” will be made to notify the “victims of

the crime” for which you were convicted. There have been

very few rulings regarding these provisions so far, so it is

hard to say whether and how they will be implemented.

80 | CHAPTER 4 – WHO TO SUE and WHAT TO ASK FOR

Most states have “Son of Sam” laws, which aim to keep

people convicted of certain crimes from making money by

writing books or otherwise publicizing their crimes. Some

states’ laws are so broad they could be used to seize

money won through a lawsuit. So you should check to see

if your state has one of these laws, and what it does.

In one recent and important case, Williams v. Marinelli, 987

F.3d 188 (2d Cir. 2021), the State of Connecticut took it

upon itself to pay the money damages a prisoner won

against a prison guard, but then paid a huge portion of the

money to the state instead of to the prisoner, under a state

statute allowing the state a lien to recoup some costs of

incarceration. The court ruled that Section 1983 preempts

the state statute, and the prisoner was entitled to collect

his money from the guard.

Settlements

Before a judge rules on your case, you may consider

“settlement,” which means both parties involved give in to

some of each other’s demands and your suit ends without

a trial. In a settlement, you can get the same type of relief,

like money or a policy change, as you could get if your case

went to trial. As a plaintiff, it is always your decision

whether to settle your lawsuit or not. No one, not even the

judge or your attorney, can force you to settle.

The PLRA creates some rules on settlements. Settlements

which order the prison to do something or stop doing

something are often called “consent decrees.” Consent

decrees must meet strict requirements: the settlement

must be “narrowly drawn,” necessary to correct federal law

violations, and do so in the least intrusive way. The court

will need to approve of the settlement and make sure

PLRA restrictions are enforced. This means that a court

can only approve a consent decree if there are evidence or

admissions by the defendants that your rights were

violated by the prison officials. This can be a difficult task.

Some prisoners have been successful in having their

consent decrees approved by a court when both the

prisoner and the officials being sued agree that the decree

meets all of the PLRA requirements. There is no guarantee

that this will work in all cases.

Parties can enter into “private settlement agreements” that

may not meet PLRA standards, but these agreements

cannot be enforced by federal courts. They can only be

enforced in a state court. Private settlement agreements

are very risky if your rights are being violated.

The PLRA does not restrict settlements that only deal with

money. If you are not asking for an injunction, then the

restrictions discussed above do not apply.

Class Actions

One person, or a small group of people, can sue on behalf of

all other people who are in the same situation. This is called

a “class action.” The requirements for a class action are

found in Rule 23 of the Federal Rules of Civil Procedure. Rule

23 is part of Title 28 of the United States Code (U.S.C.), which

you can request from your law library. (Chapter Seven

explains more about how to use statutes and law books.)

Unfortunately, courts generally don’t allow prison class

actions to proceed without a lawyer to represent the class.

Rule 23(a) requires:

The class must be so large that it would not be

practical for everyone in it to bring the suit and

appear in court;

There must be “questions of law or fact common to

the class”;

The claims made by the people who bring the suit

must be similar to the claims of everyone in the class;

and

The people who bring the suit must be able to “fairly

and adequately protect the interests of the class.”

Additionally, Rule 23(b) requires that any one of (1), (2) or

(3), below, is true:

Bringing separate actions would create a risk of:

(A) different rulings for different individual class

members that would lead to contradicting standards

of conduct for the other side; or

(B) rulings for individuals that, as a practical matter,

would dictate the rights of other class members not

in the case or harm their ability to protect their

interests;

The party who doesn’t want it to be a class action has

acted the same toward everyone in the class, so that

final injunctive relief or declaratory relief is

appropriate for the class as a whole; or

The court finds that there are more questions of law

or fact common to class members than questions

affecting only individuals, and that a class action is

better than an individual case for fairly and quickly

deciding the case. The Court will consider:

A. the class members’ interests in individually

controlling their own case;

B. whether any other case about the same issue has

already been started by class members;

C. whether it would be a good thing to keep all cases

about the issue in one court; and

D. whether the case will be hard to manage as a class

action.

81 | CHAPTER 4 – WHO TO SUE and WHAT TO ASK FOR

A class action has two big advantages. First, any court

order will apply to the entire class. Anyone in the class can

ask the court to hold the officials in contempt of court and

fine or jail them if they disobey the court order. If the suit

were not a class action, prisoners who were not a part of

the suit would have to start a new suit if prison officials

continued to violate their rights.

Second, a class action for injunctive relief cannot be

dismissed as “moot” just because the prisoners who start

the suit are released from prison, transferred to a prison

outside the court’s jurisdiction, or because the prison stops

abusing those particular prisoners. The case will still be

alive for the other prisoners in the class. Sosna v. Iowa, 419

U.S. 393 (1975). “Moot” means that the problem you are

complaining about has stopped happening and is not likely

to happen to you again. You can lose a case by it becoming

“moot.” The problem of “mootness” is discussed more in

Chapter Six, Section D.

A class action has one very big disadvantage. If you lose a

class action after the class has been certified, in some

situations the court’s decision can bind all the class

members, so other prisoners who are part of the class

cannot bring their own challenges.

In contrast, if you lose a suit that is not a class action, you

merely establish a bad “precedent.” Other prisoners can

still raise the same legal issues in another suit, and they

may be able to convince a different judge to ignore or

overrule your bad precedent. Chapter Seven explains how

precedent works.

This is why the Federal Rules requires that the people who

bring a class action must be able to “fairly and adequately

protect the interests of the class.” Protecting the interests

of a class requires resources that are not available to

prisoners, such as a staff of investigators, access to a

complete law library, and the opportunity to interview

potential witnesses scattered throughout the state. It is

possible for a court to decide that your case meets all the

requirements for a class action and appoint a lawyer to

represent you and the class, but this is very, very rare.

A better approach might be to start a suit under Section

1983 for yourself and a few other prisoners and send

copies to some lawyers to see if they’ll help. If a lawyer

agrees to represent you or the court appoints a lawyer,

your lawyer can “amend” your legal papers to change your

suit into a class action.

> Chapter One, Section D, explains how to try and find a

lawyer.

> Chapter Five, Section C, Part 3 explains how to ask the

court to appoint a lawyer to represent you.

Cartoon by Jim McCloskey, The News Leader, Staunton, VA

82 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

CHAPTER FIVE:

How to Start Your Lawsuit

This chapter explains how to start a lawsuit under Section

1983 or Bivens. It explains what legal papers to file as well

as when, where, and how to file them, and it provides

forms and examples to guide your writing. It also explains

what to do in an emergency when you need immediate

help from the court.

Chapter Five: Table of Contents

Section A ................................... When to File Your Lawsuit

Section B ................................. Where to File Your Lawsuit

Section C ................................... How to Start Your Lawsuit

Section D ........................ How to Serve Your Legal Papers

Section E ........... Getting Immediate Help from the Court

Section F ............................................... Signing Your Papers

The next chapter, Chapter Six, discusses what happens

after a suit is started. Neither chapter gives all the rules or

procedures for this kind of suit. These details are in the

Federal Rules of Civil Procedure. The Federal Rules can be

found in Title 28 of the United States Code (U.S.C.). There is

an annotated version of the U.S.C., called the United States

Code Annotated (U.S.C.A.), which gives short summaries of

important court decisions which interpret each rule. The

U.S.C. will only have the text of the Federal Rules, but the

U.S.C.A. will give some explanation and cases and is

probably more helpful to you. Chapter Seven explains how

to use the U.S.C.A. and other law books.

The Federal Rules are not too long, and they are very

important. When we refer to a specific rule in this

Handbook, you should read the rule if you possibly can.

The rules are revised every few years, so be sure to check

the “pocket parts” in the back of the books in the U.S.C.A.

or read a current copy of the paperback.

You may find reading the rules frustrating since they are

written in very technical language, and even lawyers and

judges can’t always agree on what they mean. For this

reason, you may want to refer to a book that explains the

Federal Rules and explains the court decisions that interpret

the Rules. If your library has it, a good book to look up

questions in is Wright and Miller’s Federal Practice and

Procedure. You may also want to read the Advisory

Committee notes which are printed in some editions of the

Rules. These notes explain the purpose of the Rules and

how they are supposed to work.

In addition to the Federal Rules, each U.S. District Court

issues “Local Rules of Practice,” which are based on the

Federal Rules. The Local Rules cover details of procedure

that may be different in each particular district. You can

get a copy from the clerk of the U.S. District Court for

each district, but you may have to pay a small fee. You may

want to request these rules when you write the court to

get forms which is explained in Section C. Look in

Appendix M to find the address of your District Court. Or,

if you have a friend or relative with internet access, they

can download the rules for free from the specific District

Court’s website. Some courts have “pro se” offices with lots

of information to help people filing lawsuits on their own.

When to File Your Lawsuit

If you are trying to stop an official policy or practice within

the prison, you will, of course, want to act as quickly as

possible. If a prison rule has been issued or an official

decision has been made, you do not need to wait until the

new procedure is put into effect. You can sue right away to

block it as long as you have first completed all internal

grievance processes.

If your goal is to get money damages for an abuse that has

already ended, you may not be in such a hurry. But it is

usually best to get your suit going before you lose track of

important witnesses or evidence.

TIP: Before you start writing your complaint, request

the following documents from your District Court:

> The District Court’s Local Rules;

> Forms for a Section 1983 pro se action;

> In Forma Pauperis forms;

> Forms for Appointment of Counsel.

1. Statute of Limitations

For suits asking for money damages, there is a “statute of

limitations” which sets a deadline for how long you can

wait after the events you are suing about occurred before

you start your suit. If you do not file your case before this

deadline, your case is “time-barred,” which means your

case will be dismissed.

To meet a statute of limitations, you need to file your suit

before the deadline. As long as you file on time, it is OK if

your case lasts past the deadline. The deadline for a

Section 1983 suit is determined by your state’s general

personal injury statute. Owens v. Okure, 488 U.S. 235, 236

(1989). This same rule applies to Bivens actions brought by

federal prisoners. In some states, the statute of limitations

is as short as one year, but most states give two or more

83 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

years. Statutes of limitations can change, so always check

current state statutes to make sure. To figure out the

statute of limitations in your state, look in the “civil code”

or “civil procedure” section of the state code (your state’s

collection of laws).

If you expect to get out of prison fairly soon—for example,

you already have a parole date—then you might be better

off waiting until you are out before you start a suit that is

only for damages. You will obviously have more freedom

to get your suit together when you’re out, and you may

have access to a more complete law library. You may be

able to raise the money to hire a lawyer, and prison

officials will have a harder time getting back at you for

filing a suit. Also, most sections of the PLRA, in particular

the exhaustion, and the limitation on damages for

emotional injury, do not apply to suits filed by people who

have been released from prison.

You do not have to worry about the statute of limitations if

you are asking for an injunction. However, if you want an

injunction you need to start and finish your suit while you

are inside prison. If you do not, then your case may be

dismissed as “moot,” which is explained in Chapter Six,

Section D.

If you file your complaint within the statute of limitations,

you can usually later file an “amended complaint” to add

new claims that arose from the same factual situation that

you alleged in your complaint even if the statute of

limitations has run out. However, you may have trouble if

you try to add new defendants after the statute of

limitations has expired. Read Rule 15(c) in the Federal Rules

of Civil Procedure to learn whether your new complaint will

“relate back” to your first filing.

2. Exhaustion of Administrative Remedies

The PLRA states that “[n]o action shall be brought with

respect to prison conditions … by a prisoner confined in

any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” 42

U.S.C.A. § 1997e(a).

This provision is known as the “exhaustion” requirement,

and it means that you have to use any available

administrative remedy. This is usually the prison grievance

system, but if some other administrative complaint system

is designated for your kind of complaint, you must use

that. Information about some states’ grievance procedures

can be found in Appendix E.

You must complete exhaustion before you file your

lawsuit. If you have not used your prison’s grievance

system and you try to sue a prison official about anything

they have done to you, the court will almost always dismiss

your case. Not only do you have to file a grievance, but

you also need to wait for a response, and appeal that

response as far up as possible. If prison officials fail to

respond in the amount of time stated on the grievance

form, you may be able to treat that as a denial and appeal

immediately. Read the grievance policy carefully and

follow it to the letter.

It doesn’t matter if you believe your prison’s grievance

system is inadequate, unfair, or futile. You may know that

nothing is going to change by filing a grievance, but you

still need to do it. Your case will be dismissed if you do not.

Very rarely, exhaustion may not be required if you can

show that the grievance system was not “available” to you

such that you were unable to file a grievance through no

fault of your own. Ross v. Blake, 136 S. Ct. 1850 (2016). For

instance, in Tuckel v. Grover, 660 F.3d 1249 (10th Cir.

2011), a court held that the administrative grievance

system is not “available” when a guard threatens a prisoner

with harm, such that they are afraid to use the system. If

you are in SHU without access to grievance forms, or if a

prison official told you not to file a grievance, the court

may decide to excuse the exhaustion requirement in your

case. However, courts are very skeptical of these claims

and show very little mercy, so you must go through the

grievance process unless you are truly unable.

The language of the PLRA says that the exhaustion

requirement applies to cases regarding “prison conditions.”

Although “prison conditions” sounds like it might only

include claims about things like inadequate food or dirty

cells, in a case called Porter v. Nussle, 534 U.S. 516 (2002),

the Supreme Court held that “prison conditions” means

everything that happens in prison, including single

incidents of guard brutality or inadequate medical care.

Under another important Supreme Court case, Booth v.

Churner, 532 U.S. 731 (2001), you have to use the prison’s

grievance system even if it does not offer the type of relief

you would like to sue for. The prisoner in that case,

Timothy Booth, wanted money damages and the

administrative grievance system at his prison did not allow

money damages. The Court decided that even though Mr.

Booth’s prison administrative grievance system could not

award him money damages, Mr. Booth was still forced to

go through the entire administrative grievance process

before coming to court to seek money damages.

In the U.S. Supreme Court Case, Jones v. Bock, 549 U.S.

199 (2007), the Court stated that prisoners do not need to

show in their complaint that they have exhausted all

grievance procedures. If defendants want to claim you did

not exhaust and your case should therefore be dismissed,

they must raise non-exhaustion in their answer to your

complaint, or in a motion to dismiss or a motion for

summary judgment. The Court also said that when a

prisoner brings a case with both exhausted and

unexhausted claims, the court must let the exhausted

claims move forward without dismissing the entire suit.

The court can only dismiss the unexhausted claims.

You should always try to be as detailed as possible in your

grievances. You should mention all the issues and facts you

want to sue about and try to comply with all the prison’s

grievance rules and deadlines, even if they don’t make any

sense.

84 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

To be safe, you should also name everyone who you think

is responsible and who you may want to sue. If your prison

grievance system requires you to name everyone and you

don’t, a court may not let you sue that person. Even if your

prison grievance system does not require that you name

the responsible people you still need to provide enough

information for the prison to investigate. Often this means

that you need to state in the grievance who did the things

you complain about.

If the court does dismiss your case or one of your claims

for “failure to exhaust,” it will probably be a “dismissal

without prejudice,” which means that you can exhaust your

remedies and then re-file as long as the statute of

limitations has not expired. The dismissal will probably not

be considered a “strike” against you (For more about

“strikes” see Section C, Part 2 of this Chapter).

Exhaustion can take a while, and if the statute of

limitations is running, it could expire or leave you with very

little time to file suit after exhausting. In most jurisdictions,

courts have held that the limitations period is “tolled"

(suspended) during exhaustion, though they don’t agree on

why. Try to find out whether the statute of limitations is

tolled for exhaustion in your jurisdiction and state. Federal

courts usually “borrow” state law tolling rules. Generally,

you should figure out when the last day you can file suit is

and file well in advance of it. The exception is if you are

going to be released before the statute of limitations

expires. In that case it is worth waiting until after release

so you can file without being subject to the PLRA.

Where to File Your Lawsuit

You will file your lawsuit at the federal trial court, called a

“district court.” This is where all Section 1983 and Bivens

cases start. Some states, such as Alaska, only have one

district. Others have several. New York, for example, is

composed of four districts: the Northern, Western,

Eastern, and Southern Districts of New York. In total, there

are 94 district courts. For more information on district

courts, look at Chapter 7, Section A. What district you

should file in is determined by the law of “venue.” The

main venue rule for a Section 1983 or Bivens lawsuit is

Section 139(b) of Title 28 of the United States Code.

It is usually easiest to file in the district “in which the claim

arose.” That is, you should file in the district that includes

the prison where your rights were violated. To determine

what district this is and to get the address of the district

court, locate your state in Appendix M and then check to

see which district covers the county your prison is in.

You do not have to say in your complaint why you decided

to file in a particular district. It is up to the defendants to

challenge your choice of venue if they think you filed in

the wrong place. However, the district court often will

return your papers if the judge decides you sued in the

wrong court. For this reason, we have included a sentence

on “venue” in our sample complaint in Section C, Part 1 of

this chapter.

TIP: Always be sure to send the court clerk a letter

stating that your address has been changed if you are

transferred to a different prison or released while your

case is going on.

How to Start Your Lawsuit

As you will see, a lawsuit requires a lot of paperwork.

There are two basic papers for starting any federal lawsuit:

a summons and a complaint. They are described in Part 1,

below.

If you have little or no money, you will also want to

request that the court allow you to sue “in forma pauperis,”

which is Latin for “as a poor person.” Filing that way gives

you more time to pay the court filing fee. In forma pauperis

papers are described in Part 2.

You will also probably want to ask the court to appoint a

lawyer for you, and this is described in Part 3.

Eventually, you may want to submit declarations to

present additional facts in support of your complaint.

Declarations are described in Part 4 of this section.

Lawyers sometimes write legal papers a certain way, which

is different from how people ordinarily write. But don’t be

intimidated! This does not mean that you need to use legal

language or try to sound like a lawyer. It is best to just

write simply and clearly. Do not worry about using special

phrases or fancy legal words.

This chapter will include forms for some of the basic

documents that you will need. There are additional forms

in Appendix D and a sample complaint can be found in

Appendix B. The forms and examples in this chapter show

only one of the many proper ways to write each type of

paper. Feel free to change the forms to fit your case. If you

have access to copies of legal papers from someone else’s

successful Section 1983 lawsuit, you may want to follow

those forms instead.

If you need a legal paper that is not covered by this

chapter, Chapter Six, or Appendix B or D, you may want to

see if your prison library has a book of forms for legal

papers. Two good books of forms for federal suits are

Moore’s Manual-Federal Practice Forms and Bender’s Federal

Practice Forms. Some U.S. District Courts have special rules

about the form your legal papers should follow—like what

kind of paper to use, what line to start typing on and what

size type to use. You will find these rules in the Local Rules

you request from your district court. Some courts have

more rules than others, and unfortunately the rules vary a

lot from court to court.

85 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

Most district courts also have a packet of forms that it will

send for free to people in prison who want to file actions

pro se (without a lawyer). You can write a letter to the

court clerk explaining that you are in prison and are

requesting forms for a 42 U.S.C. § 1983 action. Most

courts require you to use their forms if they have them.

Even if your court does not, if you can get these forms, use

them. They are the easiest way to file a complaint! With or

without the forms, you will need to be sure to include all of

the information described below. It is a good idea to

request both the Local Rules and the Section 1983 forms

before you start trying to write your complaint.

PRACTICE TIP: Some court forms may have a question

asking if you have exhausted administrative remedies.

Remember from Section A of this chapter that you do

not have to plead exhaustion in your complaint. Unless

your exhaustion situation is completely straightforward

(you are positive you exhausted all remedies

completely) it may be best to leave this part blank or

write in it that it is not necessary to plead exhaustion;

you will prove it if the defendants raise it. Two good

cases on this issue are Miles v. Corizon Med. Staff, 766

Fed.Appx. 626 (10th Cir. 2019) and Torns v. Mississippi

Dept. of Corrections, 301 Fed.Appx. 386 (5th Cir. 2008).

Generally, you should type if you can. Large 12- or 14-

point type is best. Check with the local court rules to see if

you need to use a particular type or length of paper. Type

or write on only one side of each sheet and staple the

papers together.

REMEMBER: the easiest way to write a complaint is to

ask the court for a form and use that!

Try to follow the forms in this chapter and the Local Rules

for your district. But don’t let these rules stop you from

filing your suit. Just do the best you can. If you can’t follow

all the rules, write the court a letter that explains why. For

example, you can tell the court that you were not allowed

to use a typewriter or you could not get the right paper.

The courts should consider your case even if you do not

use the correct form or you have to write by hand.

Be sure to put your name and address at the top left

corner of the first page of your complaint and any motion

you submit. All the prisoners who bring the suit should sign

the complaint and every motion.

1. Summons and Complaint

You start a Section 1983 suit by mailing two legal documents

called a “complaint” and a “summons” to the appropriate U.S.

District Court. Both documents will also have to be “served”

or given to the defendants. Service is very important and is

explained in Section D of this chapter.

The Complaint

The complaint is the most important document in your

lawsuit. In it, you describe your lawsuit. You explain who

you are (plaintiff), who you are suing (defendant or

defendants), what happened (factual allegations), what laws

give the court the power to rule in your favor (legal claims),

and what you want the court to do (relief). If your complaint

does not meet all the requirements for a Section 1983 or

Bivens lawsuit, your suit could be dismissed at the very start.

Getting all the right facts down in your complaint can be

difficult, but it is very important. Chapter Seven has some

legal research and writing tips that may help you write

your complaint.

Below we explain each part of a complaint. In Appendix B,

you will find an example of a complaint in a made-up case.

We recommend that you read the form complaint,

explanation, and sample complaint before you try to write

your own. Yours should be on a full sheet of paper (like the

sample in Appendix B), not in two columns like the

complaint form explained here.

You can copy the parts of this form that are appropriate

for your suit and add your own facts to the italicized

sections. If part of a paragraph here doesn’t apply to your

suit, don’t include it. Each paragraph in your complaint

should be numbered, starting with the number “1.” The

letters (A) through (J) in grey by each section should not be

included in your complaint. They are just there for your

reference, so that you will be able to tell which part of the

complaint we are talking about in the explanation below.

86 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

The Complaint Form:

UNITED STATES DISTRICT COURT (A)

_______________________________________________x

Names of all the people: bringing the suit,

Plaintiff[s],

Names of all the people the suit

is against, individually and in their

official capacities,

Defendant[s]

_______________________________________________x

COMPLAINT

Civil Action No. _____

I. JURISDICTION & VENUE (B)

1. This is a civil action authorized by 42 U.S.C. Section 1983 to redress the deprivation, under color of state law, of rights

secured by the Constitution of the United States. The court has jurisdiction under 28 U.S.C. Section 1331 and 1343 (a)(3).

Plaintiff seeks declaratory relief pursuant to 28 U.S.C. Section 2201 and 2202. Plaintiff’s claims for injunctive relief are

authorized by 28 U.S.C. Section 2283 & 2284 and Rule 65 of the Federal Rules of Civil Procedure.

2. The [name of district you are filing your suit in] is an appropriate venue under 28 U.S.C. Section 1391 (b)(2) because it is

where the events giving rise to this claim occurred.

II. PLAINTIFFS (C)

3. Plaintiff, [your full name], is and was at all times mentioned herein a prisoner of the State of [state] in the custody of the

[state] Department of Corrections. He/she is currently confined in [name of prison], in [name of City and State].

III. DEFENDANTS (D)

4. Defendant, [full name of head of corrections department] is the [Director/Commissioner] of the state of [state]

Department of Corrections. He/she is legally responsible for the overall operation of the Department and each institution

under its jurisdiction, including [name of prison where plaintiffs are confined].

5. Defendant, [warden’s full name] is the [Superintendent / Warden] of [name of prison]. He/she is legally responsible for

the operation of [name of prison] and for the welfare of all the inmates in that prison.

6. Defendant, [guard’s full name] is a Correctional Officer of the [state] Department of Corrections who, at all times

mentioned in this complaint, held the rank of [position of guard] and was assigned to [name of prison].

7. Each defendant is sued individually and in his [or her] official capacity. At all times mentioned in this complaint, each

defendant acted under the color of state law.

III. FACTS (E)

8. State IN DETAIL all the facts that are the basis for your suit. You will want to include what happened, where, when,

how, and who was there. Remember that the judge may know very little about prison, so be sure to explain the terms you

use. Divide your description of the facts into separate short paragraphs in a way that makes sense—by time, date, or event.

9. You may want to include some facts that you do not know personally. It may be general prison knowledge or it may be

information given to you by people who are not plaintiffs in your lawsuit. It is OK to include this kind of information, but you

need to be sure that each time you give these kinds of facts, you start the paragraph with the phrase, “Upon information and

belief.” If you include such facts, you must have a good-faith basis for believing them to be true.

10. You can refer to documents, affidavits, and other materials that you have attached at the back of your complaint as

“exhibits” in support of your complaint. Each document or group of documents should have its own letter: “Exhibit A,”

“Exhibit B” etc.

87 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

IV. LEGAL CLAIMS (F)

11. The [state the violation, for example, beating, deliberate indifference to medical needs, unsafe conditions, sexual

discrimination] violated plaintiff [name of plaintiff]’s rights and constituted [state the constitutional right at issue, for

example, cruel and unusual punishment, a due process violation] under the [state the number of the Constitutional

Amendment at issue, like Eighth or Fourteenth] Amendment to the United States Constitution.

12. The plaintiff has no plain, adequate, or complete remedy at law to redress the wrongs described herein. Plaintiff has

been and will continue to be irreparably injured by the conduct of the defendants unless this court grants the declaratory

and injunctive relief which plaintiff seeks.

V. PRAYER FOR RELIEF (G)

WHEREFORE, plaintiff respectfully prays that this court enter judgment granting plaintiff:

13 . A declaration that the acts and omissions described herein violated plaintiff’s rights under the Constitution and laws of

the United States.

14. A preliminary and permanent injunction ordering defendants [name defendants] to [state what it is you want the

defendants to do or stop doing].

15. Compensatory damages in the amount of $____ against each defendant, jointly and severally.

16. Punitive damages in the amount of $____ against each defendant___ and the amount of $___ against defendant _____.

17. A jury trial on all issues triable by jury

18. Plaintiff’s costs in this suit

19. Any additional relief this court deems just, proper, and equitable.

Dated: __________________(H)

Respectfully submitted,

Prisoners’ names and addresses

VERIFICATION (I)

I have read the foregoing complaint and hereby verify that the matters alleged therein are true, except as to matters

alleged on information and belief, and, as to those, I believe them to be true. I certify under penalty of perjury that the

foregoing is true and correct.

Executed at [city and state] on [date]

Signature

Type name of plaintiff

Explanation of Form:

Part (A) is called the “caption.” It looks strange, but it is

how courts want the front page of every legal document to

look. There is no one right way to do a caption, so you

should check your court’s Local Rules to see what they

want. The top line is the name of the court. You will have

already figured out where you are filing your lawsuit by

reading Section B of this chapter, and referring to

Appendix M. If you are suing in the Western District of

New York, where many New York prisons are, you would

insert those exact words “Western District of New York”

where the blank is. In the example in Appendix B, the

prisoners are suing in the Northern District of Illinois.

Inside the caption box, you need to put the full names of

all the plaintiffs, and the full names and titles of all the

defendants. Think carefully about the discussion in

Chapter Four about who you can sue. Remember to write

that you are suing them in their “official capacity,” if you

want injunctive relief, and their “individual capacity” if you

want money damages. The plaintiffs and defendants are

separated by the letter “v” which stands for “versus” or

“against.” Across from the box is the title of your

document. Each document you file in your case will have a

different title. This is a “Complaint,” so title it that. Under

the title is a place for your civil action number. Leave that

line blank until you are assigned a number by the court.

You will get a number after you file your complaint.

Part (B) is a statement of the court’s jurisdiction (paragraph

1) and venue (paragraph 2). Jurisdiction really means the

“power” to decide the case. Federal courts are courts of

“limited jurisdiction.” This means they can only hear cases

that Congress has said they should hear. For the purposes

of a complaint, all you have to understand about

jurisdiction is what statutes to cite. If you are filing a Bivens

action instead of a Section 1983 action, say so in the first

88 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

sentence. All prisoners bringing Section 1983 or Bivens

suits should cite 28 U.S.C. Section 1331 and 1343 (a)(3) in

this paragraph. The other statutes you cite depend on

what kind of case you are bringing

> If you are seeking declaratory relief (see Chapter Four,

Section A), you should include a sentence stating,

“Plaintiffs seek declaratory relief pursuant to 28 U.S.C.

Section 2201 and 2202.”

> If you are seeking injunctive relief (see Chapter Four,

Section B) you should include a sentence stating,

“Plaintiff’s claims for injunctive relief are authorized by 28

U.S.C. Section 2283 & 2284 and Rule 65 of the Federal

Rules of Civil Procedure.”

> If you have included state law claims in your complaint,

you should include a sentence stating, “The court has

supplemental jurisdiction over plaintiff’s state law claims

under 28 U.S.C. Section 1367.”

> If you are including Federal Tort Claims Act claims

(explained in Chapter 2, Section C) you should include a

sentence stating: Plaintiffs’ Federal Tort Claims Act claims

are authorized by 28 U.S.C. Section 1346.

Part (C) is a list of the plaintiffs in the lawsuit. This may just

be you. Or you may have decided to file suit with other

prisoners who are having or had similar problems. In this

paragraph, you should tell the court who you are, and

where you are incarcerated. If you are bringing an equal

protection claim (described in Chapter Three), you may

also want to include your race, ethnicity, or gender. Each

plaintiff should get their own paragraph. If there are

differences in each plaintiff’s situation then you need to

note that. For example, one plaintiff could have been

released since the event occurred. If you or any of the

other plaintiffs were transferred from one facility to

another since the events occurred, indicate where you

were at the time of the event and where you are now.

Part (D) is a list of potential defendants and their titles.

Those listed are just examples. You may sue more people

or less people, so delete or add additional paragraphs in

your complaint. The defendants may be all guards, or all

supervisors. As explained above, you will need to put

careful thought into who you are suing, and whether to

sue them in their official or individual capacity. Only sue

people who were actually involved directly or indirectly in

violating your rights! You will also want to include a

statement for each defendant of their role at the prison.

Generally, this just means stating a defendant’s job duties.

You must be sure to include the statement in the final

paragraph of this section: that “at all times, each defendant

acted under color of state law.” (See Paragraph 7 in the

form complaint). As you may remember from Chapter Two,

Section A, this is one of the requirements for Section 1983

actions.

Part (E) is the factual section of your complaint. It is very

important and can be very rewarding if done well. It is your

chance to explain what happened to you. In this section,

you must be sure to state (or “allege”) enough facts to

meet all the elements of your particular claim. This can be

a very big task. We would suggest that you start by making

lists of all the claims you want to make and all the elements

of each claim.

For example, in Chapter Three, Section F, Part 1, you

learned that an Eighth Amendment claim based on guard

brutality requires a showing that:

> you were harmed by a prison official;

> the harm caused physical injury (necessary for money

damages under PLRA); and

> the guard’s actions were not necessary or reasonable to

maintain prison discipline.

This means that in your complaint, you will need to state

facts that tend to show that each of these three factors is

true. It is fine to state a fact that you believe is true but

don’t know to be true through personal knowledge, as long

as you write “upon information and belief” when stating it

as a fact.

This is the section where you can refer to “exhibits” if you

have any you want to include. However, you don’t have to

include exhibits, and sometimes they can do more harm

than good. If the only purpose of an exhibit is to establish a

fact, you can just state (“allege”) that fact in the complaint.

If you do want to include exhibits, the rest of this chapter

will give you some idea of the types of documents you can

submit as exhibits and how to number them. Then, when

you write the factual section of your complaint, you can

use phrases like “Refer to Exhibit A” to help illustrate and

support your facts.

In the factual section, you must include facts that show

how each defendant was involved in the violation of your

rights. If you do not include facts about a certain

defendant, the court will probably dismiss your claim

against that person. (Refer to Chapter Seven for more legal

research and writing tips.)

Part (F) is where you state your legal claims and explain

which of your rights were violated by each defendant. You

should have one paragraph for each individual legal claim.

For example, if you feel that prison officials violated your

rights by beating you and then denying you medical care,

you would want to list these two claims in two separate

paragraphs. If all the defendants violated your rights in all

the claims, you can just refer to them as “defendants.” If

some defendants violated your rights in one way, and

others in another way, then refer to the defendants

individually, by name, in each paragraph. Here is an

example:

> Defendant Greg Guard’s use of excessive force violated

plaintiff’s rights and constituted cruel and unusual

punishment under the Eighth Amendment of the United

States Constitution.

> Defendants Ned Nurse, Darla Doctor and Wilma

Warden’s deliberate indifference to plaintiff’s serious

medical needs violated plaintiff’s rights and constituted

cruel and unusual punishment under the Eighth

Amendment of the United States Constitution.

89 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

Paragraph 12 is only necessary if you are applying for

declaratory or injunctive relief. You should include that

sentence in any complaint that requests an injunction or a

declaratory judgment.

Part (G) is where you tell the court what you want it to do.

You can ask for a declaration that your rights were

violated, an injunction, money damages, costs, and

anything else the court thinks is fair. What is written there

is just an example.

Include Paragraph 13, requesting a declaratory judgment, if

that is at least part of the relief you want.

Include Paragraph 14, requesting injunctive relief, only if

you are eligible for injunctive relief. You should review

Chapter Four, Section B on injunctive relief before writing

this part. If you request an injunction, spend some time

thinking about what it is you actually want the prison to do

or stop doing. Be creative but also specific. Make sure that

the injunction you request is related to a continuing

violation of your rights. In the example in Appendix B,

Plaintiff Abdul does not ask for an injunction, because his

rights were only violated once. Plaintiff Hey, however, is

experiencing continuing violence, so it is appropriate for

him to seek an injunction.

You need paragraphs 15 and 16 if you are requesting

money damages. Review Chapter Four, Section C on

damages before writing this section. You should think

carefully about how much money you want in

compensatory and punitive damages. If you cannot figure

out how much to ask for, just request compensatory and

punitive damages without including a dollar amount.

Part (H) is where you sign and date the complaint. You

must always sign a legal document.

Part (I) is a “verification.” This part is optional. You do not

have to verify a complaint, but it is best if you do. If you

verify your complaint, you can use your complaint as

evidence if the defendants file a motion for summary

judgment against you (see Chapter Six, Section F) or to

support your request for a temporary restraining order (see

Section E of this chapter). When you verify a complaint,

you are making a sworn statement that everything in the

complaint is true to the best of your knowledge. Making a

sworn statement is like testifying in court. If you lie, you

can be prosecuted for perjury.

Remember, you need to tell the truth in an “unverified”

complaint as well.

Amended Complaints:

If you want to change your complaint after you have filed

it, you can submit an “amended complaint” which follows

the same form as your original complaint but with

“Amended Complaint” as the title. An amended complaint

must be about the same basic events. You might want to

amend a complaint if you want to change who some of the

defendants are, ask the court to do slightly different things,

add or drop a plaintiff, or change your legal claims. You

also might discover that you need to make some changes

in order to avoid having your complaint dismissed. See

Chapter Six, Section C.

When and how you can amend your complaint is governed

by Rule 15 of the Federal Rules of Civil Procedure. You have

a right to amend one time before the defendants submit an

Answer (explained later in this Chapter) in response to

your complaint or move to dismiss. You need the court’s

permission, or the consent of the defendants, to submit a

second amended complaint or to submit any amendment

after the prison officials have filed an Answer or moved to

dismiss. According to Rule 15(a) in the Federal Rules of Civil

Procedure, the court should grant permission “freely…

when justice so requires.”

You might also want to change your complaint to tell the

court about something that happened after you filed the

complaint. The guards might have beaten you again, taken

your books, or put you in an isolation cell. This is called a

“supplemental complaint.” Your right to file a supplemental

complaint is governed by Rule 15(d) in the Federal Rules of

Civil Procedure. The court can let you submit a

supplemental complaint even if your original complaint

was defective. The supplemental complaint also follows

the same form as your original complaint but you will use

“Supplemental Complaint” as the title.

The Summons:

Along with your complaint, you must submit a “summons”

for the court clerk to issue. The summons notifies the

defendants that a lawsuit has been started against them

and tells them how much time they have to answer to

avoid having a judgment entered against them. A summons

is much easier than a complaint.

You will notice that the caption (Part A) is the same as the

one you did for your complaint. All you need to do is

follow this form:

90 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

IN THE UNITED STATES DISTRICT COURT FOR THE (A)

_______________________________________________x

Names of all the people bringing the suit,

Plaintiff[s],

Names of all the people the suit is against,

individually and in their official capacities,

Defendant[s]

_______________________________________________x

SUMMONS

Civil Action No. _____

TO THE ABOVE-NAMED DEFENDANTS:

You are hereby summoned and required to serve upon plaintiffs, whose address is [your address here] an answer to the

complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day

of service, or 60 days if the U.S. Government or officer/agent thereof is a defendant. If you fail to do so, judgment by

default will be taken against you for the relief demanded in the complaint.

Clerk of the Court

Date: __________________________________________

Leave the date line under “Clerk of the Court” blank, the

clerk will fill it out for you. We explain how this works in

Section D of this chapter.

2. In Forma Pauperis Papers

As of December 2020, the federal courts charge $350 for

filing a lawsuit. There is also a $52 “administrative fee” that

applies to cases that don’t get in forma pauperis status.

These fees often increase each year, so be sure to try and

check with the court before you file. They are usually

posted on a court’s website, so you can ask a family

member or friend to check if that is easier. It costs more if

you want to appeal the court’s decision. If you can’t afford

these fees, you will usually be allowed to pay them in

installments by proceeding “in forma pauperis,” which is

Latin for “as a poor person.” If you are granted this status,

court fees will be taken a little at a time from your prison

account. Before the PLRA, the court could let you proceed

without paying for filing or service. However, this is no

longer possible. Now you must eventually pay the entire

filing fee (but not service fees) even if you are allowed to

proceed in forma pauperis. If you win your suit, the court

will order the defendants to pay you back for these

expenses.

The legal basis for suing in forma pauperis is Section 1915

of Title 28 of the United States Code. To request this status,

you will need to file an Application to Proceed In Forma

Pauperis. You must request this form from the district

court clerk before filing your complaint because each court

has a different application.

You will also need to file a Declaration in support of your

application. The form for this Declaration will probably be

sent to you in the pro se packet, but in case it is not, use

the following example.

The court clerk should send you paperwork to fill out

regarding your prison account. You will also need to file a

certified copy of your prison account statement for the

past six months. Some prisoners have experienced

difficulty getting their institution to issue this statement. If

you are unable to get a copy of your prison account

statement, include in your Declaration an explanation of

why you could not get the account statement.

Again, only use the example Declaration below if you

cannot get the Declaration form required by your district

court clerk’s office. If you have to use this Declaration,

copy it exactly, and fill in your answers, taking as much

space as you need.

NOTE: This is only the Declaration that you send along

with your Application to Proceed In Forma Pauperis; it is

not the actual Application, which you need to request

from your district court

91 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

In Forma Pauperis Declaration:

IN THE UNITED STATES DISTRICT COURT FOR THE (A)

_______________________________________________x

Name of the first plaintiff, et al.,

Plaintiff [s],

Name of the first Defendant, et al.

Defendant[s]

_______________________________________________x

DECLARATION IN SUPPORT OF MOTION TO

PROCEED IN FORMA PAUPERIS

Civil Action No. _____

I, ________________, am the petitioner / plaintiff in the above entitled case. In support of my motion to proceed without being

required to prepay fees or costs or give security therefore, I state that because of my poverty I am unable to pay the costs of

said proceeding or to give security therefore, and that I believe I am entitled to redress.

I declare that the responses which I have made below are true.

1. If you are presently employed, state the amount of your salary wage per month, and give the name and address of your

employer ____________________________. (B)

2. If you are not presently employed state the date of last employment and amount of salary per month that you received

and how long the employment lasted.

3. Have you received, within the past twelve months, any money from any of the following sources:

a. Business, profession or form of self-employment? YES___ NO ___

b. Rent payments, interest or dividends? YES___ NO ___

c. Pensions, annuities, or life insurance payments? YES___ NO ___

d. Gifts or inheritances? YES___ NO ___

e. Any form of public assistance? YES___ NO ___

f. Any other sources? YES___ NO ___

If the answer to any of questions (a) through (f) is yes, describe each source of money and state the amount received from

each during the past months ________________.

4. Do you have any cash or money in a checking or savings account? _______. If the answer is yes, state the total value

owned. (C)

5. Do you own any real estate, stock, bonds, notes, automobiles, or other valuable property (including ordinary household

furnishings and clothing)? ____. If the answer is yes, state the total value owned. ___________.

6. List the person(s) who are dependent on you for support, state your relationship to those person(s), and indicate how

much you contribute toward their support at the present time. _______________________.

7. If you live in a rented apartment or other rented building, state how much you pay each month for rent.

Do not include rent contributed by other people. _______________. (D)

8. State any special financial circumstances which the court should consider in this application.

_____________________________________________________________________________________________.

I understand that a false statement or answer to any questions in this declaration will subject me to the penalties of

perjury.

I declare under penalty of perjury that the foregoing is true and correct.

92 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

Signed this _______ day of ________, 20 ___.

________________________________________

(your signature)

________________________________________

Date of Birth

________________________________________

Social Security Number

Explanation of Form:

In Part (A), you can use a slightly shortened version of the

caption you used for your complaint. You only need to list

the first plaintiff and defendant by name. The rest are

included by the phrase “et al.” which is Latin for “and

others.” You only need to add “et al.” if there is more than

one plaintiff or defendant. However, be aware that if there

is more than one plaintiff in your lawsuit, each plaintiff

needs to file their own Application to Proceed In Forma

Pauperis and Declaration.

In Part (B), if you have never been employed, just say that.

If you have a job in prison, state that.

In Part (C), you should include any money you have in a

prison account.

Some of these questions may sound weird or not apply to

you—Part (D) for example. However, answer them anyway.

Like for question 7, just state that you do not live in an

apartment.

Costs of Filing Your Lawsuit:

Although the judge does not have to let you sue in forma

pauperis, they almost always will if you show you are poor

and your suit has a legal basis. You do not need to be

absolutely broke. Even if you are given in forma pauperis

status, you will still have to pay some money to the court.

Section 1915(b)(1) of Title 28 of the U.S. Code directs the

judge to compare your monthly deposits and the average

balance for your prison account. The judge will see which

amount is larger—your monthly deposits or your prison

account’s average balance. Then, the judge will decide that

you must pay twenty percent (20%) of the larger amount

right away. If twenty percent is less than $350 then

Section 1915(b)(2) states that you must pay twenty

percent of the monthly deposits to your account until the

$350 is paid. If the court decides you are not poor or your

suit is “frivolous,” it will return your legal papers and you

will have to find a way to pay the full amount.

