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Chapter Six

What Happens After You File Your Suit

A Short Summary of a Lawsuit

Short Summary of a Lawsuit

Filing your lawsuit  is only the beginning. You must be prepared to do a lot of work after you file the complaint to achieve your goal. Throughout the suit, it will be your responsibility to keep your case moving forward or nothing will happen. This chapter will explain what may happen after you file the complaint and how to keep your case moving.

Once you send your complaint and summons to the court, the court clerk will give you a civil action number. You need to write this number in the case caption of all documents you file related to your case.

Next you will have to deal with a series of pretrial procedures. The PLRA creates several roadblocks for prisoners. You may have to deal with a waiver of reply and screening by the district court. Both of these issues are described in Section B of this chapter.

Once you make it through these two hurdles, a defendant has a certain period of time after they are served with your complaint to submit a motion to dismiss, a motion for a more definite statement (asking that you clarify some part of your complaint), a motion for an extension of deadline, or an answer. The amount of time depends on what process you used to serve your complaint and is explained in Rule 12 of the Federal Rules of Civil Procedure. Each defendant must eventually submit an answer, unless the judge dismisses your complaint in regard to that defendant. The answer admits or denies each fact you state. It can also include affirmative defenses.

When your case progresses to discovery, each side can get more information from the other through document requests, interrogatories, depositions, and other forms of pretrial discovery. Each side can submit additional declarations from people who have relevant information. Finally, each side can file motions for summary judgment which ask the judge to decide the case, or some part of the case, in its favor without a trial.

If the case goes to trial, you and your witnesses and defendants, and their witnesses, will testify in court and be cross-examined. Both sides may submit exhibits. If you request money damages, you can have that issue decided by a jury.

Whichever side loses in the district court after trial or summary judgment has a legal right to appeal to a U.S. circuit court of appeals. There are different courts of appeals in different parts of the country, listed in Appendix M. The appeals court may affirm (agree with) or reverse (disagree with) the district court’s decision. It may also remand, which orders the district court to hold a new trial or to take another look at a certain issue. The side which loses on appeal can ask the U.S. Supreme Court to review the case by filing a “petition for writ of certiorari.” The Supreme Court will review this petition but can choose not to consider the case, and usually will only consider cases that it thinks raise a very important legal issue. Very, very few cases are accepted by the Supreme Court.

Chapter Six: Table of Contents

Section A Short Summary of a Lawsuit

Section B Dismissal by the Court and Waiver of Reply

Section C How to Respond to a Motion to
Dismiss Your Complaint

Section D The Problem of Mootness

Section E Discovery

Section F Summary Judgment

Section G What to Do If Your Complaint Is
Dismissed or the Court Grants
Defendants Summary Judgment

This chapter of the Handbook will help you handle the key parts of pretrial procedure: the motion to dismiss, the motion for summary judgment, and pretrial discovery. It will also explain what to do if the court dismisses your complaint or grants the defendants summary judgment against you.

Unfortunately, a discussion of trial is beyond the scope of this handbook, and we cannot describe all pretrial procedures in detail or provide much in the way of strategy and tactics. But you can get a basic understanding of some of the procedures by reading the Federal Rules of Civil Procedure and this Handbook. Also, if your case goes to trial, the judge might appoint a lawyer to assist you.

Remember that much of the success of your suit depends on your initiative. If you don’t keep pushing, your suit can stall at any number of points. For example, if the defendants haven’t submitted an answer, a motion, or some other legal paper after the time limits set by the Federal Rules of Civil Procedure, submit a Declaration for Entry of Default. If the court accepts your Declaration, you will receive a Notice of Entry of Default from the court. You then submit a Motion for Judgment by Default. Forms and more information about these procedures are in Appendix D. You probably can’t win a judgment this way, but you can keep the case moving.

