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Chapter Five

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.  

A When to File Your Lawsuit

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 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.

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.

B Where to File Your Lawsuit

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.

C How to Start Your Lawsuit

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.  

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.

The Complaint Form:

UNITED STATES DISTRICT COURT (A)

Names of all the people: bringing the suit,

Plaintiff[s],

v.

Names of all the people the suit
is against, individually and in their
official capacities,

Defendant[s]

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.

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 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.

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:

IN THE UNITED STATES DISTRICT COURT FOR THE (A)

Names of all the people bringing the suit,

Plaintiff[s],

v.

Names of all the people the suit is against,
individually and in their official capacities,

Defendant[s]

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: __________________________________________

 

You will notice that the caption (Part A) is the same as the one you did for your complaint.

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

In Forma Pauperis Declaration:

IN THE UNITED STATES DISTRICT COURT FOR THE (A)

Name of the first plaintiff, et al.,
 

Plaintiff [s],

v.

Name of the first Defendant, et al.

Defendant[s]

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.

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.

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:

IN THE UNITED STATES DISTRICT COURT FOR THE

Name of the first plaintiff, et al., :

Plaintiff[s],

v.

Name of the first defendant, et al.,

Defendant[s]

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.

D How to Serve Your Legal Papers

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.

1. 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.

2. 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.

E Getting Immediate Help from the Court

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:

IN THE UNITED STATES DISTRICT COURT FOR THE

Name of first plaintiff in the case, et al.,

Plaintiff[s],
v.

Names of first defendant in the case, et al.,

Defendant[s]

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.

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

Hey, et al.,

Plaintiff[s],
v.

Smith, et al.,

Defendant[s]

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

 

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.

F Signing Your Papers

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.