There are lots of benefits to gaining in forma pauperis

status. You may avoid having to pay witness fees for

depositions and at trial. If you appeal, you may not have to

pay the costs of preparing transcripts. In addition, some

courts have used Section 1915 to appoint a lawyer to

represent a prisoner in a Section 1983 suit and even to pay

the lawyer’s expenses. This is discussed in Part 3 of this

section.

Unfortunately, in forma pauperis status affects only a very

small part of the expense of your lawsuit. It will not pay for

postage or for making photocopies, and it will not cover

the costs of “pretrial discovery,” which is discussed in

Chapter Six, Part E. However, you may be able to recover

these expenses from the defendants if you win.

The Problem of Three Strikes:

The “three strikes provision” of the PLRA states:

In no event shall a prisoner bring a civil action

or appeal a judgment in a civil action or

proceeding under this section [in forma

pauperis] if the prisoner has, on 3 or more

prior occasions, while incarcerated or detained

in any facility, brought an action or appeal in a

court of the United States that was dismissed

on the grounds that it is frivolous, malicious, or

fails to state a claim upon which relief may be

granted, unless the prisoner is under imminent

danger of serious physical injury.

28 U.S.C.A. § 1915(g). This provision means that if you

have had three complaints or appeals dismissed as

“frivolous,” “malicious,” or “failing to state a claim,” you

cannot proceed in forma pauperis. This means you will have

to pay the entire filing fee up front, or your case will be

dismissed. The only way to get around “three strikes” is to

show you are in imminent danger of serious injury.

The PLRA is very specific about what dismissals count as

strikes: these are dismissals for “frivolousness,”

“maliciousness,” or “failure to state a claim.” Frivolous

means that the court believes your suit is not serious or

has no chance of winning. In legal terms, the court believes

that your case has “no legal merit.” “Malicious” means that

the court believes you are filing your suit only to get

revenge or do harm to others, rather than uphold your

rights. Failure to state a claim means that the court could

not find any cause of action in your suit, which means that

the facts you included in your complaint, even if true, do

not amount to a violation of your rights.

93 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

A case dismissed on some other ground is not a strike

unless the court dismissing it says that the action is

frivolous, malicious, or failing to state a claim. A summary

judgment is not a strike. A “partial dismissal”—an order that

throws out some claims but lets the rest of the case go

forward—is not a strike. A case that you voluntarily

withdraw will usually not be considered a strike. A

dismissal is not a strike if it is impossible to tell what the

basis for the dismissal was. Dismissal in a habeas corpus

action is not a strike.

Dismissals may be strikes even if you didn’t have in forma

pauperis status for the case. Cases filed or dismissed before

the PLRA was enacted have also been counted as strikes. It

used to be the law that dismissals would not count against

you until you exhausted or waived all your appeals, but

that is no longer the case. In Coleman v. Tollefson, 575 U.S.

532 (2015) the Supreme Court held that strikes go into

effect when they are entered.

The “three strikes provision” does not apply when a

prisoner is in “imminent danger of serious physical injury.”

“Imminent” means something is about to happen. To meet

this requirement, the threatened injury does not need to

be so serious as to be an Eighth Amendment violation. A

risk of future injury is enough to invoke the imminent

danger exception.

In conclusion, the “three strikes provision” means you will

need to think more carefully about whether any litigation

you may bring is well-founded and worth it. Once you are

given a third strike, you will have to pay the entire filing

fee of $350 up front before you can file a new lawsuit.

3. Request for Appointment of Counsel

The in forma pauperis law, 28 U.S.C. § 1915(e)(1), allows a

U.S. District Judge to “request an attorney to represent

any person unable to afford counsel.” On the basis of this

law, district judges have appointed lawyers for prisoners

who filed Section 1983 suits on their own. Generally, when

deciding whether or not to appoint a lawyer for you, the

court will consider:

> How well can you present your own case?

> How complicated are the legal issues?

> Does the case require investigation that you will not be

able to do because of your imprisonment?

> Will credibility (whether or not a witness is telling the

truth) be important, so that a lawyer will need to conduct

cross-examination?

> Will expert testimony be needed?

> Can you afford to hire a lawyer on your own?

These factors are listed in Montgomery v. Pinchak, 294 F.3d

492, 499 (3d Cir. 2002). In Pruitt v. Mote, 503 F.3d 647

(7th Cir. 2007), the court identified the question as

whether, given the difficulty of the case, actually and

legally, the specific plaintiff would be able to present it in a

way that makes sense to the judge or jury without help

from a lawyer.

Unfortunately, appointment is usually at the “discretion” of

the judge, which means that if a judge doesn’t want to

appoint you an attorney, they don’t have to, and you are

unlikely to be able to challenge that by an appeal. On the

other hand, there have been a few rare cases in which a

court held that a judge abused this discretion. In Greeno v.

Daley, 414 F.3d 645 (7th Cir. 2005), the court of appeals

decided that the judge abused his discretion because the

plaintiff’s case would likely require expert testimony and

the plaintiff would have to serve process on seven

defendants. Another good case like this is Dewitt v. Corizon,

760 F.3d 654 (7th Cir. 2014). In Parham v. Johnson, 126

F.3d 454, 461 (3d Cir. 1997), another court of appeals said

that “where a plaintiff’s case appears to have merit and

most of the aforementioned factors have been met, courts

should make every attempt to obtain counsel.” In general,

whether you will be appointed counsel has a lot to do with

how strong your case looks to a judge. If the judge thinks

your case has no merit, they will not want to appoint

counsel.

The best procedure is to request appointment of counsel

at the same time you request in forma pauperis status. If

you can get an appointment of counsel form from the

district court, use that form. If there is no form for this

request in the pro se packet, use the following form:

94 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

IN THE UNITED STATES DISTRICT COURT FOR THE

_______________________________________________x

Name of the first plaintiff, et al., :

Plaintiff[s],

Name of the first defendant, et al.,

Defendant[s]

_______________________________________________x

MOTION FOR

APPOINTMENT OF COUNSEL

Pursuant to 28 U.S.C. § 1915(e)(1) plaintiff (or plaintiffs) moves for an order appointing counsel to represent them in this

case. In support of this motion, plaintiff states:

1. Plaintiff is unable to afford counsel. He has requested leave to proceed in forma pauperis.

2. Plaintiff’s imprisonment will greatly limit his ability to litigate. The issues involved in this case are complex and will

require significant research and investigation. Plaintiff has limited access to the law library and limited knowledge of the

law. (A)

3 . A trial in this case will likely involve conflicting testimony, and counsel would better enable plaintiff to present evidence

and cross examine witnesses.

4. Plaintiff has made repeated efforts to obtain a lawyer. Attached to this motion are

____________________________________. (B)

WHEREFORE, plaintiffs request that the court appoint__________________, a member of the ________ Bar, as counsel in this

case. (C)

________________________________________

Date

________________________________________

Signature, print name below

________________________________________

Address

Explanation of Form:

The caption at the top is the shortened form explained

above, but here the title will be, “Motion for Appointment

of Counsel.”

In Part (A), you can include any facts in this motion that

you think will help convince the court that you need a

lawyer. For example, you could add that you are in

administrative segregation, that your prison doesn’t have a

law library, or that it takes weeks to get a book. If you have

limited formal education, you could state that too.

In Part (B) you need to describe the evidence that you will

attach to show that you have tried to get a lawyer. Copies

of letters lawyers have sent you, or you have sent them (if

not confidential), should be enough.

Courts generally enlist lawyers to represent prisoners from

the court’s own sources. If you want to suggest a particular

lawyer, you can do so, but there is no guarantee the lawyer

will be appointed or considered. Only include part (C),

asking for a specific lawyer, if there is a lawyer who you

know and trust. If you do have a relationship like this, list

the lawyer’s name and the state where they are admitted

to practice law.

If the judge decides to appoint a lawyer for you, they do

not have to appoint the one you suggest, but this may well

be the easiest and most convenient thing for the judge to

do. And it is obviously very important that the lawyer

appointed for you be someone you can trust, who is clearly

on your side.

If the court denies your request at that time, or simply

ignores it, be sure to try again after the court has denied

the prison’s Motion to Dismiss your complaint and again

after their Motion for Summary Judgment. These motions

are explained in Chapter Six, Sections C and F. The court

may be more willing to appoint counsel after it has ruled

that you have a legitimate case. To renew your motion, use

the same form as above.

95 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

How to Serve Your Legal Papers

Besides sending your summons and complaint to the

district court, you also have to “serve” both papers on each

defendant in the case. The way to serve papers is

explained in Rule 4 of the Federal Rules of Civil Procedure.

You can have a friend or family member serve papers for

you, or you can pay the U.S. Marshals office or a

professional process server to do it. One of the advantages

to gaining in forma pauperis status is that Rule 4(c) of the

Federal Rules of Civil Procedure directs that your complaint

will be served quickly and without cost by the U.S.

Marshals Service.

You should know that if you ask for in forma pauperis

status at the start of your suit, your legal papers will not be

served on the defendants—and so your suit will not begin—

until the court decides whether you can sue in forma

pauperis

While most courts grant in forma pauperis status quickly

and routinely, some courts take a long time. This is a

serious problem. If you discover that the court in your

district has long delays, or your motion to proceed in forma

pauperis is denied, you could try one of the following

methods to serve your complaint.

If you can raise the money, pay the $350 filing fee

yourself and have someone outside the prison

serve your papers for free. Rule 4 of the Federal

Rules of Civil Procedure describes how to do this

and allows any person older than 18 who is not a

party to the lawsuit to serve papers.

Another way to deal with the service of process

fee is that you can ask the defendants to waive

service under Rule 4(d) of the Federal Rules of Civil

Procedure. You do this by mailing them a Request

for Waiver of Service. Make sure you save copies

of both the Notice of Lawsuit and Request for

Waiver of Service of Summons (one document)

and the Waiver of Service of Summons. When

you send these documents, make sure to include a

copy of your complaint, a stamped envelope or

other prepaid means to return the waiver, and an

extra copy of the request. If the defendant does

not agree with your request to waive service, then

you may later be able to recover the costs of

personal service by a professional process service

or a marshal.

The summons and complaint are the only documents you

have to serve on defendants in this special way. However,

it is very important to request the Local Rules from the

district you plan to file in because different courts have

different rules about filing and serving documents after the

case has started. Different courts require different

numbers of copies. You should follow the Local Rules

whenever possible. In general, you will need to send the

original of each document and one copy for each

defendant to the clerk of the court for the U.S. District

Court for your district. Also include two extra copies—one

for the judge and one for the clerk to endorse (showing

when and where it was filed) and return to you as your

official copy. The court will have a marshal deliver a copy

to each defendant unless you ask that someone else be

appointed to deliver them.

Be sure to keep your own copy of everything you send the

court in case your papers are lost in the mail or misplaced

in the clerk’s office. If you cannot make photocopies, make

copies by hand. If you are concerned about the safety of

your documents, you might want to consider sending a

copy of them to someone you trust on the outside. Try to

always have a copy you can get access to easily.

Getting Immediate Help from the

Court

Ordinarily a federal lawsuit goes on for months or years

before the court reaches any decision. But you may need

help from the court long before that. A U.S. District Court

judge has the power to order prison officials to stop doing

certain things while the judge is considering your suit. The

judge can do this by issuing a Temporary Restraining Order

(TRO) or a Preliminary Injunction, or both.

Chapter Four, Section B explains when you are eligible for

a preliminary injunction. If you decide to go ahead and try

to get a preliminary injunction or a TRO, you will need to

follow the instructions below.

If you think you meet all the tests for immediate help from

the court, submit a “Temporary Restraining Order and

Order to Show Cause for a Preliminary Injunction.” You

can do this in one motion, and you can use this example:

96 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

IN THE UNITED STATES DISTRICT COURT FOR THE

_______________________________________________x

Name of first plaintiff in the case, et al.,

Plaintiff[s],

Names of first defendant in the case, et al.,

Defendant[s]

_______________________________________________x

ORDER TO SHOW CAUSE FOR A PRELIMINARY

INJUCTION & A TEMPORARY RESTRAINING

Civil Action No. _____

Upon the complaint, the supporting affidavits of plaintiffs, and the memorandum of law submitted herewith, it is:

ORDERED that defendants [names of defendants against who you are seeking a preliminary injunction] show cause in

room ____ of the United States Courthouse, [address] on the ___ day of ____, 20__, at ___ o’clock, why a preliminary

injunction should not issue pursuant to Rule 65(a) of the Federal Rules of Civil Procedure enjoining the defendants, their

successors in office, agents and employees and all other persons acting in concert and participation with them, from [state

the actions you want the permanent injunction to cover].

IT IS FURTHER ORDERED that effective immediately and pending the hearing and determination of this order to show

cause, the defendants [names of defendants against whom you want temporary relief] and each of their officers, agents,

employers, and all persons acting in concert or participation with them, are restrained from [state the actions you want the

TRO to cover].

IT IS FURTHER ORDERED that the order to show cause, and all other papers attached to this application, be served on the

aforesaid Plaintiffs by [date].

[Leave blank for the judge’s signature]

Dated: [leave blank]

United States District Judge

Explanation of Form:

If you want a TRO, include the parts of this form that are

more darkly shaded. If you do not want a TRO and are only

asking for a preliminary injunction leave the darker parts out.

You will notice that you are supposed to leave some blanks

in this document. That is because it is an order that the

judge will sign, and you are just writing a draft for the

judge to make it easier. The judge will fill in the information

about times and places.

The most difficult part of the document is where you have

to fill in why you want a preliminary injunction and/or a

TRO. You should limit what you ask for in the TRO to the

things that the prison officials have to stop doing

immediately. Include in your request for a preliminary

injunction everything you want the court to order the

prison staff to stop doing while the court is considering

your case.

There are other documents you must send to the court.

You will also need to give or send copies of all these

documents to all of the defendants. The supporting

documents you need to attach to both the court’s and

defendant’s copies are:

> A declaration which states how you tried to notify the

defendant that you’re applying for a TRO, like by giving a

copy of the documents to the warden. Or, your declaration

can explain why you shouldn’t have to notify the

defendant. The declaration should also state in detail

exactly what “immediate and irreparable injury, loss, or

damage will result” if the court does not sign your TRO.

The quote is from Rule 65 of the Federal Rules of Civil

Procedure, which governs TROs and preliminary

injunctions. A court will often consider an ongoing

violation of your constitutional rights to be an “irreparable

injury.” Submit your declaration and your “TRO and Order

to Show Cause” together with your summons, complaint,

and in forma pauperis papers.

> You also need to submit a short “memorandum of law.” A

memorandum of law is a document in which you cite legal

cases and argue that your situation should be compared to

or distinguished from these cases. For this, you will need to

do legal research and writing, explained in Chapter Seven.

You will want to find cases similar to yours in which

prisoners got TROs or preliminary injunctions. Cite a few

cases that show that the officials’ actions (or failures to act)

are unconstitutional. Also explain how you meet the test for

temporary relief.

97 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

If the judge signs your TRO and Order to Show Cause, the

prison staff will be restrained for at least 10 days. They will

have to submit legal papers to show why the court should

not issue a preliminary injunction that will be in force

through the suit. You will be sent a copy of their legal

papers and get a chance to respond to them.

The judge should consider the legal papers submitted by

both sides. They are not supposed to meet with lawyers

representing prison officials unless they appoint a lawyer

for you or order prison officials to bring you to court to

argue your own case.

REMEMBER: Political pressure and media publicity may

be as important as your suit itself, and they may help

you win your suit. Send copies of your legal papers to

prison groups, legislators, other public officials,

newspapers, radio, TV, etc. Enclose a brief note

explaining what your suit is about and why it is

important.

Under Rule 65(c) of the Federal Rules of Civil Procedure, a

plaintiff who requests a TRO or a preliminary injunction is

supposed to put up money as “security” to repay the

defendants for any damages they suffer if it later turns out

that they were “wrongfully enjoined or restrained.” This is

up to the judge’s discretion, which means they will look at

your situation and decide whether or not you should have

to pay. Some judges will not make people who file in forma

pauperis pay. In Miller v. Carlson, 768 F. Supp. 1331, 1340

(N.D. Cal 1991), for example, the plaintiffs were poor

people who received AFDC (Aid for Families with

Dependent Children) so the judge did not make them pay

security. Look for more decisions in your circuit and cite

those cases in your memorandum of law, and ask the court

not to require security from you.

Declarations

To get immediate help you will need to submit the type of

declaration described above. You may also want to use

declarations from other prisoners in support of your request,

or later in your case. A “declaration” is a sworn statement of

facts written by someone with personal knowledge of those

facts, which is submitted to the court in a certain form. The

following is an example of what a declaration might look like

in the case of Hey v. Smith, which we used as an example in

the sample complaint found in Appendix B.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

_______________________________________________x

Hey, et al.,

Plaintiff[s],

Smith, et al.,

Defendant[s]

_______________________________________________x

DECLARATION OF SAM JONES

Civil Action No. 09-cv-86

Sam Jones hereby declares:

I have been incarcerated at Illinois State Prison since 2005. Since March of 2006 I have been housed in Block D. I am

currently in cell 203, which is directly next to cell 204. Walter Hey and Mohammed Abdul are currently in cell 204 and

have been for several months.

On June 30, 2009, I saw Officer Thomas approach cell 204, and enter the cell. A few minutes later, I heard loud voices, a

thud, and heard Walter Hey cry out. It sounded like He was in pain.

A few days later, I noticed Warden Smith standing in front of Hey and Abdul’s cell, looking in. He remained there for

approximately 5 minutes, and then left.

I declare under penalty of perjury that the foregoing is true and correct. Executed at Colby, IL on July 15, 2009.

Sam Jones

98 | CHAPTER 5 – HOW TO START YOUR LAWSUIT

If your suit has several plaintiffs, each of you should make

out a separate statement of the details of all the facts you

each know. This statement does not need to be

“notarized.” Just put at the bottom: “I declare under

penalty of perjury that the foregoing is true and correct.

Executed on (date) at (city and state).” Then sign. This can

also be called a “declaration under penalty of perjury.” It is

acceptable in any federal court. States may have similar

provisions which would be applicable in state courts.

The declaration is made and signed by the person who knows

the relevant facts. This could be anyone: it does not have to

be from you or another plaintiff. It is helpful to submit

declarations from other people who were witnesses to events

that you describe in your complaint or who know facts that

you need to prove. These declarations may be important

when prison officials move for summary judgment against

you. Summary judgment is explained in Chapter Six, Section F.

You can submit declarations from plaintiffs or other people

along with your complaint, but you do not need to, and it is

frequently a bad idea to do so. Declarations and other

evidence like letters from prison officials, copies of rules,

and any other relevant documents will be most helpful

later in your case if you need to defend against a motion.

Importance of Declarations:

It is always helpful to gather declarations. If there are

people who are witnesses to events that you describe

in your complaint, or who know facts that you need to

prove, ask them to fill out and sign a declaration, so you

will have it when you need it.

Remember to include your Civil Action Number, if you have

received one, on any papers filed after your initial complaint.

Signing Your Papers

All documents that you submit to the court must be signed

by you personally if you are not represented by a lawyer.

Rule 11 of the Federal Rules of Civil Procedure requires that

you sign your name, your address, your email address, and

telephone number. Obviously, you might not have all of

these, and it is fine to just include your name, prison ID

number, and the address of your prison.

99 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

CHAPTER SIX:

What Happens After You File Your Suit

Short Summary of a Lawsuit

Filing your lawsuit is only the beginning. You must be

prepared to do a lot of work after you file the complaint to

achieve your goal. Throughout the suit, it will be your

responsibility to keep your case moving forward or nothing

will happen. This chapter will explain what may happen

after you file the complaint and how to keep your case

moving.

Once you send your complaint and summons to the court,

the court clerk will give you a civil action number. You

need to write this number in the case caption of all

documents you file related to your case.

Next you will have to deal with a series of pretrial

procedures. The PLRA creates several roadblocks for

prisoners. You may have to deal with a waiver of reply and

screening by the district court. Both of these issues are

described in Section B of this chapter.

Once you make it through these two hurdles, a defendant

has a certain period of time after they are served with your

complaint to submit a motion to dismiss, a motion for a

more definite statement (asking that you clarify some part

of your complaint), a motion for an extension of deadline,

or an answer. The amount of time depends on what

process you used to serve your complaint and is explained

in Rule 12 of the Federal Rules of Civil Procedure. Each

defendant must eventually submit an answer, unless the

judge dismisses your complaint in regard to that

defendant. The answer admits or denies each fact you

state. It can also include affirmative defenses.

When your case progresses to discovery, each side can get

more information from the other through document

requests, interrogatories, depositions, and other forms of

pretrial discovery. Each side can submit additional

declarations from people who have relevant information.

Finally, each side can file motions for summary judgment

which ask the judge to decide the case, or some part of the

case, in its favor without a trial.

If the case goes to trial, you and your witnesses and

defendants, and their witnesses, will testify in court and be

cross-examined. Both sides may submit exhibits. If you

request money damages, you can have that issue decided

by a jury.

Whichever side loses in the district court after trial or

summary judgment has a legal right to appeal to a U.S.

circuit court of appeals. There are different courts of

appeals in different parts of the country, listed in Appendix

M. The appeals court may affirm (agree with) or reverse

(disagree with) the district court’s decision. It may also

remand, which orders the district court to hold a new trial

or to take another look at a certain issue. The side which

loses on appeal can ask the U.S. Supreme Court to review

the case by filing a “petition for writ of certiorari.” The

Supreme Court will review this petition but can choose not

to consider the case, and usually will only consider cases

that it thinks raise a very important legal issue. Very, very

few cases are accepted by the Supreme Court.

Chapter Six: Table of Contents

Section A ................................ Short Summary of a Lawsuit

Section B ... Dismissal by the Court and Waiver of Reply

Section C ......................... How to Respond to a Motion to

Dismiss Your Complaint

Section D .................................... The Problem of Mootness

Section E .................................................................. Discovery

Section F ............................................... Summary Judgment

Section G ........................ What to Do If Your Complaint Is

Dismissed or the Court Grants

Defendants Summary Judgment

This chapter of the Handbook will help you handle the key

parts of pretrial procedure: the motion to dismiss, the

motion for summary judgment, and pretrial discovery. It

will also explain what to do if the court dismisses your

complaint or grants the defendants summary judgment

against you.

Unfortunately, a discussion of trial is beyond the scope of

this handbook, and we cannot describe all pretrial

procedures in detail or provide much in the way of strategy

and tactics. But you can get a basic understanding of some

of the procedures by reading the Federal Rules of Civil

Procedure and this Handbook. Also, if your case goes to

trial, the judge might appoint a lawyer to assist you.

Remember that much of the success of your suit depends

on your initiative. If you don’t keep pushing, your suit can

stall at any number of points. For example, if the

defendants haven’t submitted an answer, a motion, or

some other legal paper after the time limits set by the

Federal Rules of Civil Procedure, submit a Declaration for

Entry of Default. If the court accepts your Declaration, you

will receive a Notice of Entry of Default from the court.

You then submit a Motion for Judgment by Default. Forms

and more information about these procedures are in

Appendix D. You probably can’t win a judgment this way,

but you can keep the case moving.

100 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

Cases Before Magistrate Judges

Many prisoner complaints are given to “magistrate

judges.” A Magistrate Judge is a judicial officer who is

like a federal judge. Their powers are limited in

comparison to a district court judge, but they do much

of the work in many prison cases.

Your district court judge can tell the magistrate to

decide certain things in your case, like a discovery

issue, scheduling, or requests for extensions. If you

don’t like what the magistrate says, you can write

“objections” to the action within ten days and file them

at the district court. However, for decisions like these,

it is very hard to get a magistrate’s decision changed.

A district court judge can also ask the magistrate to do

important things in your case, like hold a hearing or

“propose findings.” You can also file objections to these

types of actions. You are more likely to get meaningful

review by a district court judge on an issue of

importance. Whether or not you file objections, the

district court judge will read what the magistrate has

written, and then adopt, reject, or modify the

magistrate’s findings.

The prison officials may just submit an answer and then do

nothing. If this happens, you should move ahead with

discovery, which is explained in Section E of this chapter.

This will make them realize you are serious about pushing

forward your case and may get things moving. If your case

stalls after discovery, you can move for summary

judgment, which is explained in Section F of this chapter or

ask the court to set a date for a trial.

Keep trying at every point to get the court to appoint a

lawyer for you. If you don’t have a lawyer, don’t be afraid

to keep moving forward pro se, which means “on your own

behalf.” You can also try writing the court clerk and

prisoners’ rights groups when you don’t know what to do

next. The worst thing is to let your suit die.

Dismissal by the Court and Waiver

of Reply

Once you have filed your complaint, the court is required

to “screen” it. This means the court looks at your complaint

and decides, without giving you the chance to argue or

explain anything, whether or not you have any chance of

winning your case. The PLRA requires the court to dismiss

your complaint right then and there if it:

is “frivolous or malicious;”

fails to state a claim upon which relief may be

granted; or

seeks money damages from a defendant who is

immune from money damages.

If the court decides that your complaint has any one of

these problems, the court will dismiss it “sua sponte,”

without the defendant even getting involved. “Sua sponte”

is Latin for “on its own.”

Hopefully, if the court does dismiss your case, it will note

that it is doing so “without prejudice” or “with leave to

amend.” This is OK. It means you can change your

complaint and fix whatever problems the court brings to

your attention. If the court dismisses your lawsuit without

saying anything about amending, you can ask the court for

permission to fix your complaint by filing a Motion for

Leave to Amend. An example is in Appendix D. A court

should not deny you at least one chance to amend, and

maybe more, if it is possible for you to fix whatever the

court thinks is wrong with your complaint. Shomo v. City of

New York, 579 F.3d 176 (2d Cir. 2009) is one case in which

a court talks about how important it is to give pro se

prisoners a chance to amend their complaint.

If you think the court made a mistake, instead of amending,

you may want to quickly respond with a Motion for

Reconsideration. In this short motion, all you need to do is

tell the court why you think they got it wrong. If the error

is legal, cite cases or other authority that support your

position. If the error is factual, for example the judge wrote

that you did not include anything in your complaint about

one defendant’s personal involvement, point out where

you do that in your complaint. Motions for reconsideration

are meant for pointing out things the judge overlooked,

not for restating arguments you already made that the

court rejected. The time to submit a motion for

reconsideration is set forth in courts’ Local Rules, and

some are very short—like 14 days.

If your complaint was recommended to be dismissed by a

magistrate judge, you can file “objections” to the

magistrate’s recommendation which will be reviewed by

the district court judge.

If neither of these approaches work, you can appeal.

Procedures for appealing are laid out in Section G of this

chapter.

The other hurdle created by the PLRA is something called a

waiver of reply. A defendant can file a waiver of reply to

get out of having to file an answer or other motions. When

a defendant does this, the court reviews your complaint to

see if you have a “reasonable opportunity to prevail on the

merits.” If the court thinks you have a chance at winning

your lawsuit, it will order the defendants to either file a

Motion to Dismiss or an Answer. If the court doesn’t do

this, you can file a motion asking the court to order the

defendants to reply.

101 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

How to Respond to a Motion to

Dismiss Your Complaint

If you get through the first hurdles, the next legal paper

you receive from the prison officials may be a Motion to

Dismiss your suit. Motions to dismiss are based only on

what is in your complaint, not on documents or other

evidence from Defendants. Motions to dismiss are

different than Motions for Summary Judgment, which is

based on Defendants’ version of the facts and usually

happen after discovery. Rule 12(b) of the Federal Rules of

Civil Procedure explains some of the grounds for a motion

to dismiss. Defendants may give a number of reasons. One

reason is sure to be that you did not “state a claim upon

which relief can be granted,” which means defendants

think that what you are complaining about does not violate

the law.

The motion to dismiss is a written request that the judge

end your suit, without you getting the chance to get

discovery, or go to trial. Attached to the motion will be a

memorandum of law (also called a “brief”) which gives the

defendant’s legal arguments for dismissing your suit. Each

court has different rules about how long you have to

respond to this motion, but usually you will have at least

two or three weeks to file an opposition to the defendant’s

motion to dismiss. The opposition is a memorandum of law

that responds to the defendant’s arguments. If you need

more time, send the judge a letter explaining why and

asking for a specific number of extra weeks. If you can,

check the Local Rules to see if the court has any specific

requirements for time extensions. If you cannot find any

information, just send the letter and send a copy to the

prison officials’ lawyer.

Chapter Seven explains in more detail how to research and

write your opposition, so be sure to read it before you

start working. After you read the suggestions in Chapter

Seven, you may want to try to read all of the cases that the

defendants use in their memo. If you read these cases

carefully, you may come to see that they are different in

important ways from your case. You should point out

these differences. You can also try to find cases the

defendants have not used that support your position.

To support their motion to dismiss, the prison officials can

make all kinds of arguments which have been dealt with in

other parts of this Handbook. They may say you failed to

exhaust administrative remedies (see Chapter Five, Section

A), or that you cannot sue top prison officials who did not

personally abuse you (see Chapter Four, Section D). They

may claim you sued in the wrong court (“improper

venue”—see Chapter Five, Section B) or that your papers

weren’t properly served on some of the defendants (see

Chapter Five, Section D). They may say the issues in your

lawsuit are now “moot” (see Section D of this chapter).

The prison officials may also argue against your

constitutional claims. They might say that you failed to

state a proper claim because the actions you describe do

not deny you due process or equal protection, or are not

cruel and unusual punishment. Your memorandum of law

should respond to whatever arguments the government

makes.

Unfortunately, writing a memorandum of law requires

quite a bit of legal research and writing. Because time to

do this research might be an issue for you, you can prepare

for this memorandum before you even receive the motion

to dismiss. Research cases that are both helpful and

harmful to your case. There is a chance that defendants

will use some of them and you will have already done a lot

of your research.

Defendants might point out something that is wrong with

your case that you want to fix, instead of defending against

the motion to dismiss. Under rule 15(a) of the Federal Rules

of Civil Procedure, you have the right to amend your

complaint once without anyone’s permission as long as you

do so within twenty-one days of serving it or within

twenty-one days of defendants answering or filing a

motion to dismiss. If these time periods have passed, or if

you have already amended once, Rule 15 allows you to ask

the defendants to consent to your filing an amended

complaint or ask the court for permission to amend. Courts

are supposed to give you permission “freely” when “justice

so requires.” Ask for consent first, and if you don’t get it,

file a Motion for Leave to Amend in which you describe

your proposed changes or attach the proposed amended

complaint.

One thing you will have going for you is that in considering

the defendant’s motion to dismiss, the judge must assume

that every fact you stated in your complaint is true. The

judge must then ask: if all those facts are true, is it

plausible that the defendants violated your rights? If any

combination of the facts stated in your complaint might

qualify you for any form of court action under Section

1983, then the judge is legally required to deny the prison

officials’ motion to dismiss your complaint. In making this

decision, courts are supposed to treat unrepresented

parties, including prisoners, more leniently that people who

are filing a suit with a lawyer. In considering a motion to

dismiss, a pro se complaint should be held to less strict

standards than a complaint drafted by a lawyer.

It is important to remember in writing your opposition that

defendants have to deal with the facts as you put them in

your complaint. For example, if you stated in your

complaint that you were “severely beaten” by two guards,

yet the defendant says in his motion to dismiss that an

“inadvertent push” doesn’t amount to cruel and unusual

punishment, you should tell the court in your memo that

you did not allege an “inadvertent push,” you alleged a

severe beating, and that is what the court has to assume is

true.

Sometimes defendants support motions to dismiss by

submitting factual materials such as affidavits, declarations,

or documents. You should ask the court not to consider

102 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

this “extrinsic evidence,” since a motion to dismiss is

supposed to consider only the adequacy of the complaint.

Send three copies of your memo to the court clerk (one

will be returned to you to let you know they accepted your

papers) and one copy to each defendant’s lawyer. Usually,

all the prison officials are represented by one lawyer from

the office of the attorney general of your state. The name

and office address of that lawyer will be on the motion to

dismiss.

In some cases, after the parties exchange memoranda of

law, attorneys for both sides appear before the judge to

argue for their interpretation of the law. However, when

dealing with a case filed by a prisoner pro se, most judges

decide motions based only on the papers you send in, not

on arguments in person. In the rare case that a judge does

want to hear argument, many federal courts now use

telephone and video hook-ups or hold the hearing at the

prison. It is quite hard to get a court to order prison

administrators to bring you to court, because the PLRA

requires that courts use remote access techniques “to the

extent practicable.”

NOTE: If you defeat the prison officials’ motion to

dismiss your complaint, ask again for appointed

counsel. Follow the procedure in Chapter Five, Section

C, Part 3. The judge is more likely to appoint a lawyer

for you at this stage of your case. You may also want to

reach out to lawyers to try to get representation.

Lawyers may be more likely to agree to help you once

you have gotten past a motion to dismiss.

If the judge does decide to dismiss your complaint, they

must send you a decision stating the grounds for their

action. The judge may or may not dismiss your case with

leave to amend. Either way, you can appeal from that

decision. Section G of this chapter explains what else you

can do if the court dismisses your complaint.

Instead of (or before) a Motion to Dismiss, you may receive

a motion for extension of time from the defendants. A

motion for extension of time (or “enlargement”) gives the

other side more time to file an answer or motion. One

extension is usually automatic. If your situation is urgent,

write the court to explain the urgency and ask that the

prison officials not get another extension.

You may also receive a letter or motion asking the court to

treat your case as related to another previously filed case.

Check out what the other suit is about, who is bringing it,

and what judge is considering it. This could be a good or

bad thing for you, depending on the situation. If you think

you’d be better off having your suit separate, submit an

affidavit or memorandum of law in opposition to the

motion to relate. Say clearly how your suit is different and

why it would be unfair to join your suit with the other one.

For example, the facts might get confused.

The Problem of Mootness

One argument that prison officials often raise, either in

their motion to dismiss or later on, is that you have no legal

basis for continuing your suit because your case has

become “moot.” This is only a problem if you are asking for

injunctive or declaratory relief. If you are asking for money

damages, your case cannot become moot.

A case may be moot if, after you have filed your suit, the

prison stops doing what you complained about, releases

you on parole, or transfers you to a different prison. The

prison officials can ask the court to dismiss your case as

moot, saying there is no longer anything the court can

order the prison to do that would affect you.

For example, imagine you sue the prison for injunctive

relief because they are not providing medical care for your

diabetes. In your suit, you ask the court to order the prison

to provide you with adequate medical care in the future.

Then, after you file your complaint, the prison starts to

provide you with medical care. The prison can argue that

your case is moot because the only remedy you asked for

has already been given to you by the prison.

The good news is that the defendants will have the burden

of proving that the case is really moot. This is a heavy

burden, since they must show that there is no reasonable

expectation that the violations of your rights will happen

again. There are five arguments you may be able to make

to defeat the prison’s efforts to get your case dismissed

because of mootness:

> If you have asked for money damages, your suit can

never be moot. You have a right to get money for injuries

you suffered in the past as long as you sue within the

period allowed by the statute of limitations. This does not

just apply to physical harm: if you have been denied your

constitutional rights, it is an “injury” for which you might be

able to get money damages. For more on damages, read

Chapter Four, Section C.

> A violation of your rights may not be moot if it is

“capable of repetition, but evading review.” In other words,

the court will allow you to continue your case in a situation

where the illegal action will almost always end before the

case could get to court. Imagine that a prisoner wants to

sue to force the prison to improve conditions in

administrative segregation. By the time the prisoner

actually gets into court, however, they have been moved

back to general population. This case should not be

dismissed as moot because it is “capable of repetition,”

meaning they could get put in administrative segregation

again, and it “evades review” because they might never

stay in segregation long enough to get to trial.

To meet this test, the condition must be reasonably

likely to recur. Most courts have not applied this

exception when a prisoner is transferred to another

103 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

prison, since it is only “possible” and not “likely” that he

will be transferred back. Oliver v. Scott, 276 F.3d 736,

741 (5th Cir. 2002). Transfer may not moot your case,

however, if the department or officials whom you sued

are also in charge of the new prison. Scott v. District of

Columbia, 139 F.3d 940, 942 (D.C. Cir. 1998).

> Sometimes, being transferred away from where the

violation happened does not make your suit moot. Courts

have found that a state-wide policy that violated your

constitutional rights in one facility may still violate your

rights in the new facility. See Pugh v. Goord, 571 F.Supp.2d

477 (S.D.N.Y. 2009) and Oliver v. Scott, 276 F.3d 736 (5th

Cir. 2002).

> If you get a lawyer and file a “class action” suit on behalf

of all the prisoners who are in your situation and the class

is certified, your suit will not be moot as long as the prison

continues to violate the rights of anyone in your class. If

you are paroled or transferred, the court can still help the

other members of your class. Section F of Chapter Four

discusses class action lawsuits. Remember that it is very

hard to bring a class action without an attorney.

> If any negative entries have been put in your prison

records because of your suit or the actions you are suing

about, you may be able to avoid mootness by asking the

court to order the prison officials to remove (or “expunge”)

these entries from your records. The federal courts have

held that a case is not moot if it could still cause you some

related injury. If you can show that there are documents in

your prison records which could affect you in the future,

asking the court to expunge them can keep your case from

becoming moot. A few cases good cases to read on this

issue are Anyanwutaku v. Moore, 151 F.3d 1053, 1057

(D.C. 1998), Kerr v. Farrey, 95 F.3d 472, 476 (7th Cir. 1996)

and Dorn v. Mich. Dep’t of Corr., 2017 WL 2436997 (W.D.

Mich. June 6, 2017).

> You can argue that just because the prison has stopped

doing something illegal or has reversed a policy does not

mean that the court can’t review the case. You may have a

strong argument if you can convince the judge that the

prison has just changed course to avoid litigation. You can

quote the U.S. Supreme Court that “voluntary cessation of

allegedly illegal conduct does not deprive the tribunal of

power to hear and determine the case.” Los Angeles County

v. Davis, 440 U.S. 625, 631 (1979). This argument against

mootness has been successful in several Section 1983

claims brought by prisoners. Two examples to read are

Burns v. PA Dep’t of Corrections, 544 F.3d 279 (3d Cir.

2008) and Aref v. Holder, 953 F. Supp. 2d 133 (D.C. Cir.

2013). The prison officials must show that there is no

reasonable expectation that the violations will recur. They

must also show that the relief or changes in policy that

they put in place have completely fixed the constitutional

violation, and the effects it may have had.

Discovery

If you have made it past the defendant’s motions for

dismissal, there is a better chance that the court will

appoint an attorney to assist you. If so, you can use this

section of the Handbook to understand what your lawyer

is doing, to help them do it better, and to figure out what

you want them to do. If you do not have a lawyer, this

section will help you get through the next stage on your

own—but what you will be able to do will be more limited.

The next major activity in your suit will be discovery. Rules

26-37 of the Federal Rules of Civil Procedure explain

“discovery” tools that both parties in a lawsuit can use. You

should begin by reading through those rules. Some of the

rules, like Rule 26, set out different requirements for pro se

prisoners than for others. It is also very important to read

the corresponding Local Rules from the district your case is

in, as many courts have made important changes to the

federal rules.

The Importance of “Discovery”

> Uncover factual information about the thing that

happened to you.

> Collect evidence to use at “summary judgment” or

your trial.

> Force the defendants to explain their version of the

facts and provide you with the evidence they plan to

rely on.

Discovery helps you to get important information and

materials from the other party before the case goes to trial.

If you don’t have a lawyer at this stage, you will need to

spend a lot of time thinking about what facts you will need

to prove at trial and coming up with a plan about how to

find out that information. The Southern Poverty Law

Center’s litigation manual for prisoners, Protecting Your

Health & Safety, has a very helpful chapter on developing

discovery strategies. You will find information on ordering

that book in Appendix K.

1. Discovery Tools

There are four main discovery tools: depositions,

interrogatories, production, and inspection. This Handbook

gives you only a brief introduction to these techniques.

The details of how they work are in the Federal Rules of

Civil Procedure.

A deposition is a very valuable discovery tool. You meet

with a defendant or a potential witness, that person’s

lawyer, and maybe a court reporter. You or your lawyer

ask questions which the “deponent” (the defendant or

witness you are deposing) answers under oath. Because

the witness is under oath, they can be prosecuted for

104 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

perjury if they lie. The questions and answers are tape-

recorded or taken down by the stenographer.

A deposition is very much like testimony at a trial. In fact,

you can use what was said at a deposition in a trial if the

deponent (1) is a party (plaintiff or defendant), (2) says

something at the trial which contradicts the deposition, or

(3) can’t testify at the trial. Despite these benefits, you

should BEWARE: a deposition is very hard to arrange from

in prison because it can be expensive and involves a lot of

people. If you want to take more than ten depositions, you

will have to ask the court for permission.

Some courts don’t allow pro se prisoners to take

depositions. If you have no lawyer, you might try a

“Deposition Upon Written Questions” (Federal Rules of Civil

Procedure Rule 31). You submit your questions in advance,

as with interrogatories, but the witness does not send back

written answers. The witness has to answer in their own

words, under oath, before a stenographer who writes

down the answers.

Interrogatories are written questions which must be

answered in writing under oath. Under Federal Rules of Civil

Procedure Rule 33, you can send up to 25 questions to

each of the other parties to the suit. If you need more than

25, you can ask the court for permission to serve more.

PRACTICE TIP: you may want to start discovery with

document requests, as they tend to provide the most

helpful evidence. Interrogatory responses are written by

defense lawyers and are frequently less helpful.

You can use the following example to write interrogatories

of your own.

IN THE UNITED STATES DISTRICT COURT FOR

_______________________________________________x

Name of first plaintiff in the case, et al.,

Plaintiff[s],

Names of first defendant in the case, et al.,

Defendant[s]

_______________________________________________x

PLAINTIFF’S FIRST SET OF

INTERROGATORIES TO DEFENDANTS

Civil Action No._____

In accordance with Rule 33 of the Federal Rules of Civil Procedure, Plaintiff requests that Defendant [Defendant’s name]

answer the following interrogatories under oath, and that the answers be signed by the person making them and be served

on plaintiffs within 30 days of service of these interrogatories.

If you cannot answer the following interrogatories in full, after exercising due diligence to secure the information to do so,

so state and answer to the extent possible, specifying your inability to answer the remainder and stating whatever

information or knowledge you have concerning the unanswered portions.

These interrogatories shall be deemed continuing, so as to require supplemental answers as new and different information

materializes.

[List your questions here…and be creative and as detailed as possible. ]

> If you have a guard brutality case, you may want to ask

questions about how long the specific guard has worked at

the prison, where they are assigned, what their duties are,

what they remember of the incident, what they wrote

about the incident in any reports, whether they have ever

been disciplined, and more.

It is also a good idea to take the opportunity to try to find

out who else might be a helpful witness. You could ask the

defendant to:

> State the name and address or otherwise identify and

locate any person who claims to know of facts relevant to

the conduct described in these interrogatories.