Cases Before Magistrate Judges

Many prisoner complaints are given to “magistrate judges.” A Magistrate Judge is a judicial officer who is like a federal judge. Their powers are limited in comparison to a district court judge, but they do much of the work in many prison cases.

Your district court judge can tell the magistrate to decide certain things in your case, like a discovery issue, scheduling, or requests for extensions. If you don’t like what the magistrate says, you can write “objections” to the action within ten days and file them at the district court. However, for decisions like these, it is very hard to get a magistrate’s decision changed.

A district court judge can also ask the magistrate to do important things in your case, like hold a hearing or “propose findings.” You can also file objections to these types of actions. You are more likely to get meaningful review by a district court judge on an issue of importance. Whether or not you file objections, the district court judge will read what the magistrate has written, and then adopt, reject, or modify the magistrate’s findings.

The prison officials may just submit an answer and then do nothing. If this happens, you should move ahead with discovery, which is explained in Section E of this chapter. This will make them realize you are serious about pushing forward your case and may get things moving. If your case stalls after discovery, you can move for summary judgment, which is explained in Section F of this chapter or ask the court to set a date for a trial.

Keep trying at every point to get the court to appoint a lawyer for you. If you don’t have a lawyer, don’t be afraid to keep moving forward pro se, which means “on your own behalf.” You can also try writing the court clerk and prisoners’ rights groups when you don’t know what to do next. The worst thing is to let your suit die.

B Dismissal by the Court and Waiver of Reply

Dismissal by the Court and Waiver of Reply

Once you have filed your complaint, the court is required to “screen” it. This means the court looks at your complaint and decides, without giving you the chance to argue or explain anything, whether or not you have any chance of winning your case. The PLRA requires the court to dismiss your complaint right then and there if it:

1. is “frivolous or malicious;”

2. fails to state a claim upon which relief may be granted; or

3. seeks money damages from a defendant who is immune from money damages.

If the court decides that your complaint has any one of these problems, the court will dismiss it “sua sponte,” without the defendant even getting involved. “Sua sponte” is Latin for “on its own.”

Hopefully, if the court does dismiss your case, it will note that it is doing so “without prejudice” or “with leave to amend.” This is OK. It means you can change your complaint and fix whatever problems the court brings to your attention. If the court dismisses your lawsuit without saying anything about amending, you can ask the court for permission to fix your complaint by filing a Motion for Leave to Amend. An example is in Appendix D. A court should not deny you at least one chance to amend, and maybe more, if it is possible for you to fix whatever the court thinks is wrong with your complaint. Shomo v. City of New York, 579 F.3d 176 (2d Cir. 2009) is one case in which a court talks about how important it is to give pro se prisoners a chance to amend their complaint.

If you think the court made a mistake, instead of amending, you may want to quickly respond with a Motion for Reconsideration. In this short motion, all you need to do is tell the court why you think they got it wrong. If the error is legal, cite cases or other authority that support your position. If the error is factual, for example the judge wrote that you did not include anything in your complaint about one defendant’s personal involvement, point out where you do that in your complaint. Motions for reconsideration are meant for pointing out things the judge overlooked, not for restating arguments you already made that the court rejected. The time to submit a motion for reconsideration is set forth in courts’ Local Rules, and some are very short—like 14 days.

If your complaint was recommended to be dismissed by a magistrate judge, you can file “objections” to the magistrate’s recommendation which will be reviewed by the district court judge.

If neither of these approaches work, you can appeal. Procedures for appealing are laid out in Section G of this chapter.

The other hurdle created by the PLRA is something called a waiver of reply. A defendant can file a waiver of reply to get out of having to file an answer or other motions. When a defendant does this, the court reviews your complaint to see if you have a “reasonable opportunity to prevail on the merits.” If the court thinks you have a chance at winning your lawsuit, it will order the defendants to either file a Motion to Dismiss or an Answer. If the court doesn’t do this, you can file a motion asking the court to order the defendants to reply.

