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Chapter Four

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.

A What to Ask for in Your Lawsuit

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.

B 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.

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:

1. You are likely to show at trial that the defendants violated your rights;

2. 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;

3. The threat of harm that you face is greater than the harm the prison officials will face if you get a preliminary injunction; and

4. 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.  

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.

C Money Damages

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 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).

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.

D Who You Can Sue

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.

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 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.

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.

E 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.

F Class Actions

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:

1. The class must be so large that it would not be practical for everyone in it to bring the suit and appear in court;

2. There must be “questions of law or fact common to the class”;

3. The claims made by the people who bring the suit must be similar to the claims of everyone in the class; and

4. 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:

1. 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;

2. 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

3. 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;   
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.

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.


Image of Cartoon about inmate caught with adult magazine.
Cartoon by Jim McCloskey, The News Leader, Staunton, VA