COST OF DISCOVERY $:

Although interrogatories are fairly cheap, other forms

of discovery require money. If the court lets you tape

record depositions instead of hiring a certified court

reporter (Fed.R.Civ.P. Rule 30(b)(2)), you still need a

typed transcript of the entire tape if you want to use

any of it at the trial of your suit. Discovery expenses

are included in the costs you will be awarded if you

win, but federal courts generally refuse to advance

money for discovery. You will have to find some other

way to pay for transcription.

105 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

You can also ask for documents. For example, you could

include the following as a question:

> Identify and attach a copy of any and all documents

relating to prison medical center staff training on the

proper treatment of prisoners with hepatitis C.

> Identify and attach a copy of any and all documents

showing who was on duty in cell block B at 9 p.m. the

night of August 18, 2009.

At the end of your questions, you should date and sign the

page and type your full name and address below your

signature.

A person who is just a witness, but not a party, cannot be

made to answer interrogatories. However, they can

voluntarily answer questions in an affidavit. To get an

affidavit from someone in another prison, you may need a

court order.

The third discovery tool is “Document Production.” If you

want to read documents such as letters, photos, or written

rules that the prison officials have, ask for production of

those items under Federal Rules of Civil Procedure Rule 34.

There are no limits to the number of document requests

you can make, but you should be reasonable in what you

ask for, or the defendants will object. You can use the

following form:

IN THE UNITED STATES DISTRICT COURT FOR THE

_______________________________________________x

Name of first plaintiff in the case, et al.,

in the case, et al

Plaintiff[s],

Names of first defendant in the case, et al.,

Defendant[s]

_______________________________________________x

PLAINTIFF’S FIRST REQUEST FOR

PRODUCTION OF DOCUMENTS

Civil Action No._____

Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiff requests that Defendants [put defendants’ full names

here] produce for inspection and copying the following documents:

[List the documents you want here, some examples follow]

1. The complete prison records of all Plaintiffs.

2. All written statements (originals or copies) identifiable as reports about the incident on August 18, 2009, made by

DOCS employees, and/or witnesses.

3. Any and all medical records of Plaintiff from the time of his incarceration in Fishkill Correctional Institution through and

including the date of your response to this request.

4. Any and all rules, regulations, and policies of the New York Department of Corrections about treatment of prisoners

with diabetes.

Dated: ________________________________________

Signed:_ ________________________________________

You can also get inspection of tangible things, like clothing

or weapons, and a chance to “copy, test, or sample” them.

And you have a right to enter property under the

defendants’ control,—such as a prison cell, exercise yard or

cafeteria, to examine, measure, and photograph it.

Defendants may object to these types of requests as

creating a security concern. If they do, this can give you a

nice reason to renew your request for appointment of a

lawyer to represent you.

You can use any combination of these techniques at the

same time or one after the other. If you have new

questions or requests, you can go back to a defendant for

additional discovery. You can also use informal

investigation to find out important information. You can

talk to other prisoners and guards about what is going on.

You can use state and federal Freedom of Information Act

and Public Records Act laws to request prison policies and

information. Each state has different rules about what

information is available to the public. Of course, prison

officials may use various tactics to interfere with your

investigation. Try to be creative in dealing with these

problems.

106 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

2. What You Can See and Ask About

The Federal Rules puts very few limits on the kind of

information and materials you can get through discovery

and the number of requests you can make. Federal Rules of

Civil Procedure Rule 26(b)(1) states that you can get

discovery about anything “relevant” to your case and

“proportional to the needs of the case.” “Relevant” means

somehow related to what you are suing about. You have a

legal right to anything which is in any way “relevant” to any

party’s claim or defense. This includes anything relevant to

any defense offered by the prison officials.

You will need to spend some time thinking through what

you actually need to prove your case, and what kind of

evidence you may be able to get. Describe what you want

as specifically as possible in all your discovery requests, or

defendants are likely to object.

A judge will decide whether a discovery request is

proportional by considering the importance of the issues in

your lawsuit, the amount of money at issue, the parties’

relative access to relevant information, the parties’

resources, the importance of the discovery in resolving the

issues, and whether the burden or expense of the

proposed discovery outweighs its likely benefit.

You can demand information that the rules of evidence

would not allow you to use at a trial so long as the

information “appears reasonably calculated to lead to the

discovery of admissible evidence.” This just means that the

information could possibly help you to find other

information that you could use at trial.

The people you are suing must give you all the “non-

privileged” information that is available to them. (The issue

of “privilege” is explained below.) If you sue a top official,

discovery includes what that person’s subordinates know

and the information in records available to him. This could

possibly even include information that is only held by a

party’s attorney, if you can’t get that information any other

way. Hickman v. Taylor, 329 U.S. 495 (1947).

Defendants may try to get out of having to deal with your

requests by arguing that they are not proportional under

the reasons listed above. They may argue that your

request would cost the prison a lot of money and wouldn’t

be very helpful to you. However, as one judge explained,

“the federal courts reject out of hand claims of

burdensomeness which are not supported by a specific,

detailed showing, usually by affidavit, of why weighing the

need for discovery against the burden it will impose

permits the conclusion that the court should not permit it.”

Natural Resources Defense Council v. Curtis, 189 F.R.D. 4, 13

(D.D.C. 1999). In other words, the defendants can’t avoid

discovery by just stating it will be too difficult. They have

to really prove it.

Even when defendants can show that producing the

requested information would be very expensive and

difficult, the court may not let them off the hook if the

information is truly essential for your lawsuit. For example,

in Alexander v. Rizzo, 50 F.R.D. 374 (E.D. Pa. 1970), the

court ordered a police department to compile information

requested by plaintiffs in a Section 1983 suit even though

the police claimed it would require “hundreds of

employees to spend many years of man hours.” The

burden and expense involved was not “undue” because the

information was essential to the suit and could not be

obtained any other way.

3. Privilege

You may not be able to discover material that is protected

by a legal “privilege,” such as the attorney-client privilege.

A “privilege” is a rule that protects a certain type of

information from discovery. There are several types of

privileges, including the attorney-client privilege, attorney

work product privilege, and the husband-wife privilege.

Explaining all these privileges is too complicated for us to

attempt here. However, it is important for you to know

that prison officials cannot avoid discovery of relevant

information merely by claiming it is “confidential.” Beach v.

City of Olathe, Kansas, 203 F.R.D. 489 (D. Kan. 2001). If the

prison officials claim information is privileged, they have

the burden of identifying the specific privilege at issue and

proving that the particular information is in fact privileged.

A judge may order the privileged information to be

“redacted” from the documents provided to you. This

means that information covered by any privilege

mentioned above will be blacked out.

Information which would be considered “confidential”

under state law may still have to be disclosed if, after

examining it privately (“in camera”), the judge decides it is

very important for your suit. King v. Conde, 121 F.R.D. 180,

190 (E.D.N.Y. Jun. 15, 1988). If the material is confidential,

the judge may keep you from showing the information to

anyone else or using it for any reason besides your suit.

4. Some Basic Steps

Usually, in a prison suit, you start with document

production and interrogatories and then move to

depositions. The documents you get in response to a

motion for production can lead you to other useful

documents, potential witnesses, and people you might

want to depose. Some of the kinds of documents that have

been obtained from prison officials include: policy

statements, prison rules and manuals, minutes of staff

meetings, files about an individual prisoner (provided they

sign a written release), and incident reports filed by prison

staff.

You can use interrogatories to discover what kinds of

records and documents the prison has, where they are

kept, and who has them. This information will help you

prepare a request for production. Only people you have

named as defendants can be required to produce their

documents and records. Wardens, associate wardens, and

corrections department officials have control over all

prison records. If your suit is only against guards or other

lower-level staff, however, you may have to set up a

deposition of the official in charge of the records you need

and ask the court clerk to issue a “subpoena” which orders

the official to bring those records with him to the

deposition. See Federal Rules of Civil Procedure Rule 45.

107 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

That said, as mentioned before, some courts do not allow

prisoners to take depositions.

Interrogatories are also good for statistics which are not in

routine documents but which prison officials can compile

in response to your questions. Examples are the size of

cells, the number and titles of books in the library, and data

on prisoner classification, work release, and punishments.

If your suit is based on brutality or misbehavior by

particular prison employees, you can also use

interrogatories to check out their background and work

history, including suits or reprimands for misbehavior. If

you are suing top officials for acts by their subordinates,

you should find out how responsibilities relevant to your

case are assigned within the prison and the Corrections

Department and how, if at all, these responsibilities were

fulfilled in your case.

5. Some Practical Considerations

Interrogatories have two big drawbacks:

1. you can use them only against people you have

named as defendants, and

2. those people have lots of time to think out their

answers and go over them with their lawyers.

As a result, interrogatories are not good for pressing

officials into letting slip important information they’re

trying to hide. You won’t catch them giving an

embarrassing off-the-cuff explanation of prison practices

or making some other blunder that you can use against

them.

Depositions are much better for this purpose. You can take

the deposition of any person with relevant knowledge. The

deponent can’t know the questions in advance and must

answer them right away. Regular depositions, however, are

much less practical than interrogatories for a prisoner

suing pro se. Judges are unlikely to order the authorities to

set up a deposition within the prison or allow you to

conduct one outside.

6. Procedure

The procedure for getting interrogatories and document

production is fairly simple. Just send your questions and

your requests for production to the lawyer for the prison

officials, usually the deputy attorney general. Send

separate requests and questions for each defendant. You

don’t need to send your interrogatories to the court.

The prison officials must respond within 30 days unless the

court or the parties agree otherwise. The officials may ask

the judge for a “protective order” which blocks some of

your questions or requests because they are irrelevant,

privileged, or not proportional. They have to submit a

motion to avoid responding to your requests. There is then

an opportunity for memoranda of law and a court hearing.

If prison officials fail or refuse to answer questions or

requests which are not covered by a protective order, you

may need to submit a motion for an order compelling

discovery. Many courts have Local Rules requiring the

parties to try to work out discovery disputes on their own

before filing a motion, through something called a “meet

and confer.” Obviously, this is very hard to do if you are in

prison and have no lawyer. You may want to try writing to

the defendant’s lawyers setting out your discovery

concerns first, before you file a motion. If this does not

work, explain how you tried to “meet and confer” in your

motion.

In your motion, you indicate what they refused and why

you need it. Use the following example:

108 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

THE UNITED STATES DISTRICT COURT FOR

_______________________________________________x

Name of first plaintiff in the case, et al.,

Plaintiff[s],

Names of first defendantin the case, et al.,

Defendant[s]

_______________________________________________x

MOTION FOR AN ORDER

COMPELLING DISCOVERY

Civil Action No._____

Plaintiffs move this court for an order pursuant to Rule 37(a) of the Federal Rules of Civil Procedure compelling Defendants

[list defendants who failed to fully answer interrogatories] to answer fully interrogatories number [list unanswered

questions], copies of which are attached hereto. Plaintiffs submitted these interrogatories, pursuant to Rule 33 of the

Federal Rules of Civil Procedure on [date] but have not yet received the answers.

[OR]

Plaintiffs move this court for an order pursuant to Rule 37(a) of the Federal Rules of Civil Procedure compelling Defendants

[list defendant who did not produce documents] to produce for inspection and copying the following documents: [list

requested documents that were not produced]. Plaintiffs submitted a written request for these documents, pursuant to

Rule 34 of the Federal Rules of Civil Procedure on [date] but have not yet received the documents.

Dated: ________________________________________

Signed: ________________________________________

Type name and address

7. Their Discovery of Your Information and

Material

Prison officials can and generally will use discovery against

you. You must respond to discovery requests unless the

defendants are asking for information that is irrelevant or

privileged. If you don’t have an attorney, then the privilege

that is most important for you to know about is the 5th

Amendment right against self-incrimination. You can

refuse to answer a question in a deposition or an

interrogatory if it might amount to admitting that you have

committed a crime for which you could face charges.

However, if you refuse to answer questions about matters

relevant to the case, the case may be dismissed as a result.

Under Rule 30(a) of the Federal Rules of Civil Procedure, a

prisoner can only be deposed with leave of the court. If

defendants ask to depose you, you may want to ask the

judge to put off the deposition until after they reconsider

your request for appointed counsel. Put in another request

for appointment of counsel and see if the judge will at least

appoint a lawyer to represent you at the deposition.

If you are deposed, it is important to stay calm and answer

questions directly and honestly. You do not need to

volunteer any information. You should also warn any

witnesses you may have that the attorney general’s office

probably will depose them once you’ve revealed their

identities.

You must be notified in advance of any deposition

scheduled in your case. If you have a lawyer, they are

entitled to be present, to advise and consult with your

witness, and ask them questions that become part of the

official record of the deposition after the defendants have

finished. The witness has a right to talk with your lawyer

beforehand. The witness can also refuse to talk about your

suit outside the deposition with anyone from the prison or

the attorney general’s office.

Summary Judgment

At some point, the prison officials will probably submit a

motion for summary judgment. Be sure to read about the

rules and procedure for summary judgment in Rule 56 of

the Federal Rules of Civil Procedure. Defendants can ask for

summary judgment along with their motion to dismiss your

complaint or at some later time. You can also move for

summary judgment. Your motion will be discussed

separately at the end of this section.

109 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

1. The Legal Standard

“Summary Judgment” means the judge decides some or all

of your case without a trial. Through summary judgment, a

court can throw out part or all of your case. Under Federal

Rule 56(a), to win on summary judgment, the prison

officials have to prove to the judge there is no genuine

issue as to any material fact and that defendants are

entitled to judgment as a matter of law. In other words, the

judge finds that there is no point in holding a trial because

both you and the defendants agree about all the important

facts and the judge can use those facts to decide that the

defendants should win.

This test is very different from the test which is applied in

a motion to dismiss your complaint. When the judge

receives a motion to dismiss, they are supposed to look

only at your complaint. In a motion to dismiss, the judge

asks: could you win a judgment in your favor if you could

prove in court everything you say in your complaint?

When the judge receives a motion for summary judgment,

however, they look at evidence presented by both sides,

including affidavits, and ask: is there is any real

disagreement about the important facts in the case?

The first part of the test for a motion for summary

judgment that is important to understand is what is meant

by “a genuine issue.” Just saying that something happened

one way, when the prison says it happened another way, is

not enough: You need to have some proof that it

happened the way you describe. Sworn statements

(affidavits or declarations), photographs, deposition

transcripts, interrogatory responses, and copies of letters

or documents count as proof because you or the prison

officials could introduce the documents as evidence, and

the people making sworn statements (including you) could

testify if there were a trial in your case.

An “unverified” Complaint or Answer is not proof of any

facts. It only says what facts you or the prison officials are

going to prove. If you “verify” your complaint, however,

then it counts the same as a declaration. See Chapter Five,

Section C, Part 1 for more on verification.

If prison officials give the judge evidence that important

statements in your complaint are not true and you do not

give the judge any evidence that your statements are true,

then there is no real dispute about the facts. The judge will

see that the prison officials have submitted evidence about

their version of the facts and that you have not. The judge

can then end your case by awarding summary judgment to

the prison officials.

On the other hand, if you give the judge some evidence

that supports your version of the important facts, then

there is a real dispute. The prison officials are not entitled

to summary judgment and your case should go to trial.

For example, if you sue guards who you say locked you up

illegally, the guards could submit affidavits swearing they

didn’t do it and then move for summary judgment. If you

do not present evidence supporting your version of what

happened, the guards’ motion might be granted. But if you

present a sworn affidavit from yourself or a witness who

saw it happen, the guards’ motion for summary judgment

should be denied.

A good way to think about a “genuine issue” is whether the

judge can tell, by the evidence presented by you and the

prison, that you disagree with specific facts the prison

officials are relying on.

The second important part of the test is that the “genuine

issue” explained above must be about a “material fact.” A

material fact is a fact that is so important to your lawsuit

that it could determine whether you win or lose. If the

prison officials can show that there is no genuine issue (or

disagreement, as discussed above) over any material fact,

then the court may grant them summary judgment. To

know whether a fact is “material,” you have to know what

courts consider when they rule on your type of case.

Imagine a prisoner sues a guard for excessive force. As you

know from Chapter Three, one of the most important facts

in an excessive force claim is whether there was a

legitimate need for the guard to use force against you. In

your complaint, you write that you were quietly sitting in

your cell when the guard entered and began to beat you

for no reason. The guard submits an affidavit swearing that

they only entered your cell after they saw you attack your

cellmate, and that they used only the force necessary to

pull you off your cellmate. Imagine they submit a

declaration from your cellmate supporting their story. The

question of why the guard entered your cell is a material

fact. If you don’t provide any evidence to support your

version of what happened, like an affidavit of your own, a

declaration by another witness, or a doctor’s report

showing your injuries were inconsistent with a guard

merely pulling you off another inmate, the court may

decide there is no “genuine issue of material fact” and

dismiss your complaint.

Strope v. Collins, 492 F. Supp. 2d 1289 (D. Kan. 2007),

provides a helpful example. In that case, two pro se

prisoners sued various officials at Lansing Correctional

Facility for violating their First Amendment right to receive

information in prison, and their Fourteenth Amendment

right to procedural due process after defendants censored

magazines containing nudity. Defendants moved for

summary judgment before any discovery had occurred.

You’ll remember from Chapter Three that a prison

regulation which denies a prisoner books or magazines is

valid if it is reasonably related to a “legitimate penological

interest,” decided by the Turner Test. The judge denied

summary judgment on the First Amendment claim because

there wasn’t yet a factual record allowing for Turner

analysis.

However, the court granted summary judgment on the

procedural due process claim because both parties agreed

that the prisoners were provided notice of the censorship,

and under the law, notice is all the process that is required.

Had the prisoners filed a verified complaint or an affidavit

stating they did not receive notice of the censorship, this

might have presented a genuine issue of material fact.

110 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

In deciding summary judgment, a court isn’t supposed to

decide which party is telling the truth or compare the

strength of evidence. If there is a real dispute, the court

should just deny summary judgment. In reality, however, if

the prison officials moving for summary judgment have a

lot of evidence, like witness statements and medical

records, and all you have is a verified complaint, you may

lose summary judgment. So you should try to present as

much evidence as you can to the court, and not just rely on

a verified complaint.

When the judge considers a motion for summary

judgment, they are supposed to view the evidence

submitted by both sides “in the light most favorable to the

party opposing the motion.” Adickes v. S.H. Kress & Co., 398

U.S. 144, 157, 160 (1970); see also Curry v. Scott, 249 F.3d

493, 505 (6th Cir. 2001). If defendants in your case move

for summary judgment against you, you are the “opposing

party.” This means that as the opposing party you get the

benefit of the doubt if the meaning of a fact could be

interpreted in two different ways.

2. Summary Judgment Procedure

If prison officials move for summary judgment, you will

then have a chance to submit your own evidence in

opposition: declarations, deposition transcripts,

interrogatory responses, and other evidence. You need to

submit all your evidence, and a memorandum explaining

what you are submitting within 21 days or ask for an

extension. The memorandum of law should summarize

your evidence and explain how it supports each point that

you need to prove. Check Chapter Three for the

requirements of your claim. Be sure to repeat the major

cases which support your argument that the prison

officials violated your federal constitutional rights. Your

memorandum should also point out to the judge all the

specific facts that show there are material issues in

dispute.

Most courts have Local Rules about summary judgment,

and one thing they may require is a numbered statement

of undisputed facts. Read your Local Rules carefully to

understand what is required. If you don’t submit a

statement of undisputed facts, the court may treat it as if

you are accepting the defendants’.

Defendants may try to move for summary judgment before

you have had a chance to get discovery against them. It

also may be difficult for you to get declarations, especially

from prisoners who have been transferred to other prisons

or placed in isolation. If this is a problem, write a

declaration to the judge explaining what facts you think

you can get, how you want to get them, how those facts

will create a genuine issue of material fact, any effort you

have already made to get them, and why that effort was

unsuccessful.

Examples of Evidence or Proof of What

You Say in Your Complaint:

> Affidavits and Declarations

> Photographs

> Interrogatory Responses

> Deposition Transcripts

> Copies of Letters

> Copies of Documents

> Your Verified Complaint

Under Rule 56(d) of the Federal Rules of Civil Procedure, the

judge can deny the prison officials’ motion for summary

judgment because you cannot get the declarations you

need or because you haven’t yet had access to discovery.

The judge can also order that you should have more time

to get the declarations you need. This means the judge

puts off ruling on the motion. Some courts have been very

supportive of the fact that prisoners may need extra time

to get declarations. Jones v. Blanas, 393 F.3d 918 (9th Cir.

2004), is a good case explaining this rule.

The judge also has the power under Rule 56(d) to “issue

any other appropriate order.” This could include ordering

prison officials to let you interview witnesses or write to

prisoners in other prisons.

3. Summary Judgment in Your Favor

You also have a right to move for summary judgment in

your favor. You may want to do this in a case where

everyone agrees that the prison is following a particular

policy and the only question for the court is whether that

policy is legal.

For example, suppose your complaint says that you were

forced to let prison officials draw your blood to get your

DNA and put it in a DNA database. The prison officials

admit they are doing this but deny that it is illegal. You may

move for summary judgment on your behalf. Since the

material facts are agreed on, the judge should grant you

summary judgment if they agree with your interpretation

of the law. On the other hand, if your suit is about

brutality, prison conditions, or denial of medical care, you

usually will have to go to trial since what actually

happened is bound to be the major issue.

NOTE: If you defeat the prison officials’ motion for

summary judgment, be sure to renew your request for

appointment of counsel. Follow the procedure outlined

in Chapter Four, Section C, Part 3. The judge is much

more likely to appoint a lawyer for you at this stage of

your case, as you are most likely going to trial. You may

also want to consider approaching attorneys with your

case at this point even if you tried before and didn’t

have any luck. Since summary judgment is a big hurdle

to clear, some attorneys might see it as a sign that your

case has the potential to win.

111 | CHAPTER 6 – WHAT HAPPENS AFTER YOU FILE YOUR SUIT

What to Do If Your Complaint Is

Dismissed or the Court Grants

Defendants Summary Judgment

The sad truth is that people in prison file thousands of

Section 1983 cases every year, and the vast majority of

these are dismissed at one of the three stages described in

Sections B, C, and F of this chapter. This may happen to

you even if you’ve detailed all your claims and present a

great argument. It may happen even if you work very hard

on your papers and follow every suggestion in this

Handbook perfectly. The important thing to remember is

that you don’t have to give up! You can choose to keep

fighting. You have already learned how to file an amended

complaint in Section C, and the next few pages tell what

else you can do if your case is dismissed or the court

grants summary judgment in favor of the defendants.

1. Motion to Alter or Amend the Judgment

Your first option is to file a motion to alter or amend the

judgment under Federal Rules of Civil Procedure Rule 59(e).

This motion must be filed within 28 days after entry of

judgment. Include a memorandum of law that cites the

cases from your circuit.

You can only make this kind of motion if the court

dismisses your complaint after denying leave to amend or

grants summary judgment to the defendants. Like motions

to reconsider, motions to alter or amend the judgment are

intended to call the court’s attention to matters it

overlooked, not to restate arguments the court rejected.

2. How to Appeal the Decision of the District

Court

If you lose your motion to alter the judgment, or if you

decide not to make one, you can appeal to the U.S. Court

of Appeals for your district. You begin your appeal by filing

a Notice of Appeal with the clerk of the U.S. District Court

whose decision you want to appeal. Follow the form in

Appendix D. If you filed a motion to alter under Rule 59(e),

file your Notice of Appeal within thirty days after the court

denies your motion to alter. Otherwise, file your notice

within thirty days after the order or judgment was entered

by the district court judge.

The appeals process is governed by the Federal Rules of

Appellate Procedure. These rules are supposed to be in your

prison library, included as part of Title 28 of the United

States Code (U.S.C.). There is an annotated version of the

U.S.C. called the United States Code Annotated (U.S.C.A.)

which gives summaries of important court decisions which

interpret the Federal Rules of Appellate Procedure. The

U.S.C. will only have the text of the Federal Rules while the

U.S.C.A. will give some explanation and cases, and is

probably more helpful to you. Chapter Seven explains how

to use the U.S.C.A. and other law books. Some of the

books listed in Appendix K give more information on the

appeals process.

If you sued in forma pauperis, you can appeal in forma

pauperis, unless the district court finds that your appeal is

not taken “in good faith.” If the district court decides this,

you have to send to the appeals court in forma pauperis

papers like those you sent to the district court, except that

you should explain the basis of your appeal. Submit these

papers within 30 days after you are notified that the

district court ruled that your appeal was not in good faith.

Soon after you receive a notice that your appeal has been

transferred to the court of appeals, submit another Motion

for Appointment of Counsel. Use the form in Chapter Four,

Section C, Part 3, for requesting counsel but change the

name of the court and state the basis of your appeal. If you

have to submit new in forma pauperis papers, send them

together with the motion for counsel.

Along with your Motion for Appointment of Counsel,

submit a Memorandum of Law which presents all your

arguments for why the appeals court should reverse the

decision of the district court, for example, because the

district court got the law wrong. If the appeals court thinks

your appeal has merit, it is more likely to appoint a lawyer

for you. Otherwise, you may get a summary dismissal of

your appeal.

112 | CHAPTER 7 – THE LEGAL SYSTEM AND LEGAL RESEARCH

CHAPTER SEVEN:

The Legal System and Legal Research

If you’ve had to do legal research before, you know how

confusing it can be. Sometimes the whole legal system

seems designed to frustrate people who are not familiar

with the law and to make them totally dependent on

lawyers. The law could be written and organized in a way

that allows ordinary people to understand it and use it. The

National Lawyers Guild, the Center for Constitutional

Rights, and other groups are engaged in a political struggle

to make the law accessible to the people.

Chapter Seven: Table of Contents

Section A .............................. The Importance of Precedent

Section B ............................. Legal Citations – How to Find

Court Decisions and Other Legal Material

Section C ............................................................ Legal Writing

This chapter is only a general introduction to legal research

for a prison lawsuit. It does not explain how to research

other legal problems you face, and it does not go into

every detail that could be useful for a Section 1983 or

Bivens suit. Some of the information in this chapter may

only be useful for people in prisons that have law libraries

with actual law books. These days, many state prisons,

local jails, and the federal system have gotten rid of their

law libraries and instead provide people in prison with

access to an electronic law database provided by

LexisNexis. The Lexis system provided to people in prison

is less thorough and user-friendly than the system Lexis

provides to lawyers outside prison. If your prison does not

have a law library, and you have become skillful at using

Lexis in your prison, and you want to share some tips with

us that might be helpful for other people in prisons without

law libraries, please write to us, and we will consider using

your information in future editions of the JLH.

If you plan to do a lot of research, you will probably want

to read some more books. A good, detailed explanation of

all types of legal research is a book called Cohen and

Olson's Legal Research in a Nutshell, which might be in your

prison library. If not, see Appendix K for information on

how to order a copy.

Technical legal terms are defined in Ballentine’s Law

Dictionary and Black’s Law Dictionary, one of which is

supposed to be in your prison library. The detailed rules for

every kind of legal citation are in a paperback called The

Bluebook: A Uniform System of Citation. There is information

about ordering The Bluebook in Appendix K.

The Importance of Precedent

To understand how to make legal arguments, it is

important to understand our court system. This section

focuses on the federal court system. Every state has its

own state court system, which is separate from the federal

system.

1. The Federal Court System

The federal court system is not separated by state, but

rather by “districts” and “circuits.” A federal suit begins in a

United States district court. District courts are the trial

courts of the federal system. In total there are 94 U.S.

district courts. Some states, such as Alaska, only have one

district. Others have several. New York, for example, is

composed of four districts: the Northern, Western,

Eastern, and Southern Districts. District courts all have the

name of a state in them, like the “Eastern District of New

York.”

Someone who loses in a district court has a legal right to

appeal to a United States circuit court of appeals. The

courts of appeals are divided into regions called “circuits.”

There are 11 circuits in the United States that have

number names. Washington, D.C. is just known as the

“D.C. Circuit” and does not have a number. Each circuit

court contains a number of district courts. For instance,

the “First Circuit” includes all the districts in Maine, New

Hampshire, Massachusetts, Rhode Island, and Puerto Rico.

Someone who loses in a court of appeals can ask for

review by the United States Supreme Court. This is called

“petitioning for certiorari.” Generally, the Supreme Court

can decide which decisions it wishes to review. If the

Supreme Court decides to review a case, it is called

“granting cert.,” and if they refuse to review, this is called

“denying cert.”

2. How Judges Interpret Laws on the Basis of

Precedent

Most of the claims we have talked about in this book are

based on one of the Constitutional Amendments, which

are reprinted in Appendix N at the back of this book.

Amendments are very short and they are written in very

broad and general terms. Courts decide what these general

terms mean when they hear specific lawsuits or “cases.”

For instance, you probably already know that the Eighth

Amendment prohibits “cruel and unusual punishment.”

However, there is no way to know from those four words

exactly which kinds of punishments are allowed and which

113 | CHAPTER 7 – THE LEGAL SYSTEM AND LEGAL RESEARCH

aren’t. For instance, you may think to yourself that

execution is very “cruel and unusual.” But execution is legal

in some states. To understand how judges interpret “cruel

and unusual punishment,” you need to read cases in which

other people, in the past, argued that one type of

punishment or another was “cruel and unusual” and see

how they turned out.

Each court decision is supposed to be based on earlier

decisions, which are called “precedent.” To show that your

constitutional rights have been violated, you point to good

court decisions in earlier cases and describe how the facts

in those cases are similar to the facts in your case. You

should also show how the general principles of

constitutional law presented in the earlier decisions apply

to your situation.

Besides arguing from favorable precedent, you need to

explain why bad court decisions which might appear to

apply to your situation should not determine the decision

in your case. Show how the facts in your case are different

from the facts in the bad case. This is called

“distinguishing” a case.

The most important precedent is a decision by the U.S.

Supreme Court. Every court is supposed to follow this

precedent. The next best precedent is a decision of the

appeals court for the circuit in which your district court is

located. This is called “binding precedent” because it must

be followed by every district court in the circuit.

The third-best precedent is an earlier decision by the

district court which is considering your suit. This may be by

the judge who is in charge of your suit or by a different

judge from the same district court.

Some questions in your case may never have been decided

by the Supreme Court, a circuit court, or your district

court. If this is the case, then you can point to decisions by

U.S. appeals courts from other circuits or by other U.S.

district courts. Although a district court is not required to

follow these kinds of precedents, it should consider them

seriously. This is called “persuasive authority.”

One complication is that you should only cite cases which

remain “good law.” Good law means that a case has not

been reversed on appeal or overruled by a later case. For

example, in Chapter Three we wrote at length about

Overton v. Bazzeta, 539 U.S. 126 (2003), a Supreme Court

case about prisoners’ rights to visits. Before that case

reached the Supreme Court, it was first heard by a district

court which found that Michigan’s prison visit policy

violated prisoners’ constitutional rights. The case was then

appealed by the prison officials to the Sixth Circuit Court

of Appeals. The Sixth Circuit agreed with the district court

that the plaintiffs’ constitutional rights were being violated

and wrote a wonderful decision. The Sixth Circuit decision

is reported at Overton v. Bazzeta, 286 F.3d 311 (6th Cir.

2002). However, that decision was then appealed to the

Supreme Court, which “granted cert.” and overturned

those good decisions. Because the Supreme Court came to

a different conclusion, you cannot rely on most of the

parts of the earlier Sixth Circuit or district court opinions

that the Supreme Court reversed.

Order of Precedents:

Supreme Court (Strongest)

↓

Appeals court for your circuit

↓

District court for your district

↓

Another appeals court

↓

Another district court in your circuit

↓

Another district court outside your circuit.

(Weakest, but still important.)

Sometimes it is hard to tell from reading a decision

whether the whole thing has been reversed or not.

Sometimes, part of a lower-court decision remains good

law even when another part is reversed on appeal. If only

one part of the case is appealed while other claims are not,

the portion of the lower-court decision that was not

appealed is still good law. You can cite it. And, of course, if

a case is affirmed on appeal, meaning that the appellate

court agrees with what the district court said, the district

court decision is still good law and you can cite to it. In that

example, however, you may want to cite to the appellate

decision instead, as an appellate decision is higher up in the

order of precedent.

Let’s go back to the Overton v. Bazetta example. In that

case, plaintiffs argued before the district court that

Michigan rules restricting visits violated their First and

Eighth Amendment rights as well as procedural due

process. They had a trial at the district court and won. The

appellate court “affirmed” or agreed with that decision.

When the Supreme Court decided to hear the case, it

decided to review the First and Eighth Amendment claims.

It went on to reverse on those claims, holding that

Michigan’s policies did not violate the First and Eighth

Amendments. So, the Supreme Court decision does not

affect the lower courts’ procedural due process decision.

That part of the Sixth Circuit opinion is still “good law.”

How do you find out if a case is still good law? Electronic

databases that lawyers use outside of prison make it very

easy to tell if a case is still good law, but doing your

research in a prison law library may be harder. “Shepard’s”

books or online material tell you whether any court has

made a decision that affects a case that you want to rely

on. They also list, to the exact page, every other court

decision which mentions the decision you are checking. To

114 | CHAPTER 7 – THE LEGAL SYSTEM AND LEGAL RESEARCH

research federal cases, you need Shepard’s Federal

Citations. For paper versions, a booklet that comes with

each set of citations explains in detail how to use them. It

is very important for you to read that booklet and follow all

of the directions.

When you use Shepard’s Citations, it is often called

“Shepardizing.” Shepardizing a decision is the only way you

can make sure that decision has not been reversed or

overruled. It can also help you find cases on your topic. Be

sure to check the smaller paperback “advance sheets”

which come out before each hardbound volume.

REMEMBER: It will not help your case to cite a

decision that has been reversed on appeal! Make sure

to Shepardize ALL cases you want to rely on.

3. Statutes

Federal courts use the same method to interpret laws

passed by the U.S. Congress. These laws are called

“statutes.” Judges interpret the words in these laws in

court cases. This method also governs how judges apply

the Federal Rules of Civil Procedure, which are made by the

U.S. Supreme Court. Since statutes and rules are more

specific than provisions in the Constitution, they leave less

room for judicial interpretation.

4. Other Grounds for Court Decisions

Sometimes no precedent will be very close to your case, or

you will find conflicting precedent from equally important

courts. Other times there may be weak precedent which

you will want to argue against. In these situations, it helps

to explain why a decision in your favor would be good

precedent for future cases and would benefit society in

general. This is called an argument based on “policy.”

You can refer to books and articles by legal scholars to

back up your arguments. Sometimes when a judge writes

an opinion to explain their decision, they will set forth their

views about a whole area of law relevant to that decision.

Although the judge’s general views do not count as

precedent, you can quote their view in support of your

arguments just as you would quote a “legal treatise” or an

article in a “law review.” A “legal treatise” is a book about

one area of the law, and a “law review” is a magazine or

journal that has essays about different parts of the law

written by legal scholars.

B..

Legal Citations – How to Find

Court Decisions and Other Legal

Material

When you make a legal argument, you should always back

it up by citing the names of the cases you are referring to.

Every decision in a case has an official “citation,” which is

the case name, followed by a bunch of letters and numbers

that tell you where you can find a copy of the decision.

Case citation is a very picky and frustrating activity, but it

is very important to making a legal argument. Before you

worry about how to cite to a case, the first thing you need

to deal with is finding a case.

1. Court Decisions

Reported Decisions

Court decisions are published in books called “Reporters”

or “Reports.” All U.S. Supreme Court decisions are in the

United States Reports, which is abbreviated “U.S.” They also

are in the Supreme Court Reporter, abbreviated “S.Ct” and

the United States Supreme Court Reports Lawyers Edition,

abbreviated “L.Ed.” or “L.Ed. 2d.” These different reporters

all have the same cases, so you can just use whichever

version your prison law library has.

Decisions of the U.S. Circuit Courts of Appeal are in the

Federal Reporter. As of 2020, there are three series of the

Federal Reporter: the first series is abbreviated “F.” the

second series is abbreviated F.2d, and the third series is

abbreviated F.3d. All new cases are in the third series.

U.S. District Court decisions are in the Federal Supplement,

abbreviated “F. Supp.,” the Federal Supplement Second

Series, abbreviated “F. Supp. 2d,” or F. Supp. 3d. Others are

in the Federal Rules of Decisions, cited as “F.R.D.”

115 | CHAPTER 7 – THE LEGAL SYSTEM AND LEGAL RESEARCH

How to Read a Case

When a judge decides a case, they write a description

of the facts of that case, the law the judge used to get

to their decision, and the reason they decided one way

or the other. When you first start reading cases, you

may have trouble understanding them, but be patient,

and follow these suggestions to get as much as possible

from the case.

The Summary – Many times when you look up a case

in a book, the first thing you will see under the name of

the case is a short paragraph stating who won the case.

Key Number Links – Directly under the summary, you

may see numbered paragraphs with headings and little

pictures of keys. These paragraphs are there to help

you with your research. They set out general rules of

law that you will encounter in the case.

The Syllabus – The syllabus is a summary of the

“holding” or decision in a Supreme Court case. It may

help you get a sense of what the case is about, but be

careful—it was not actually written by the Judge, and

you cannot cite it on your brief.

The Facts – After the syllabus, you will see the name of

the judge or judges who decided the case in capital

letters and the names of the attorney as well. After that

comes the actual official opinion. Most judges start out

an opinion by stating the facts—who sued who, over

what. Read the facts carefully, you will need to use

them if you want to show how the case is like or unlike

your situation.

Legal Reasoning – Most of what you read in a case is

legal reasoning. The judge will state general legal rules,

or holdings from past cases and explain them. This part

of a case can be very complicated and difficult, but the

more you read, the more you will understand.

The Holding – The holding is the actual decision in a

case. After the judge goes through the facts and the

legal reasoning, they will apply the law to the facts, and

state the outcome of the case. It is important to figure

out what the holding is so you know whether the case

hurts you or helps you.

As we wrote earlier, every decision has an official

“citation,” which is the case name, followed by a bunch of

letters and numbers that tell you where you can find a

copy of the decision. The citation also explains what court

made the decision and in what year. For example, this is:

A typical Supreme Court citation:

Johnson v. Avery, 393 U.S. 483 (1969)

> “Johnson v. Avery” is the name of the case. Usually, the

case name comes from the last name of the person who

brings the suit and the last name of the person being sued.

The name of the plaintiff always comes first at the trial

level, but the names can switch order after that, depending

on which party is appealing. You should always italicize or

underline the case name.

> “393” is the number of the volume of United States

Reports in which you can find the case.

> The “U.S.” indicates that the decision can be found in

United States Reports.

> “483” is the page number in volume 393 on which the

decision begins.

> “1969” is the year the decision was announced.

If you want to quote from a decision, or refer to reasoning

used in the decision, you will also need to include the page

number where your point appears in the decision. This is

called a “pin cite” or “jump cite” and you put it between the

page number the decision begins on and before the date of

the decision. In the following example, “485” is the pin cite:

Johnson v. Avery, 393 U.S. 483, 485 (1969)

Sometimes a U.S. Supreme Court decision will be cited to

all three sets of reports, like:

Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 797, 21

L.Ed. 2d 718 (1969).

You can cite all three if you want, but it is usually not

required. The “U.S.” citation is the important one. Do not

give only a “S.Ct.” or L.Ed.” citation without also giving the

U.S. citation, unless the decision has not yet been reported

in U.S. or you cannot find it. If this happens, cite the case

as: Johnson v. Avery, ___U.S.___, 89 S.Ct. 747, 21 L.Ed. 2d

718 (1969). If you have only S.Ct. or only L.Ed., put what

you have after “___U.S.___.”

The “S.Ct.” stands for Supreme Court Reporter and the

“L.Ed.” stands for Lawyer’s Edition.

A typical Circuit Court citation is:

United States v. Footman, 215 F.3d 145

(1st Cir. 2000)

This decision is in volume 215 of the Federal Reporter, third

series, starting on page 145. The information in

parentheses tells you that this decision is from the First

Circuit, and that it was decided in the year 2000.

A typical District Court citation is:

Bracewell v. Lobmiller, 938 F. Supp. 1571

(M.D. Ala. 1996)

This decision is in volume 938 of the Federal Supplement

and starts on page 1571. It was issued in 1996 by the U.S.

District Court for the Middle District of Alabama.

Unpublished Decisions

Not every district court or circuit court decision is

reported. Some decisions are “unpublished,” which means

they do not appear in the official reporters. Unfortunately,

a lot of cases about prisoners are unpublished. Not all

courts allow you to cite to unpublished cases, and they are

116 | CHAPTER 7 – THE LEGAL SYSTEM AND LEGAL RESEARCH

very hard for prisoners to get. To find out whether or not

you can use unpublished cases, first look in your district

court’s Local Rules. Some courts that do allow citation to

unpublished cases also require people who cite them to

provide copies to the court or the other side. Check your

court’s Local Rules on this as well.

A publication called U.S. Law Week, which may be in the

prison law library, prints a few important decisions by

various courts before those decisions appear in regular

reports. You can use a Law Week citation until the decision

appears in a reporter. Use the same general form as for

reported case, but indicate the court, the case number on

the court docket, and the exact date of the decision (not

just the year). For example:

Oswald v. Rodriguez, 40 U.S.L.W. 3597

(U.S. June 19, 1972) (No. 71-1369).

Outside of prison, most lawyers no longer use books to

find opinions or do legal research. Today, most lawyers use

one of two websites that simplify legal research and make

many unpublished opinions easily accessible. These web

services are called LEXIS and Westlaw. They cost a lot of

money, and your prison probably does not give you access

to them. Hopefully, internet access to decisions will

increase in the future. LEXIS and Westlaw cites look like

this.

Lucrecia v. Samples, No. C-93-3651-VRW,

1995 WL 630016 (N.D.Cal. Oct. 16, 1995)

Farmer v. Hawk, No. 94-CV-2274, 1996 U.S. Dist.

LEXIS 13630 (D.D.C. Sep. 5, 1996)

The number that appears after the case name and starts

with “No.” is the official docket number of the case. As you

learned in Chapter Three, every case gets a docket number

as soon as the complaint is filed. When you are citing an

unpublished case, you need to include the docket number.

The next part is the LEXIS or Westlaw citation. It includes

the year the case was decided, and a special identification

number created by Westlaw or LEXIS. In the parenthesis

you will find the abbreviation for the court that decided

the case and the date of the decision. When you are citing

a published opinion, you only need to include the year the

decision was issued. For an unpublished decision, you

should include the exact day.

How to Cite to a Case in your Briefs:

When you want to use a case in a memorandum of law, a

brief, or any other legal document, you should put the case

cite, as it appears in the examples above, at the end of

every sentence that refers to a fact, a legal rule, or a quote

that comes from that case. Throughout this handbook,

there are many examples that can help you see how this

works. For instance, in Chapter Three, we wrote:

“Courts have allowed censorship of materials

that advocate racial superiority and violence

against people of another race or religion.