C How to Respond to a Motion to Dismiss Your Complaint

How to Respond to a Motion to Dismiss Your Complaint

If you get through the first hurdles, the next legal paper you receive from the prison officials may be a Motion to Dismiss your suit. Motions to dismiss are based only on what is in your complaint, not on documents or other evidence from Defendants. Motions to dismiss are different than Motions for Summary Judgment, which is based on Defendants’ version of the facts and usually happen after discovery. Rule 12(b) of the Federal Rules of Civil Procedure explains some of the grounds for a motion to dismiss. Defendants may give a number of reasons. One reason is sure to be that you did not “state a claim upon which relief can be granted,” which means defendants think that what you are complaining about does not violate the law.

The motion to dismiss is a written request that the judge end your suit, without you getting the chance to get discovery, or go to trial. Attached to the motion will be a memorandum of law (also called a “brief”) which gives the defendant’s legal arguments for dismissing your suit. Each court has different rules about how long you have to respond to this motion, but usually you will have at least two or three weeks to file an opposition to the defendant’s motion to dismiss. The opposition is a memorandum of law that responds to the defendant’s arguments. If you need more time, send the judge a letter explaining why and asking for a specific number of extra weeks. If you can, check the Local Rules to see if the court has any specific requirements for time extensions. If you cannot find any information, just send the letter and send a copy to the prison officials’ lawyer.

Chapter Seven explains in more detail how to research and write your opposition, so be sure to read it before you start working. After you read the suggestions in Chapter Seven, you may want to try to read all of the cases that the defendants use in their memo. If you read these cases carefully, you may come to see that they are different in important ways from your case. You should point out these differences. You can also try to find cases the defendants have not used that support your position.

To support their motion to dismiss, the prison officials can make all kinds of arguments which have been dealt with in other parts of this Handbook. They may say you failed to exhaust administrative remedies (see Chapter Five, Section A), or that you cannot sue top prison officials who did not personally abuse you (see Chapter Four, Section D). They may claim you sued in the wrong court (“improper venue”—see Chapter Five, Section B) or that your papers weren’t properly served on some of the defendants (see Chapter Five, Section D). They may say the issues in your lawsuit are now “moot” (see Section D of this chapter).

The prison officials may also argue against your constitutional claims. They might say that you failed to state a proper claim because the actions you describe do not deny you due process or equal protection, or are not cruel and unusual punishment. Your memorandum of law should respond to whatever arguments the government makes.

Unfortunately, writing a memorandum of law requires quite a bit of legal research and writing. Because time to do this research might be an issue for you, you can prepare for this memorandum before you even receive the motion to dismiss. Research cases that are both helpful and harmful to your case. There is a chance that defendants will use some of them and you will have already done a lot of your research.

Defendants might point out something that is wrong with your case that you want to fix, instead of defending against the motion to dismiss. Under rule 15(a) of the Federal Rules of Civil Procedure, you have the right to amend your complaint once without anyone’s permission as long as you do so within twenty-one days of serving it or within twenty-one days of defendants answering or filing a motion to dismiss. If these time periods have passed, or if you have already amended once, Rule 15 allows you to ask the defendants to consent to your filing an amended complaint or ask the court for permission to amend. Courts are supposed to give you permission “freely” when “justice so requires.” Ask for consent first, and if you don’t get it, file a Motion for Leave to Amend in which you describe your proposed changes or attach the proposed amended complaint.

One thing you will have going for you is that in considering the defendant’s motion to dismiss, the judge must assume that every fact you stated in your complaint is true. The judge must then ask: if all those facts are true, is it plausible that the defendants violated your rights? If any combination of the facts stated in your complaint might qualify you for any form of court action under Section 1983, then the judge is legally required to deny the prison officials’ motion to dismiss your complaint. In making this decision, courts are supposed to treat unrepresented parties, including prisoners, more leniently that people who are filing a suit with a lawyer. In considering a motion to dismiss, a pro se complaint should be held to less strict standards than a complaint drafted by a lawyer.