Stefanow v. McFadden, 103 F.3d 1466 (9th

Cir. 1996); Chriceol v. Phillips, 169 F.3d 313

(5th Cir. 1999).”

We “cited” the two cases above because they support our

statement about courts allowing censorship. Citing a case

allows the reader to go look up the case for proof that

what the writer has written is true.

Sometimes you also need to include more information

about the case. When you refer to a decision which has

been appealed, list all the decisions in the case and indicate

what each court ruled. For example:

Gilmore v. Lynch, 319 F. Supp. 105 (N.D. Cal.

1970), aff’d sub nom Younger v. Gilmore, 404 U.S.

15 (1971).

The abbreviation “aff’d” stands for “affirmed.” This citation

indicates that the U.S. Supreme Court “affirmed” or agreed

with the decision of the District Court in the Gilmore case.

This happened one year later, under a slightly different

name, which is abbreviated “sub nom.” The name is

different because Younger had replaced Lynch as Attorney

General of California, and Gilmore—one of the prisoners

who filed the suit—had his name second because he was

now defending against Younger’s appeal of the district

court decision in favor of the prisoners.

As explained above, you might want to cite a decision

which has been reversed on appeal if the part of the

decision which helps you was not reversed. The citation

would look like:

Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D.

Cal. 1984), aff’d in part, rev’d in part on other

grounds, 801 F.2d 1080 (9th Cir. 1986).

The abbreviation “rev’d” stands for “reversed.” Here the

case name was not changed on appeal, so you don’t have

to include it a second time.

When you cite a Circuit Court decision, you should

indicate if the Supreme Court has agreed to review the

decision or has refused to review it, if that decision was

made in the last three years. For example:

Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008), cert.

denied, __U.S. __, 129 S. Ct. 109 (2008).

“Cert” stands for the “writ of certiorari” that the Supreme

Court issues when it decides to review lower court

decisions. If the Supreme Court had decided to grant a writ

of certiorari in Roe v. Crawford, the citation would read

“cert. granted.”

Once you have cited the full name of a case once, you

don’t have to cite it fully again. Instead, you can use a short

form of the official cite. So, instead of writing Hershberger

117 | CHAPTER 7 – THE LEGAL SYSTEM AND LEGAL RESEARCH

v. Scaletta, 33 F.3d 955 (8th Cir. 1994) over and over again,

you can just write:

Hershberger, 33 F.3d at 960.

Just remember to cite the case in full the first time you use

it. Notice that the last number, “960,” is the actual page of

the case that you want to refer to, rather than the page on

which the case starts. If you cite a case for a second time

and you haven’t cited any other cases in between, you can

use another, shorter, short form: “Id. at 960.” Id. is an

abbreviation for the Latin word “idem” which means

“same.”

You may see in a memo or an opinion, “Hershberger v.

Scaletta, supra at 960” or just “Hershberger v. Scaletta,

supra.” “Supra” is Latin for “above.” It means that the full

citation was given earlier.

You do not have to use words like “supra” and “id.” It is

your choice how you want to write your citations. You will

probably find it simpler to put the full case name and the

full citation each time you refer to a case. This is perfectly

fine. But you will need to know the fancy legal words

because lawyers like to use them. Remember, whenever

you don’t know what a term means, try to get a hold of

Black’s Law Dictionary, Ballentine’s Law Dictionary, or any

other law dictionary. We also have included a limited

glossary in Appendix A of the Handbook.

2. Legislation and Court Rules

Besides court decisions, you will also want to find and

refer to laws passed by the U.S. Congress, like Section

1983. The main places to find federal statutes are in the

United States Code (abbreviated U.S.C.) or the United States

Code Annotated (abbreviated U.S.C.A.). Both sets of books

are organized in the same way, except that the “Code

Annotated” version summarizes the main court decisions

that interpret each statute. It also lists related law review

articles and states the history of the statute. In using the

Code or the Code Annotated, be sure to check for

paperbound additions in the back of books. These

additions update the material in that book.

Citations for statutes follow roughly the same form as

citations to court cases. For example:

42 U.S.C. § 1983

refers to title 42 of the U.S. Code and Section 1983 of that

title. A “title” is a group of somewhat related laws which

are collected together. One book of the Code or Code

Annotated may contain several titles or only part of a title,

depending on how big that title is.

The U.S. Code also includes the Federal Rules of Civil

Procedure (Fed. R. Civ. P.) and the Federal Rules of Appellate

Procedure (Fed. R. App. P.). These rules are published as an

appendix to Title 42. The Code Annotated (U.S.C.A.)

annotates each rule the same way it does each statute. It

summarizes important court decisions which interpret the

rule, etc. The correct way to cite a rule is: “Fed. R. Civ. P.

[rule number]” or “Fed. R. App. P. [rule number].”

3. Books and Articles

Citations to legal treatises and law review articles follow

the same general pattern as statutes and court decisions.

For instance:

Betsy Ginsberg, Out with the New, In With the

Old: The Importance Of Section 504 Of The

Rehabilitation Act To Prisoners With Disabilities, 36

Fordham Urb. L.J. 713 (2009).

You can tell from this citation that Betsy Ginsberg wrote

an article that appeared in volume 36 of the Fordham

Urban Law Journal on page 713, and that it came out in

2009. You should always give the author’s full name and

italicize the name of the article.

Citing a book is relatively easy. You write the author’s full

name, the name of the book, the page you are citing too,

and the year it was published:

Deborah L. Rhode, Justice and Gender 56 (1989)

4. Research Aids

Prison law libraries should include books which help you

do legal research. The most important books for legal

research are Shepard’s Citations, which we described

above. Some other important books are described below.

Digests

A “digest” has quotations from court decisions, arranged by

subject matter. Every topic has a “key-number.” You look

in the subject index to find the key number of your topic.

Under that number you will find excerpts from important

decisions. The last volume of each digest has a plaintiff-

defendant table, so you can get the citation for a case if

you only know the names of the parties.

The prison library is also supposed to have the Modern

Federal Practice Digest (covering all federal court decisions

since 1939) and West’s State Digest for the state your

prison is in. The same key-number system is used in all the

books put out by the West Publishing Company, including

Corpus Juris Secundum (explained below), Supreme Court

Reporter, Federal Supplement, and Federal Rules Decisions.

Every decision in a West Company Reporter starts with

excerpts or paraphrases of the important points in the

decision and gives the key number for each point.

Encyclopedias

Your law library may include Corpus Juris Secundum,

abbreviated “CJS.” CJS is a legal encyclopedia. It explains

the law on each of the key-number topics and gives a list

of citations for each explanation. Be sure to check pocket

parts at the back of each book to keep up to date.

The explanations in CJS are not very detailed or precise.

But they can give you a rough idea of what is happening

and lead you to the important cases.

Encyclopedias and digests are good ways to get started on

your research, but it usually is not very helpful to cite them

118 | CHAPTER 7 – THE LEGAL SYSTEM AND LEGAL RESEARCH

to support arguments in your legal papers. Judges do not

consider the opinion of a legal encyclopedia as a solid base

for a decision.

Legal Writing

Although the rules explained in this chapter are very

complicated, it is important to keep in mind that most

judges will understand that you are not a lawyer, and they

won’t disregard your arguments just because you cite a

case wrong. Lawyers spend years perfecting their legal

research and writing skills, and usually have the benefit of

well-stocked libraries, expensive computers, and paid

paralegals to help them. Most prisoners don’t have any of

these things, so just do your best. This is especially true

with writing. You should not worry about trying to use

fancy legal terms. Just write clearly and simply.

There is a simple formula for writing clearly about legal

issues that you can remember by thinking of the

abbreviation: IRAC. IRAC stands for:

Idea

Rule

Application

Conclusion

Some people find that creating an outline, making a

diagram, or drawing a picture is helpful in writing IRAC

formulas. These methods can help organize your thoughts,

facts, and cases.

Say you have an Eighth Amendment claim based on

exposure to secondhand smoke. Below is a sample of how

to do a very simple outline. Your outline may be more

complex or simple, depending on what works for you.

First you would go to the section in Chapter Three that

applies to you, write the rule out for proving that claim,

and put in citations to start keeping track of where you are

getting the quotes from:

> To prove an Eighth Amendment violation by prison

officials, you must show they acted with deliberate

indifference to a prison condition that exposes a prisoner

to an unreasonable risk of serious harm. Helling v.

McKinney, 509 U.S. 25, 33 (1993).

Now, break the above sentence into the different parts

you will have to prove:

> To prove an Eighth Amendment violation by prison

officials, you must show they:

+ acted with deliberate indifference to a prison

condition that

+ exposes a prisoner to an unreasonable risk of

serious harm.

Then, you look for cases in this Handbook or through your

own research that defines more how you prove (a) and (b)

above:

> To prove an Eighth Amendment violation by prison

officials, you must show they:

+ acted with deliberate indifference to a prison

condition

+ Deliberate indifference is when prison officials ignore

an obvious and serious danger. Farmer v. Brennan, 511

U.S. 825, 835 (1994).

+ exposes a prisoner to an unreasonable risk of harm

+ Exposure to secondhand cigarette smoke is an

unreasonable risk of serious harm. Talal v. White, 403

F.3d 423 (6th Cir. 2005)

Hopefully, you can see how each of the (i) sections explain

each part of the rule. Now, you want to think about what

has happened—the facts—that fit each of those sections.

Those facts will become your application section.

Now, let’s follow IRAC to actually draft your section. First,

start with the Idea that you plan to support through your

argument. For example:

Warden Wally violated the Eighth Amendment by putting

me in a cell with a prisoner who smokes cigarettes.

Next, state the Rule of law that sets out the standard for

your idea. If you can, you should also explain the rule in

this section, by citing cases that are similar to yours. For

example, first state the full rule:

Prison Officials violate the Eighth Amendment when they

act with deliberate indifference to a prison condition that

exposes a prisoner to an unreasonable risk of serious harm.

Helling v. McKinney, 509 U.S. 25, 33 (1993).

Then we explain, in two separate sentences, the two

clauses from the above rule:

Prison officials act with deliberate indifference when they

ignore an obvious and serious danger. Farmer v. Brennan,

511 U.S. 825, 835 (1994). Exposure to secondhand

cigarette smoke presents an unreasonable risk of serious

harm. Talal v. White, 403 F.3d 423 (6th Cir. 2005).

Third is the Application. For this step, you want to state

the facts that show how your rights were violated. You

should show the court how and why the rule applies to the

facts of your specific case. Be detailed and specific, brief

and to the point. For example:

As I wrote in my complaint, upon admission to Attica

Correctional Facility, I was placed in a cell with Joe Shmoe.

Joe Shmoe smokes two packs of cigarettes a day in our

cell. The window in our cell doesn’t open, so I am forced to

breathe smoky air. I spend about twelve hours a day in this

smoky environment. I sent a letter to Warden Wally on

May 6, 2010 explaining this problem, and he did not

respond. I sent him another letter two weeks later, and he

still hasn’t dealt with the problem. Then, in June, I used the

119 | CHAPTER 7 – THE LEGAL SYSTEM AND LEGAL RESEARCH

prison grievance system to request a transfer to another

cell due to the smoke, and when that grievance was

denied, I appealed it. Guards pass by my cell every day and

hear me coughing, and they smell and see the smoke. I yell

to the guards to tell the warden about this problem. I have

been coughing a lot.

Finally, you should finish your section with a Conclusion.

The conclusion should state how your rights were violated

in one or two sentences. For example:

Warden Wally’s refusal to move me to a different cell or

otherwise end my exposure to secondhand smoke

amounts to deliberate indifference to an unreasonable

risk of serious harm, in violation of the Eighth

Amendment. For this reason, his motion to dismiss my

case should be denied.

If you use this formula for each and every point you need

to address in your complaint, you have a much better

chance of getting the judge to treat your case with the

attention it deserves.

120 | APPENDICES

APPENDICES

Glossary of Terms

Below is a list of legal terms, phrases, and

other words that you may come across in

this Handbook or in further research.

Absolute Immunity: A way that certain government officials

can avoid, or be “immune,” to any lawsuit for actions they took

while doing their job.

Administrative Remedies / Administrative Process:

This usually refers to a system for requesting something or

making a complaint to the prison administration.

Admissible: Evidence that can be used at a trial is known as

“admissible” evidence. “Inadmissible” evidence can’t be used

at a trial.

Affidavit: A written or printed statement of facts that is

made voluntarily by a person who swears to the truth of the

statement before a public officer, such as a “notary public.”

Affirm: When the appellate court agrees with the decision of

the trial court, the appellate court “affirms” the decision of the

trial court. In this case, the party who lost in the trial court and

appealed to the appellate court is still the loser in the case.

Allege: To claim that someone did something, or that

something happened, which has not been proven. The thing

that you claim happened is called an “allegation.”

Amendment (as in the First Amendment): Any change that

is made to a law after it is first passed. In the United States

Constitution, an “Amendment” is a law added to the original

document that further defines the rights and duties of

individuals and the government. Complaints can be amended

too, so you may see references in this handbook to an

“Amended Complaint.”

Annotation: A remark, note, or comment on a section of

writing which is included to help you understand the passage.

Answer: A formal, written statement by the defendant

in a lawsuit which responds to each allegation in the complaint

Appeal: When one party asks a higher court to reverse the

judgement of a lower court because the decision was wrong

or the lower court made an error. For example, if you lose in

the trial court, you may “appeal” to the appellate court.

Brief: A document written by a party in a case that contains a

summary of the facts of the case, relevant law and precedent,

and an argument of how the law applies to the factual situation.

Also called a “memorandum of law.”

Burden of proof: The duty of a party in a trial to convince

the judge or jury of a fact or facts at issue. If the party does

not fulfill this duty, they will lose their case or claim.

Table of Contents

Appendix A ............................................ Glossary of Terms

Appendix B ............................................ Sample Complaint

Appendix C ........................................................ FTCA Form

Appendix D ........................................... Other Legal Forms

Appendix E ...................... (State Supplement Appendix)

State Grievance Procedures, PREA Rules, &

LGBTQ+ Policies applicable in Certain States

Appendix F .................................. Excerpts from the PLRA

Appendix G .............................. Model Questionnaire for

United Nations Special Rapporteur on Torture

Appendix H ..... Universal Declaration of Human Rights

Appendix I ................................. Sources of Legal Support

Appendix J ......................................... Sources of Publicity

Appendix K .. Prisoners’ Rights Books and Newsletters

Appendix L ........................................ Free Book Programs

Appendix M .............................. District Court Addresses

Appendix N ........................ Constitutional Amendments

(First through Fifteenth)

Business Days: Some laws and courts use “business days”

to tell you how long you have to file or respond. This means

you only count the days Monday through Friday. Weekends

and holidays that fall on a weekday are not business days.

Calendar Days: Some laws and courts use “calendar days”

to tell you how long you have to file or respond. Each day

on a calendar—weekends, holidays, weekdays—is counted

as a “calendar day.” So if a court tells you that you must file

a response in “thirty calendar days” that means thirty days,

counting every day of the week.

Cauon: The link between a defendant’s conduct and the

plaintiff’s injury or harm. In a civil rights case, the plaintiff

must always prove “causation.”

Cause of Action: Authority based on law that allows a

plaintiff to file a lawsuit. In this handbook, we explain

the “cause of action” called Section 1983.

“Cert” or “Writ of Certiorari”: An order by the Supreme

Court stating that it will review a case already decided by

the trial court and the appeals court. When the Supreme

Court makes this order, it is called “granting cert.” If they

decide not to review a case, it is called “denying cert.”

Cf.: An abbreviation used in legal writing to mean

“compare.” The word directs the reader to another case or

article in order to compare, contrast or explain views or

statements.

121 | APPENDICES

Circuit Court of Appeals: The United States is divided into

federal judicial circuits. Each “circuit” covers a geographical

area, often called by its circuit number (like “5

Circuit”), and

has a court of appeals. The appellate court is called the U.S.

Court of Appeals for that particular circuit (for example, the

U.S. Court of Appeals for the 5

Circuit).

Citation: A written reference to a book, a case, a section of

the constitution, or any other source of authority.

Civil (as in “civil case” or “civil action”): In general, all cases or

actions which are not criminal. “Civil actions” are brought by a

private party to protect a private right.

Claim: A legal demand made about a violation of one’s rights.

Class Action: A lawsuit in which a few plaintiffs sue on behalf

of a larger group of people whose rights are being violated in

the same way.

Clearly Established: a right is “clearly established” if a

reasonable officer would understand that right. Under the

doctrine of “qualified immunity” you may only be able to

recover money damages for violation of clearly established

rights.

Color of State Law: When a state or local government official

is carrying out their job or acting like they are carrying out

their job. Acting “under color of state law” is one of the

requirements of a Section 1983 action.

Compensatory Damages: When you receive “compensatory

damages,” it means you are getting money to compensate you

for injury or any type of loss, such as loss of property.

Complaint: The legal document filed in court by the plaintiff

that begins a civil lawsuit. A “complaint” sets out the facts and

the legal claims in the case and requests some action by the

court.

Consent: Agreement; voluntary acceptance of the wish of

another.

Consent Order / Consent Decree: An order for an injunction

(to change something the defendant is doing) that is agreed

on by the parties in a settlement and given to the court for

approval and enforcement.

Constitution: The supreme law of the land. The U.S.

Constitution applies to everyone in this country. Each state

also has a State Constitution, which can provide more rights

that the U.S. Constitution, but cannot take U.S. Constitutional

rights away.

Constitutional law: Law set forth in the Constitution of the

United States or a state constitution.

Counsel: A lawyer.

Criminal (as in “criminal case” or “criminal trial”): When the

state or federal government charges a person with

committing a crime. The burden of proof and the procedural

rules in a criminal trial are different from those in a civil trial.

Cross-examination: At a trial or hearing, the questioning of a

witness by the lawyer for the other side. Cross-examination

takes place after the party that called the witness has

questioned them. Each party has a right to “cross-examine”

the other party’s witnesses.

Damages: Money awarded by a court to a person who has

suffered some sort of loss, injury, or harm.

Declaration: A statement made by a witness under penalty of

perjury.

Declaratory Judgment: A court order that sets out the rights of

the parties or expresses the opinion of the court about a

certain part of the law, without ordering any money damages

or other form of relief for either side.

Default judgment: A judgment entered against a party who

fails to appear in court or respond to the charges.

Defendant: The person against whom a lawsuit is brought.

Defense: A reason, stated by the defendant, why the plaintiff

should lose a claim.

Deliberate Indifference: The level of intent required for a

defendant in an Eighth Amendment claim. It requires a

plaintiff to show that a defendant (1) actually knew of a

substantial risk of serious harm, and (2) failed to respond

reasonably.

De Minimis: Very small or not big enough. For example, in an

Eighth Amendment excessive force claim, you need to prove

an injury that is more than de minimis.

Denial: When the court rejects an application or petition. Or,

when someone claims that a statement offered is untrue.

De novo: In the legal world, to review something “de novo”

means to review an issue or case, taking a fresh look at it.

When a court uses “de novo” review it does not defer to the

determination of the lower court.

Deposition: One of the tools of discovery. It involves a

witness giving sworn testimony in response to oral or written

questions.

Dictum: An observation or remark made by a judge in their

opinion, about a legal issue that is not necessary to the

court’s actual decision. Future courts do not have to follow

the legal analysis found in “dictum.” It is not “binding” because

it is not the legal basis for the judge’s decision. Plural: “Dicta”

Direct Examination: At a trial or hearing, the questioning of a

witness by the lawyer or party that called the witness. The

lawyer conducts “direct examination” and then the lawyer for

the other side gets the chance to “cross examine” that same

witness.

Discovery: The process of getting information which is

relevant to your case in preparation for a trial.

Discretion: The power or authority of a legal body, such as a

court, to act or decide a situation one way or the other,

where the law does not dictate the decision.

Disposition: The result of a case; how it was decided.

District Court: The trial courts within the federal court

system. There are District Courts in each federal circuit and

their decisions can be appealed to the Circuit Courts of

Appeal.

122 | APPENDICES

Document Request: One of the tools of discovery, allows one

party to a lawsuit to get papers or other evidence from the

other party.

Due process: A constitutional right that guarantees everyone

in the United States a certain amount of protection for their

life, liberty, and property.

Element: A fact that one must prove to win a claim.

Enjoining: When a court orders a person to perform a certain

act or to stop performing a specific act. The order itself is

called an “injunction.”

Evidence: Anything that proves, or helps to prove, the claim of

a party. “Evidence” can be testimony by witnesses and experts,

documents, physical objects, and anything else admissible in

court that will help prove a point.

Exclude from evidence: The use of legal means to keep certain

evidence from being considered in deciding a case.

Excessive Force: more force than is justified in the situation.

Exhaustion of Administrative Remedies: the requirement

that a prisoner use the prison grievance system to make (and

appeal) a complaint before filing a lawsuit. One of the

requirements of the Prison Litigation Reform Act.

Exhibit: Any paper or thing used as evidence in a lawsuit.

Extrinsic Evidence: Evidence which is not part of a document

or is offered to explain or contradict the meaning of another

piece of evidence. Extrinsic evidence is not always admissible

in court.

Federal law: A system of courts and rules organized under the

United States Constitution and statutes passed by Congress;

different than state law.

File: When you officially send or give papers to the court in a

certain way, it is called “filing” the papers.

Finding: Formal conclusion by a judge or jury on an issue of

fact or law.

Footnote: More information about a subject indicated by a

number in the body of a piece of legal writing which

corresponds to the same number at the bottom of the page.

The information at the bottom of the page is the “footnote.”

Frivolous: Something that is groundless, an obviously losing

argument or unbelievable claim.

Grant: To allow or permit. For example, when the court “grants a

motion,” it allows what the motion was asking for.

Habeas Corpus (Habeas): An order issued by a court to release a

prisoner from prison or jail. For example, a prisoner can petition

(or ask) for “habeas” because a conviction was obtained in

violation of the law. The “habeas writ” can be sought in both

state and federal courts.

Hear: To listen to both sides on a particular issue. For example,

when a judge “hears a case,” they consider the validity of the

case by listening to the evidence and the arguments of the

lawyers from both sides in the litigation.

Hearing: A legal proceeding before a judge or judicial officer,

in some ways similar to a trial, in which the judge or officer

decides an issue of the case but does not decide the whole

case.

Hearsay: Testimony that includes a written or verbal

statement that was made out of court that is being offered in

court to prove the truth of what was said. Hearsay is often

“inadmissible.”

Holding: The decision of a court in a case and the

accompanying explanation.

Immunity: When a person or governmental body cannot be

sued, they are “immune” from suit.

Impartial: Even-handed or objective; favoring neither side.

Impeach: When one party presents evidence to show that a

witness is lying or unreliable.

Inadmissible evidence: Evidence that cannot legally be

introduced at a trial. Opposite of “admissible” evidence.

Injunction: An order by a court that a person or persons

should stop doing something or should begin to do

something.

Injury: A harm or wrong done by one person to another

person.

Interrogatories: A set of questions in writing. One of the tools

of discovery.

Irreparable Harm: a type of injury that would cause

permanent harm or damage that cannot be fixed by money or

some other form of relief.

Judge: A court officer who is elected or appointed to hear

cases and make decisions about them.

Judgment: The final decision or holding of a court that

resolves a case and determines the parties’ rights and

obligations.

Jurisdiction: The authority of a court to hear a particular case.

Jury: A group of people called to hear a case and decide

issues of fact.

Law: Rules and principles of conduct set out by the

constitution, the legislature, and past judicial decisions.

Lawsuit: A legal action that involves at least one plaintiff,

making one or more claims, against at least one defendant.

Liable: To be held responsible for something. In civil cases,

plaintiffs must prove that the defendants are “liable” for

unlawful conduct.

Litigate: To participate in a lawsuit. All the parts of a lawsuit

are called “litigation” and sometimes lawyers are called

“litigators.”

Majority: More than half. For example, an opinion signed by

more than half the judges of a court is the “majority opinion”

and it is the official decision of the court.

Material evidence: Evidence that is relevant and important to

the legal issues being decided in a lawsuit.

123 | APPENDICES

Memorandum of law: A written document that includes a

legal argument, also called a “brief.”

Mistrial: If a fundamental error occurs during trial that cannot

be corrected, a judge may decide that the trial should not

continue and declare a “mistrial.”

Moot: A legal claim that is no longer relevant is “moot” and

must be dismissed.

Motion: A request made by a party to a judge for an order or

some other action.

Municipality: A city or town.

Negligent or Negligence: To be “negligent” is to do something

that a reasonable person would not do, or to not do

something that a reasonable person would do. Sometimes a

party needs to prove that the opposing party in the suit was

“negligent.” For example, if you do not shovel your sidewalks

all winter when it snows, you may be negligent.

Nominal Damages: Small amount of money awarded to

people whose legal rights were violated but who cannot get

compensatory damages because they have not suffered any

“loss.” Usually one dollar.

Notary or Notary Public: A person who is authorized to

stamp their seal on certain papers in order to verify that a

particular person signed the papers. This is known as

“notarizing the papers.”

Notice or Notification: “Notice” has several meanings in the

law. First, the law often requires that “notice” be given to an

individual about a certain fact. For example, if you sue

someone, you must give them “notice” through “service of

process.” Second, “notice” is used in cases to refer to whether

an individual was aware of something.

Objection: During a trial, an attorney or a party who is

representing themself pro se may disagree with the

introduction of a piece of evidence. They can voice this

disagreement by saying “I object” or “objection.” The judge

decides after each objection whether to “sustain” or

“overrule” the objection. If the judge sustains an objection it

means the judge, based on their interpretation of the law,

agrees with the attorney raising the objection that the

evidence cannot be presented. If an objection is “overruled,”

it means the judge disagrees with the attorney raising the

objection and the evidence can be presented.

Opinion: When a court decides a case, a judge writes an

explanation of how the court reached its decision. This is an

“opinion.”

Order: The decision by a court to prohibit or require a

particular thing.

Oral arguments: Live, verbal arguments made by the parties

of a case that a judge may hear before reaching a decision

and issuing an opinion.

Overrule: To reverse or reject.

Party: A plaintiff or defendant or some other person who is

directly involved in the lawsuit.

Per se: A Latin phrase meaning “by itself” or “in itself.”

Permanent Injunction: A court order that a person or entity

take certain actions or stop certain actions for a certain

amount of time.

Perjury: The criminal offense of making a false statement

under oath.

Penological: Something having to do with prisons.

Petition: A written request to the court to take action on a

particular matter. The person filing an action in a court or the

person who appeals the judgment of a lower court is

sometimes called a “petitioner.”

Plaintiff: The person who brings a lawsuit.

Precedent: A case decided by a court that serves as the rule

to be followed in similar cases later on. For example, a case

decided in the United States Supreme Court is “precedent”

for all other courts.

Preliminary Injunction: A court order that temporarily stops a

person or an entity (like a prison) from taking certain actions,

or orders that person or entity to take certain actions.

Preliminary injunctions usually take place before the end of a

lawsuit.

Preponderance of evidence: This is the standard of proof in a

civil suit. It means that more than half of the evidence in the

case supports your explanation of the facts.

Presumption: Something that the court takes to be true

without proof according to the rules of the court or the laws

of the jurisdiction. Some presumptions are “rebuttable.” You

can overcome a “rebuttable presumption” by offering

evidence that it is not true.

Privilege: People may not have to testify about information

they know from a specific source if they have a “privilege.”

For example, “attorney-client privilege” means that the

information exchanged between an attorney and their client

is confidential, so an attorney may not reveal it without the

client’s consent.

Proceeding: A hearing or other occurrence in court that takes

place during the course of a dispute or lawsuit.

Pro se: A Latin phrase meaning “for oneself.” Someone who

appears in court “pro se” is representing themselves without a

lawyer.

Punitive Damages: Money awarded in a lawsuit in order to

punish a defendant for the harm they caused.

Question of fact: A dispute as to what actually happened. It

can be contrasted to a “question of law.”

Qualified Immunity: a doctrine that protects government

officials from liability for acts they couldn’t have reasonably

known were illegal.

Reckless: To act or fail to act despite the fact that one is

aware of a substantial and unjustifiable risk.

Record (as in the record of the trial): A written account of all

the proceedings of a trial, as transcribed by the court

reporter.

124 | APPENDICES

Regulation: A rule or order that manages or governs a

situation. One example is a “prison regulation.”

Relevant / irrelevant: A piece of evidence which tends to

make some fact more or less likely or is helpful in the process

of determining the truth of a matter is “relevant.” Something

that is not at all helpful to determining the truth is

“irrelevant.”

Relief: The remedy or award that a plaintiff or petitioner

seeks from a court, or a remedy or award given by a court to

a plaintiff or petitioner.

Remand: When a case is sent back from the appellate court

to the trial court for further action or proceedings.

Remedy: Same as “relief.”

Removal (or when a case is “removed”): When a defendant

transfers a case from state court to federal court.

Respondent: The person against whom a lawsuit or appeal is

brought.

Retain: To hire, usually used when hiring a lawyer.

Reverse: When an appellate court changes the decision of a

lower court. The party who lost in the trial court and then

appealed to the appellate court is now the winner of the case.

When this happens, the case is “reversed.”

Right: A legal entitlement that one possesses. For example,

people in prison have the “right” to be free from cruel and

unusual punishment.

Sanction: A penalty the court can impose when a party

disobeys a rule or order.

Service, “service of process” or “to serve”: The physical act of

handing something over, or delivering something to a person,

as in “serving legal papers” on a person.

Settled, as in “the law is not settled”: If the law is “settled”

then courts have generally agreed on its interpretation. If it is

“not settled” then different courts have interpreted a law in

different ways.

Settlement: When both parties agree to end the case without

a trial.

Shepardizing: Method for determining if a case is still “good

law” that can be relied upon.

Standing: A requirement that the plaintiff in a lawsuit has an

actual injury that is caused by the defendant’s alleged action

and that can be fixed by the court.

Statute: A law passed by the U.S. Congress or a state

legislature.

Statute of limitations: A law that sets out time limitations

within which different types of lawsuits must be brought.

After the “statute of limitations” has run on a particular type

of lawsuit, the plaintiff cannot bring that lawsuit.

Stipulation: An agreement between the plaintiff and the

defendant as to a particular fact in a case.

Subpoena: An official court document that requires a person

to appear in court at a specific time and place. A particular

type of “subpoena” requires an individual to produce books,

papers, and other things.

Suit: Short for lawsuit.

Summary judgment: A judgment given on the basis of

pleadings, affidavits or declarations, and exhibits presented

for the record without any need for a trial. It is used when

there is no dispute as to the facts of the case and one party is

entitled to a judgment as a matter of law.

Suppress: To prevent evidence from being introduced at trial.

Testimony: The written or oral evidence given by a witness

under oath. It does not include evidence from documents or

objects. When you give testimony, you “testify.”

Third Party: A person or an entity that is not directly involved

in a lawsuit but has a small role in part of your litigation. For

example, if you win money in a lawsuit, you may need

assistance from a bank to access your money. The bank

would be a third party. The term “third party” is also used in

other situations not involving lawsuits as well.

Tort: A “wrong” or injury done to someone. Someone who

destroys your property or injures you may have committed a

“tort.”

Trial: A proceeding that takes place before a judge or a judge

and a jury. In a trial, both sides present arguments and

evidence.

v. or vs. or versus: Means “against,” and is used to indicate

opponents in a case, as in “Joe Prisoner v. Charles Corrections

Officer.”

Vacate: To set aside, as in “vacating the judgment of a court.”

An appellate court, if it concludes that the decision of the trial

court is wrong, may “vacate” the judgment of the trial court.

Vague: Indefinite, or not easy to understand.

Venue: The specific court where a case can be filed. For

example, if you are in prison in upstate New York, your venue

might be the Western District of New York.

Verdict: A conclusion, as to fact or law, that forms the basis

for the court's judgment.

Verify: To confirm the authenticity of a legal paper by

affidavit or oath.

Waive or waiver: To give up a certain right. For example,

when you “waive” the right to a jury trial or the right to be

present at a hearing you give up that right.

Witness: A person who knows something which is relevant to

your lawsuit and testifies at trial or in a deposition about it.

Writ: An order written by a judge that requires a specific act

to be performed or gives someone the power to have the act

performed. For example, when a court issues a writ of habeas

corpus, it demands that the person who is detaining you

release you from custody.

125 | APPENDICES

Sample

APPENDIX B: SAMPLE COMPLAINT

UNITED STATES DISTRICT COURT NORTHERN

DISTRICT OF ILLINOIS

__________________________________________________x

Walter Hey and Mohammed Abdul,

Plaintiff[s],

John Smith, warden Illinois State Prison, and Dave

Thomas, corrections officer at Illinois State Prison,

individually and in their official capacities,

Defendant[s]

__________________________________________________x

Civil Action

No._____

COMPLAINT

I. JURISDICTION & VENUE

1. This is a civil action authorized by 42 U.S.C. Section 1983 to redress the deprivation, under color of state law, of rights

secured by the Constitution of the United States. The court has jurisdiction under 28. U.S.C. Section 1331 and 1343 (a)(3).

Plaintiff Hey seeks declaratory relief pursuant to 28 U.S.C. Section 2201 and 2202. Plaintiff Hey’s claims for injunctive

relief are authorized by 28 U.S.C. Sections 2283 & 2284 and Rule 65 of the Federal Rules of Civil Procedure.

2. The Northern District of Illinois is an appropriate venue under 28 U.S.C. Section 1391 (b)(2) because it is where the

events giving rise to this claim occurred.

II. PLAINTIFFS

3. Plaintiff Walter Hey is and was at all times mentioned herein a prisoner of the State of Illinois in the custody of the

Illinois Department of Corrections. He is currently confined in Illinois State Prison in Colby, Illinois.

4. Plaintiff Mohammed Abdul is and was at all times mentioned herein a prisoner of the State of Illinois in the custody of

the Illinois Department of Corrections. He is currently confined in Illinois State Prison in Colby, Illinois.

III. DEFENDANTS

5. Defendant John Smith is the warden of Illinois State Prison. He is legally responsible for the operation of Illinois State

Prison and for the welfare of all the inmates of that prison.

6. Defendant Dave Thomas is a correctional officer of the Illinois Department of Corrections who, at all times mentioned

in this complaint, held the rank of prison guard and was assigned to Illinois State Prison.

7. Each defendant is sued individually and in his official capacity. At all times mentioned in this complaint, each defendant

acted under the color of state law.

IV. FACTS

8. At all times relevant to this case, Plaintiffs Walter Hey and Mohammed Abdul shared a cell on block D.

126 | APPENDICES

Sample

9. On June 29, 2009, Defendant Dave Thomas entered Hey and Abdul’s cell to conduct a routine and scheduled

cell search. Upon information and belief, Illinois State prison policy dictated that each cell be searched once a week

for contraband.

10. Thomas searched Hey and Abdul’s cell in their presence and did not uncover any contraband. Indeed, there was no

contraband in their cell. After completing the search, Thomas told Hey to walk onto the range so that he could talk to

Abdul alone. Hey asked why. Thomas told him to shut up and follow the order.

11. Hey exited the cell and stood to the right of the cell, on the range. He could see into the cell.

12. After Hey left, Thomas told Abdul that Hey was a problem prisoner, was in “deep trouble” with the prison

administration, and that if Abdul knew what was good for him, he would tell Thomas what Hey was up to.

13. When Abdul refused to say anything to Thomas about Hey, Thomas punched Abdul in the face. The punch caused

Abdul pain. Abdul’s left eye was bruised and swollen for approximately four days.

14. Thomas then got Hey from outside the cell and told him that if he didn’t abandon the prison grievance Hey had filed

about racist comments Thomas made one week earlier at Hey’s disciplinary hearing, he would “do the same” to Hey every

single day. That grievance is attached as Exhibit A.

15. The following day, on June 30, 2009, Thomas returned to Hey and Abdul’s cell, and asked Hey if he had withdrawn

the grievance. Hey replied that he had not. Thomas punched him in the right eye, causing pain and swelling that lasted

several days.

16. That same day, Hey and Abdul both requested sick call, and saw the prison medical tech regarding the pain they were

both experiencing. The tech prescribed aspirin and noted bruising on their medical files. Relevant pages of Hey and Abdul’s

medical files are attached as Exhibit B.

17. Later that week, on July 2, 2009, Thomas again returned to Hey and Abdul’s cell and again asked Hey if he had

withdrawn the grievance. Hey said no. Thomas punched him again, this time in the stomach, again causing pain and

bruising. Thomas again stated that he would punch Hey every day until he withdrew the grievance.

18. When Thomas opened the cell door to leave Hey and Abdul’s cell, Hey and Abdul saw that Warden Thomas was

outside the cell, looking in. Abdul asked the warden if he had seen what happened, and what he was going to do about it.

Warden Smith responded that, “that is how we deal with snitches” in Illinois State Prison.

19. The following week, July 4 – 11, Defendant Thomas returned to Plaintiffs’ cell each day, and each day punched Hey.

V. LEGAL CLAIMS

20. Defendant Thomas used excessive force against Plaintiff Abdul by punching him in the face when Abdul was not

violating any prison rule and was not acting disruptively. Defendant Thomas’s action violated Plaintiff Abdul’s rights under

the Eighth Amendment to the United States Constitution and caused Plaintiff Abdul pain, suffering, physical injury, and

emotional distress.

21. Defendant Thomas used and continues to use excessive force against Plaintiff Hey by punching him in the face

repeatedly when Hey is not violating any prison rule nor acting disruptively in any way. Defendant Thomas’s action

violated and continues to violate Plaintiff Hey’s rights under the Eighth Amendment to the United States Constitution and

is causing Plaintiff Hey, pain, suffering, physical injury, and emotional distress.

22. By witnessing Defendant Thomas’s illegal action, failing to correct that misconduct, and encouraging the continuation

of the misconduct, Defendant Smith is also violating Plaintiff Hey’s rights under the Eighth Amendment to the United

States Constitution and causing Plaintiff Hey pain, suffering, physical injury, and emotional distress.

23. By threatening Plaintiff Hey with physical violence for exercise of his right to seek redress from the prison through

use of the prison grievance system, Defendant Thomas is retaliating against Plaintiff Hey unlawfully, in violation of Plaintiff

Hey’s rights under the First Amendment to the United States Constitution. These illegal actions are causing Plaintiff Hey

injury to his First Amendment rights.

24. Plaintiff Hey has no plain, adequate, or complete remedy at law to redress the wrongs described herein. Plaintiff Hey

has been and will continue to be irreparably injured by the conduct of the defendants unless this court grants the

declaratory and injunctive relief which Plaintiff seeks.

127 | APPENDICES

Sample

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray that this court enter judgment:

25. Granting Plaintiff Hey a declaration that the acts and omissions described herein violate his rights under the

Constitution and laws of the United States, and

26. A preliminary and permanent injunction ordering defendants Thomas and Smith to cease their physical violence and

threats toward Plaintiff Hey, and

27. Granting Plaintiff Hey compensatory damages in the amount of $50,000 against each defendant, jointly and severally.

28. Plaintiff Abdul seeks compensatory damages of $5,000 against defendant Thomas only.

29. Both plaintiffs seek nominal damages and punitive damages in the amount of $50,000. Plaintiff Hey seeks these

damages against each defendant, jointly and severally. Plaintiff Abdul seeks damages only against defendant Thomas.

30. Plaintiffs also seek a jury trial on all issues triable by jury.

31. Plaintiffs also seek recovery of their costs in this suit, and

Any additional relief this court deems just, proper, and equitable.

Dated: April 9, 2021

Respectfully submitted, Mohammed Abdul

#56743

Illinois State Prison,

PO Box 50000

Colby, IL

Walter Hey #58210

Illinois State Prison,

PO Box 50000

Colby, IL

VERIFICATION

I have read the foregoing complaint and hereby verify that the matters alleged therein are true, except as to matters

alleged on information and belief, and, as to those, I believe them to be true. I certify under penalty of perjury that the

foregoing is true and correct.

Executed at Colby, Illinois on April 9, 2021

Mohammed Abdul,

Mohammed Abdul

Walter Hey

APPENDIX C

Find a blank copy of the FTCA form on the following two pages.

130 | APPENDICES

APPENDIX D

More Legal Forms and Information

Most of the legal forms that we discuss in this handbook can be found within the chapters. However, we have also placed

some additional forms in this appendix. Remember that these forms are examples and may not apply to your

circumstances.

1. Motion for Leave to File an Amended Complaint

Below is one example of a Motion for Leave to File an Amended Complaint. It is an example where the plaintiff wants to

add a new defendant. You could also file this type of motion if you want to amend your complaint to include more or

different facts, or add a new legal claim.

IN THE UNITED STATES DISTRICT COURT FOR THE

__________________________________________________x

Name of first plaintiff in the case, et al.,

Plaintiff[s],

Name of first defendant in the case, et al.,

Defendant[s]

__________________________________________________x

Civil Action

No._____

MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

Plaintiff [your name], pursuant to Rules 15(a) and 19(a), Fed. R. Civ. P., requests leave to file an amended complaint adding a

party.

1. The plaintiff in his original complaint named a John Doe Defendant.

2. Since the filing of the complaint the plaintiff has determined that the name of the John Doe defendant is [defendant’s

name]. Paragraphs [paragraphs in which you refer to John Doe] are amended to reflect the identity and the actions of Officer

[defendant’s name].

3. This Court should grant leave freely to amend a complaint. Foman v. Davis, 371 U.S. 178, 182 (1962).

[Date]

Respectfully submitted,

[Plaintiff’s name]

[Plaintiff’s Address]

131 | APPENDICES

2. Declaration for Entry of Default

IN THE UNITED STATES DISTRICT COURT FOR THE

__________________________________________________x

Name of first plaintiff in the case, et al.,

Plaintiff[s],

Name of first defendant in the case, et al.,

Defendant[s]

__________________________________________________x

Civil Action

No.___

DECLARATION FOR ENTRY OF DEFAULT

[Your name], hereby declares:

I am the plaintiff herein. The complaint herein was filled on the [day you filed the complaint] of [month, year you filed the

complaint].

The court files and record herein show that the Defendants were served by the United States Marshal with a copy of

summons, and a copy of the Plaintiffs’ complaint on the [day of service] of [month, year of service].

More than 20 days have elapsed since the date on which the Defendants herein were served with summons and a copy of

Plaintiffs’ complaint, excluding the date thereof.

The Defendants have failed to answer or otherwise defend as to Plaintiffs’ complaint, or serve a copy of any answer or any

defense which it might have had, upon affiant or any other plaintiff herein.

Defendants are not in the military service and are not infants or incompetents.

I declare under penalty of perjury that the foregoing is true and correct. Executed at (city and state) on (date).

________________________

Signature

132 | APPENDICES

3. Motion for Judgment by Default

You only need to submit this Motion if the court clerk enters a default against the defendant.