It is important to remember in writing your opposition that defendants have to deal with the facts as you put them in your complaint. For example, if you stated in your complaint that you were “severely beaten” by two guards, yet the defendant says in his motion to dismiss that an “inadvertent push” doesn’t amount to cruel and unusual punishment, you should tell the court in your memo that you did not allege an “inadvertent push,” you alleged a severe beating, and that is what the court has to assume is true.

Sometimes defendants support motions to dismiss by submitting factual materials such as affidavits, declarations, or documents. You should ask the court not to consider this “extrinsic evidence,” since a motion to dismiss is supposed to consider only the adequacy of the complaint.

Send three copies of your memo to the court clerk (one will be returned to you to let you know they accepted your papers) and one copy to each defendant’s lawyer. Usually, all the prison officials are represented by one lawyer from the office of the attorney general of your state. The name and office address of that lawyer will be on the motion to dismiss.

In some cases, after the parties exchange memoranda of law, attorneys for both sides appear before the judge to argue for their interpretation of the law. However, when dealing with a case filed by a prisoner pro se, most judges decide motions based only on the papers you send in, not on arguments in person. In the rare case that a judge does want to hear argument, many federal courts now use telephone and video hook-ups or hold the hearing at the prison. It is quite hard to get a court to order prison administrators to bring you to court, because the PLRA requires that courts use remote access techniques “to the extent practicable.”

NOTE: If you defeat the prison officials’ motion to dismiss your complaint, ask again for appointed counsel. Follow the procedure in Chapter Five, Section C, Part 3. The judge is more likely to appoint a lawyer for you at this stage of your case. You may also want to reach out to lawyers to try to get representation. Lawyers may be more likely to agree to help you once you have gotten past a motion to dismiss.

If the judge does decide to dismiss your complaint, they must send you a decision stating the grounds for their action. The judge may or may not dismiss your case with leave to amend. Either way, you can appeal from that decision. Section G of this chapter explains what else you can do if the court dismisses your complaint.

Instead of (or before) a Motion to Dismiss, you may receive a motion for extension of time from the defendants. A motion for extension of time (or “enlargement”) gives the other side more time to file an answer or motion. One extension is usually automatic. If your situation is urgent, write the court to explain the urgency and ask that the prison officials not get another extension.

You may also receive a letter or motion asking the court to treat your case as related to another previously filed case. Check out what the other suit is about, who is bringing it, and what judge is considering it. This could be a good or bad thing for you, depending on the situation. If you think you’d be better off having your suit separate, submit an affidavit or memorandum of law in opposition to the motion to relate. Say clearly how your suit is different and why it would be unfair to join your suit with the other one. For example, the facts might get confused.

D The Problem of Mootness

The Problem of Mootness

One argument that prison officials often raise, either in their motion to dismiss or later on, is that you have no legal basis for continuing your suit because your case has become “moot.” This is only a problem if you are asking for injunctive or declaratory relief. If you are asking for money damages, your case cannot become moot.

A case may be moot if, after you have filed your suit, the prison stops doing what you complained about, releases you on parole, or transfers you to a different prison. The prison officials can ask the court to dismiss your case as moot, saying there is no longer anything the court can order the prison to do that would affect you.

For example, imagine you sue the prison for injunctive relief because they are not providing medical care for your diabetes. In your suit, you ask the court to order the prison to provide you with adequate medical care in the future. Then, after you file your complaint, the prison starts to provide you with medical care. The prison can argue that your case is moot because the only remedy you asked for has already been given to you by the prison.