IN THE UNITED STATES DISTRICT COURT FOR THE

__________________________________________________x

Name of first plaintiff in the case, et al.,

Plaintiff[s],

Name of first defendant in the case, et al.,

Defendant[s]

__________________________________________________x

Civil Action

No._____

MOTION FOR DEFAULT JUDGMENT

Plaintiffs move this court for a judgment by default in this action, and show that the complaint in the above case was filed

in this court on the [date filed] day of [month, year filed]; the summons and complaint were duly served on the Defendant,

[Defendants’ names] on the [date served] day of [month, year served]; no answer or other defense has been filed by the

Defendant; default was entered in the civil docket in the office of this clerk on the [day default entered] day of [month, year

default entered]; no proceedings have been taken by the Defendant since the default was entered; Defendant was not in

military service and is not an infant or incompetent as appears in the declaration of [your name] submitted herewith.

Wherefore, plaintiff moves that this court make and enter a judgment that [same as prayer for relief in complaint]

Dated: ________

________________________

[your signature]

Plaintiffs’ Names and Addresses

4. Notice of Appeal

IN THE UNITED STATES DISTRICT COURT FOR THE

__________________________________________________x

Name of first plaintiff in the case, et al.,

Plaintiff[s],

Name of first defendant in the case, et al.,

Defendant[s]

__________________________________________________x

Notice of Appeal

Notice is hereby given that [ name all parties taking the appeal], plaintiffs in the above-named case, hereby appeal to the

United States Court of Appeals for the _________ Circuit (from the final judgment) (from an order (describing it)) entered in

this action on the __________ day of ______, 20___

Dated: ________

________________________

[your signature]

Plaintiffs’ Names and Addresses

133 | APPENDICES

APPENDIX E

State Supplements: Grievance

Procedures, PREA Rules, & LGBTQ+

Policies applicable in Certain States

With the 2021 Edition of the JLH, we included state specific

information for the first time. As you will see, we only have

information about nine states so far, but we hope to add

more information in future updates. If you want to share

information with us about how things work in your State,

please write to the Center for Constitutional Rights, so

future editions of the Handbook can be more complete.

Among other State-specific information shared below, one

of the issues we have focused on is the prison grievance

system. That’s because completing your prison’s grievance

process is very important. If you don’t complete all steps,

your lawsuit could be dismissed.

General Reminders

> Keep copies of your grievances if possible.

> Some grievance forms have “receipts” that are for you

to keep. Make sure you keep these if available.

> Written documentation of what happened is always

helpful!

ALABAMA

Last updated: January 2021

Overview of the Grievance Procedure

There is no clear grievance policy for people incarcerated

by the Alabama Department of Corrections (“ADOC”) as it

currently stands. On October 7, 2014, ADOC responded to

an open records request for their grievance procedure by

stating that, “Alabama does not have an inmate grievance

system in place.”

This is very confusing, because an Alabama regulation states

that in order to file a lawsuit for any grievance, you are

required to exhaust all available grievance procedures the

prison provides. Ala. Code 1975 § 14-15-4(b). Therefore, we

recommend you carefully review your “inmate handbook”

AND ask ADOC staff for information on how the grievance

process works at your facility, as well as a copy of any forms

that you are required to use when filing a grievance. If you

receive information, be sure to follow each step of the

process (including appeals) and make a note of any deadlines.

If you’re told that no grievance process or forms exist, ask

another staff member the same questions to get confirmation.

Write down all the details about your efforts to get a

grievance form so you can argue that exhaustion was futile if

need be.

Sexual Assault & PREA

You can report sexual abuse or sexual harassment several

different ways:

> by calling the PREA hotline (dial 91 on the prison

phone)

> depositing a complaint to speak with the PREA

Compliance Manager in the PREA drop box (there

should be a drop box located in every ADOC facility)

> reporting the incident to a staff member verbally

> making a request in writing to the ADOC Investigations

and Intelligence Division

> reporting through a third party (i.e., a friend or a legal

organization).

If you are assaulted or witness an assault, consider

reporting it immediately and preserving potential evidence

like DNA samples and the clothes you wore during the

assault.

DOC Policies Applicable to LGBTQ Prisoners

Gender Dysphoria Healthcare Policy

The ADOC has an official policy of providing medically

necessary treatment to people with diagnoses of gender

dysphoria, which is codified in ADOC Administrative

Regulation (“AR”) 637, entitled “Gender Dysphoria.”

Diagnoses for gender dysphoria will be made by medical

professionals within your facility or by contracted medical

professionals. This will occur whether you self-identify as

having gender dysphoria or if it is identified by staff

members upon admission to the ADOC, PREA intake

procedures, or observation of symptoms while housed in

an ADOC facility. There are several steps and avenues to

the process of identification and diagnosis of gender

dysphoria, all of which are explained in AR 637.

AR 637 provides opportunities to initiate hormone

treatment or continue hormone treatment that began prior

to incarceration upon review and verification of your prior

treatment records. Anyone who is on a hormone treatment

plan will be placed on both the medical chronic care

treatment list and the mental health caseload. This allows

the Gender Dysphoria Management and Treatment

Committee (“GDMC”) to review your treatment plan at

least twice a year to determine if medications or treatment

plans need to be adjusted.

134 | APPENDICES

State Policy on Name Changes

Alabama’s policy on name changes is very restrictive. You

cannot legally change your name if you are currently facing

criminal charges, or while you are involved with a court

case. You also cannot legally change your name if you have

been convicted of a felony or crime of moral turpitude.

“Moral turpitude” means you were convicted of one of a

long list of crimes such as murder, manslaughter, assault,

rape, drug trafficking or others found under the Definition

of Moral Turpitude Act, HB 282. If you have been convicted

of a sex offense, the only time you can change your name

is if “the change is incident to a change in the marital status

of the sex offender or is necessary to effect the exercise of

the religion of the sex offender.” Ala. Code 1975 § 15-

20A-36(a). People who do not fit into these categories can

change their name by filing a petition with your local

probate court. (A probate court it a court that primarily

deals with wills and estates). You will have to pay a filing

fee that varies in price depending on the probate court. To

find your local probate court, we recommend you ask

prison staff for information.

Unfortunately, even if you successfully change your name

while incarcerated, prison staff can continue to use your

old name. Your old name must also appear first in all your

records and correspondence, followed by your new legal

name. See AR 448.

CALIFORNIA

Last updated March 2021

DOC Policies Applicable to LGBTQ Prisoners

Thanks to the Transgender Respect, Agency, and Dignity

Act, Senate Bill 132, which went into effect in January

2021, the California Department of Corrections and

Rehabilitation (“CDCR”) is now required to house

transgender people in men’s or women’s facilities based on

their own safety preferences. CDCR is also required to

search and pat down transgender people based on their

gender identity, and to respect their pronouns. Although

CDCR can deny placement requests based on safety

reasons, all denials must be placed in writing.

FLORIDA

Last updated: January 2021

Overview of the Grievance Procedure

Depending on the type of grievance you plan to file, you

may be required to file an “informal grievance” before you

file your “formal grievance.” If your grievance is about

sexual abuse, an emergency situation, the return of

incoming mail, a violation of the Americans with Disabilities

Act, placement in close management, gain time, medical

care, reprisal, bank issues, or disciplinary action, you do not

need to file an informal grievance, just file a formal

grievance within fifteen days of the incident. (NOTE: there

is no time limit for filing a grievance related to sexual

abuse.) The full list of grievances that are exempt from this

informal grievance process is articulated in Fla. Admin.

Code r. 33-103.006(3).

Informal Grievance Process

For any other type of grievance, the Florida Department of

Corrections (“FDOC”) requires you to file an informal

grievance within twenty days after the incident occurred.

See Fla. Admin. Code r. 33-103.011(1)(a).

To file an informal grievance, use Form DC6-236, Inmate

Request, and write “Informal Grievance” on the form. Fill it

out and put it in the locked grievance box available in your

open population or special housing unit. Be sure to sign the

form. A grievance coordinator should respond to your

request within fifteen days, and will either approve, deny,

or return the grievance without action. After you get the

grievance coordinators’ response, or if fifteen days pass

without a response, you have fifteen days to start the

formal grievance process.

Formal Grievance Process

Your formal grievance can only address one issue or

complaint. To file a formal grievance, complete a Form

DC1-303, Request for Administrative Remedy or Appeal,

fill out your identifying information and state what

happened. If you also filed an informal grievance, attach

the informal grievance form and response to prove you

completed that step. You must also date and sign the form.

Put your grievance in the locked grievance box available in

your open population or special housing unit. You should

receive a decision within twenty days of its receipt. The

response will state whether the grievance was approved,

denied, or merely returned, and provide the reasons why.

If your grievance is denied or you do not receive a reply by

the agency’s deadline, you should immediately file an

appeal by filling out a form DC1-303, Request for

Administrative Remedy or Appeal, and attaching your

grievance. Mail the completed form to:

Bureau of Policy Management and Inmate Appeals

501 South Calhoun Street, Tallahassee, FL 32399-2500

The appeal form must be received within fifteen calendar

days from the date you got the response to your formal

grievance, so mail your appeal as soon as possible to allow

time for processing and mailing.

Sexual Assault & PREA

You can report sexual abuse or sexual harassment by filing

a grievance yourself or through a third party. A third party

can be another prisoner, a staff member, or an individual

outside of the FDOC who can file on your behalf. See Fla.

Admin. Code r. 33-103.006(3)(j). You can also report an

incident to a staff member verbally. The FDOC suggests

that reports should be made “immediately” for the sake of

ensuring your safety and the integrity of potential

evidence, but you are not required to submit either an

informal or formal grievance within a specific timeframe. If

a third party is filing the grievance on your behalf, they can

only do so by filling out the DC1-303, Request for

135 | APPENDICES

Administrative Remedy or Appeal and note that it is for a

sexual abuse grievance.

FDOC may claim an extension of time of up to seventy

days to respond to a PREA grievance if it believes that the

normal response requirements will be insufficient to

properly investigate the grievance. If this is the case, then

you will be notified of the extension and a date by which

to expect the decision in writing. If, however, it is an

emergency grievance and you express your belief that you

are subject to a substantial risk of imminent sexual abuse,

the FDOC must respond within forty-eight hours from the

receipt of the grievance, and a final decision determining

whether or not you are in substantial risk of imminent

sexual abuse will be issued within five calendar days of the

receipt of the grievance.

DOC Policies Applicable to LGBTQ Prisoners

Gender Dysphoria Healthcare

According to FDOC Policy 403.012, Identification and

Management of Inmates Diagnosed with Gender Dysphoria,

transgender people will be evaluated to confirm their gender

dysphoria diagnosis and will then be transferred to an FDOC

facility specially designated to treat gender dysphoria. Once

there, you will be eligible to receive treatment including

hormone therapy, gender-affirming undergarments and

canteen items, and allowances such as wearing make-up (in

the housing unit only) and growing long hair. You can also

use your preferred titles (Ms., Miss, Mr.) and pronouns in

FDOC correspondence, and update your records to reflect a

new legal name if you obtain a court-ordered name change

that states “change all records.” FDOC encourages its staff

to use gender-neutral titles (such as “Inmate Smith”) to

prevent misgendering. FDOC also offers group and

individualized therapy to transgender people at its gender

dysphoria treatment facilities.

State Policy on Name/Gender Marker Changes

In Florida, if you have been convicted of a crime that could

result in a prison sentence, you will not be able to change

your name unless you receive a pardon or successfully

apply for a full restoration of your civil rights. See Fl. Const.

Art. 10 § 10; F.S.A. § 68.07; F.S.A. § 944.292(1). For

information on the restoration process, visit

https://www.aclufl.org/en/restore-your-rights or

https://www.fcor.state.fl.us/restoration.shtml.

If your civil rights have been reinstated, you can file a

petition to change your name with the Chancery Court in

the county where you reside. See F.S.A. § 68.07(1). You

must pay for fingerprints and a background check that will

look at your criminal history on both the state and national

levels. See F.S.A. § 68.07(2). If you are unable to afford the

fees, you can apply for a waiver; you can request the form

for this at the court, but you will need to pay a $25-dollar

administrative fee.

GEORGIA

Last updated: January 2021

Overview of the Grievance Procedure

The Georgia Department of Corrections (GDC) has a

mandatory two-step grievance process unless your

complaint relates to a “non-grievable” issue. Non-grievable

issues include: (a) disciplinary actions, (b) sexual assault or

abuse, (c) housing placements and transfers, (d) involuntary

assignments to Administrative Segregation (which has its

own grievance procedure under GDC SOP 209.06), (e)

healthcare co-pay charges, (f) work assignments or security

classifications, and (h) religious accommodation requests.

If your problem is a non-grievable issue, you do not need

to file a grievance to bring a lawsuit later on. But if you

believe you experienced any of the above as a form of

harassment or retaliation, you should still file a grievance.

GDC’s Two Step Grievance Process

Ordinarily, Georgia has a two-step process for exhausting

grievances. However, in rare cases, a third step will apply.

> In Step 1, you must submit an initial grievance within

ten days of an incident unless you have good cause, i.e.,

illness, court dates, or another “unusual circumstance”

that prevented you from filing a grievance on time. The

Warden will have forty days to respond but can request

a one-time ten-day extension.

> For Step 2, you must file a Central Office Appeal of

your grievance within seven days of receiving a

response from the Warden OR once the time for the

Warden to respond has expired. To file a Central

Office Appeal, use the Grievance Appeal to Central

Office Form. The Commissioner or their assigned

reviewer has 120 days to respond with a decision.

Finally, in cases where the Commissioner determines that

your grievance should have been accepted rather than

rejected, they will return it to the Warden for investigation.

The Warden must deliver a decision to you based on this

new investigation within fifteen days. If you are not

satisfied with the second grievance response you receive

from the Warden, you must file a second Central Office

Appeal within seven days of the Warden’s decision.

How to File Grievances

You can file your grievances and appeals by filling out a

hard copy form and submitting to a grievance counselor, or

by using a J-Pay Kiosk or Tablet. Other prisoners cannot

file a grievance on your behalf. If you submit a hard copy

grievance, you should receive a receipt from your

counselor as proof that you filed the grievance. Each

grievance must be limited to a single incident or issue (i.e.,

denial of healthcare), and you may not use extra pages,

profanity, or slurs, or else it will be rejected.

You can only have two active grievances at a time, unless

one of your grievances is an Emergency Grievance (i.e.,

grievance reporting significant injuries, Americans with

Disabilities Act (ADA) violations, or important issues of prison

136 | APPENDICES

security or administration). Emergency Grievances will be

handed over to the Duty Office and must be answered

within forty-eight hours, instead of forty days. However, if

an officer determines that your grievance is not an

emergency, you will have ten days to file a new ordinary

grievance that GDC must answer within forty days.

If you have more than the allowable number of grievances,

you can decide which one you wish to drop and which one

you want to keep open by speaking with a Grievance

Coordinator.

Sexual Assault & PREA

Georgia has detailed policies on the Prison Rape Elimination

Act (PREA) and the protection of transgender, intersex, and

gender nonconforming people in custody. See GDC SOP

208.06. In 2019, Georgia also released a new policy on the

treatment of transgender and intersex prisoners, GDC SOP

220.09, Classification and Management of Transgender and

Intersex Offenders. According to these policies, GDC is

banned from assigning trans people to gender-specific

facilities based solely on their anatomy. Instead, officials

must decide whether to place transgender people in male

or female facilities on a case-by-case basis, giving “serious

consideration” to the individual’s own views on safety.

Transgender people also have a right to shower privately

away from others, and body cavity searches are restricted.

Strip-searching transgender or intersex prisoners to

determine their sex is prohibited, and making derogatory

comments about transgender people’s gender identity is

also banned. GDC staff are also required to attend training

on how to communicate with LGBTQ+ people in a

respectful and professional manner, and are instructed to

address transgender people using their preferred pronouns

or their last name. SOP 220.09.

GDC states that it has a zero-tolerance policy on sexual

harassment and assault. You can report sexual abuse,

harassment, and retaliation verbally, or in writing, through

the prison PREA hotline by dialing *7732, or by mail to the

Department Ombudsman Office. If you want to remain

anonymous when reporting, you can write to the State

Board of Pardons and Paroles, Office of Victim Services, 2

Martin Luther King, Jr. Drive, S.E. Balcony Level, East

Tower, Atlanta, Georgia 30334. You can also report on

behalf of someone else, as a third party. Third party

reports can be made to the Ombudsman’s Office by calling

(478) 992-5358 or writing to the State Board of Pardons

and Paroles address given above.

DOC Policies Applicable to LGBTQ+ Prisoners

Gender Dysphoria Healthcare

After a ground-breaking case involving the serious

mistreatment of and denial of medical care to a

transwoman in a men’s prison (Diamond v. Owens, 131 F.

Supp. 3d 1346 (M.D. Ga. 2015)), Georgia changed its

official policy on gender dysphoria healthcare, Under GDC

SOP 507.04.68, Management and Treatment of Offenders

Diagnosed with Gender Dysphoria, GDC will provide

individualized medical and mental health treatment to

people with gender dysphoria, including hormone therapy,

though you are entitled to other necessary treatment as

well. You can also request gender-affirming undergarments

and hygiene products. The Statewide Medical Director and

Statewide Mental Health Director must approve every

treatment plan or denial of treatment, and treatment plans

will be assessed on a regular basis and updated when

needed.

State Policy on Name/Gender Marker Changes

Name changes in Georgia are controlled by O.C.G.A. § 19-12-

1—19-12-4, and O.C.G.A. § 31-10-23(d). Georgia does not

restrict name changes for people with criminal convictions,

and in a case called In re Feldhaus, 340 Ga. App. 83 (Ga. Ct.

App. 2017), a Georgia appeals court affirmed that transgender

name changes are legitimate and permissible.

The name change process is just complicated, which makes

it hard to complete in prison. To change your name in

Georgia, you must fill out four separate forms: a “Petition,”

“Verification,” “Notice of Petition,” and “Case Filing

Information” forms. These forms might be found in the

Clerk’s Office of your county or can be found online. These

forms must be notarized and then filed at the Superior

Court Clerk’s Office. After filing, you must arrange for

publication of your name change in your county’s official

legal publisher. After waiting for the publication period to

be complete, you schedule and attend a final court hearing

where the judge will issue the final order on your name

change. The last step is to file the final order and receive a

certified copy, after which the name change is complete.

In order to change your gender marker on driver’s licenses

or identification cards in Georgia, you must submit either a

court order or a physician’s letter which certifies your

gender change. These instructions can be found on the

Department of Driver Services website. Birth certificate’s

gender markers may be changed if you are able to acquire

a court order which certifies that you have received gender

confirmation surgery.

LOUISIANA

Last updated: January 2021

Overview of the Grievance Procedure

While the Louisiana Department of Public Safety and

Corrections (“LA DPS&C”) asks you to speak with staff

informally if you have a grievance, this is not required. You

can start a formal grievance through the Administrative

Remedy Procedure (ARP) by filing a Request for

Administrative Remedy (Form B-05-005-ARP-1) or writing a

letter to the Warden. You must file your grievance within

ninety days after an incident occurs, but there is no time

limit for filing a grievance about sexual assault. Time limits

may also be waived depending upon the circumstances, so if

the agency’s deadline has passed, you should file a grievance

anyway. If you file your grievance as a letter, you should

include the phrase “This is a request for administrative

remedy” or “ARP.” Once the request is screened and

accepted by an ARP Screening Officer, your grievance goes

through a two-step process, detailed below:

137 | APPENDICES

> Step 1: Prison staff are required to review your

grievance and respond within forty days from the date

the request is received. If your grievance is about

sexual assault, they must respond within five days

from the date the request is received. The Warden

may request permission for an extension of up to five

days; if the extension is granted, you must be notified

in writing. The Warden will provide a response on a

First Step Response Form.

> Step 2: If your grievance is denied or you do not

receive a reply by the agency’s deadline, you must

file an appeal within five days. In the space provided

on the First Step Response Form, explain why you are

dissatisfied and requesting the appeal. Completed

appeals should be submitted to your ARP Screening

Officer. You should receive a final decision from the

Secretary of the DPS&C or its designee within forty-

five days of the ARP Screening Officer’s receipt of

your request.

DOC Policies Applicable to LGBTQ Prisoners

At the time of publication, Louisiana did not have an

express policy on gender dysphoria treatment and care.

However, as Section I Part V explains, transgender people

incarcerated in LDOC have a Constitutional right to

receive hormone therapy and other necessary treatments,

regardless of whether a formal policy exists.

Sexual Assault & PREA

You can report sexual assault, sexual misconduct, or sexual

harassment to any staff member verbally or in writing.

Upon the reporting of such allegations, the staff member

must immediately notify their supervisor who must

complete an Unusual Occurrence Report. You can also use

the ARP as a way to report any sexual assault, and no time

limit or requirement of exhaustion of more informal

grievance remedies will be imposed. Third parties such a

friends, family members, and outside advocates can also

report an incident by notifying the warden’s office where

you are incarcerated. If you make a PREA report within

seventy-two hours of your assault happening, you should

be escorted to the infirmary for the obtainment of

evidence, as well as assessment and testing for sexually

transmitted diseases. If the alleged abuser is a staff

member, contact between you and the staff member is

prohibited without approval from the Unit Head.

State Policy on Name/Gender Marker Changes

In Louisiana, you must complete all prison time, probation,

or parole you were sentenced to before you can change

your name. See LSA-R.S. 13:4751(D)(1). However, if you

have ever been convicted for a “crime of violence,” your

name change petition will be denied, no matter how long

ago you completed your sentence. See LSA-R.S.

13:4751(D)(2). A “crime of violence” can be any of over

fifty different offenses, such as murder, rape, carjacking,

burglary, and many others, which are enumerated in LSA-

R.S. 14:2(B).

If you are not serving a sentence for a felony conviction

and there are no “crimes of violence” on your record, then

you can change your name by filing a petition with the

district court of the parish in which you were sentenced.

See LSA-R.S. 13:4751(B). You will have to pay a filing fee

for your petition that varies from parish to parish, with

some fees being under $200 and some being over $350.

See LSA-R.S. 13:4755.

If you cannot afford the filing fee, you can ask the court to

waive it by filing an affidavit asking to proceed “in forma

pauperis,” meaning “file as a poor person.” If your

application is approved, you will be allowed to proceed

with your case without paying the filing fees in advance. At

the end of the case, the judge will determine whether you

can afford to pay anything towards the court fees, and, if

so, how much you have to pay. However, if you are in

prison when you file your application to proceed “in forma

pauperis” you may have to pay some advance costs for the

name change case if you have some assets. The court will

tell you how much.

MISSISSIPPI

Last updated: January 2021

Overview of the Grievance Procedure

Mississippi has a two-step process for exhausting

administrative remedies.

> Step 1: Initial Grievance. First, file a grievance within

thirty days of the incident you want to complain about

using the printed forms provided by the Administrative

Remedy Program (“ARP”). However, if you are found

guilty in a disciplinary hearing, you have fifteen days

to appeal the decision in writing to the ARP Director.

Your initial complaint should explain what happened,

including who was there, when it was, where it was,

and include the words “This is a request for an

administrative remedy.” Carefully follow all

instructions, and be sure to address only one incident

in each grievance. Submit your completed grievance to

the ARP along with an Inmate Legal Assistance

Program request form, which you can request from

the tower officer in your housing unit. The ARP has

ninety days to respond to your initial complaint. If the

ARP rejects your grievance for a technical reason, or

because your complaint is not clear or you have

attached too much information, you have five days to

revise your grievance and submit it again.

> Step 2: Appeal. Second, file an appeal within five days

if your Step-One grievance is denied or you do not

receive a reply by the agency’s deadline, using Form

ARP-2. Explain why you are appealing, but you do not

have to describe the incident you are complaining

about again. You should use the envelope you were

given with the response to mail this form. If you need

an extension at any time, you can request one by

writing to the ARP Director.

138 | APPENDICES

Emergency Grievances:

If you need to make an emergency complaint because going

through the regular timeline would put you at a substantial

risk of personal injury or cause you serious and irreparable

harm, you can send an emergency request to the ARP

Director, who will review it immediately. You can also file

your complaint directly with the ARP Director if you believe

you would be harmed if your complaint became known

about at your facility. If the ARP Director believes your

complaint is not an emergency, you will have five days to

resubmit your request through the regular channels.

Sexual Assault & PREA

You can report sexual assault, sexual harassment, or sexual

misconduct by calling a dedicated PREA tip line from the

prison phone: lift the handset, select your language

preference, dial the tip-line number for your facility (either

9999#, 9909#, or #99), and leave a voice message. Third

parties (like your friends or family members) can access the

tip line by calling 1-601-359-5600. You can also report an

incident to a staff member, either verbally or in writing.

Additionally, you can report sexual abuse and get

confidential support services such as counseling by writing

to the Mississippi Coalition Against Sexual Assault at P.O.

Box 4172, Jackson, MS 39296 or calling 1-888-987-9011.

DOC Policies Applicable to LGBTQ Prisoners

Gender Dysphoria Healthcare

At the time of publication, Mississippi did not have an

express policy on gender dysphoria treatment and care.

However, transgender people incarcerated in MDOC have a

Constitutional right to receive hormone therapy and other

necessary treatments, regardless of whether a formal policy

exists.

State Policy on Name/Gender Marker Changes

There is no statute or case law in Mississippi that limits the

rights of people in prison to change their names. However,

the name-change petition forms ask people to certify that

they do “not have any outstanding judgments,” have “never

been convicted of a crime, and are “not involved in any

pending legal actions.” This may mean that currently and

formerly incarcerated people will face challenges when trying

to change their name. However, you can still try to initiate a

name change by petitioning the chancery court in the county

where your facility is located. See Miss. Code Ann. § 93-17-1.

NEW YORK

Last updated: January 2021

Overview of the Grievance Procedure

New York State’s grievance process has three main steps.

See Part 701 of Title 7 of the N.Y. Codes, Rules and

Regulations (NYCCR); and DOCCS Directive No. 4040

released in 2016.

> Step 1 – Initial Grievance & IGRC Decision: You must

file and submit an Inmate Grievance Complaint (Form

#2131 or plain paper) to the Inmate Grievance

Resolution Committee (IGRC) within twenty-one days

of an incident. However, if your complaint is about

sexual assault, no deadline applies. Your complaint

should include the following information:

+ Your name

+ Department Identification Number

+ Housing unit, program assignment, and any other

identifying information

+ A short, specific description of the problem and the

remedies you are requesting; and

+ Details of the actions you have already taken to try to

resolve the complaint, including people you have

contacted and responses you have received.

The IGRC will schedule you for a hearing within

sixteen days after you filed your complaint unless

they’re able to resolve it informally. At the hearing,

you will have an opportunity to appear at the hearing

and present relevant information, comments, or

evidence in support of your grievance. You can also

ask any witnesses who have relevant information to

come to the hearing and speak. The IGRC acts as the

judge. The hearings are governed by NYCCR Section

701.5(b)(2). If you object to any of the prisoner

representatives on the IGRC, you can say so and these

representatives will not participate in the process.

NYCCR Section 701.6(c). The IGRC will discuss your

grievance in private and make a decision. NYCCR

Section 701.5(b)(3). Their decision must be

communicated to you in writing with reasons stated

within two working days. If their decision requires the

Superintendent or Central Office to take action, then

their decision will be referred to as a

“recommendation” and will be referred to the

Superintendent.

> Step 2 – Appeal to the Superintendent: If your Step

One grievance is denied, you have seven days to

appeal. You must file an appeal to the Superintendent

by submitting a Form 2131 with the Grievance clerk.

The Superintendent will determine whether your

grievance is a Departmental or Institutional issue.

Departmental issues are complaints that ask DOCCS to

change one of its policies or directives. These

grievances will be forwarded to the Central Office

Review Committee (CORC) and you will receive notice

that your complaint has been forwarded. If the

grievance is an Institutional issue, the Superintendent

will provide a written response within twenty calendar

days. If you have not received a decision within forty-

five days, you may appeal to the CORC.

> Step 3 - Appeal to the Central Office Review

Committee (CORC): If your Step 2 grievance is denied

or you do not receive a reply within forty-five days,

file an appeal to the CORC using Form 2133,

regardless of whether your complaint was an

Institutional or Departmental issue. Appeals must be

139 | APPENDICES

filed with the Grievance Clerk within seven days of

receiving the Superintendent’s response, or the

expiration of the agency’s deadline. CORC will review

the decision and send you its decision within thirty

days after they received the appeal. If you have not

received a decision within forty-five days of filing your

appeal, you should send a letter to the IGP supervisor

to make sure your appeal was filed and received by

the CORC.

Sexual Assault & PREA

You can report sexual abuse, sexual harassment, and

retaliation in connection with one of these matters by

talking to staff at your facility, writing to the

Superintendent, a member of the facility Executive Team,

the Central Office, the DOCCS Office of Special

Investigations (OSI) or to the DOCCS PREA Coordinator.

The address and hotline for OSI is listed below.

Office of Special Investigations

Department of Corrections and Community Supervision

State Office Campus, Building 2

1220 Washington Avenue, Albany, New York 12226-2050

(518) 457-2653 | Hotline: 1-844-OSI-4NYS

You can also have a third party file a report on your

behalf. This can be done by contacting your facility’s

Superintendent or, if after hours, the Watch Commander.

The twenty-one-day time limit for filing grievances does

not apply to sexual harassment or abuse complaints.

Victims of sexual abuse will have access to forensic

medical examinations at an outside facility and these

examinations will be performed by Sexual Assault Forensic

Examiners (SAFEs) or Sexual Assault Nurse Examiners

(SANEs) whenever possible.

DOC Policies Applicable to LGBTQ Prisoners

Gender Dysphoria Healthcare

People who receive a gender dysphoria diagnosis in

custody or prior to their incarceration will be eligible to

receive hormone therapy according to DOCCS Division of

Health Services Policy No. 1.31, which was updated in

2018. You can request a screening and treatment at any

point during your incarceration, and your FHS1 Problem

List will be updated. DOCCS cannot discontinue your

hormone therapy unless it is medically urgent or the

DC/CMO gives approval for it to end.

If you have a gender dysphoria diagnosis, you can also

request gender-affirming underwear through your facility’s

Health Unit. Once approved, the Deputy Superintendent

for Administration at your facility will order your

undergarments and issue you a medical permit to possess

and wear these garments. Note: you cannot receive

gender-appropriate undergarments through the Package

Room or personal purchase.

There is no formal policy that describes your rights to

receive gender affirming surgeries. However, once you

have a gender dysphoria diagnosis, you can ask your

primary health care provider about your surgery options.

Your primary provider will need to get permission from the

DC/CMO, and you will likely be given an opportunity to

have a consultation with an outside specialist. If you

experience any significant delays during this process, you

should ask for the reasoning for the delay. There is no set

timeline that DOCCS must follow for surgery

consultations, but you can report unreasonable delays

through the grievance process.

State Policy on Name/Gender Marker Changes

New York allows incarcerated people and people on parole

to seek name changes by submitting a notarized Petition,

explaining why you want to change your name, an Order,

and Exhibits like your birth certificate (if you’re a New York

State Resident) and your criminal record to the NYS

Supreme Court in the county where you are located.

However, people who have been convicted of a violent

offense also have to serve copies of their Petition to the

District Attorney of every county where you have been

convicted of a violent felony, and each court where you

were sentenced. For a list of violent felonies, see New

York Penal Law § 70.02.

For a complete guide to the process and template letters

and forms, you can write to:

Sylvia Rivera Law Project,

Attn: Prisoner Justice Project,

147 W. 24th Street, 5th Floor, New York, NY 10011

The name change process for incarcerated individuals can

take anywhere between three and twelve months,

depending on how quickly you can obtain the supporting

documentation described below. You will also be asked to

pay a filing fee of $210 in most upstate counties or $65 in

New York City. You can try to have these fees waived by

filing an “Affidavit in Support of Application Pursuant to

C.P.L.R. 1101(f) for Reduced Filing Fees” in which you

state your income and reasons for needing a waiver.

However, most counties do not waive their filing fees.

Hearings:

New York courts generally rule on name changes without

having an in-person hearing. However, if you receive a

letter from the court asking you to appear for a hearing,

you should be prepared with short answers about why you

want your name change. You might hear the

counterargument that your name change should not be

granted because it will create record-keeping confusion,

but you can argue that justification is not valid.

Publication:

After your name change has been granted, you will need to

publish your new name in a newspaper. Newspapers are

accustomed to these requests. You can write to a

newspaper, explain what you need, and they will send you

an affidavit of publication after the notice appears. You will

have sixty days from the date of the order to complete

publication and ninety days to file proof of this publication.

This requirement generally cannot be waived for

incarcerated people and especially not for those who have

been incarcerated for a violent felony. You will likely need

140 | APPENDICES

to publish this Notice in your county of incarceration and

perhaps also in the county of your conviction.

Once you have completed the above steps, you should

request at least one certified copy of the name change

order from the clerk of the court so you can save it for

your records.

NORTH CAROLINA

Last updated: January 2021

Overview of the Grievance Procedure

North Carolina has a three-step process for exhausting

grievances. See Chapter G, Section .0300 of the North

Carolina Department of Public Safety policies and

procedures.

> Step 1: Initial Grievance. First, submit a written

grievance using Form DC-410 to a designated screening

officer or any other staff member within ninety days of

the incident you want to complain about. This deadline

does not apply to sexual abuse or sexual harassment

complaints. After you submit your grievance, a

Screening Officer will review it and decide whether to

accept it for processing or reject it within three days.

Your grievance may be automatically rejected if it

challenges a matter already decided by a court,

challenges a disciplinary action, is outside of the ninety-

day time limit, or if the language in your grievance is

profane or vulgar. If the screening officer rejects your

grievance, they have to tell you in writing and give you

the opportunity to resubmit the grievance on a new

form.

If the screening officer determines that your Step 1

grievance can be considered, then it moves forward to

an investigation. You should receive a written

response to your grievance within fifteen days of its

acceptance. If you do not receive a response to your

grievance within fifteen days, you should file a new

grievance stating you are treating the non-response as

a denial and will therefore appeal that denial and

submit an appeal through the Step 2 process.

> Step 2: First Appeal. If your grievance is denied OR you

do not receive a reply by the agency deadline, you must

appeal within twenty-four hours by submitting a Form

DC 410 to the Facility Head. The Facility Head will then

start an investigation which must be completed within

fifteen days. You should receive a written response

within twenty days from the day you were informed

your grievance was accepted. The Facility Head may then

investigate your grievance or assign a staff member to

investigate. If your grievance is about the Facility Head

themselves, then they will send your grievance to the

Region Director to complete this step of review.

> Step 3: Final Appeal. If you are not satisfied with the

Step 2 decision or do not receive a response by the

deadline, you must submit your appeal to the Inmate

Grievance Examiner (IGE) within twenty-four hours. If

you do not submit your appeal within twenty-four

hours, you will lose your right to appeal the earlier

decisions. You should be informed of the final decision

on your grievance within fifty days of the acceptance

of your grievance, although the prison may extend its

response time by a maximum of seventy days if they

notify you in writing. Once you have received your

final grievance response at Step 3, you have

completed this grievance process and you may move

forward with a legal claim.

Sexual Assault & PREA

You may report incidents of sexual assault or abuse in a

variety of ways and there is no time limit for when you can

file these complaints. You can use the grievance procedure

listed above at any point and the PREA office at your

facility will be immediately notified. Complaints about

sexual abuse or harassment submitted through the

grievance procedure are not allowed to be instantly

rejected for any reason. Alternatively, you can make a

report to any staff member, call the Department of Public

Safety Communications office at 1-800-368-1985 or the

PREA Administration Office at 919-825-2754.

DOC Policies Applicable to LGBTQ Prisoners

Gender Dysphoria Healthcare

In August 2019, North Carolina released a new policy

called Evaluation and Management of Transgender Offenders

and created Facility Transgender Accommodation Review

Committees (TARC), with representatives from psychiatry,

behavior health, primary health care provider, nursing, and

other medical fields, to determine whether gender

dysphoria treatment and accommodations are needed.

You can ask to be referred to the Facility TARC for a

treatment consultation at any point during your

incarceration, including when you are processed or

transferred to another facility. In addition to hormone

therapy, you may ask for undergarments that match your

gender identity, private showering, special housing

considerations, and hygiene/hair products. During the

individualized consultation, you will be asked to sign an

authorization for release of information so that the facility

may obtain all medical and mental health records and you

will be interviewed by the TARC as well as a licensed

behavioral health clinician. The licensed behavioral health

clinician will ask for input from a staff psychiatrist and then

complete an evaluation.

Hormonal therapy:

If you were receiving hormone therapy immediately before

your incarceration, your hormone therapy will be continued.

The policy states that “Interruption in hormone therapy

should be avoided unless otherwise clinically indicated.” If

you are asking to begin hormone therapy for the first time,

your request will be reviewed by the TARC and the TARC

will submit a recommendation to the Director of Prisons and

Deputy Secretary of Health Services for a final decision.

Their decision must be summarized in writing using the

Form DC-411D. The policy does not state how quickly you

will receive a decision.

141 | APPENDICES

Surgeries:

Any requests for gender affirming surgeries will be

reviewed by the TARC who will then make a

recommendation to the Director of Prisons and Deputy

Secretary of Health Services for a final decision.

State Policy on Name/Gender Marker Changes

To change your name in North Carolina, you must submit

the six documents listed below to the clerk of the superior

court of your county. However, if you are currently

registered as a sex offender, name changes are banned.

1. Petition for Name Change: Your petition must

include: your true name, your county of birth, date of

birth, the full name of your parents as shown on your

birth certificate, the name you want to use, the

results of the criminal background checks, and a

sworn statement as to whether you are a resident in

the county which you are filing your petition and

whether or not you have outstanding tax or child

support obligations.

2. North Carolina State Background Check: To request

a copy, complete a Criminal History Request Form (or

write and request one) and send along with $14 to:

North Carolina State Bureau of Investigation

Criminal Information and Identification Section

Attention: Application Unit – Right to Review

3320 Garner Road, P.O. Box 29500

Raleigh, NC 27626-0500

3. FBI background check: To request copy, fill out an

Applicant Information Form (or write and request

one) and send the form along with $18 to:

FBI CJIS Division – Summary Request

1000 Custer Hollow Road, Clarksburg, WV 26306

4. Affidavit of Character: You will probably need

signed and notarized Affidavits of Character from

two adults who are also residents in your county and

are not members of your family. While most counties

require these affidavits, some do not.

5. Notice of Intent to Change Name form: Before filing

your petition, you will need to fill out a Notice of

Intent to Change Name form and submit it to your

county courthouse to be posted on a bulletin board

for ten consecutive business days. If you have a

legitimate concern for your safety in regard to making

your name change public, you may be exempted from

this requirement.

6. Filing Fee: The filing fees for each county are

different, but $120 is typical. You can request a fee

waiver in most counties but might need to first write

the clerk and ask for a fee waiver form. Once the

materials above have been received, the clerk will

then determine whether there are good and

sufficient reasons to either accept or deny your

petition.

SOUTH CAROLINA

Last updated: January 2021

Overview of the Grievance Procedure

South Carolina has a four-step process for exhausting

grievances that is summarized in SCDC Policy/Procedure

GA-01.12, Inmate Grievance System.

> Step 1 Informal Grievance. First, you must make an

effort to informally resolve your grievance by

submitting a Request to Staff Member Form to an

appropriate staff member within eight working days

of the incident you are complaining about. However,

sexual assault grievances may be filed at any time. If

your grievance concerns criminal activity or a

disciplinary conviction, complete a Form 10-5, Step 1

within five working days of the incident instead.

> Step 2: Formal Grievance. Next, submit a formal

grievance using Form 10-5, Step 1, within eight

working days of receiving the response to your

Request to Staff Member Form. Be sure to describe

the issue you are complaining about, including the

date and time of the incident, and why you believe

you are entitled to relief. Also detail your attempts to

resolve the problem informally and include a copy of

the Request to Staff Member Form. You can file the

grievance by placing the form in one of the dedicated

grievance drop boxes.

The Warden will respond in writing on Form 10-5,

Step 1, within forty-five days of the date the grievance

was formally entered into the system. The Warden will

explain in detail the reasoning behind the decision and

what remedies are recommended. You will be

informed of your right to appeal to the next level. If

you do not receive a response within forty-five days,

you should move to the next step.

> Step 3: Agency Appeal. Next, appeal to the Deputy

Director of Operations by completing Form 10-5a,

Step 2 within five calendar days of your receipt of the

Warden’s response, or expiration of their deadline to

respond. Explain why your appeal should be granted,

and place your completed form in the grievance drop

box. You will receive a response within ninety days.

This will be the department’s final decision in the

matter.

> Step 4: Court Appeal. Finally, submit an appeal to the

South Carolina Administrative Law Court within thirty

days of receiving the department’s final response,

using the Notice of Appeal attached to the

department’s final response, to fully exhaust your

administrative remedies under the PLRA.

142 | APPENDICES

Additional Restrictions:

You are only allowed to file five grievances per month,

including any grievances that are returned unprocessed

because the Inmate Grievance Coordinator has decided the

issue you are complaining about is not grievable. You can

file an emergency grievance if your health, safety, or welfare

is in serious danger and you believe there is a substantial risk

of personal injury or other serious or irreparable harm. This

will be forwarded directly to the Warden, who will respond

within seven working days. If the Warden decides that the

grievance is not an emergency, it will be processed as a

normal grievance instead.

Sexual Assault & PREA

You can file a grievance about sexual abuse at any time

even if the deadline for filing a Step 1 grievance has

passed. You do not need to attempt informal resolution by

filling out a Request to Staff Member form before filing a

grievance about sexual assault. A third party such as

another prisoner, a family member, a friend, or an attorney

can assist you in filing a grievance and can also file on your

behalf; however, you must give written consent to the

grievance being filed on your behalf. You will receive a

final response within ninety days of filing a grievance

regarding sexual abuse, though this can be extended by

another seventy days. If you file an emergency grievance

showing substantial risk of imminent sexual abuse, this

grievance will be immediately forwarded to the Warden

and you will receive a response within five days.

You can also report sexual abuse by calling *22 from any

prison phone, making a complaint to any staff member, or

writing to South Carolina Law Enforcement Division at P.O

Box 21398, Columbia, SC 29221. You can also call a sexual

assault center outside of the prison by calling *63 from any

prison phone. A friend or family member can report sexual

harassment or assault through an Anonymous PREA Tips

form on the South Carolina Department of Corrections’

website.

DOC Policies Applicable to LGBTQ Prisoners

Gender Dysphoria Healthcare

South Carolina Department of Corrections issued a policy

in September 2017 to ensure people with gender

dysphoria receive medically necessary treatment and safe

housing. The policy, which is codified in SCDC

Policy/Procedure GA-06.09, Care and Custody of

Transgender Inmates and Inmates Diagnosed with Gender

Dysphoria, states that gender dysphoria diagnoses will be

made by medical professionals within your facility or by

referral to outside medical professionals. Once diagnosed,

you will be eligible to receive treatment including hormone

therapy and other accommodations.