The good news is that the defendants will have the burden of proving that the case is really moot. This is a heavy burden, since they must show that there is no reasonable expectation that the violations of your rights will happen again. There are five arguments you may be able to make to defeat the prison’s efforts to get your case dismissed because of mootness:

  • If you have asked for money damages, your suit can never be moot. You have a right to get money for injuries you suffered in the past as long as you sue within the period allowed by the statute of limitations. This does not just apply to physical harm: if you have been denied your constitutional rights, it is an “injury” for which you might be able to get money damages. For more on damages, read Chapter Four, Section C.

  • A violation of your rights may not be moot if it is “capable of repetition, but evading review.” In other words, the court will allow you to continue your case in a situation where the illegal action will almost always end before the case could get to court. Imagine that a prisoner wants to sue to force the prison to improve conditions in administrative segregation. By the time the prisoner actually gets into court, however, they have been moved back to general population. This case should not be dismissed as moot because it is “capable of repetition,” meaning they could get put in administrative segregation again, and it “evades review” because they might never stay in segregation long enough to get to trial.
    To meet this test, the condition must be reasonably likely to recur. Most courts have not applied this exception when a prisoner is transferred to another prison, since it is only “possible” and not “likely” that he will be transferred back. Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). Transfer may not moot your case, however, if the department or officials whom you sued are also in charge of the new prison. Scott v. District of Columbia, 139 F.3d 940, 942 (D.C. Cir. 1998).

  • Sometimes, being transferred away from where the violation happened does not make your suit moot. Courts have found that a state-wide policy that violated your constitutional rights in one facility may still violate your rights in the new facility. See Pugh v. Goord, 571 F.Supp.2d 477 (S.D.N.Y. 2009) and Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002).

  • If you get a lawyer and file a “class action” suit on behalf of all the prisoners who are in your situation and the class is certified, your suit will not be moot as long as the prison continues to violate the rights of anyone in your class. If you are paroled or transferred, the court can still help the other members of your class. Section F of Chapter Four discusses class action lawsuits. Remember that it is very hard to bring a class action without an attorney.If any negative entries have been put in your prison records because of your suit or the actions you are suing about, you may be able to avoid mootness by asking the court to order the prison officials to remove (or “expunge”) these entries from your records. The federal courts have held that a case is not moot if it could still cause you some related injury. If you can show that there are documents in your prison records which could affect you in the future, asking the court to expunge them can keep your case from becoming moot. A few cases good cases to read on this issue are Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. 1998), Kerr v. Farrey, 95 F.3d 472, 476 (7th Cir. 1996) and Dorn v. Mich. Dep’t of Corr., 2017 WL 2436997 (W.D. Mich. June 6, 2017).  

  • You can argue that just because the prison has stopped doing something illegal or has reversed a policy does not mean that the court can’t review the case. You may have a strong argument if you can convince the judge that the prison has just changed course to avoid litigation. You can quote the U.S. Supreme Court that “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case.” Los Angeles County v. Davis, 440 U.S. 625, 631 (1979). This argument against mootness has been successful in several Section 1983 claims brought by prisoners. Two examples to read are Burns v. PA Dep’t of Corrections, 544 F.3d 279 (3d Cir. 2008) and Aref v. Holder, 953 F. Supp. 2d 133 (D.C. Cir. 2013). The prison officials must show that there is no reasonable expectation that the violations will recur. They must also show that the relief or changes in policy that they put in place have completely fixed the constitutional violation, and the effects it may have had.

E Discovery


If you have made it past the defendant’s motions for dismissal, there is a better chance that the court will appoint an attorney to assist you. If so, you can use this section of the Handbook to understand what your lawyer is doing, to help them do it better, and to figure out what you want them to do. If you do not have a lawyer, this section will help you get through the next stage on your own—but what you will be able to do will be more limited.

The next major activity in your suit will be discovery. Rules 26-37 of the Federal Rules of Civil Procedure explain “discovery” tools that both parties in a lawsuit can use. You should begin by reading through those rules. Some of the rules, like Rule 26, set out different requirements for pro se prisoners than for others. It is also very important to read the corresponding Local Rules from the district your case is in, as many courts have made important changes to the federal rules.

The Importance of “Discovery”

  • Uncover factual information about the thing that happened to you.

  • Collect evidence to use at “summary judgment” or your trial.

  • Force the defendants to explain their version of the facts and provide you with the evidence they plan to rely on.

Discovery helps you to get important information and materials from the other party before the case goes to trial. If you don’t have a lawyer at this stage, you will need to spend a lot of time thinking about what facts you will need to prove at trial and coming up with a plan about how to find out that information. The Southern Poverty Law Center’s litigation manual for prisoners, Protecting Your Health & Safety, has a very helpful chapter on developing discovery strategies. You will find information on ordering that book in Appendix K.

1. Discovery Tools

There are four main discovery tools: depositions, interrogatories, production, and inspection. This Handbook gives you only a brief introduction to these techniques. The details of how they work are in the Federal Rules of Civil Procedure.

A deposition is a very valuable discovery tool. You meet with a defendant or a potential witness, that person’s lawyer, and maybe a court reporter. You or your lawyer ask questions which the “deponent” (the defendant or witness you are deposing) answers under oath. Because the witness is under oath, they can be prosecuted for perjury if they lie. The questions and answers are tape-recorded or taken down by the stenographer.

A deposition is very much like testimony at a trial. In fact, you can use what was said at a deposition in a trial if the deponent (1) is a party (plaintiff or defendant), (2) says something at the trial which contradicts the deposition, or (3) can’t testify at the trial. Despite these benefits, you should BEWARE: a deposition is very hard to arrange from in prison because it can be expensive and involves a lot of people. If you want to take more than ten depositions, you will have to ask the court for permission.

Some courts don’t allow pro se prisoners to take depositions. If you have no lawyer, you might try a “Deposition Upon Written Questions” (Federal Rules of Civil Procedure Rule 31). You submit your questions in advance, as with interrogatories, but the witness does not send back written answers. The witness has to answer in their own words, under oath, before a stenographer who writes down the answers.

Interrogatories are written questions which must be answered in writing under oath. Under Federal Rules of Civil Procedure Rule 33, you can send up to 25 questions to each of the other parties to the suit. If you need more than 25, you can ask the court for permission to serve more.

PRACTICE TIP: you may want to start discovery with document requests, as they tend to provide the most helpful evidence. Interrogatory responses are written by defense lawyers and are frequently less helpful.

You can use the following example to write interrogatories of your own.


____District of_____________

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



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




Civil Action No._____


In accordance with Rule 33 of the Federal Rules of Civil Procedure, Plaintiff requests that Defendant [Defendant’s name] answer the following interrogatories under oath, and that the answers be signed by the person making them and be served on plaintiffs within 30 days of service of these interrogatories.

If you cannot answer the following interrogatories in full, after exercising due diligence to secure the information to do so, so state and answer to the extent possible, specifying your inability to answer the remainder and stating whatever information or knowledge you have concerning the unanswered portions.

These interrogatories shall be deemed continuing, so as to require supplemental answers as new and different information materializes.

[List your questions here…and be creative and as detailed as possible. ]

  • If you have a guard brutality case, you may want to ask questions about how long the specific guard has worked at the prison, where they are assigned, what their duties are, what they remember of the incident, what they wrote about the incident in any reports, whether they have ever been disciplined, and more.

It is also a good idea to take the opportunity to try to find out who else might be a helpful witness. You could ask the defendant to:

  • State the name and address or otherwise identify and locate any person who claims to know of facts relevant to the conduct described in these interrogatories.



Although interrogatories are fairly cheap, other forms of discovery require money. If the court lets you tape record depositions instead of hiring a certified court reporter (Fed.R.Civ.P. Rule 30(b)(2)), you still need a typed transcript of the entire tape if you want to use any of it at the trial of your suit. Discovery expenses are included in the costs you will be awarded if you win, but federal courts generally refuse to advance money for discovery. You will have to find some other way to pay for transcription.