SCDC GA-06.09 also requires that one’s gender identity

and expression and one’s views about their own health and

safety to be considered when SCDC makes housing

decisions regarding transgender people and people with

gender dysphoria, so that placement in male and female

facilities are each available on a case-by-case basis. You

can also indicate in writing which gender you feel most

comfortable being searched by, and this preference will be

accommodated when possible.

State Policy on Name/Gender Marker Changes

You can change your name by petitioning the family court

in the county where your facility is located. See S.C. Code

Ann. § 15-49-10. You will have to pay a filing fee of $100.

S.C. Code Ann. § 15-49-30; S.C. Code Ann. 8-21-310(C)(1).

Include in your petition your age, your place of residence

and birth, the reason for the change, and the new name

you wish to be known by. S.C. Code Ann. § 15-49-10. You

must attach the following records to the petition or

arrange for them to be provided directly to the court: the

results of a fingerprint and criminal background check

conducted by the State Law Enforcement Division; a

screening statement from the Department of Social

Services indicating whether you are on the Central

Registry of Child Abuse and Neglect; an signed affidavit

stating whether you are under a court order to pay child

support or alimony; and a screening statement from the

State Law Enforcement Division stating whether you are

listed on the sex offender registry. S.C. Code Ann. § 15-49-

20(A). When you request the background check from the

State Law Enforcement Division, you must include a signed

affidavit stating that you have never been convicted of a

crime under a name other than the one you are using to

make the request. S.C. Code Ann. § 15-49-20(F).

If the judge grants your petition for a name change, the clerk

of court will notify the Department of Corrections of your

new name and the Department of Corrections will update

your record. S.C. Code Ann. § 15-49-20(C). Additionally, the

clerk of court will notify the State Law Enforcement Agency,

which will update your name on your criminal record. S.C.

Code Ann. § 15-49-20(D). If you are on the Central

Registry of Child Abuse and Neglect or the sex offender

registry, the court will notify the appropriate agencies to

update those registries with your new name. S.C. Code

Ann. § 15-49-20(A)(2); S.C. Code Ann. § 15-49-20(A)(4).

TENNESSEE

Last updated: January 2021

Overview of the Grievance Procedure

The Tennessee Department of Correction has a three-step

grievance process, which is codified in Policy 501.01.

> Step 1: Initial Grievance. You have seven calendar

days from the incident to file a grievance. This

deadline does not apply to grievances about sexual

assault. You can file a grievance about sexual assault

at any time. Fill out the grievance form (form CR-

1394) and file it with the Grievance Chairperson at

your facility. The chairperson will respond to you

within seven working days.

> Step 2: First Appeal. If you do not receive a reply from

the chairperson or are unhappy with their response,

file an appeal within five calendar days of their

response or the expiration of their reply deadline.

143 | APPENDICES

Appeals can be submitted to the grievance committee

and the Warden or Superintendent of your facility by

filling out the bottom of form CR-1394 and giving it

back to the chairperson. A hearing will be held within

five working days of when you file your appeal, and

you will receive a response within fifteen working days

of the hearing. If you do not get a response within

these time periods, you may automatically move to the

next level of the process, unless you agree in writing

to give the department an extension.

> Step 3: Final Appeal. If the Warden does not agree to

your proposed solution, you have five calendar days

to file a final appeal with the Assistant Commissioner

of Prisons. They will have twenty-five working days to

respond to you. When you complete this step, your

grievance will be fully exhausted.

NOTE: You cannot file more than one grievance about

the same incident, and you cannot have more than one

grievance pending at Step One. If resolving your

grievance within the normal time limits could cause you

substantial risk of personal injury or irreparable harm,

you can file an emergency grievance. If the Grievance

Chairperson agrees that it is an emergency, the

chairperson is required to immediately bring your

grievance to the attention of the person who can take

action to fix the problem. Otherwise, the ordinarily

rules and restrictions will apply.

Sexual Assault & PREA

You can file a grievance alleging sexual assault at any time,

even if the deadline for filing a step-one grievance has

passed. PREA grievances will be reviewed by the Associate

Warden of Treatment or the Deputy Superintendent, who

will make a final decision within ninety days of when you

file the grievance. Your friend, family member, attorney, or

other third party can file a grievance related to sexual

abuse for you, but you must agree to have the grievance

filed on your behalf (you can use form CR-1394 to do this)

and independently pursue any subsequent steps in the

grievance process. TDOC also has adopted a PREA policy

(Policy 502.06.1) that calls for case by case decisions on

transgender housing, prohibits searching transgender and

intersex people to determine their genital status, and

requires staff to receive training on respectful engagement

with members of the LGBTQI+ community.

DOC Policies Applicable to LGBTQ Prisoners

Gender Dysphoria Healthcare

At the time of publication, Tennessee did not have an

express policy on gender dysphoria treatment and care.

However, as Section I Part V explains, transgender people

incarcerated in TDOC have a Constitutional right to

receive hormone therapy and other necessary treatments,

regardless of whether a formal policy exists.

State Policy on Name/Gender Marker Changes

To change your name in Tennessee, you must petition the

petition the circuit, probate, or county court in the county

that your facility is in. Tenn. Code Ann. § 29-8-101(a). You

cannot change your name if you have been convicted of

first- or second-degree murder or have been required to

101(b)(1). If you have been convicted of a different felony,

you will have to show the court that you are making the

petition in good faith and do not intend to defraud or

mislead anyone, and that changing your name will not

cause injury to anyone else or a threat to the public safety.

Tenn. Code Ann. § 29-8-101(b)(3). Tennessee law does not

allow anyone to change their gender marker on their birth

certificate. Tenn. Code Ann. § 68-3-203.

144 | APPENDICES

Summary of Name Change Policies Nationwide

Below is a summary of the policies that apply to transgender and non-transgender name changes nationwide, current

through July 2019.

State

Can people who are currently

incarcerated change their names?

Can people with previous

convictions change their names?

Can people who have been

convicted as sex offenders

change their names?

Yes, but not if convicted of a

felony, a sex offense, or a crime

of moral turpitude.

If you have ever been convicted

of a felony, a sex offense, or a

crime of moral turpitude, you

cannot change your name. You

also cannot change your name

while facing criminal charges or

while involved in a court case.

No sex offender shall change their

name unless the change is incident

to a change in the marital status of

the sex offender or is necessary to

affect the exercise of the religion

of the sex offender.

Yes

No specific restriction

Yes

Yes, but certain convictions might

lead a judge to deny your petition.

No specific restriction

No, unless the name change is for

religious reasons

No specific restriction

Yes

Yes, under limited circumstances.

If you are a registered sex

offender, the judge will only

approve your name change if

they believe it will not harm

public safety.

Yes, but not if convicted adult

felons or delinquents with the

equivalent of an adult felony

unless there is good cause.

A name change will not be granted

for convicted adult felons or

delinquents with the equivalent of

an adult felony unless there is

good cause.

Yes

No specific restriction

Yes

No, if your civil rights have been

suspended, which means you have

been convicted of a felony and

have not received a pardon or a

reinstatement of civil rights.

Unlikely

Will be a factor to consider.

No specific restriction

No, unless the court finds the

name change to be in the best

interest of justice and that the

name change won't adversely

affect public safety.

Yes

No specific restriction

145 | APPENDICES

State

Can people who are currently

incarcerated change their names?

Can people with previous

convictions change their names?

Can people who have been

convicted as sex offenders

change their names?

Yes, but you can only change your

name if incarcerated for a

misdemeanor.

No, if you have a conviction for

identity theft or have a felony

conviction within the last ten

years

Yes

No specific restriction

No, IDOC prohibits name change

requests during incarceration.

No specific restriction

Yes

Yes, if serving for non-felony.

Yes, after the sentence is satisfied,

except for violent crime.

Yes

No specific restriction

Yes

No specific restriction

Yes, but with higher burden of

proof.

Yes, but with higher burden of

proof.

Yes, but with higher burden of

proof.

Yes, but only once.

Yes

No specific restriction

Probably not

Probably not.

No specific restriction

Yes

No specific restriction

Yes, but as a factor.

Need a compelling case.

Yes.

Need a compelling case.

Yes

No specific restriction

Yes

No specific restriction

Yes, but felony record will make it

much less likely that your request

will be granted.

Yes, but felony record will make it

much less likely that your request

will be granted.

Yes

146 | APPENDICES

State

Can people who are currently

incarcerated change their names?

Can people with previous

convictions change their names?

Can people who have been

convicted as sex offenders

change their names?

Yes, except for "sexually oriented

offense" and "child-victim oriented

offense".

Yes, except for "sexually oriented

offense" and "child-victim oriented

offense".

Yes

No specific restriction

Yes

Yes, unless incarcerated for

felony.

Yes, if not convicted of a violent

crime and not convicted of a

felony in less than two years.

Yes

No specific restriction

Yes

No specific restriction

Yes, except for individuals who

have been convicted of first-

degree murder, second-degree

murder, or a sex offense. Note

that individuals who have been

convicted of a felony have a

higher burden of proof.

Yes, except for individuals who

have been convicted of first-

degree murder, second-degree

murder, or a sex offense. Note

that individuals who have been

convicted of a felony have a

higher burden of proof.

No, if felony. Uncertain if

misdemeanor.

Yes, if your record includes a

felony, it must either be pardoned,

or have been 2 years since your

release.

Yes

No, unless compelling reason.

No, unless good cause.

Yes

No, unless good cause.

Yes, if for legitimate cultural

reasons (which might include

religion).

Yes

Yes, if for legitimate cultural

reasons.

Yes, if not finished the sentence of

first-degree murder or felony

kidnapping in the recent ten years.

No.

Yes

Yes, however being currently on

parole may affect your chance to

change name.

Yes

147 | APPENDICES

APPENDIX F

Excerpts from the PLRA

See also Chapter Two, Section F for some descriptions of these

provisions. These are excerpts from the PLRA that the authors

believe are the most important, not the entire federal law."

Definitions

18 U.S.C. § 3626(h). Definitions. […]

(2) the term "civil action with respect to prison conditions"

means any civil proceeding arising under Federal law with

respect to the conditions of confinement or the effects of

actions by government officials on the lives of persons confined

in prison, but does not include habeas corpus proceedings

challenging the fact or duration of confinement in prison;

(3) the term "prisoner" means any person subject to

incarceration, detention, or admission to any facility who is

accused of, convicted of, sentenced for, or adjudicated

delinquent for, violations of criminal law or the terms and

conditions of parole, probation, pretrial release, or

diversionary program; […]

(5) the term "prison" means any Federal, State, or local

facility that incarcerates or detains juveniles or adults

accused of, convicted of, sentenced for, or adjudicated

delinquent for, violations of criminal law;

Prospective Relief

18 U.S.C. § 3626. Appropriate remedies with respect

to prison conditions

(a) Requirements for relief

(1) Prospective relief. (A) Prospective relief in any civil

action with respect to prison conditions shall extend no

further than necessary to correct the violation of the

Federal right of a particular plaintiff or plaintiffs. The court

shall not grant or approve any prospective relief unless the

court finds that such relief is narrowly drawn, extends no

further than necessary to correct the violation of the

Federal right, and is the least intrusive means necessary to

correct the violation of the Federal right. The court shall

give substantial weight to any adverse impact on public

safety or the operation of a criminal justice system caused

by the relief.

(B) The court shall not order any prospective relief that

requires or permits a government official to exceed his or

her authority under State or local law or otherwise violates

State or local law, unless—

(i) Federal law requires such relief to be ordered in

violation of State or local law;

(ii) the relief is necessary to correct the violation of a

Federal right; and

(iii) no other relief will correct the violation of the

Federal right.

authorize the courts, in exercising their remedial powers,

to order the construction of prisons or the raising of

taxes, or to repeal or detract from otherwise applicable

limitations on the remedial powers of the courts.

(2) Preliminary injunctive relief. In any civil action with

respect to prison conditions, to the extent otherwise

authorized by law, the court may enter a temporary

restraining order or an order for preliminary injunctive

relief. Preliminary injunctive relief must be narrowly

drawn, extend no further than necessary to correct the

harm the court finds requires preliminary relief, and be

the least intrusive means necessary to correct that harm.

The court shall give substantial weight to any adverse

impact on public safety or the operation of a criminal

justice system caused by the preliminary relief and shall

respect the principles of comity set out in paragraph

(1)(B) in tailoring any preliminary relief. Preliminary

injunctive relief shall automatically expire on the date

that is 90 days after its entry, unless the court makes the

findings required under subsection (a)(1) for the entry of

prospective relief and makes the order final before the

expiration of the 90-day period.

(3) Prisoner release order. (A) In any civil action with

respect to prison conditions, no court shall enter a

prisoner release order unless—

(i) a court has previously entered an order for less

intrusive relief that has failed to remedy the

deprivation of the Federal right sought to be

remedied through the prisoner release order; and

(ii) the defendant has had a reasonable amount of

time to comply with the previous court orders.

(B) In any civil action in Federal court with respect to

prison conditions, a prisoner release order shall be

entered only by a three-judge court in accordance with

section 2284 of title 28, if the requirements of

subparagraph (E) have been met.

court shall file with any request for such relief, a request

for a three-judge court and materials sufficient to

demonstrate that the requirements of subparagraph (A)

have been met.

(D) If the requirements under subparagraph (A) have

been met, a Federal judge before whom a civil action

with respect to prison conditions is pending who

believes that a prison release order should be considered

148 | APPENDICES

may sua sponte request the convening of a three-judge

court to determine whether a prisoner release order

should be entered.

(E) The three-judge court shall enter a prisoner release

order only if the court finds by clear and convincing

evidence that—

(i) crowding is the primary cause of the violation of a

Federal right; and

(ii) no other relief will remedy the violation of the

Federal right.

(F) Any State or local official including a legislator or unit

of government whose jurisdiction or function includes

the appropriation of funds for the construction,

operation, or maintenance of prison facilities, or the

prosecution or custody of persons who may be released

from, or not admitted to, a prison as a result of a

prisoner release order shall have standing to oppose the

imposition or continuation in effect of such relief and to

seek termination of such relief, and shall have the right

to intervene in any proceeding relating to such relief.

(b) Termination of relief

(1) Termination of prospective relief. (A) In any civil

action with respect to prison conditions in which

prospective relief is ordered, such relief shall be

terminable upon the motion of any party or intervener—

(i) 2 years after the date the court granted or

approved the prospective relief;

(ii) 1 year after the date the court has entered an

order denying termination of prospective relief under

this paragraph; or

(iii) in the case of an order issued on or before the

date of enactment of the Prison Litigation Reform Act,

2 years after such date of enactment.

(B) Nothing in this section shall prevent the parties from

agreeing to terminate or modify relief before the relief is

terminated under subparagraph (A)

(2) Immediate termination of prospective relief. In any

civil action with respect to prison conditions, a

defendant or intervener shall be entitled to the

immediate termination of any prospective relief if the

relief was approved or granted in the absence of a

finding by the court that the relief is narrowly drawn,

extends no further than necessary to correct the

violation of the Federal right, and is the least intrusive

means necessary to correct the violation of the Federal

right.

(3) Limitation. Prospective relief shall not terminate if the

court makes written findings based on the record that

prospective relief remains necessary to correct a current

and ongoing violation of the Federal right, extends no

further than necessary to correct the violation of the

Federal right, and that the prospective relief is narrowly

drawn and the least intrusive means to correct the

violation.

(4) Termination or modification of relief. Nothing in this

section shall prevent any party or intervener from

seeking modification or termination before the relief is

terminable under paragraph (1) or (2), to the extent that

modification or termination would otherwise be legally

permissible.

(1) Consent decrees. In any civil action with respect to

prison conditions, the court shall not enter or approve a

consent decree unless it complies with the limitations on

relief set forth in subsection (a).

(2) Private settlement agreements. (A) Nothing in this

section shall preclude parties from entering into a private

settlement agreement that does not comply with the

limitations on relief set forth in subsection (a), if the terms

of that agreement are not subject to court enforcement

other than the reinstatement of the civil proceeding that

the agreement settled.

(B) Nothing in this section shall preclude any party

claiming that a private settlement agreement has been

breached from seeking in State court any remedy

available under State law.

(d) State law remedies

The limitations on remedies in this section shall not apply to

relief entered by a State court based solely upon claims

arising under State law.

(e) Procedure for motions affecting prospective relief

(1) Generally. The court shall promptly rule on any motion

to modify or terminate prospective relief in a civil action

with respect to prison conditions. Mandamus shall lie to

remedy any failure to issue a prompt ruling on such a

motion.

(2) Automatic stay. Any motion to modify or terminate

prospective relief made under subsection (b) shall operate

as a stay during the period

(A)

(i) beginning on the 30th day after such motion is filed,

in the case of a motion made under paragraph (1) or (2)

of subsection (b); or

(ii) beginning on the 180th day after such motion is

filed, in the case of a motion made under any other law;

and

(B) ending on the date the court enters a final order

ruling on the motion.

(3) Postponement of automatic stay. The court may

postpone the effective date of an automatic stay

specified in subsection (e)(2)(A) for not more than 60 days

for good cause. No postponement shall be permissible

because of general congestion of the court's calendar.

(4) Order blocking the automatic stay. Any order staying,

suspending, delaying, or barring the operation of the

automatic stay described in paragraph (2) (other than an

order to postpone the effective date of the automatic stay

149 | APPENDICES

under paragraph (3)) shall be treated as an order refusing

to dissolve or modify an injunction and shall be appealable

pursuant to section 1292(a)(1) of title 28, United States

Code, regardless of how the order is styled or whether

the order is termed a preliminary or a final ruling.

(f) Special masters

(1) In general. (A) In any civil action in a Federal court with

respect to prison conditions, the court may appoint a

special master who shall be disinterested and objective and

who will give due regard to the public safety, to conduct

hearings on the record and prepare proposed findings of

fact.

(B) The court shall appoint a special master under this

subsection during the remedial phase of the action only

upon a finding that the remedial phase will be sufficiently

complex to warrant the appointment.

(2) Appointment. (A) If the court determines that the

appointment of a special master is necessary, the court

shall request that the defendant institution and the plaintiff

each submit a list of not more than 5 persons to serve as a

special master.

(B) Each party shall have the opportunity to remove up to

3 persons from the opposing party's list.

remaining on the list after the operation of subparagraph

(B).

(3) Interlocutory appeal. Any party shall have the right to

an interlocutory appeal of the judge's selection of the

special master under this subsection, on the ground of

partiality.

(4) Compensation. The compensation to be allowed to a

special master under this section shall be based on an

hourly rate not greater than the hourly rate established

under section 3006A for payment of court-appointed

counsel, plus costs reasonably incurred by the special

master. Such compensation and costs shall be paid with

funds appropriated to the Judiciary.

(5) Regular review of appointment. In any civil action with

respect to prison conditions in which a special master is

appointed under this subsection, the court shall review the

appointment of the special master every 6 months to

determine whether the services of the special master

continue to be required under paragraph (1). In no event

shall the appointment of a special master extend beyond

the termination of the relief.

(6) Limitations on powers and duties. A special master

appointed under this subsection—

(A) may be authorized by a court to conduct hearings and

prepare proposed findings of fact, which shall be made on

the record;

(B) shall not make any findings or communications ex

parte;

development of remedial plans; and

(D) may be removed at any time, but shall be relieved of

the appointment upon the termination of relief.

(g) Definitions

As used in this section

(1) the term "consent decree" means any relief entered by the

court that is based in whole or in part upon the consent or

acquiescence of the parties but does not include private

settlements;

(2) the term "civil action with respect to prison conditions"

means any civil proceeding arising under Federal law with

respect to the conditions of confinement or the effects of

actions by government officials on the lives of persons

confined in prison, but does not include habeas corpus

proceedings challenging the fact or duration of confinement in

prison;

(3) the term "prisoner" means any person subject to

incarceration, detention, or admission to any facility who is

accused of, convicted of, sentenced for, or adjudicated

delinquent for, violations of criminal law or the terms and

conditions of parole, probation, pretrial release, or

diversionary program;

(4) the term "prisoner release order" includes any order,

including a temporary restraining order or preliminary

injunctive relief, that has the purpose or effect of reducing or

limiting the prison population, or that directs the release from

or nonadmission of prisoners to a prison;

(5) the term "prison" means any Federal, State, or local facility

that incarcerates or detains juveniles or adults accused of,

convicted of, sentenced for, or adjudicated delinquent for,

violations of criminal law;

(6) the term "private settlement agreement" means an

agreement entered into among the parties that is not subject

to judicial enforcement other than the reinstatement of the

civil proceeding that the agreement settled;

(7) the term "prospective relief" means all relief other than

compensatory monetary damages;

(8) the term "special master" means any person appointed by a

Federal court pursuant to Rule 53 of the Federal Rules of Civil

Procedure or pursuant to any inherent power of the court to

exercise the powers of a master, regardless of the title or

description given by the court; and

(9) the term "relief" means all relief in any form that may be

granted or approved by the court, and includes consent

decrees but does not include private settlement agreements.

150 | APPENDICES

Exhaustion of Administrative Remedies,

Waiver of Reply, Mental & Emotional Injury,

Attorneys Fees

42 U.S.C. § 1997e

(a) Applicability of administrative remedies

No action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are

exhausted.

(b) Failure of State to adopt or adhere to administrative

grievance procedure

The failure of a State to adopt or adhere to an administrative

grievance procedure shall not constitute the basis for an

action under section 1997a or 1997c of this title.

(1) The court shall on its own motion or on the motion of a

party dismiss any action brought with respect to prison

conditions under section 1979 of the Revised Statutes of

the United States (42 U.S.C. 1983), or any other Federal

law, by a prisoner confined in any jail, prison, or other

correctional facility if the court is satisfied that the action is

frivolous, malicious, fails to state a claim upon which relief

can be granted, or seeks monetary relief from a defendant

who is immune from such relief.

(2) In the event that a claim is, on its face, frivolous,

malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is

immune from such relief, the court may dismiss the

underlying claim without first requiring the exhaustion of

administrative remedies.

(d) Attorney's fees

(1) In any action brought by a prisoner who is confined to

any jail, prison, or other correctional facility, in which

attorney's fees are authorized under section 2 of the

Revised Statutes of the United States (42 U.S.C. 1988),

such fees shall not be awarded, except to the extent that—

(A) the fee was directly and reasonably incurred in proving

an actual violation of the plaintiff's rights protected by a

statute pursuant to which a fee may be awarded under

section 2 [722] of the Revised Statutes; and

(B) (i) the amount of the fee is proportionately related to

the court ordered relief for the violation; or

(ii) the fee was directly and reasonably incurred in

enforcing the relief ordered for the violation. (2) Whenever

a monetary judgment is awarded in an action described in

paragraph (1), a portion of the judgment (not to exceed 25

percent) shall be applied to satisfy the amount of

attorney's fees awarded against the defendant. If the

award of attorney's fees is not greater than 150 percent of

the judgment, the excess shall be paid by the defendant.

(3) No award of attorney's fees in an action described in

paragraph (1) shall be based on an hourly rate greater than

150 percent of the hourly rate established under section

3006A of title 18, United States Code, for payment of

court-appointed counsel. (4) Nothing in this subsection

shall prohibit a prisoner from entering into an agreement to

pay an attorney's fee in an amount greater than the

amount authorized under this subsection, if the fee is paid

by the individual rather than by the defendant pursuant to

section 2 [722] of the Revised Statutes of the United

States (42 U.S.C. 1988).

(e) Limitation on recovery

No Federal civil action may be brought by a prisoner confined

in a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior

showing of physical injury or the commission of a sexual act.

151 | APPENDICES

APPENDIX G

Model Questionnaire for

United Nations Special Rapporteur

on Torture

For more information on submissions to the United

Nations Special Rapporteur on Torture, please see Chapter

2, Section E (2).

This model questionnaire is to be completed by persons

alleging torture or their representatives. Please answer all

of the questions to the best of your ability. Information on

the torture of a person should be transmitted to the

Special Rapporteur in written form and sent to:

Special Rapporteur on Torture

c/o Office of the High Commissioner for Human Rights

United Nations Office at Geneva

CH-1211 Geneva 10, Switzerland

E-mail: urgent-[email protected]

Although it is important to provide as much detail as

possible, the lack of a comprehensive accounting should

not necessarily preclude the submission of reports.

However, the Special Rapporteur can only deal with clearly

identified individual cases containing the following

minimum elements of information:

Full name of the victim;

Date on which the incident(s) of torture occurred

(at least as to the month and year);

Place where the person was seized (city, province,

etc.) And location at which the torture was carried

out (if known);

Indication of the forces carrying out the torture;

Description of the form of torture used and any

injury suffered as a result;

Identify of the person or organization submitting

the report (name and address,

which will be kept confidential).

Additional sheets should be attached where space does

not allow for a full rendering of the information requested.

Also, copies of any relevant corroborating documents, such

as medical or police records should be supplied where it is

believed that such information may contribute to a fuller

accounting of the incident. Only copies and not originals of

such documents should be sent.

I. Identity of the person(s) subjected to torture

A. Family Name

B. First and other names

C. Sex: Male Female

D. Birth date or age

E. Nationality

F. Occupation

G. Identity card number (if applicable)

H. Activities (trade union, political, religious,

humanitarian/ solidarity, press, etc.)

I. Residential and/or work address

II. Circumstances surrounding torture

A. Date and place of arrest and subsequent torture

B. Identity of force(s) carrying out the initial

detention and/or torture (police, intelligence

services, armed forces, paramilitary, prison

officials, other)

C. Were any person, such as a lawyer, relatives or

friends, permitted to see the victim during

detention? If so, how long after the arrest?

D. Describe the methods of torture used

E. What injuries were sustained as a result of the

torture?

F. What was believed to be the purpose of the

torture?

G. Was the victim examined by a doctor at any point

during or after his/her ordeal? If so, when? Was

the examination performed by a prison or

government doctor?

H. Was appropriate treatment received for injuries

sustained as a result of the torture?

I. Was the medical examination performed in a

manner which would enable the doctor to detect

evidence of injuries sustained as a result of the

torture? Were any medical reports or certificates

issued? If so, what did the reports reveal?

J. If the victim died in custody, was an autopsy or

forensic examination performed and which were

the results?

III. Remedial action

Were any domestic remedies pursued by the victim or

his/her family or representatives (complaints with the

forces responsible, the judiciary, political organs, etc.)? If

so, what was the result?

IV. Information concerning the author of the present

report:

A. Family Name

B. First Name

C. Relationship to victim

D. Organization represented, if any

E. Present full address

152 | APPENDICES

APPENDIX H

Universal Declaration of Human

Rights

Preamble

Whereas recognition of the inherent dignity and of the

equal and inalienable rights of all members of the human

family is the foundation of freedom, justice and peace in

the world,

Whereas disregard and contempt for human rights have

resulted in barbarous acts which have outraged the

conscience of mankind, and the advent of a world in which

human beings shall enjoy freedom of speech and belief and

freedom from fear and want has been proclaimed as the

highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to

have recourse, as a last resort, to rebellion against tyranny

and oppression, that human rights should be protected by

the rule of law,

Whereas it is essential to promote the development of

friendly relations between nations,

Whereas the peoples of the United Nations have in the

Charter reaffirmed their faith in fundamental human rights,

in the dignity and worth of the human person and in the

equal rights of men and women and have determined to

promote social progress and better standards of life in

larger freedom,

Whereas Member States have pledged themselves to

achieve, in co-operation with the United Nations, the

promotion of universal respect for and observance of

human rights and fundamental freedoms,

Whereas a common understanding of these rights and

freedoms is of the greatest importance for the full

realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims

THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as

a common standard of achievement for all peoples and all

nations, to the end that every individual and every organ of

society, keeping this Declaration constantly in mind, shall

strive by teaching and education to promote respect for

these rights and freedoms and by progressive measures,

national and international, to secure their universal and

effective recognition and observance, both among the

peoples of Member States themselves and among the

peoples of territories under their jurisdiction.

Article 1.

All human beings are born free and equal in dignity and

rights. They are endowed with reason and conscience and

should act towards one another in a spirit of brotherhood.

Article 2.

Everyone is entitled to all the rights and freedoms set forth

in this Declaration, without distinction of any kind, such as

race, colour, sex, language, religion, political or other

opinion, national or social origin, property, birth or other

status. Furthermore, no distinction shall be made on the

basis of the political, jurisdictional or international status of

the country or territory to which a person belongs,

whether it be independent, trust, non-self-governing or

under any other limitation of sovereignty.

Article 3.

Everyone has the right to life, liberty and security of

person.

Article 4.

No one shall be held in slavery or servitude; slavery and

the slave trade shall be prohibited in all their forms.

Article 5.

No one shall be subjected to torture or to cruel, inhuman

or degrading treatment or punishment.

Article 6.

Everyone has the right to recognition everywhere as a

person before the law.

Article 7.

All are equal before the law and are entitled without any

discrimination to equal protection of the law. All are

entitled to equal protection against any discrimination in

violation of this Declaration and against any incitement to

such discrimination.

Article 8.

Everyone has the right to an effective remedy by the

competent national tribunals for acts violating the

fundamental rights granted him by the constitution or by law.

Article 9.

No one shall be subjected to arbitrary arrest, detention or

exile.

Article 10.

Everyone is entitled in full equality to a fair and public

hearing by an independent and impartial tribunal, in the

determination of his rights and obligations and of any

criminal charge against him.

Article 11.

(1) Everyone charged with a penal offence has the right to

be presumed innocent until proved guilty according to law

in a public trial at which he has had all the guarantees

necessary for his defence.

153 | APPENDICES

(2) No one shall be held guilty of any penal offence on

account of any act or omission which did not constitute a

penal offence, under national or international law, at the

time when it was committed. Nor shall a heavier penalty be

imposed than the one that was applicable at the time the

penal offence was committed.

Article 12.

No one shall be subjected to arbitrary interference with his

privacy, family, home or correspondence, nor to attacks

upon his honour and reputation. Everyone has the right to

the protection of the law against such interference or

attacks.

Article 13.

(1) Everyone has the right to freedom of movement and

residence within the borders of each state.

(2) Everyone has the right to leave any country, including

his own, and to return to his country.

Article 14.

(1) Everyone has the right to seek and to enjoy in other

countries asylum from persecution.

(2) This right may not be invoked in the case of

prosecutions genuinely arising from non-political crimes or

from acts contrary to the purposes and principles of the

United Nations.

Article 15.(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality

nor denied the right to change his nationality.

Article 16.

(1) Men and women of full age, without any limitation due

to race, nationality or religion, have the right to marry and

to found a family. They are entitled to equal rights as to

marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and

full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of

society and is entitled to protection by society and the

State.

Article 17.

(1) Everyone has the right to own property alone as well as

in association with others.

(2) No one shall be arbitrarily deprived of his property.

Article 18.

Everyone has the right to freedom of thought, conscience

and religion; this right includes freedom to change his

religion or belief, and freedom, either alone or in

community with others and in public or private, to manifest

his religion or belief in teaching, practice, worship and

observance.

Article 19.

Everyone has the right to freedom of opinion and

expression; this right includes freedom to hold opinions

without interference and to seek, receive and impart

information and ideas through any media and regardless of

frontiers.

Article 20.

(1) Everyone has the right to freedom of peaceful assembly

and association.

(2) No one may be compelled to belong to an association.

Article 21.

(1) Everyone has the right to take part in the government

of his country, directly or through freely chosen

representatives.

(2) Everyone has the right of equal access to public service

in his country.

(3) The will of the people shall be the basis of the authority

of government; this will shall be expressed in periodic and

genuine elections which shall be by universal and equal

suffrage and shall be held by secret vote or by equivalent

free voting procedures.

Article 22.

Everyone, as a member of society, has the right to social

security and is entitled to realization, through national

effort and international co-operation and in accordance

with the organization and resources of each State, of the

economic, social and cultural rights indispensable for his

dignity and the free development of his personality.

Article 23.

(1) Everyone has the right to work, to free choice of

employment, to just and favourable conditions of work and

to protection against unemployment.

(2) Everyone, without any discrimination, has the right to

equal pay for equal work.

(3) Everyone who works has the right to just and

favourable remuneration ensuring for himself and his

family an existence worthy of human dignity, and

supplemented, if necessary, by other means of social

protection.

(4) Everyone has the right to form and to join trade unions

for the protection of his interests.

Article 24.

Everyone has the right to rest and leisure, including

reasonable limitation of working hours and periodic

holidays with pay.

Article 25.

(1) Everyone has the right to a standard of living adequate

for the health and well-being of himself and of his family,

including food, clothing, housing and medical care and

necessary social services, and the right to security in the

event of unemployment, sickness, disability, widowhood,

old age or other lack of livelihood in circumstances beyond

his control.

(2) Motherhood and childhood are entitled to special care

and assistance. All children, whether born in or out of

wedlock, shall enjoy the same social protection.

154 | APPENDICES

Article 26.

(1) Everyone has the right to education. Education shall be

free, at least in the elementary and fundamental stages.

Elementary education shall be compulsory. Technical and

professional education shall be made generally available

and higher education shall be equally accessible to all on

the basis of merit.

(2) Education shall be directed to the full development of

the human personality and to the strengthening of respect

for human rights and fundamental freedoms. It shall

promote understanding, tolerance and friendship among all

nations, racial or religious groups, and shall further the

activities of the United Nations for the maintenance of

peace.

(3) Parents have a prior right to choose the kind of

education that shall be given to their children.

Article 27.

(1) Everyone has the right freely to participate in the

cultural life of the community, to enjoy the arts and to

share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral

and material interests resulting from any scientific, literary

or artistic production of which he is the author.

Article 28.

Everyone is entitled to a social and international order in

which the rights and freedoms set forth in this Declaration

can be fully realized.

Article 29.

(1) Everyone has duties to the community in which alone

the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone

shall be subject only to such limitations as are determined

by law solely for the purpose of securing due recognition

and respect for the rights and freedoms of others and of

meeting the just requirements of morality, public order and

the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised

contrary to the purposes and principles of the United

Nations.

Article 30.

Nothing in this Declaration may be interpreted as implying

for any State, group or person any right to engage in any

activity or to perform any act aimed at the destruction of

any of the rights and freedoms set forth herein.

155 | APPENDICES

APPENDIX I

Sources of Legal Support

Below is a short list of other organizations working on

prison issues, mainly with a legal focus. When writing to

these groups, please remember a few things:

> Write simply and specifically, but don’t try and write

like you think a lawyer would. Be direct in explaining

yourself and what you are looking for.

> Do not send any legal documents unless they are

requested. If or when you do send legal documents,

only send copies. Hold on to your original paperwork.

> Because of laws like the PLRA and limited funding,

many organizations are small, have limited resources

and volunteer staff. It may take some time for them to

answer your letters. But always keep writing.

NOTE: The contact information for these resources is

current as of the printing of this Handbook in 2021.

Do not send money for publications unless you have

verified the address of the organization first.

American Civil Liberties Union National Office

125 Broad Street, 18

Floor, New York, NY 10004

The biggest civil liberties organization in the country.

They have a National Prison Project and a Reproductive Freedom

Project, which might be helpful to women prisoners. Write them

for information about individual chapters.

American Friends Service Committee Criminal Justice Program –

National

15 Rutherford Place, New York, NY 10003

Human and civil rights issues, research/analysis, women

prisoners, prisoner support.

Black and Pink

is a national prison abolitionist organization founded to 2005 that

is dedicated to abolishing the criminal punishment system and

liberating LGBTQIA2S+ people and people living with HIV/AIDS

who are affected by that system through advocacy, support, and

organizing. Black and Pink has 13 volunteer-led chapters and

more than 20,000 current and formerly incarcerated

LGBTQIAS2+ and people living with HIV/AIDS members

nationwide. Write to Black & Pink, 2406 Fowler Ave Suite 316,

Omaha, NE 68111, or have a friend or family member email

[email protected].

California Prison Focus

4408 Market Street, Suite A, Oakland, CA 94608

Publishes a quarterly magazine, Prison Focus, and other

publications. Focuses organizing efforts on CA and on SHU

conditions.

Center for Constitutional Rights

666 Broadway, 7

floor, New York, NY 10012

Legal organization that brings impact cases around prison

conditions, co-publisher of this handbook.

Criminal Justice Policy Coalition

549 Columbus Ave, Boston, MA 02118

Involved in policy work around numerous prison issues.

Critical Resistance, National Office

1904 Franklin St., Suite 504, Oakland, CA 94612

Uniting people in prison, former prisoners, and family members to

lead a movement to abolish prisons, policing, surveillance, and

other forms of control.

Freedom Overground

LGBTQI people in Georgia only. Freedom Overground’s mission is

to improve the quality of life and life expectancy of the trans

community during and after incarceration. We are currently

serving the Georgia prison population but are hoping to create a

benchmark for national change. Our initiatives and programs

ensure that the medical and therapeutic needs of trans

incarcerated people are met by state facilities. For more info, have

someone on the outside email: freedomoverground@gmail.com.

Immigration Equality, Inc. LGBTQI immigrants only.

Provides several resource pamphlets. Write to:

40 Exchange Place, 17th Floor, New York, NY 10005

Innocence Project.

Takes only post-conviction, DNA cases. Does not take cases in CA,

AZ, IL, MI, or OH. If you write them, briefly answer these questions

in your letter: The basic facts of the crime. What happened? When?

Where? What were you accused of doing? Where were you at the

time of the crime(s)? What were you doing? Do you know the

victim(s)? If so, how do you know the victim(s)? What did the

victim(s) say happened? Are you claiming innocence of all the

charges/convictions? Write to: Innocence Project, Intake

Department, 40 Worth St., Suite 701, New York, NY 10013.

Lambda Legal Defense and Education Fund, Inc.

LGBTQI only. A national civil rights organization that advocates for

LGBTQ+ people and people living with HIV, including

incarcerated LGBTQ+ people, through impact litigation,

education, and public policy work. Write to: Lambda Legal, 120

Wall Street, 19th Floor, New York, NY 10005-3919.

Legal Services for Prisoners with Children

1540 Market St., Suite 490, San Francisco, CA 94102

Legal resources and issues around women in prison, including

guides and manuals for people in prison with children.

The National Center for Lesbian Rights

LGBTQI only.A national legal organization committed to protecting

and advancing the rights of lesbian, gay, bisexual, and transgender

people, including LGBT individuals in prison, through impact

litigation, public policy advocacy, public education, direct legal

services, and collaboration with other civil rights organizations.

Write to: The National Center for Lesbian Rights, 870 Market

Street Suite 370, San Francisco CA 94102.

156 | APPENDICES

National Clearinghouse for the Defense of Battered Women

990 Spring Garden Street, Suite 703 Philadelphia PA 19123.

Legal and other assistance for battered women.

National Lawyers Guild, National Office

PO Box 1266, New York, NY 10009

Membership organization of progressive lawyers.

Co-publisher of this Handbook. Will only respond to membership

and JLH requests. Cannot provide individual legal assistance - do

not send any legal documents.

National Resource Center on Children and

Families of the Incarcerated at Rutgers-Camden

405-7 Cooper St., Room 103, Camden, NJ 08102

For over three decades, the NRCCFI has served as a resource for

those working with families impacted by incarcerated.

North Carolina Prisoner Legal Services

Offers legal services, legal forms that you can fill out yourself, and

other free legal resources. Write to: North Carolina Prisoner Legal

Services, Inc., P.O. Box 25397, Raleigh, NC 27611.

Peter Cicchino Youth Project of the Urban Justice Center

123 William Street 16th Floor, New York, NY, 10038

Legal services project focusing on the legal needs of the

thousands of homeless and street-involved young people in New

York City, with a focus on the particular needs of lesbian, gay,

bisexual, transgender, queer, and questioning (LGBTQQ) youth.

(only for lesbian, gay, bisexual and transgender youth age 24 or

under)

Prison Activist Resource Center

PO Box 70447, Oakland, CA 94612

Clearinghouse for information and resources on organizing for

prisoners’ rights, prison issues, anti-racism. Produce a free

directory / resource packet for people in prison.

Prison Law Office - San Quentin

General Delivery, San Quentin CA 94964

Legal services and resources in California for individual prisoners

and class actions. Publishers of The California State Prisoners

Handbook: A Comprehensive Guide to Prison and Parole Law.

Prisoner Self Help Legal Clinic

Very good self-help legal kits on a variety of issues, available only

electronically at www.pshlc.org.

Southern Center for Human Rights

60 Walton St NW, Atlanta, GA 30303

Provides legal representation to people facing the death penalty,

challenges human rights violations in prisons and jails. Legal

resources are available.

Southern Poverty Law Center

400 Washington Ave., Montgomery AL 36104

Legal resources and publications, including Prisoner Diabetes

Handbook and Protecting Your Health and Safety: Prisoners’ Rights.

Also files class-action suits around prison conditions.

Sylvia Rivera Law Project

LGBTQI only.The project provides basic templates for name

changes, identity documents, and other legal matters. You can also

request to join their Prisoner Pen Pal Postcard Project, participate in

their Prisoner Advisory Committee, or receive their newsletter

written by and for LGBTQ people who are incarcerated. Their

address is 147 West 24

Street, 5

Fl., New York, NY 10011

TGI Justice Project

Re-entry and support work. (only for transgender, gender variant,

and intersex people) 370 Turk St #370, San Francisco, CA 94102

Transformative Justice Law Project of Illinois

LGBTQI only. Distributes resources and connects people to their

peers, friends, family, allies, advocates, and the larger prison

abolition movement.

203 N. Lasalle, Suite 2100 | Chicago, IL 60601

The Transgender Law Center (“TLC”)

Trans people only. is the largest national trans-led organization

advocating self-determination for all people. Grounded in legal

expertise and committed to racial justice, TLC employs a variety

of community-driven strategies to keep transgender and gender

nonconforming people alive, thriving, and fighting for liberation.

Write to: Transgender Law Center PO Box 70976, Oakland, CA

94612-0976, or call 510.380.8229 (toll-free).

TRANScending Barriers Atlanta

LGBTQI only. TRANScending Barriers is a trans-led grassroots

501c3 non-profit organization that serves the transgender and

gender non-conforming community in Georgia and provides

support for trans* prisoners transitioning back from life in prison

after their release. You can write to Transcending Barriers at

1755 The Exchange Suite 160, Atlanta, Georgia 30339, or via

email at info@transcendingbarriersatl.org

157 | APPENDICES

APPENDIX J

Tips for Reaching out to Journalists

and the Media

The authors of this Handbook asked several experienced

journalists for tips on how to approach the media if you are

writing to a news publication from prison. Here are a few

things they recommended:

> Keep it short, a couple paragraphs at most. A journalist

often won’t even start reading if a letter looks like it’s

very long. Make very clear what the focus of your

story is, why it’s important, and why you’re the person

to tell it. You don’t need to send your full story in your

first letter.