You can also ask for documents. For example, you could include the following as a question:

  • Identify and attach a copy of any and all documents relating to prison medical center staff training on the proper treatment of prisoners with hepatitis C.


  • Identify and attach a copy of any and all documents showing who was on duty in cell block B at 9 p.m. the night of August 18, 2009.

At the end of your questions, you should date and sign the page and type your full name and address below your signature.

A person who is just a witness, but not a party, cannot be made to answer interrogatories. However, they can voluntarily answer questions in an affidavit. To get an affidavit from someone in another prison, you may need a court order.

The third discovery tool is “Document Production.” If you want to read documents such as letters, photos, or written rules that the prison officials have, ask for production of those items under Federal Rules of Civil Procedure Rule 34. There are no limits to the number of document requests you can make, but you should be reasonable in what you ask for, or the defendants will object. You can use the following form:

____District of_____________

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

in the case, et al



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



Civil Action No._____

Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiff requests that Defendants [put defendants’ full names here] produce for inspection and copying the following documents:

[List the documents you want here, some examples follow]

1.  The complete prison records of all Plaintiffs.

2.  All written statements (originals or copies) identifiable as reports about the incident on August 18, 2009, made by DOCS employees, and/or witnesses.

3.  Any and all medical records of Plaintiff from the time of his incarceration in Fishkill Correctional Institution through and including the date of your response to this request.

4.  Any and all rules, regulations, and policies of the New York Department of Corrections about treatment of prisoners with diabetes.

Dated: ________________________________________

Signed: _________________________________________

You can also get inspection of tangible things, like clothing or weapons, and a chance to “copy, test, or sample” them. And you have a right to enter property under the defendants’ control,—such as a prison cell, exercise yard or cafeteria, to examine, measure, and photograph it. Defendants may object to these types of requests as creating a security concern. If they do, this can give you a nice reason to renew your request for appointment of a lawyer to represent you.

You can use any combination of these techniques at the same time or one after the other. If you have new questions or requests, you can go back to a defendant for additional discovery. You can also use informal investigation to find out important information. You can talk to other prisoners and guards about what is going on.

You can use state and federal Freedom of Information Act and Public Records Act laws to request prison policies and information. Each state has different rules about what information is available to the public. Of course, prison officials may use various tactics to interfere with your investigation. Try to be creative in dealing with these problems.

2. What You Can See and Ask About

The Federal Rules puts very few limits on the kind of information and materials you can get through discovery and the number of requests you can make. Federal Rules of Civil Procedure Rule 26(b)(1) states that you can get discovery about anything “relevant” to your case and “proportional to the needs of the case.” “Relevant” means somehow related to what you are suing about. You have a legal right to anything which is in any way “relevant” to any party’s claim or defense. This includes anything relevant to any defense offered by the prison officials.

You will need to spend some time thinking through what you actually need to prove your case, and what kind of evidence you may be able to get. Describe what you want as specifically as possible in all your discovery requests, or defendants are likely to object.

A judge will decide whether a discovery request is proportional by considering the importance of the issues in your lawsuit, the amount of money at issue, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

You can demand information that the rules of evidence would not allow you to use at a trial so long as the information “appears reasonably calculated to lead to the discovery of admissible evidence.” This just means that the information could possibly help you to find other information that you could use at trial.

The people you are suing must give you all the “non-privileged” information that is available to them. (The issue of “privilege” is explained below.) If you sue a top official, discovery includes what that person’s subordinates know and the information in records available to him. This could possibly even include information that is only held by a party’s attorney, if you can’t get that information any other way. Hickman v. Taylor, 329 U.S. 495 (1947).