> If you are providing information about something you

want a reporter to look into, make clear what access

you have to any evidence or to people who are willing

to speak about that particular situation.

> If you or someone on the outside can, find out who is

the editor at the news outlet who works on prison

issues and address your letter to that person rather

than just to the news organization.

> If you know that a certain publication or journalist has

done some good reporting on prison issues before,

you can write a sentence or two referencing that. For

example, "Your paper does very powerful first-person

stories. I think mine could be a good fit."

> If you have a lawsuit, do not send your court

documents unless a journalist requests them.

However, you should send the name and citation for

the case.

> Stories about mundane aspects of life inside prison can

sometimes be very interesting to journalists. People

who have never been incarcerated or don’t have

incarcerated loved ones have no idea what life inside

is like. The things that to someone who is incarcerated

might seem most mundane, like the daily bureaucracy,

prison rules, day-to-day exchanges with prison staff,

can be what people outside would most benefit from

learning about, including anything detailing abusive

conditions inside prisons.

> Keep following up! Journalists are often very busy and

get huge amounts of mail, emails, and phone calls

every day. But someone who is persistent can often

get a response, it just might take several weeks or

months. All the journalists we spoke with said to keep

writing if you don’t get a response at first. Remember

to keep your follow-up letters short.

158 | APPENDICES

APPENDIX K

Prisoners’ Rights Books

and Newsletters

A list of printed publications and books that you can order for

further assistance. Please note that prices may change on

many of the publications. Before you send money, please

verify the address and price with the organization. Because

of the COVID pandemic, responses may be very slow or

delayed.

A. Federal Legal Resources

Federal Rules of Civil Procedure, 2019 - $20.00

Federal Rules of Appellate Procedure with forms, 2018 - $12.00

If convicted of a federal crime, you can request the Federal

Rules of Criminal Procedure for $13.00 and the Federal Rules of

Evidence for $7.00. The Federal Rules of Criminal Procedure

and of Evidence will not assist state prisoners.

All prices include postage. To order any of the Federal Rules,

write to:

U.S. Government Printing Office

P.O. Box 979050, St. Louis, MO 63197-9000

(Check or money order payable to “Superintendent of Documents”)

B. National Resources

> The Bluebook: A Uniform System of Citation

Write to: Attn Business Office, Bluebook Orders, Harvard Law

Review Association, Gannett House, 1511 Massachusetts

Ave., Cambridge, MA 02138. Cost is $38.50 plus shipping.

> Brief Writing and Oral Argument, 9

edition

Guidance on preparing effective oral and written arguments,

especially relating to the Courts of Appeals. Send $53.00 and

order to: Oxford University Press, 2001 Evans Road, Cary, NC

27513

> Columbia University Jailhouse Lawyers Manual

is an excellent resource, especially if you are incarcerated in

New York. Send your request with a check or money order (no

stamps) for $30.00, payable to Columbia Human Rights Law

Review to: Columbia Human Rights Law Review, Attn: JLM

Order, 435 W. 116th St., New York, NY 10027.

> Cohen and Olson’s Legal Research in a Nutshell, 14

Edition.

West Publishing, 444 Cedar St, Suite 700, St. Paul, MN 55101.

Cost is $50.00.

Fortune News. Newsletter from the Fortune Society,

specifically for prisoners. The majority of the writers are

prisoners / ex-prisoners. Free. Write to: The Fortune

Societies, Attn: Fortune News Subscriptions, 29-76 Northern

Blvd, Long Island City, NY 11101.

> Introduction to the Legal System of the United States, 4

Edition.

This publication will help you understand the principles of the

U.S. legal system. No longer published by publisher but cheap

copies can be ordered by family members online.

> Law Offices of Alan Ellis, PC. Attorney Alan Ellis has a number

of publications available., including the Federal Prison

Guidebook: 2021 Edition - the print edition is $189. To order

the Guidebook, write to: James Publishing, Inc., 3505 Cadillac

Avenue, Suite P-101, Costa Mesa, CA 92626. Many free

resources available online at www.alanellis.com, if you have a

friend on the outside to help.

> Osborne Association – publishes Parenting from Inside/Out:

The Voices of Mothers in Prison and other New York state-

specific resources. Many resources on website. Write to: 809

Westchester Ave., Bronx, NY 10455

> The Prisoners’ Guide to Survival. A comprehensive legal

assistance manual for post-conviction relief and prisoners’ civil

rights. Last updated in 2001. For prisoners, send $54.95 to:

PSI Publishing, Inc., 413-B 19

Street, #168, Lynden, WA

98264

> Prison Legal News. A monthly newsletter. Highly

recommended. The best source of the latest prison-related

legal news. A 12-month subscription is $30. Send check and

order to: P.O. Box 1151, Lake Worth, FL 33460.

> The Prisoners’ Assistance Directory is published by the

American Civil Liberties Union Prison Project. As of 2021, it

has not been updated since 2012, and many addresses may be

out of date. It includes contact information and services

descriptions for over 300 national, state, local, and

international organizations that provide assistance to

prisoners, ex-offenders, and families of prisoners. It can be

downloaded for free at www.aclu.org Mailing address: 915

15th St., NW, 7

Floor, Washington, DC 20005.

> Prisoners Self-Help Litigation Manual, 4th Edition. Highly

recommended. The Fourth Edition of this well-respected

resource was published in 2010. It is a very detailed book on

prisoners’ constitutional and federal rights, as well as

information on how to file and proceed with a lawsuit. It

includes lots of citations to relevant cases. Send $44.95 and

order to: Oxford University Press, 2001 Evans Road, Cary, NC

27513

> Protecting Your Health & Safety is a publication of the Southern

Poverty Law Center and explains the legal rights inmates have

regarding health and safety—including the right to medical care

and to be free from inhumane treatment. Send $16 and your

request to: Protecting Your Health and Safety, Prison Legal

News, P. O. Box 1151, Lake Worth, FL 33460.

> Sinister Wisdom. Mails free subscriptions to women in prison.

Only mails to women’s prisons. Subscription is $36 for one

year, $58 for two years. Sliding Scale is available. Mail money

and request to: Sinister Wisdom, 2333 McIntosh Road, Dover,

FL 33527.

159 | APPENDICES

APPENDIX L

Free Book Programs

Books Through Bars & Free Book Programs

There are many unaffiliated chapters that send books to

prisoners for free or low cost. Most places request that

you let them know which category of books you are

interested in, so if they don’t have a specific book you

are asking for, they can send you something similar. Be

aware that it may take several months to receive books

due to the volume of requests. Unless otherwise noted,

the programs ship books to prisoners anywhere in the

U.S. The addresses and information were current as of

this printing.

Appalachian Prison Book Project

P.O. Box 601, Morgantown, WV 26507

Ships books to WV, VA, MD, OH, KY, and TN.

Asheville Prison Books Program,

c/o Downtown Books and News

67 N. Lexington Ave., Asheville, NC 28801

Ships books only in NC, SC, GA, and TN.

Books Through Bars – Philadelphia

4722 Baltimore Ave., Philadelphia, PA, 19143

Will only send books to prisoners in:

PA, NJ, NY, DE, MD, VA, and WV.

Books Through Bars – New York City

To request specific books, you can write to: NYC Books

Through Bars, c/o Bluestockings Bookstore, 116 Suffolk

St., New York, NY 10002. They fill requests from all

states except AL, FL, LA, MA, MI, MS, NC, PA, OH, and

WI, with a priority for NY. Send only requests.

Books to Prisoners c/o Left Bank Books

Sending books to people in prison since the 1970s.

Write to: 92 Pike St., Box A, Seattle, WA 98101

Chicago Books to Women in Prison c/o BeyondMedia

4001 N. Ravenswood Ave., #204C, Chicago, IL 60613

Ship books to women in prison only.

Cleveland Books 2 Prisoners

PO Box 602440, Cleveland, OH 44102

Ships books only in OH.

Inside Books Project c/o 12th Street Books

827 W. 12

St., Austin, TX 78701Ships books only in TX.

Lesbian and Gay Insurrection: provides a free bimonthly

newsletter to prisoners, "ULTRAVIOLET." To get

ULTRAVIOLET in the mail, send your snail mail address

to us at 3543 18th St. #26, San Francisco, CA 94110.

LGBT Books to Prisoners: Sends packages of books,

educational materials, and other LGBTQ resources to

incarcerated LGBTQ people across the U.S. Write a

letter requesting the genres of books you would like and

giving your full name, prison identification number, and

address to: LGBT Books to Prisoners, c/o Social Justice

Center Incubator, 1202 Williamson St., Suite 1, Madison,

WI 53703.

Louisiana Books 2 Prisoners

3157 Gentilly Blvd. #141, New Orleans, LA 70122

Ships books only in Louisiana.

Midwest Books to Prisoners c/o Quimby’s Bookstore

1854 W. North Avenue, Chicago, IL 60622

Ships books to IL, WI, MN, MO, IA, KS, IN, and NE.

Midwest Pages to Prisoners

PO Box 1324, Bloomington, IN 47402

Ships books to AR, IA, IN, KS, MN, MO, ND, NE, OK, SD.

Prison Books Collective c/o Internationalist Books

405 W. Franklin St., Chapel Hill, NC 27514

Ships books mostly to prisoners in MS, AL, and NC,

maintains an extensive radical ‘zine catalog, and

publishes prisoners’ art and writing.

Prison Book Program c/o Lucy Parsons Bookstore

1306 Hancock St., Suite 100, Hancock, MA 02169

Prisoners Literature Project c/o Bound Together

Bookstore

1369 Haight St., San Francisco, CA 94117

Prison Library Project c/o The Claremont Forum

915-C W. Foothill Blvd., P.M.B. 128, Claremont, CA

91711

Tranzmission Prison Books

Offers free books and resources to LGBTQI+ identified

folks. Write to: Tranzmission Prison Books, P.O. Box

1874, Asheville, NC 28802

UC Books to Prisoners

Box 515, Urbana, IL 61803, Ships books only in IL.

Women’s Prison Book Project c/o Boneshaker Books

2002 23rd Ave S., Minneapolis, MN 55404

Ships to women and transgender people in prison only.

160 | APPENDICES

APPENDIX M

District Court Addresses

You have already learned that the Federal court system is

broken into districts. Some states have more than one

district, and some districts also have more than one

division, or more than one courthouse. We have compiled

the following list of United States District Courts to help

you figure out where to send your complaint.

We have listed the courts in alphabetical order by state. Find

your state in the following list and then look for the county

your prison is in. Under the name of your county, you will

find the address of the U.S. District Court where you should

send your complaint. All special instructions are in italics.

ALABAMA (11

CIRCUIT)

Northern District of Alabama: Bibb, Blount, Calhoun,

Cherokee, Clay, Cleburne, Colbert, Cullman, DeKalb,

Etowah, Fayette, Franklin, Greene, Jackson, Lamar,

Lauderdale, Lawrence, Limestone, Madison, Marion,

Marshall, Morgan, Pickens, Randolph, Saint Clair, Shelby,

Sumter, Talladega, Tuscaloosa, Walker, Winston

United States District Court

Hugo L. Black U. S. Courthouse

1729 Fifth Avenue North, Birmingham, AL 35203

Middle District of Alabama

The Middle District of Alabama has three divisions:

The Northern Division: Autauga, Barbour, Bullock,

Butler, Chilton, Coosa, Covington, Crenshaw, Elmore,

Lowndes, Montgomery, and Pike.

The Southern Division: Coffee, Dale, Geneva, Henry, and

Houston.

The Eastern Division: Chambers, Lee, Macon, Randolph,

Russell, and Tallapoosa.

All official papers for all the divisions should be sent to:

Ms. Debra Hackett

Clerk of the Court, U.S.D.C.

P.O. Box 711, Montgomery, AL 36101-0711

Southern District of Alabama

Baldwin, Choctaw, Clarke, Conceuh, Dallas, Escambia,

Hale, Marengo, Mobile, Monroe, Perry, Washington,

Wilcox.

U.S.D.C. Southern District of Alabama

113 St. Joseph Street, Mobile, AL 36602

ALASKA (9

CIRCUIT)

District of Alaska

Documents for cases in any county in Alaska may be filed in

Anchorage, or in the divisional office where the case is located

(addresses below).

U.S. District Court Clerk’s Office

222 W. 7th Avenue, #4

Anchorage, AK 99513

U.S. District Court

PO Box 020349

Juneau, AK 99802

U.S. District Court

648 Mission Street

Room 507

Ketchikan, AK 99901

U.S. District Court

101 12th Ave

Rm 332

Fairbanks, AK 99701

U.S. District Court

PO Box 130

Nome, AK 99762

ARIZONA (9

CIRCUIT)

District of Arizona – The District of Arizona covers the

entire state, but it is divided into three divisions with the

following counties:

Phoenix Division: Maricopa, Pinal, Yuma, La Paz, Gila

Prescott Division: Apache, Navajo, Coconino, Mohave,

Yavapai

You should send all documents for cases in the Phoenix OR

the Prescott division to the Phoenix Courthouse, at:

Sandra Day O’Connor U.S. Courthouse

401 West Washington Street, Suite 130, SPC 1

Phoenix, AZ 85003-2118

Tucson Division: Pima, Cochise, Santa Cruz, Graham,

Greenlee

Send all documents for cases in the Tucson Division to:

Evo A. DeConcini U.S. Courthouse

405 West Congress Street, Suite 1500

Tucson AZ 85701-5010

ARKANSAS (8

CIRCUIT)

Eastern District of Arkansas – has five divisions.

Northern Division 1: Cleburne, Fulton, Independence

Izard, Jackson, Sharp, Stone

Eastern Division 2: Cross, Lee, Monroe, Phillips,

St. Francis, and Woodruff

Western Division 4: Conway, Faulkner, Lonoke, Perry,

Pope, Prairie, Pulaski, Saline, Van Buren, White, Yell.

Send documents for cases that arise in any of these three

divisions to:

161 | APPENDICES

U.S. District Court Clerk's Office

U.S. Post Office & Courthouse

600 West Capitol, #A149, Little Rock, AR 72201-3325

Jonesboro Division 3: Clay, Craighead, Crittenden,

Greene, Lawrence, Mississippi, Poinsett, Randolph

Send documents for cases in this division to:

U.S. District Court Clerk's Office

615 S. Main Street, Rm. 312, Jonesboro, AR 72401

Pine Bluff Division 5: Arkansas, Chicot, Cleveland, Dallas

Desha, Drew, Grant, Jefferson, and Lincoln

Send documents for cases in this division to:

U.S. District Court Clerk's Office

100 E. 8

Ave., Rm. 3103, Pine Bluff, AR 71601

Western District of Arkansas – Has six divisions. You

should send documents to the division where the case arose.

El Dorado Division 1: Ashley, Bradley, Calhoun,

Columbia, Ouachita, and Union.

United States Courthouse & Post Office

101 S. Jackson Ave., Room 205, El Dorado, AR 71730-

6133

Fort Smith Division 2: Crawford, Franklin, Johnson,

Logan, Polk, Scott, and Sebastian.

U.S. District Court Clerk's Office

Judge Isaac C. Parker Federal Building

P.O. Box 1547, Fort Smith, AR 72902-1547

Harrison Division 3: Baxter, Boone, Carroll, Marion,

Newton, and Searcy

Fayetteville Division 5: Benton, Madison, and

Washington.

Send documents for cases in these two divisions to:

U.S. District Court Clerk's Office

John Paul Hammerschmidt Federal Building

35 E. Mountain Street, Room 510,

Fayetteville, AR 72701-5354

Texarkana Division 4: Hempstead, Howard, Lafayette,

Little River, Miller, Nevada, and Sevier.

U.S. District Court Clerk's Office

U.S. Post Office and Courthouse

500 N. State Line Ave., Room 302,

Texarkana, AR 71854-5961

Hot Springs Division 6: Clark, Garland, Hot Spring,

Montgomery, and Pike.

U.S. District Court Clerk's Office, U.S. Courthouse

100 Reserve St., Room 347, Hot Springs, AR 71901-

4143

CALIFORNIA (9

CIRCUIT)

Northern District of California: San Jose Branch:

Monterey, San Benito, Santa Clara, Santa Cruz

Send documents for cases in this branch to:

U.S. District Courthouse

280 South 1

Street, Room 2112, San Jose, CA 95113

Oakland Branch: Alameda, Contra Costa

Send documents for cases in this branch to:

Ronald V. Dellums Federal Building

& United States Courthouse

1301 Clay Street, Suite 400S, Oakland, CA 94612

San Francisco Office: Del Norte, Humbolt, Lake, Marin,

Mendocino, Napa, San Francisco, San Mateo, Sonoma

Send documents for cases in this branch to:

U.S. District Courthouse, Clerk’s Office

450 Golden Gate Ave., Box 36060, San Francisco, CA

94102

Eastern District of California – Has two divisions. Send your

documents to the division where your case arose.

Fresno Division: Calaveras, Fresno, Inyo, Kern, Kings,

Madera, Mariposa, Merced, Stanislaus, Tulare, and

Tuolumne.

U.S. District Court

2500 Tulare Street, Room 1501, Fresno, CA 93721

Sacramento Division: Alpine, Amador, Butte, Colusa, El

Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer,

Plumas, Sacramento, San Joaquin, Shasta, Sierra,

Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, and Yuba.

U.S. District Court

501 I Street, Suite. 4-200, Sacramento, CA 95814

Central District of California–The Central District is

divided into three divisions, covering Los Angeles, Orange

County, Riverside, San Bernardino, San Luis Obispo, Santa

Barbara, Ventura. Choose the division that applies to the

county.

Western Division: Los Angeles, San Luis Obispo, Santa

Barbara, Ventura

U.S. Courthouse

312 N. Spring Street, Los Angeles, CA 90012

Eastern Division: Riverside, San Bernardino.

George E. Brown, Jr. Federal Building

and United States Courthouse, 3470 Twelfth Street,

Riverside, CA 92501-3801

Southern Division:

Orange County

162 | APPENDICES

Ronald Reagan Federal Building and United States

Courthouse

411 West 4th Street, Room 1053, Santa Ana, CA 92701-

4516

Southern District of California: Imperial, San Diego

U.S. District Court, Office of the Clerk

Southern District of California

333 West Broadway, Suite 420, San Diego, CA 92101

COLORADO (10

CIRCUIT)

District of Colorado – Send all documents to:

Clerk's Office

Alfred A. Arraj United States Courthouse Room A-105

901 19th Street. Denver, Colorado 80294-3589

CONNECTICUT (2D CIRCUIT)

District of Connecticut – there are three U.S. District

Courthouses in the District of Connecticut. You can file your

complaint in any of the following locations

U.S. Courthouse

141 Church Street

New Haven, CT 06510

U.S. Courthouse

915 Lafayette Boulevard

Bridgeport, CT 06604

U.S. Courthouse

450 Main Street

Hartford, CT 06103

DELAWARE (3D CIRCUIT)

District of Delaware

U.S. District Court

844 N. King Street, Suite 18, Wilmington, DE 19801

DISTRICT OF COLUMBIA (D.C. CIRCUIT)

District for the District of Columbia

United States District Court for the District of Columbia

333 Constitution Avenue, N.W.

Washington, D.C. 20001

FLORIDA

Northern District of Florida– There are four divisions in the

Northern District of Florida, and you must file your complaint

in the division in which your case arose:

Pensacola Division: Escambia, Santa Rosa, Okaloosa, and

Walton.

U.S. Federal Courthouse

100 North Palafox St., Pensacola, FL 32502-4839

Panama City Division: Jackson, Holmes, Washington,

Bay, Calhoun, and Gulf.

U.S. Federal Courthouse

30 W. Government St., Second Floor, Panama City, FL

32401

Tallahassee Division: Leon, Gadsden, Liberty, Franklin,

Wakulla, Jefferson, Taylor, and Madison.

U.S. Federal Courthouse

111 N. Adams Street, Tallahassee, FL 32301

Gainesville Division: Alachua, Lafayette, Dixie, Gilchrist,

and Levy

U.S. Federal Courthouse

401 S.E. First Ave. Suite. 243, Gainesville, FL 32601

Middle District of Florida - There are five divisions in the

Middle District of Florida; you should file your case in the

division in which your case arose.

Tampa Division: Hardee, Hemando, Hillsborough,

Manatee, Pasco, Pinellas, Polk, and Sarasota.

Clerk’s Office, United States District Court

Sam M. Gibbons US Courthouse

801 N. Florida Avenue

Tampa, Florida 33602-3800

Ft. Myers Division: Charlotte, Collier, DeSoto, Glades,

Hendry, and Lee.

Clerk’s Office, United States District Court

US Courthouse & Federal Building

2110 First Street Fort Myers, FL 33901-3083

Orlando Division: Brevard, Orange, Osceola, Seminole,

and Volusia.

U.S. Courthouse

401 West Central Boulevard, Room 1200

Orlando, Florida 32801-0120

Jacksonville Division: Baker, Bradford, Clay, Columbia,

Duval, Flagler, Hamilton, Nassau, Putnam, St. Johns,

Suwanne, and Union.

United States Courthouse

300 North Hogan Street, Jacksonville, FL 32202

Ocala Division: Citrus, Lake, Marion, Sumter

Clerk’s Office

United States District Court

Golden-Collum Memorial Federal Building

207 N.W. Second Street, Ocala, FL 34475-6666

Southern District of Florida - the Southern District of

Florida covers the following counties: Broward, Collier,

Dade, Glades, Hendry, Highlands, Indian River, Martin,

Monroe, Okeechobee, Palm Beach, St. Lucie. There are five

divisions in the Southern District of Florida. You can file your

case in any one of them.

United States District Court Clerk’s Office

299 East Broward Boulevard, Room 108

Fort Lauderdale, FL 33301

163 | APPENDICES

United States District Court Clerk’s Office

300 South Sixth Street, Fort Pierce, FL 34950

United States District Court Clerk’s Office

301 Simonton Street, Key West, FL 33040

United States District Court Clerk’s Office

400 North Miami Avenue, 8

Floor, Miami, FL 33128

United States District Court Clerk’s Office

701 Clematis St., Room 202, West Palm Beach, FL 33401

GEORGIA (11

CIRCUIT)

Northern District of Georgia - covers the following

counties: Banks, Barrow, Bartow, Carroll, Catoosa,

Chattooga, Cherokee, Clayton, Cobb, Coweta, Dade,

Dawson, DeKalb, Douglas, Fannin, Fayette, Floyd, Forsyth,

Fulton, Gilmer, Gordon, Gwinnett, Habersham, Hall,

Haralson, Heard, Henry, Jackson, Lumpkin, Meriwether,

Murray, Newton, Paulding, Pickens, Pike, Polk, Rabun,

Rockdale, Spalding, Stephens, Towns, Troup, Union,

Walker, White, and Whitfield.

There are four Divisions in the Northern District of Georgia,

but all prisoners should file their 1983 cases at the following

main location:

U.S. District Court

Northern District of Georgia

2211 U.S. Courthouse, 75 Ted Turner Dr S.W.

Atlanta, GA 30303

Middle District of Georgia - The Middle District of Georgia

is divided into six divisions. You can file your case in any

division where you are, where the defendant is, or where the

claim arose.

Albany Division: Baker, Ben Hill, Calhoun, Crisp,

Dougherty, Early, Lee, Miller, Mitchell, Schley, Sumter,

Terrell, Turner, Worth, and Webster.

C. B. King U.S. Courthouse

201 West Broad Avenue

Albany, Georgia 31701

Athens Division: Clarke, Elbert, Franklin, Greene, Hart,

Madison, Morgan, Oconee, Oglethorpe, and Walton.

U.S. Post Office and Courthouse

P.O. Box 1106, Athens, GA 30601

Columbus Division: Chattahoochee, Clay, Harris, Marion,

Muscogee, Quitman, Randolph, Stewart, Talbot, and Taylor.

U.S. Post Office and Court House

P.O. Box 124 , Columbus, GA 31902

Macon Division: Baldwin, Bibb, Bleckley, Butts,

Crawford, Dooly, Hancock, Houston, Jasper, Jones,

Lamar, Macon, Monroe, Peach, Putnam, Twiggs, Upson,

Washington, Wilcox, and Wilkinson.

William A. Bootle Federal Building and U.S. Courthouse

P.O. Box 128 Macon, GA 31202

Thomasville Division: Brooks, Colquitt, Decatur, Grady,

Seminole, Thomas.

Thomasville is not staffed, so file all complaints for the

Thomasville Division in the Valdosta Courthouse, address

below.

Valdosta Division: Berrien, Clinch, Cook, Echols, Irwin,

Lanier, Lowndes, and Tift.

U.S. Courthouse and Post Office

401 N. Patterson Street, Suite 212, Valdosta, GA 31601

Southern District of Georgia - The Southern District of

Georgia consists of six divisions. You can bring your case in the

division where the defendant lives or the actions occurred.

Augusta Division: Burke, Columbia, Glascock, Jefferson,

Lincoln, McDuffie, Richmond, Tauaferro, Warren, and

Wilkes.

Dublin Division: Dodge, Johnson, Laurens, Montgomery,

Telfair, Treutlen, and Wheeler.

All cases in the Augusta and Dublin divisions should be filed at:

Clerk’s Office, U.S. Courthouse

600 James Brown Blvd., Augusta, GA 30901

Savannah Division: Bryan, Chatham, Effingham, Liberty

Waycross Division: Atkinson, Bacon, Brantley, Charlton,

Coffee, Pierce, and Ware.

Statesboro Division: Bulloch, Candler, Emanuel, Evans,

Jenkins, Screven, Toombs, and Tatnall.

All cases in Savannah, Waycross and Statesboro divisions

should be filed in:

Clerk’s Office, U.S. Courthouse

125 Bull Street, Room 304, Savannah, GA 31401

Brunswick Division: Appling, Glynn, Jeff Davis, Long,

McIntosh, Wayne

All cases in the Brunswick Division should be filed in:

Clerk’s Office, U.S. Courthouse

801 Gloucester Street, Suite 220, Brunswick, GA 31520

GUAM (9

CIRCUIT)

District of Guam

U.S. Courthouse, 4

floor

520 West Soledad Avenue, Hagåtña, Guam 96910

HAWAII (9

CIRCUIT)

District of Hawaii

U.S. Courthouse

300 Ala Moana Blvd., Room C338, Honolulu, HI 96850

164 | APPENDICES

IDAHO (9

CIRCUIT)

District of Idaho - There are three divisions in the District of

Idaho:

Southern Division: Ada, Adams, Boise, Canyon, Elmore,

Gem, Owyhee, Payette, Valley, and Washington.

James A. McClure Federal Building & U.S. Courthouse

550 W. Fort St., Suite 400, Boise, ID 83724

Northern Division: Benewah, Bonner, Boundary,

Clearwater, Idaho, Kootenai, Latah, Lewis, Nez Perce,

and Shoshone.

U.S. Courthouse

6450 N. Mineral Dr. Coeur d'Alene, ID 83815

Eastern Division: Bannock, Bear Lake, Bingham, Blaine,

Bonneville, Butte, Camas, Caribou, Cassia, Clark, Custer,

Franklin, Fremont, Gooding, Jefferson, Jerome, Lincoln,

Lemhi, Madison, Minidoka, Oneida, Power, Teton, and

Twin Falls.

U.S. Courthouse

801 E Sherman St., Suite 119, Pocatello, ID 83201

ILLINOIS (7

CIRCUIT)

Northern District of Illinois - There are two divisions in the

Northern District of Illinois.

Western Division: Boone, Carroll, DeKalb, Jo Davies,

Lee, McHenry, Ogle, Stephenson, Whiteside, and

Winnebago.

Stanley J. Roszkowski United States Courthouse

327 South Church Street, Rockford, IL 61101

Eastern Division: Cook, Dupage, Grundy, Kane, Kendall,

Lake, Lasalle, and Will.

Everett McKinley Dirksen Building

219 South Dearborn Street, Chicago, IL 60604

Central District of Illinois – There are four divisions in the

Central District of Illinois. You must file your case in the

division in which the claim arose.

Peoria Division: Bureau, Fulton, Hancock, Knox,

Livingston, Marshall, McDonough, McLean, Pedria,

Putnam, Stark, Tazewell, and Woodford.

305 U.S. Courthouse

100 N.E. Monroe Street, Peoria, IL 61602

Rock Island Division: Henderson, Henry, Mercer, Rock

Island, and Warren.

40 U.S. Courthouse

211 19th Street, Rock Island IL 61201

Springfield Division: Adams, Brown, Cass, Christian,

DeWitt, Greene, Logan, Macoupin, Mason, Menard,

Montgomery, Pike Calhoun, Sangamon, Schuyler, Scott,

and Shelby.

151 U.S. Courthouse

600 E. Monroe Street, Springfield IL 62701

Urbana Division: Champaign, Coles, Douglas, Edgar,

Ford, Iroquois, Kankakee, Macon, Moultrie, and Piatt.

218 U.S. Courthouse

201 S. Vine Street, Urbana IL 61802

Southern District of Illinois: Alexander, Bond, Calhoun,

Clark, Clay, Clinton, Crawford, Cumberland, Edwards,

Effingham, Fayette, Franklin, Gallatin, Hamilton, Hardin,

Jackson, Jasper, Jefferson, Jersey, Johnson, Lawrence,

Madison, Marion, Marshall, Massac, Monroe, Perry, Pope,

Pulaski, Randolph, Richland, St. Clair, Saline, Union,

Wabash, Washington, Wayne, White, and Williamson.

There are two courthouse locations in the Southern District of

Illinois, but prisoners can file cases in either one.

U.S. Courthouse

301 West Main Street

Benton, IL 62812|

U.S. Courthouse

750 Missouri Avenue

East St. Louis, IL 62201

INDIANA (7

CIRCUIT)

Northern District of Indiana – There are four divisions in the

Northern District of Indiana. You should file in the division

where your claim arose.

Fort Wayne Division: Adams, Allen, Blackford, DeKalb,

Grant, Huntington, Jay, LaGrange, Noble, Steuben, Wells

and Whitley counties.

U.S. Courthouse

1300 S. Harrison St., Fort Wayne, IN 46802

Hammond Division: Lake and Porter counties.

U.S. Courthouse

5400 Federal Plaza, Suite 2300, Hammond, IN 46320

Lafayette Division: Benton, Carroll, Jasper, Newton,

Tippecanoe, Warren, and White counties.

U.S. Courthouse

230 N. Fourth St., Room 105, Lafayette, IN 47901

South Bend Division: Cass, Elkhart, Fulton, Kosciusko,

LaPorte, Marshall, Miami, Pulaski, St. Joseph, Starke, and

Wabash Counties.

U.S. Courthouse

204 S Main St., South Bend, IN 46601

Southern District of Indiana – There are four divisions in the

Southern District of Indiana. File where your claim arose.

Indianapolis Division: Bartholomew, Boone, Brown,

Clinton, Decatur, Delaware, Fayette, Fountain, Franklin,

Hamilton, Hancock, Hendricks, Henry, Howard, Johnson,

Madison, Marion, Monroe, Montgomery, Morgan,

Randolph, Rush, Shelby, Tipton, Union, and Wayne.

U.S. District Court

46 East Ohio Street, Room 105, Indianapolis, IN 46204

165 | APPENDICES

Terre Haute Division: Clay, Greene, Knox, Owen, Parke,

Putnam, Sullivan, Vermillion, and Vigo.

U.S. District Court

921 Ohio Street, Room 104, Terre Haute, IN 47807

Evansville Division: Daviess, Dubois, Gibson, Martin,

Perry, Pike, Posey, Spencer, Vanderburgh, and Warrick.

U.S. District Court

101 Northwest MLK Boulevard, Room 304, Evansville,

IN 47708

New Albany Division: Clark, Crawford, Dearborn, Floyd,

Harrison, Jackson, Jefferson, Jennings, Lawrence, Ohio,

Orange, Ripley, Scott, Switzerland, and Washington.

U.S. District Court

121 West Spring Street, Room 210, New Albany, IN

47150

IOWA (8

CIRCUIT)

Northern District of Iowa – There are four divisions in the

Northern District of Iowa, and two different locations to file

papers.

Cedar Rapids Division: Benton, Cedar, Grundy, Hardin,

Iowa, Jones, Linn, and Tama.

Eastern Division: Allamakee, Blackhawk, Bremer,

Buchanan, Chickasaw, Clayton, Delaware, Dubuque,

Fayette, Floyd, Howard, Jackson, Mitchell, Winneshiek

Cases arising in either the Cedar Rapids or the Eastern

Division should be filed with the clerk of the court at the

Cedar Rapids location:

U.S. District Court for the Northern District of Iowa,

Clerk’s Office, 111 Seventh Ave SE, Box 12, Cedar

Rapids, IA 52401-2101

Western Division: Buena Vista, Cherokee, Clay,

Crawford, Dickinson, Ida, Lyon, Monona, O’Brien,

Osceola, Plymouth, Sac, Sioux, and Woodbury.

Central Division: Butler, Calhoun, Carroll, Cerro Gordo,

Emmet, Franklin, Hamilton, Hancock, Humboldt,

Kossuth, Palo Alto, Pocahontas, Webster, Winnebago,

Worth, Wright,

Cases arising in the Western or Central Division should be

filed in Sioux City:

US District Court for the Northern District of Iowa

320 Sixth Street, Sioux City, IA 51101

Southern District of Iowa – There are three divisions in the

Southern District of Iowa, and you should file your case at the

division in which your claims arose.

Central Division: Adaire, Adams, Appanoose, Boone,

Clarke, Dallas, Davis, Decatur, Greene, Guthri, Jasper,

Jefferson, Keokuk, Lucas, Madison, Mahaska, Marion,

Marshall, Monroe, Polk, Poweshiek, Ringgold, Story,

Taylor, Union, Wapello, Warren, and Wayne.

U.S. District Court, Southern District of Iowa

123 East Walnut Street, Des Moines, Suite 300, IA

50309

Western Division: Audubon, Cass, Freemont, Harrison,

Mills, Montgomery, Page, Pottawattamie, and Shelby.

U. S. District Court, Southern District of Iowa

8 South 6

Street, Room 313

Council Bluffs, IA 51501

Eastern Division: Clinton, Des Moines, Henry, Johnson,

Lee, Louisa, Muscatine, Scott, Van Buren, and

Washington.

U. S. District Court, Southern District of Iowa

131 East 4th Street, Suite 150

Davenport, IA 52801

KANSAS (10

CIRCUIT)

District of Kansas – You can file your case at any of the

following courthouses.

Robert J. Dole Courthouse

500 State Ave, Room 259, Kansas City, Kansas 66101

U.S. Courthouse

444 S.E. Quincy,

Room 490

Topeka, Kansas 66683

U.S. Courthouse

401 N. Market,

Room 204

Wichita, Kansas 67202

KENTUCKY (6

CIRCUIT)

Eastern District of Kentucky – The Eastern District of

Kentucky has several divisions, but you can file all pleadings in

the main office. The District includes the following counties:

Anderson, Bath, Bell, Boone, Bourbon, Boyd, Boyle,

Bracken, Breathitt, Campbell, Carroll, Carter, Clark, Clay,

Elliott, Estill, Fayette, Fleming, Floyd, Franklin, Gallatin,

Garrard, Grant, Greenup, Harlan, Harrison, Henry, Jackson,

Jessamine, Johnson, Kenton, Knott, Knox, Laurel,

Lawrence, Lee, Leslie, Letcher, Lewis, Lincoln, McCreary,

Madison, Magoffin, Martin, Mason, Menifee, Mercer,

Montgomery, Morgan, Nicholas, Owen, Owsley,

Pendleton, Perry, Pike, Powell, Pulaski, Robertson,

Rockcastle, Rowan, Scott, Shelby, Trimble, Wayne,

Whitley, Wolfe, and Woodford.

U.S. District CourtRobert R. Carr, Clerk

101 Barr St., Lexington, KY 40507

Western District of Kentucky – The Western District of

Kentucky has several divisions, but you can file at any of the

following locations.

Bowling Green Division: Adair, Allen, Barren, Butler,

Casey, Clinton, Cumberland, Edmonson, Green, Hart,

Logan, Metcalf, Monroe, Russell, Simpson, Taylor, Todd,

and Warren.

Clerk’s Office

241 East Main Street, Suite 120

Bowling Green, KY 42101-2175

166 | APPENDICES

Louisville Division: Breckinridge, Bullitt, Hardin,

Jefferson, Larue, Marion, Meade, Nelson, Oldham,

Spencer, and Washington.

Gene Snyder U.S. Courthouse, Clerks Office

601 W. Broadway, Rm. 106, Louisville, KY 40202

Owensboro Division: Daviess, Grayson, Hancock,

Henderson, Hopkins, McLean, Muhlenberg, Ohio, Union,

and Webster.

U.S. District Court, Clerk’s Office

423 Frederica St., Suite 126, Owensboro, KY 42301-3013

Paducah Division: Ballard, Caldwell, Calloway, Carlisle,

Christian, Crittenden, Fulton, Graves, Hickman,

Livingston, Lyon, McCracken, Marshall, and Trigg.

U.S. District Court, Clerk’s Office

501 Broadway, Suite 127, Paducah, KY 42001-6801

LOUISIANA (5

CIRCUIT)

Eastern District of Louisiana – This district has several

divisions, but all documents may be filed in New Orleans. The

Eastern District of Louisiana includes the following counties:

Assumption, Jefferson, Lafourche, Orleans, Plaquemines,

Saint Bernard, Saint Charles, Saint James, Saint John the

Baptist, Saint Tammany, Tangipahoa, Terrebonne, and

Washington.

U.S. District Court

500 Poydras Street New Orleans, LA 70130

Middle District of Louisiana – There is only one courthouse

in the Middle District of Louisiana, and it covers the following

counties: Ascension, East Baton Rouge, East Feliciana,

Iberville, Livingston, Pointe Coupee, Saint Helena, West

Baton Rouge, and West Feliciana.

U.S. District Court

777 Florida Street, Suite 139 Baton Rouge, LA 70801

Western District of Louisiana – There are several divisions

in the Western District, but all pleadings should be filed at the

below address. The district includes the following counties:

Acadia, Allen, Avoyelles, Beauregard, Bienville, Bossier,

Caddo, Calcasieu, Caldwell, Cameron, Catahoula,

Claiborne, Concordia, Jefferson Davis, De Soto, East

Carroll, Evangeline, Franklin, Grant, Iberia, Jackson,

Lafayette, La Salle, Lincoln, Madison, Morehouse,

Natchitoches, Ouachita, Rapides, Red River, Richland,

Sabine, Saint Landry, Saint Martin, Saint Mary, Tensas,

Union, Vermilion, Vernon, Webster, West Carroll, and

Winn.

United States Courthouse, Tony R. Moore, Clerk

300 Fannin Street, Suite 1167, Shreveport, LA 71101-3083

MAINE (1

CIRCUIT)

District of Maine – There are two divisions in Maine, you

should file in the appropriate division, as explained below.

Bangor Division: Arronstrook, Franklin, Hancock,

Kennebec, Penobscot, Piscataquis, Somerset, Waldo,

Washington. Cases from one of these counties, file at:

Clerk, U.S. District Court

202 Harlow Street

Bangor, Maine 04401

Portland Division: Androscoggin, Cumberland, Knox,

Lincoln, Oxford, Sagadahoc, York. Cases that arise in

these counties should be filed at the Portland Courthouse,

except if you are in prison at Thomaston or Warren, in

which case you should file at the above Bangor location.

Clerk, U.S. District Court

156 Federal Street, Portland, Maine 04401

MARYLAND (4

CIRCUIT)

District of Maryland – There are two divisions in the District

of Maryland, and you can file in either location.

U.S. Courthouse

101 W. Lombard Street

Baltimore, MD 21201

U.S. Courthouse

6500 Cherrywood Lane

Greenbelt, MD 20770

MASSACHUSETTS (1

CIRCUIT)

District of Massachusetts – There are three divisions in the

District of Massachusetts.

Eastern Division: Barnstable, Bristol, Dukes, Essex,

Middlesex, Nantucket, Norfolk, Plymouth, and Suffolk.

John Joseph Moakley, U.S. Courthouse

1 Courthouse Way – Suite 2300, Boston, MA 02210

Central Division: Worcester County

Harold D. Donohue Federal Building & Courthouse

595 Main Street, Worcester, MA 01608

Western Division: Berkshire, Franklin, Hampden, and

Hampshire.

Federal Building & Courthouse

300 State Street, Suite 120, Springfield, MA 01105

MICHIGAN (6

CIRCUIT)

Eastern District of Michigan – There are several divisions in

this district, but you can file in whichever courthouse you

want. The Eastern District of Michigan includes the following

counties: Alcona, Alpena, Arenac, Bay, Cheboygan, Clare,

Crawford, Genesee, Gladwin, Gratiot, Huron, Iosco,

Isabella, Jackson, Lapeer, Lenawee, Livingston, Macomb,

Midland, Monroe, Montmorency, Oakland, Ogemaw,

Oscodo, Otsego, Presque Isle, Roscommon, Saginaw, Saint

167 | APPENDICES

Clair, Sanilac, Shiawassee, Tuscola, Washtenaw, and

Wayne.

U.S. District Courthouse

P.O. Box 8199

Ann Arbor, MI 48107

U.S. District Courthouse

P.O. Box 913

Bay City, Michigan 48707

Theodore Levin

U.S. Courthouse

231 W. Lafayette Blvd

Detroit, Michigan 48226.

U.S. District Courthouse

600 Church Street,

Room 140

Flint, Michigan 48502

Western District of Michigan – there is a Northern and a

Southern Division in the Western District of Michigan, but

you can file your complaint at the headquarters in Grand

Rapids. The Western District includes the following counties:

Alger, Allegan, Antrim, Baraga, Barry, Benzie, Berrien,

Branch, Calhoun, Cass, Charlevioux, Chippewa, Clinton,

Delta, Dickinson, Eaton, Emmet, Gogebic, Grand Traverse,

Hillsdale, Houghton, Ingham, Ionia, Iron, Kalamazoo,

Kalkaska, Kent, Keweenaw, Lake, Leelanau, Luce,

Mackinac, Manistee, Marquette, Mason, Mecosta,

Menominee, Missaukee, Montcalm, Muskegon, Newaygo,

Oceana, Ontonagon, Osceola, Ottawa, Saint Joseph,

Schoolcraft, Van Buren, and Wexford.

United States District Court,

Western District of Michigan

399 Federal Building, 110 Michigan St NW,

Grand Rapids, MI 49503

MINNESOTA (8

CIRCUIT)

District of Minnesota – There are several courthouses in the

District of Minnesota, and you can file in whichever one you

want.

202 U.S. Courthouse

300 S. 4th Street

Minneapolis, MN 55415

Warren E. Burger

Federal Building

and U.S. Courthouse

316 North Robert St.

St. Paul, MN 55101

417 Federal Building

515 W. 1st Street

Duluth, MN 55802-1397

212 USPO Building

118 S. Mill Street

Fergus Falls, MN 56537

MISSISSIPPI (5

CIRCUIT)

Northern District of Mississippi – There are four divisions

in the Northern District of Mississippi, and three courthouses

where you can file papers.

Aberdeen Division: Alcorn, Attala, Chickasaw, Choctaw,

Clay, Itawamba, Lee, Lowndes, Monroe, Oktibbeha,

Prentiss, Tismomingo, and Winston.

Greenville Division: Carroll, Humphreys, Leflore,

Sunflower, and Washington.

U.S. District Court

305 Main Street, Room 329, Greenville, Mississippi

38701-4006

Delta Division: Bolivar, Coahoma, DeSoto, Panola,

Quitman, Tallahatchie, Tate, and Tunica.

Western Division: Benton, Calhoun, Grenada, Lafayette,

Marshall, Montgomery, Pontotoc, Tippah, Union,

Webster, Yalobusha. Prisoners in the Delta OR Western

Division, file at: Room 369 Federal Building, 911 Jackson

Avenue, Oxford, MS 38655

Southern District of Mississippi – There are four court

divisions in the Southern District of Mississippi, and you

should file based on the county where your prison is located.

Southern Division: George, Greene, Hancock, Harrison,

Jackson, Pearl River, Stone.

United States District Court

2012 15th Street, Suite 403, Gulfport, MS 39501

Eastern Division: Clarke, Covington, Forrest, Jasper,

Jefferson Davis, Jones, Lamar, Lawrence, Marion, Perry,

Walthall, and Wayne.

United States District Court

701 North Main Street, Suite 200, Hattiesburg, MS

39401

Northern Division: Copiah, Hinds, Holmes, Issaquena,

Kemper, Lauderdale, Leake, Madison, Neshoba, Newton,

Noxubee, Rankin, Scott, Sharkey, Simpson, Smith,

Warren, and Yazoo.

Western Division: Adams, Amite, Claiborne, Franklin,

Jefferson, Lincoln, Pike, and Wilkinson.

Filings for the Northern and Western Divisions should be

sent to the Clerk’s Office in Jackson:

United States Courthouse

501 E. Court Street, Suite 2.500, Jackson, MS 39201

MISSOURI (8

CIRCUIT)

Eastern District of Missouri – There are three divisions in

the Eastern District of Missouri, and you should file based on

what county your prison is in.

Eastern Division: Crawford, Dent, Franklin, Gasconade,

Iron, Jefferson, Lincoln, Maries, Phelps, Saint Charles,

Saint Francois, Sanit Genevieve, Saint Louis, Warren,

Washington, and City of St. Louis.

Northern Division: Adair, Audrain, Chariton, Clark, Knox,

Lewis, Linn, Marion, Monroe, Montgomery, Pike, Ralls,

Randolph, Schuyler, Scotland, and Shelby.

Eastern or Northern Division, file at:

Thomas F. Eagleton Courthouse

111 South 10

Street, Suite 3.300, St. Louis, MO 63102

Southeastern Division: Bollinger, Butler, Cape Girardeau,

Carter, Dunklin, Madison, Mississippi, New Madrid,

Pemiscot, Perry, Reynolds, Ripley, Scott, Shannon,

Stoddard, and Wayne.

168 | APPENDICES

Rush Hudson Limbaugh Sr. U.S. Courthouse

555 Independence Street, Cape Girardeau, MO 63703

Western District of Missouri – There are several divisions in

the Western District of Missouri, but prisoners from all

counties in the district can file their complaint in Kansas City.

The District covers the following counties: Andrew, Atchison,

Barry, Barton, Bates, Benton, Boone, Buchanan, Caldwell,

Callaway, Camden, Carroll, Cass, Cedar, Christian, Clay,

Clinton, Cole, Cooper, Dade, Dallas, Daviess, DeKalb,

Douglas, Gentry, Greene, Grundy, Harrison, Henry,

Hickory, Holt, Howard, Howell, Jackson, Jasper, Johnson,

Laclede, Lafayette, Lawrence, Livingston, McDonald,

Mercer, Miller, Moniteau, Morgan, Newton, Nodaway,

Oregon, Osage, Ozark, Pettis, Platte, Polk, Pulaski,

Putnam, Ray, Saint Clair, Saline, Stone, Sullivan, Taney,

Texas, Vernon, Webster, Worth, and Wright.

Charles Evans Whittaker Courthouse

400 E. 9th Street, Kansas City, MO 64106

MONTANA (9

CIRCUIT)

District of Montana – There are several divisions in the

District of Montana, but all prisoners can send their complaint

to the Billings Courthouse.

James F. Battin Federal Courthouse

2601 2

Avenue North, Billings, MT 59101

NEBRASKA (8

CIRCUIT)

District of Nebraska – Adams, Antelope, Arthur, Banner,

Blaine, Boone, Box Butte, Boyd, Brown, Buffalo Burt,

Butler, Cass, Cedar, Chase, Cherry, Cheyenne, Clay,

Colfax, Cuming, Custer, Dakota, Dawes, Dawson, Deuel,

Dixon, Dodge, Douglas, Dundy, Fillmore, Franklin,

Frontier, Furnas, Gage, Garden, Garfield, Gosper, Greeley,

Hall, Hamilton, Harlan, Hayes, Hitchcock, Holt, Hooker,

Howard, Jefferson, Johnson, Kearney, Keith, Keya Paha,

Kimball, Knox, Lancaster, Lincoln, Logan, Loup, Madison,

McPherson, Merrick, Morrill, Nance, Nemaha, Nuckolls,

Otoe, Pawnee, Phelps, Pierce, Platte, Polk, Red Willow,

Richardson, Rock, Saline, Sarpy, Saunders, Scotts Bluff,

Seward, Sheridan, Sherman, Sioux, Stanton, Thayer,

Thomas, Thurston, Valley, Washington, Wayne, Webster,

Wheeler, and York counties.

All mail should be addressed to the courthouse in Omaha:

Clerk of the Court, Roman L. Hruska Federal Courthouse

111 South 18th Plaza, Suite 1152, Omaha, NE 68102

NEVADA (9

CIRCUIT)

District of Nevada: Carson City, Churchill, Douglas, Elko,

Eureka, Humboldt, Lander, Lyon, Mineral, Pershing,

Storey, Washoe, and White Pine counties:

Clerk of the Court

U.S. District Court of Nevada, Northern Division

400 S. Virginia St., Reno, NV 89501

Clark, Esmeralda, Lincoln, and Nye Counties:

Clerk of the Court

U.S. District Court of Nevada, Southern Division

333 S. Las Vegas Blvd., Las Vegas, NV 89101

NEW HAMPSHIRE (1

CIRCUIT)

District of New Hampshire

Clerk of the Court, U.S. District Court

Warren B. Rudman U.S. Courthouse

55 Pleasant Street, Room 110, Concord, NH 03301-3941

NEW JERSEY (3D CIRCUIT)

District of New Jersey

Martin Luther King & U.S. Courthouse

50 Walnut Street, Rm. 4015, Newark, NJ 07101

NEW MEXICO (10

CIRCUIT)

District of New Mexico

U.S. District Court

333 Lomas Blvd. N.W., Ste 270 Albuquerque, NM 87102

NEW YORK (2D CIRCUIT)

Northern District of New York: Albany, Broome, Cayuga,

Chenango, Clinton, Columbia, Cortland, Delaware, Essex,

Franklin, Fulton, Greene, Hamilton, Herkimer, Jefferson,

Lewis, Madison, Montgomery, Oneida, Onondaga,

Oswego, Otesgo, Rensselaer, Saratoga, Schenectady,

Schoharie, St. Lawrence, Tioga, Tompkins, Ulster, Warren,

and Washington counties:

U.S. District Court, Northern District of New York

U.S. Courthouse & Federal Building

P.O. Box 7367, Syracuse, NY 13261

Southern District of New York: Bronx, Dutchess,

New York, Orange, Putnam, Rockland, Sullivan, and

Westchester counties:

U.S. District Court, Southern District of New York

Daniel Patrick Moynihan United States Courthouse

500 Pearl Street, New York, NY 10007-1312

Eastern District of New York: Kings, Nassau, Queens,

Richmond, and Suffolk counties:

U. S. District Court, Eastern District of New York

225 Cadman Plaza East, Brooklyn, New York 11201

Western District of New York:

Buffalo Division: Allegany, Cattaraugus, Chautauqua, Erie,

Genesee, Niagara, Orleans, and Wyoming counties:

U.S. District Court, Western Division of New York

Office of the Clerk2 Niagara Square

Buffalo, NY 14202-3498

169 | APPENDICES

Rochester Division: Chemung, Livingston, Monroe,

Ontario, Schuyler, Seneca, Steuben, Wayne, and Yates

counties:

U.S. District Court, Western Division of New York

Office of the Clerk, 2120 United States Courthouse

100 State Street, Rochester, New York 14614-1387

NORTH CAROLINA (4

CIRCUIT)

Eastern District of North Carolina: Beaufort, Betrie,

Bladen, Brunswick, Camden, Carteret, Chowan, Columbus,

Craven, Cumberland, Currituck, Dare, Duplin, Edgecombe,

Franklin, Gates, Granville, Greene, Halifax, Harnett,

Hertford, Hyde, Johnston, Jones, Lenoir, Martin, Nash,

New Hanover, Northampton, Onslow, Pamlico,

Pasquotank, Pender, Perquimans, Pitt, Robeson, Sampson,

Tyrell, Vance, Wake, Warren, Washington, Wayne, and

Wilson counties:

Peter A. Moore, Jr., Clerk of Court

PO Box 25670, Raleigh, NC 27611

Middle District of North Carolina: Alamance, Alleghany,

Ashe, Cabarrus, Caswell, Chatham, Davidson, Davie,

Durham, Forsyth, Guilford, Hoke, Lee, Montgomery,

Moore, Orange, Person, Randolph, Richmond,

Rockingham, Rowan, Scotland, Stanly, Stokes, Surry,

Watauga, and Yadkin counties:

Clerk, U.S. District Court for the

Middle District of North Carolina,

324 W. Market Street Greensboro, NC 27401-2544.

Western District of North Carolina

Asheville Division: Haywood Madison, Yancey, Watuaga,

Avery, Buncombe, McDowell, Burke, Transylvania,

Henderson, Polk, Rutherford, Cleveland, Cherokee, Clay,

Graham, Jackson, Macon, and Swain counties:

U.S. Courthouse

100 Otis St., Room 309, Asheville, NC 28801

Charlotte Division: Gaston, Mecklenburg, Union, and

Anson counties:

U.S. Courthouse

401 W. Trade St., Room 210, Charlotte, NC 28202

Statesville Division: Watauga, Ashe, Alleghany, Caldwell,

Wilkes, Alexander, Iredell, Catawba, and Lincoln

counties:

U.S. Courthouse

200 W. Broad St., Room 304, Statesville, NC 28677

NORTH DAKOTA (8

CIRCUIT)

District of North Dakota

U.S. District Court

PO Box 1193 Bismarck, ND 58502-1193

NORTHERN MARIANA ISLANDS (9

CIRCUIT)

District for the Northern Marina Islands

U.S. District Court for the Northern Mariana Islands

P.O. Box 500687, Saipan, MP 96950 USA

OHIO (6

CIRCUIT)

Northern District of Ohio

Eastern Division: Ashland, Ashtabula, Carroll, Clumbiana,

Crawford, Cuyahoga, Geauga, Holmes, Lake, Lorain,

Mahoning, Medina, Portage, Richland, Stark, Summit,

Trumbull, Tuscarawas, and Wayne counties:

U.S. District Court

Northern District of Ohio

2 South Main Street

Akron, OH 44308

U.S. District Court

Northern District of Ohio

801 West Superior Ave.

Cleveland, OH 44113

U.S. District Court

Northern District of Ohio

125 Market Street

Youngstown, OH 44503

Western Division: Allen, Auglaize, Defiance, Erie, Fulton,

Hancock, Hardin, Henry, Huron, Lucas, Marion, Mercer,

Ottawa, Paulding, Putnam, Sandusky, Seneca, Van Wert,

Williams, Wood, and Wyandot:

U.S. District Court, Northern District of Ohio

1716 Spielbusch Avenue, Toledo, OH 43604

Southern District of Ohio

Athens, Belmont, Coschocton, Delaware, Fairfield,

Fayette, Franklin, Gallia, Guernsey, Harrison, Hocking,

Jackson, Jefferson, Knox, Licking, Logan, Madison, Meigs,

Monroe, Morgan, Morrow, Muskingum, Noble, Perry,

Pickaway, Pike, Ross, Union, Vinton, and Washington

counties:

U.S. District Court, Southern District of Ohio

Office of the Clerk, Room 121

85 Marconi Boulevard, Columbus, OH 43215

Adams, Brown, Butler, Clermont, Clinton, Hamilton,

Highland, Lawrence, Scioto, and Warren counties:

U.S. Courthouse Southern District of Ohio

Office of the Clerk, Room 103

100 East Fifth Street, Cincinnati, OH 45202

Champaign, Clark, Darke, Greene, Miami, Montgomery,

Preble, and Shelby counties:

U.S. District Court, Southern District of Ohio

Federal Building, Room 712

200 West Second Street, Dayton, OH 45402

OKLAHOMA (10

CIRCUIT)

Northern District of Oklahoma: Craig, Creek, Delaware,

Mayes, Nowata, Osage, Ottawa, Pawnee, Rogers, Tulsa,

and Washington counties:

170 | APPENDICES

U.S. District Court, Northern District of Oklahoma

Clerk of Court

333 W. 4th St., Room 411, Tulsa, OK 74103

Eastern District of Oklahoma: Adair, Atoka, Bryan, Carter,

Cherokee, Choctaw, Coal, Haskell, Hughes, Johnston,

Latimer, Le Flore, Love, Marshall, McCurtain, McIntosh,

Murray, Muskogee, Okfuskee, Okmulgee, Pittsburg,

Ponotoc, Pushmataha, Seminole, Sequoyah, Wagoner

counties:

U.S. District Court, Eastern District of Ohio

P.O. Box 607, Muskogee, OK 74401

Western District of Oklahoma: Alfalfa, Beaver, Beckham,

Blaine, Caddo, Canadian, Cimarron, Cleveland, Comanche,

Cotton, Custer, Dewey, Ellis, Garfield, Garvin, Grady,

Grant, Greer, Harmon, Harper, Jackson, Jefferson, Kay,

Kingfisher, Kiowa, Lincoln, Logan, Major, McClain, Noble,

Oklahoma, Payne, Pottawatomie, Roger Mills, Stephens,

Texas, Tillman, Washita, Woods, Woodward counties:

U.S. District Court, Western District of Oklahoma

200 NW 4

St., Room 1210, Oklahoma City, OK 73102

OREGON (9

CIRCUIT)

District of Oregon

Portland Division: Baker, Clackamas, Clatsop, Columbia,

Crook, Gilliam, Grant, Harney, Hood River, Jefferson,

Malheur, Morrow, Multnomah, Polk, Sherman,

Tillamook, Umatilla, Union, Wallowa, Wasco,

Washington, Wheeler, and Yamhill counties:

U.S. District Court for the District of Oregon

Mark O. Hatfield U.S. Courthouse, Room 1507

1001 S.W. Third Avenue, Portland, OR 97204

Eugene Division: Benton, Coos, Deschutes, Douglas,

Lane, Lincoln, Linn, and Marion counties:

U.S. District Court for the District of Oregon,

Wayne L. Morse U.S. Courthouse, Room 2100

405 East Eighth Avenue, Eugene, Oregon 97401

Medford Division: Curry, Jackson, Josephine, Klamath,

Lake counties:

U.S. District Court for the District of Oregon,

James A. Redden U.S. Courthouse, Room 213

310 W. Sixth Street, Medford, OR 97501

PENNSYLVANIA (3D CIRCUIT)

Eastern District of Pennsylvania: Berks, Bucks, Chester,

Delaware, Lancaster, Lehigh, Montgomery, Northampton,

and Philadelphia counties:

U.S. District Court, Eastern District of Pennsylvania

601 Market St., Room 2609, Philadelphia, PA 19106-1797

Middle District of Pennsylvania: Adams, Bradford,

Cameron, Carbon, Centre, Clinton, Columbia, Cumberland,

Dauphin, Franklin, Fulton, Huntingdon, Juniata,

Lackawanna, Lebanon, Luzerne, Lycoming, Mifflin,

Monroe, Montour, Northumberland, Perry, Pike, Potter,

Schuylkill, Snyder, Sullivan, Susquehanna, Tioga, Union,

Wayne, Wyoming, York counties:

U.S. District Court, Middle District of Pennsylvania

235 N. Washington Ave., P.O. Box 1148

Scranton, PA 18501

Western District of Pennsylvania

Allegheny, Armstrong, Beaver, Butler, Clarion, Fayette,

Greene, Indiana, Jefferson Lawrence, Mercer, Washington,

and Westmoreland counties:

U.S. District Court, Western District of Pennsylvania

700 Grant Street, Pittsburgh, PA 15219

Crawford, Elk, Erie, Forest, McKean, Venango, and Warren

counties:

U.S. District Court, Western District of Pennsylvania

17 South Park Row, Erie, PA 16501

Bedford, Blair, Cambria, Clearfield, and Somerset counties:

U.S. District Court, Western District of Pennsylvania

208 Penn Traffic Building

3l9 Washington Street, Johnstown, PA l590l

PUERTO RICO (1

CIRCUIT)

District of Puerto Rico

United States District Court, Clerk’s Office

150 Carlos Chardón Street, Suite 150, San Juan, PR 00918

RHODE ISLAND (1

CIRCUIT)

District of Rhode Island

U.S. District Court, District of Rhode Island

Federal Building and Courthouse

One Exchange Terrace, Providence, RI 02903

SOUTH CAROLINA (4

CIRCUIT)

District of South Carolina

Aiken, Barnwell, Allendale, Kershaw, Lee, Sumter,

Richland, Lexington, Aiken, Barnwell, Allendale, York,

Chester, Lancaster, and Fairfield counties:

U.S. District Court, District of South Carolina

Matthew J. Perry, Jr. Courthouse

901 Richland Street, Columbia, South Carolina 29201

Oconee, Pickens, Anderson, Greenville, Laurens, Abbeville,

Greenwood, Newberry, McCormick, Edgefield, Saluda,

Spartanburg, Union, and Cherokee counties:

U.S. District Court, District of South Carolina

Clement F. Haynsworth Federal Building

300 E. Washington St., Greenville, South Carolina 29601

Chesterfield, Marlboro, Darlington, Dillon, Florence,

Marion, Horry, and Williamsburg counties:

171 | APPENDICES

U.S. District Court, District of South Carolina

McMillan Federal Building

401 West Evans Street, Florence, South Carolina 29501

Jasper, Hampton, Beaufort Clarendon, Georgetown,

Charleston, Berkeley, Dorchester, and Colleton counties:

Charleston Federal Courthouse

85 Broad Street, Charleston, South Carolina 29401

SOUTH DAKOTA (8

CIRCUIT)

District of South Dakota

Southern Division:

U.S. District Court, District of South Dakota

U.S. Courthouse, Room 128

400 S. Phillips Avenue, Sioux Falls, SD 57104

Western Division:

Andrew W. Bogue Federal Building and U.S. Courthouse

Clerk’s Office

515 Ninth Street, Room 302, Rapid City, SD 57701

Pierre (Central) and Aberdeen (Northern) Divisions:

Clerk’s Office

U.S. District Court U.S. Post Office and Courthouse

225 South Pierre Street Pierre, SD 57501

TENNESSEE (6

CIRCUIT)

Eastern District of Tennessee

Greeneville Division: Carter, Cocke, Greene, Hamblen,

Hancock, Hawkins, Johnson, Sullivan, Unicoi, and

Washington counties:

U.S. District Court, Eastern District of Tennessee

220 West Depot Street, Suite 200, Greeneville, TN 37743

Knoxville Division: Anderson, Blount, Campbell,

Claiborne, Grainger, Jefferson, Knox, Loudon, Monroe,

Morgan, Roane, Scott, Sevier, and Union counties:

U.S. District Court, Eastern District of Tennessee

800 Market Street, Suite 130, Knoxville, TN 37902

Chattanooga Division: Bledsoe, Bradley, Hamilton,

McMinn, Marion, Meigs, Polk, Rhea and Sequatchie

counties:

U.S. District Court, Eastern District of Tennessee

900 Georgia Avenue, Chattanooga, TN 37402

Winchester Division: Bedford, Coffee, Franklin, Grundy,

Lincoln, Moore, Warren, and Van Buren counties:

U.S. District Court, Eastern District of Tennessee

200 South Jefferson Street, Winchester, TN 37398

Middle District of Tennessee: Cannon, Cheatham, Clay,

Cumberland, Davidson, De Kalb, Dickson, Fentress, Giles,

Hickman, Houston, Humphreys, Jackson, Lawrence, Lewis,

Macon, Marshall, Maury, Montgomery, Overton, Pickett,

Putnam, Robertson, Rutherford, Smith, Stewart, Sumner,

Trousdale, Wayne, White, Williamson, Wilson counties:

U.S. District Court, Middle District of Tennessee

Nashville Clerk's Office

801 Broadway, Room 800, Nashville, TN 37203

Western District of Tennessee

Dyer, Fayette, Lauderdale, Shelby, and Tipton counties:

U.S. District Court, Western District of Tennessee

Federal Building, Room 242

167 North Main Street, Memphis, TN 38103

Benton, Carroll, Chester, Crockett, Decatur, Gibson,

Hardeman, Hardin, Haywood, Henderson, Henry, Lake,

McNairy, Madison, Obion, Perry, and Weakley counties:

U.S. District Court, Western District of Tennessee

U. S. Courthouse, Room 262

111 South Highland Avenue, Jackson, TN 38301

TEXAS (5

CIRCUIT)

Northern District of Texas

Abilene Division: Jones, Nolan, Stephens, Throckmorton,

Fisher, Haskell, Howard, Shackelford, Stonewall, Taylor,

Callahan, Eastland, and Mitchell counties:

U.S. District Court, Northern District of Texas

341 Pine Street, Rm. 2008, Abilene, TX 79601

Amarillo Division: Carson, Deaf Smith, Gray, Hutchinson,

Swisher, Armstrong, Brisco, Castro, Dallam, Hartley,

Moore, Ochiltree, Parmer, Roberts, Childress, Donley,

Hall, Lipscomb, Oldham, Potter, Wheeler, Collingsworth,

Hansford, Hemphill, Randall, and Sherman counties:

U.S. District Court, Northern District of Texas

205 SE Fifth Street, Rm. 133, Amarillo, TX 79101-1559

Dallas Division: Ellis, Kaufman, Dallas, Rockwall, Hunt,

Johnson, and Navarro counties:

U.S. District Court, Northern District of Texas

1100 Commerce St., Rm. 1452, Dallas, TX 75242

Fort Worth Division: Commanche, Perker, Erath, Hood,

Tarrant, Wise, Jack, and Palo Pinto counties:

U.S. District Court, Northern District of Texas

501 West 10th Street, 310, Fort Worth, TX 76102-3673

Lubbock Division: Borden, Cochran, Crosby, Hockley,

Lynn, Dickens, Gaines, Hale, Lamb, Scurry, Bailey, Garza,

Kent, Motley, Yoakum, Dawson, Floyd, Lubbock, and

Terry counties:

U.S. District Court, Northern District of Texas

1205 Texas Avenue, Room 209, Lubbock, TX 79401-

4091

172 | APPENDICES

San Angelo Division: Reagan, Schleicher, Coke, Concho,

Irion, Menard, Sterling, Tom Green, Brown, Coleman,

Mills, Crockett, Glasscock, Runnels, and Sutton counties:

U.S. District Court, Northern District of Texas

33 E. Twohig Avenue, 202, San Angelo, TX 76903-6451

Wichita Falls Division: Archer, Hardeman, Knox,

Montague, Wilbarger, Cottle, Baylor, Clay, King, Wichita,

and Young counties:

U.S. District Court, Northern District of Texas

1000 Lamar Street, Room 203, Wichita Falls, TX 76301

Eastern District of Texas

Beaumont Division: Hardin, Jasper, Jefferson, Liberty,

Newton, and Orange counties:

U.S. District Court, Eastern District of Texas

300 Willow Street, Suite 104, Beaumont, TX 77701

Marshall Division: Camp, Cass, Harrison, Marion, Morris,

and Upshur counties:

Sam B. Hall Jr. Federal Building and U.S. Courthouse

100 E. Houston, Room 125, Marshall, TX 75670

Sherman Division: Collin, Cooke, Denton, Grayson,

Delta, Fannin, Hopkins, and Lamar counties:

Paul Brown U.S. Courthouse

101 E. Pecan St. Room 216, Sherman, TX 75090

Texarkana Division: Bowie, Franklin, Titus, and Red River

counties:

U.S. District Court, Eastern District of Texas

500 North State Line Avenue, Texarkana, TX 75501

Tyler Division: Anderson, Cherokee, Gregg, Henderson,

Panola, Rains, Rusk, Smith, Van Zandt, and Wood

counties:

U.S. District Court, Eastern District of Texas

211 W. Ferguson, Room 106, Tyler, TX 75702

Lufkin Division: Angelina, Houston, Nacogdoches, Polk,

Sabine, San Augustine, Shelby, Trinity, and Tyler

counties:

U.S. District Court, Eastern District of Texas

104 N. Third Street, Lufkin, TX 75901

Southern District of Texas

Brownsville Division: Cameron and Willacy counties:

U.S. District Court, Southern District of Texas

600 East Harrison St., Room 101, Brownsville, TX 78520

Corpus Christi Division: Aransas, Bee, Brooks, Duval, Jim

Wells, Kenedy, Kleberg, Live Oak, Nueces, and San

Patricio counties:

U.S. District Court, Southern District of Texas

1133 North Shoreline Blvd., Corpus Christi, TX 78401

Galveston Division: Brazoria, Chambers, Galveston, and

Matagorda counties:

U.S. District Court, Southern District of Texas

Clerk of Court

601 Rosenberg Street, Room 411, Galveston, Texas 77550

Houston Division: Austin, Brazos, Colorado, Fayette,

Fort Bend, Grimes, Harris Madison, Montgomery, San

Jacinto, Walker, Waller, and Wharton counties:

U.S. District Court, Southern District of Texas

P.O. Box 61010, Houston, TX 77208

Laredo Division: Jim Hogg, LaSalle, McMullen, Webb,

and Zapata counties:

U.S. District Court, Southern District of Texas

1300 Victoria Street, Ste. 1131, Laredo, TX 78040

McAllen Division: Hidalgo and Starr counties:

U.S. District Court, Southern District of Texas

P.O. Box 5059 McAllen, TX 78501

Victoria Division: Calhoun, De Witt, Goliad, Jackson,

Lavaca, Refugio, and Victoria counties:

U.S. District Court, Southern District of Texas

312 S. Main St., Room 406, Victoria, TX 77901

Western District of Texas

Bastrop, Blanco, Burleson, Burnet, Caldwell, Gillespie,

Hays, Kimble, Lampasas, Lee, Llano, Mason, McCulloch,

San Saba, Travis, Washington, and Williamson counties:

U.S. District Court, Western District of Texas

U.S. District Clerk's Office

501 West Fifth Street, Suite 1100, Austin, Texas 78701

Edwards, Kinney, Maverick, Terrell, Uvalde, Val Verde, and

Zavala counties:

U.S. District Court, Western District of Texas

U.S. District Clerk's Office

111 East Broadway, Room L100, Del Rio, Texas 78840

El Paso County:

U.S. District Court, Western District of Texas

U.S. District Clerk's Office

525 Magoffin Avenue, Suite 105, El Paso, Texas 79901

Andrews, Crane, Ector, Martin, Midland and Upton

counties:

U.S. District Court, Western District of Texas

U.S. District Clerk's Office

200 East Wall, Room 222, Midland, Texas 79701

Brewster, Culberson, Jeff Davis, Hudspeth, Loving, Pecos,

Presidio, Reeves, Ward and Winkler counties:

U.S. District Court, Western District of Texas

U.S. District Clerk's Office

410 South Cedar, Pecos, Texas 79772

173 | APPENDICES

Atascosa, Bandera, Bexar, Comal, Dimmit, Frio, Gonzales,

Guadalupe, Karnes, Kendall, Kerr, Medina, Real and

Wilson counties:

U.S. District Court, Western District of Texas

U.S. District Clerk's Office

655 E. Cesar E. Chavez Blvd., Room G65

San Antonio, Texas 78206

Bell, Bosque, Coryell, Falls, Freestone, Hamilton, Hill, Leon,

Limestone, McLennan, Milam, Robertson, and Somervell

counties:

U.S. District Court, Western District of Texas

U.S. District Clerk's Office

800 Franklin Ave., Room 380, Waco, Texas 76701

UTAH (10

CIRCUIT)

District of Utah

U.S. District Court, District of Utah

351 So. West Temple, Room 1.100

Salt Lake City, UT 84101

VERMONT (2D CIRCUIT)

District of Vermont

U.S. District Court, District of Vermont

P.O. Box 945, Burlington, VT 05402-0945

VIRGIN ISLANDS (3D CIRCUIT)

District of the Virgin Islands

U.S. District Court, District of the Virgin Islands

5500 Veterans Drive, Rm 310, St. Thomas, VI 00802

VIRGINIA (4

CIRCUIT)

Eastern District of Virginia

Persons in the city of Alexandria and the counties of

Loudoun, Fairfax, Fauquier, Arlington, Prince William, and

Stafford:

U.S. District Court, Eastern District of Virginia

Albert V. Bryan U.S. Courthouse

401 Courthouse Square, Alexandria, VA 22314

Persons in the Cities of Newport News, Hampton and

Williamsburg, and the Counties of York, James City,

Gloucester, Mathews:

U.S. District Court, Eastern District of Virginia

U.S. Postal Office & Courthouse Building

2400 West Avenue, Newport News, VA 2360

Persons in the Cities of Norfolk, Portsmouth, Suffolk,

Franklin, Virginia Beach, Chesapeake, and Cape Charles,

and the counties of Accomack, Northampton, Isle of

Wight, and Southampton:

U.S. District Court, Eastern District of Virginia

Walter E. Hoffman, U.S. Courthouse

600 Granby Street, Norfolk, VA 23510

Persons in the Cities of Richmond, Petersburg, Hopewell,

Colonial Heights and Fredericksburg, and the Counties of

Amelia, Brunswick, Caroline, Charles City, Chesterfield,

Dinwiddie, Essex, Goochland, Greensville, Hanover,

Henrico, King and Queen, King George, King William,

Lancaster, Lunenburg, Mecklenburg, Middlesex, New

Kent, Northumberland, Nottoway, Powhatan, Prince

Edward, Prince George, Richmond, Spotsylvania, Surry,

Sussex, Westmoreland:

U.S. District Court, Eastern District of Virginia

701 East Broad Street, Richmond, VA 23219

Western District of Virginia

Persons in the city of Bristol or the counties of Buchanan,

Russel, Smyth, Tazewell, and Washington:

U.S. District Court, Western District of Virginia

180 W. Main Street, Room 104, Abingdon, VA 24210

Persons in the city of Norton or the counties of

Dickenson, Lee, Scott, and Wise:

U.S. District Court, Western District of Virginia

180 W. Main Street, Room 104, Abingdon, VA 24210

Persons in the city of Charlottesville or the counties or

Albemarle, Culpeper, Fluvanna, Greene, Louisa, Madison,

Nelson, Orange, Rappahonnock:

U.S. District Court, Western District of Virginia

255 W. Main Street, Room 304, Charlottesville, VA 22902

Persons in the cities of Danville, Martinsville, South

Boston or the counties of Charlotte, Halifax, Henry,

Patrick, and Pittsylvania:

U.S. District Court. Western District of Virginia

P.O. Box 1400, Danville, VA 24543

Persons in the cities of Harrisonburg, Staunton,

Waynesboro, and Winchester or the counties of Augusta,

Bath, Clarke, Frederick, Highland, Page, Rockingham,

Shenandoah, and Warren:

U.S. District Court, Western District of Virginia

116 N. Main Street, Room 314, Harrisonburg, VA 22802

Persons in the cities of Bedford, Buena Vista, Lexington,

and Lynchburg or the counties of Amherst, Appomattox,

Bedford, Buckingham, Campbell, Cumberland, and

Rockbridge:

U.S. District Court, Western District of Virginia

1101 Court Street, Suite A66, Lynchburg, VA 24504

Persons in the cities of Clifton Forge, Covington, Galax,

Radford, Roanoke, and Salem or the counties of Alleghany,

Bland, Botetourt, Carroll, Craig, Floyd, Franklin, Giles,

Grayson, Montgomery, Pulaski, Roanoke, and Wythe:

174 | APPENDICES

U.S. District Court, Western District of Virginia

210 Franklin Road S.W., Suite 540

Roanoke, VA 24011-2208

WASHINGTON (9

CIRCUIT)

Eastern District of Washington

For Adams, Asotin, Chelan, Columbia, Douglas, Ferry,

Garfield, Grant, Lincoln, Okanogan, Pend Oreille, Spokane,

Stevens, and Whitman counties:

U.S. District Court, Eastern District of Washington

Clerk of the Court

P.O. Box 1493, Spokane, WA 99210

For Benton, Franklin, and Walla Walla counties:

U.S. District Court, Eastern District of Washington

825 Jadwin Avenue, Room 174, Richland, WA 99352

For Kittitas, Klickitat, and Yakima counties:

U.S. District Court, Eastern District of Washington

PO Box 2706, Yakima, WA 98907

Western District of Washington

Clallam, Clark, Cowlitz, Grays Harbor, Jefferson, Kitsap,

Lewis, Mason, Pacific, Pierce, Skamania, Thurston, and

Wahkiakum counties:

U.S. District Court, Western District of Washington

1717 Pacific Avenue, Room 3100

Tacoma, WA 98402-3200

Island, King, San Juan, Skagit, Snohomish, and Whatcom

counties:

U.S. District Court, Western District of Washington

700 Stewart Street Suite 2310, Seattle, WA 98101

WEST VIRGINIA (4

CIRCUIT)

Northern District of West Virginia

Brooke, Hancock, Marshall, Ohio, and Wetzel counties:

U.S. District Court, Northern District of West Virginia

1125 Chapline Street, P.O. Box 471,Wheeling, WV 26003

Braxton, Calhoun, Doddridge, Gilmer, Harrison, Lewis,

Marion, Monongalia, Pleasants, Ritchie, Taylor, Tyler

counties:

U.S. District Court, Northern District of West Virginia

500 West Pike Street, Room 301

P.O. Box 2857, Clarksburg, WV 23602

Barbour, Grant, Hardy, Mineral, Pendleton, Pocahontas,

Preston, Randolph, Tucker, Webster counties:

U.S. District Court, Northern District of West Virginia

P.O. Box 1518, 300 Third Street, Elkins, WV 26241

Berkeley, Hampshire, Jefferson, and Morgan counties:

U.S. District Court, Northern District of West Virginia

217 W. King Street, Room 102, Martinsburg, WV 25401

Southern District of West Virginia

Beckley Division: Fayette, Greenbrier, Summers, Raleigh,

and Wyoming counties:

U.S. District Court, Southern District of West Virginia

Federal Building and Courthouse

110 North Heber Street, Room 119, Beckley, WV 25801

Bluefield Division: Mercer, Monroe, McDowell counties:

U.S. District Court, Southern District of West Virginia

601 Federal Street, Room 1037, Bluefield, WV 24701

Charleston Division: Boone, Clay, Jackson, Kanawha,

Lincoln, Logan, Mingo, Nicholas, Putnam, Roane, Wirt,

and Wood counties:

U.S. District Court, Southern District of West Virginia

P. O. Box 2546, Charleston, WV 25329

Huntington Division: Cabell, Mason, and Wayne counties:

U.S. District Court, Southern District of West Virginia

Sidney L. Christie Federal Building

845 Fifth Avenue, Room 101, Huntington, WV 25701

WISCONSIN (7

CIRCUIT)

Eastern District of Wisconsin: Brown, Calumet, Dodge,

Door, Florence, Fond du Lac, Forest, Green Lake, Kenosha,

Kewaunee, Langlade, Manitowoc, Marinette, Marquette,

Menominee, Milwaukee, Oconto, Outagamie, Ozaukee,

Racine, Shawano, Sheboygan, Walworth, Washington,

Waukesha, Waupaca, Waushara, and Winnebago

counties:

U.S. District Court, Eastern District of Wisconsin

517 East Wisconsin Avenue, Room 362, Milwaukee, WI

53202

Western District of Wisconsin: Adams, Ashland, Barron,

Bayfield, Buffalo, Burnett, Chippewa, Clark, Columbia,

Crawford, Dane, Douglas, Dunn, Eau Claire, Grant, Green,

Iowa, Iron, Jackson, Jefferson, Juneau, La Crosse,

Lafayette, Lincoln, Marathon, Monroe, Oneida, Pepin,

Pierce, Polk, Portage, Price, Richland, Rock, Rusk, Sauk, St.

Croix, Sawyer, Taylor, Trempealeau, Vernon, Vilas,

Washburn, and Wood counties:

U.S. District Court, Western District of Wisconsin

120 North Henry Street, Room 320

Madison, WI 53701-0432

WYOMING (10

CIRCUIT)

District of Wyoming

U.S. District Court, District of Wyoming

2120 Capitol Ave., Room 2131 Cheyenne, WY

82001-3658

175 | APPENDICES

APPENDIX N

Constitutional Amendments

In this section you will find the text of the Constitutional

Amendments which we refer to throughout this handbook.

We have not included the Articles of the Constitution,

which are descriptions of the duties of the Executive (the

President), Judicial, and Legislative Branches of government,

because they are not relevant to filing a Section 1983 claim.

The Bill of Rights and Amendments to the

U.S. Constitution

NOTE: The first ten amendments to the Constitution

are what is known as the "Bill of Rights."

The Preamble to the Bill of Rights

ARTICLES in addition to, and Amendment of the Constitution

of the United States of America, proposed by Congress, and

ratified by the Legislatures of the several States, pursuant to

the fifth Article of the original Constitution.

Amendment I

Congress shall make no law respecting an establishment of

religion or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of

a free State, the right of the people to keep and bear Arms,

shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any

house, without the consent of the Owner, nor in time of

war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private

property be taken for public use, without just

compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury shall

be preserved, and no fact tried by a jury, shall be otherwise

re-examined in any Court of the United States, than

according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained by

the people.

Amendment X

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

Amendment XI

Passed by Congress March 4, 1794. Ratified February 7, 1795.

NOTE: Article III, section 2, of the Constitution was

modified by amendment 11.

176 | APPENDICES

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

Amendment XII

Passed by Congress December 9, 1803. Ratified June 15,

1804. Note: A portion of Article II, section 1 of the

Constitution was superseded by the 12th amendment.

The Electors shall meet in their respective states and vote

by ballot for President and Vice-President, one of whom,

at least, shall not be an inhabitant of the same state with

themselves; they shall name in their ballots the person

voted for as President, and in distinct ballots the person

voted for as Vice-President, and they shall make distinct

lists of all persons voted for as President, and of all persons

voted for as Vice-President, and of the number of votes

for each, which lists they shall sign and certify, and

transmit sealed to the seat of the government of the

United States, directed to the President of the Senate; --

the President of the Senate shall, in the presence of the

Senate and House of Representatives, open all the

certificates and the votes shall then be counted; -- The

person having the greatest number of votes for President,

shall be the President, if such number be a majority of the

whole number of Electors appointed; and if no person have

such majority, then from the persons having the highest

numbers not exceeding three on the list of those voted for

as President, the House of Representatives shall choose

immediately, by ballot, the President. But in choosing the

President, the votes shall be taken by states, the

representation from each state having one vote; a quorum

for this purpose shall consist of a member or members

from two-thirds of the states, and a majority of all the

states shall be necessary to a choice. The person having

the greatest number of votes as Vice-President, shall be

the Vice-President, if such number be a majority of the

whole number of Electors appointed, and if no person have

a majority, then from the two highest numbers on the list,

the Senate shall choose the Vice-President; a quorum for

the purpose shall consist of two-thirds of the whole

number of Senators, and a majority of the whole number

shall be necessary to a choice. But no person

constitutionally ineligible to the office of President shall be

eligible to that of Vice-President of the United States.

Amendment XIII

Passed by Congress January 31, 1865. Ratified December

6, 1865.

NOTE: A portion of Article IV, section 2, of the

Constitution was superseded by the 13th amendment.

Section 1.

Neither slavery nor involuntary servitude, except as a

punishment for crime whereof the party shall have been

duly convicted, shall exist within the United States, or any

place subject to their jurisdiction.

Section 2.

Congress shall have power to enforce this article by

appropriate legislation.

Amendment XIV

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified

by section 2 of the 14th amendment.

Section 1.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several

States according to their respective numbers, counting the

whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for

the choice of electors for President and Vice-President of

the United States, Representatives in Congress, the

Executive and Judicial officers of a State, or the members

of the Legislature thereof, is denied to any of the male

inhabitants of such State, being twenty-one years of age,*

and citizens of the United States, or in any way abridged,

except for participation in rebellion, or other crime, the

basis of representation therein shall be reduced in the

proportion which the number of such male citizens shall

bear to the whole number of male citizens twenty-one

years of age in such State.

Section 3.

No person shall be a Senator or Representative in

Congress, or elector of President and Vice-President, or

hold any office, civil or military, under the United States, or

under any State, who, having previously taken an oath, as a

member of Congress, or as an officer of the United States,

or as a member of any State legislature, or as an executive

or judicial officer of any State, to support the Constitution

of the United States, shall have engaged in insurrection or

rebellion against the same, or given aid or comfort to the

enemies thereof. But Congress may by a vote of two-thirds

of each House, remove such disability.

177 | APPENDICES

Section 4.

The validity of the public debt of the United States,

authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing

insurrection or rebellion, shall not be questioned. But

neither the United States nor any State shall assume or pay

any debt or obligation incurred in aid of insurrection or

rebellion against the United States, or any claim for the

loss or emancipation of any slave; but all such debts,

obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have the power to enforce, by

appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.

Amendment XV

Passed by Congress February 26, 1869. Ratified February

3, 1870.

Section 1.

The right of citizens of the United States to vote shall not

be denied or abridged by the United States or by any State

on account of race, color, or previous condition of

servitude.

Section 2.

The Congress shall have the power to enforce this article

by appropriate legislation.

Amendment XVI

Passed by Congress July 2, 1909. Ratified February 3,

1913. Note: Article I, section 9, of the Constitution was

modified by amendment 16.

The Congress shall have power to lay and collect taxes on

incomes, from whatever source derived, without

apportionment among the several States, and without

regard to any census or enumeration.