Defendants may try to get out of having to deal with your requests by arguing that they are not proportional under the reasons listed above. They may argue that your request would cost the prison a lot of money and wouldn’t be very helpful to you. However, as one judge explained, “the federal courts reject out of hand claims of burdensomeness which are not supported by a specific, detailed showing, usually by affidavit, of why weighing the need for discovery against the burden it will impose permits the conclusion that the court should not permit it.” Natural Resources Defense Council v. Curtis, 189 F.R.D. 4, 13 (D.D.C. 1999). In other words, the defendants can’t avoid discovery by just stating it will be too difficult. They have to really prove it.

Even when defendants can show that producing the requested information would be very expensive and difficult, the court may not let them off the hook if the information is truly essential for your lawsuit. For example, in Alexander v. Rizzo, 50 F.R.D. 374 (E.D. Pa. 1970), the court ordered a police department to compile information requested by plaintiffs in a Section 1983 suit even though the police claimed it would require “hundreds of employees to spend many years of man hours.” The burden and expense involved was not “undue” because the information was essential to the suit and could not be obtained any other way.

3. Privilege

You may not be able to discover material that is protected by a legal “privilege,” such as the attorney-client privilege. A “privilege” is a rule that protects a certain type of information from discovery. There are several types of privileges, including the attorney-client privilege, attorney work product privilege, and the husband-wife privilege. Explaining all these privileges is too complicated for us to attempt here. However, it is important for you to know that prison officials cannot avoid discovery of relevant information merely by claiming it is “confidential.” Beach v. City of Olathe, Kansas, 203 F.R.D. 489 (D. Kan. 2001). If the prison officials claim information is privileged, they have the burden of identifying the specific privilege at issue and proving that the particular information is in fact privileged. A judge may order the privileged information to be “redacted” from the documents provided to you. This means that information covered by any privilege mentioned above will be blacked out.

Information which would be considered “confidential” under state law may still have to be disclosed if, after examining it privately (“in camera”), the judge decides it is very important for your suit. King v. Conde, 121 F.R.D. 180, 190 (E.D.N.Y. Jun. 15, 1988). If the material is confidential, the judge may keep you from showing the information to anyone else or using it for any reason besides your suit.

4. Some Basic Steps

Usually, in a prison suit, you start with document production and interrogatories and then move to depositions. The documents you get in response to a motion for production can lead you to other useful documents, potential witnesses, and people you might want to depose. Some of the kinds of documents that have been obtained from prison officials include: policy statements, prison rules and manuals, minutes of staff meetings, files about an individual prisoner (provided they sign a written release), and incident reports filed by prison staff.

You can use interrogatories to discover what kinds of records and documents the prison has, where they are kept, and who has them. This information will help you prepare a request for production. Only people you have named as defendants can be required to produce their documents and records. Wardens, associate wardens, and corrections department officials have control over all prison records. If your suit is only against guards or other lower-level staff, however, you may have to set up a deposition of the official in charge of the records you need and ask the court clerk to issue a “subpoena” which orders the official to bring those records with him to the deposition. See Federal Rules of Civil Procedure Rule 45. That said, as mentioned before, some courts do not allow prisoners to take depositions.

Interrogatories are also good for statistics which are not in routine documents but which prison officials can compile in response to your questions. Examples are the size of cells, the number and titles of books in the library, and data on prisoner classification, work release, and punishments. If your suit is based on brutality or misbehavior by particular prison employees, you can also use interrogatories to check out their background and work history, including suits or reprimands for misbehavior. If you are suing top officials for acts by their subordinates, you should find out how responsibilities relevant to your case are assigned within the prison and the Corrections Department and how, if at all, these responsibilities were fulfilled in your case.

5. Some Practical Considerations

Interrogatories have two big drawbacks:

1. you can use them only against people you have named as defendants, and

2. those people have lots of time to think out their answers and go over them with their lawyers.

As a result, interrogatories are not good for pressing officials into letting slip important information they’re trying to hide. You won’t catch them giving an embarrassing off-the-cuff explanation of prison practices or making some other blunder that you can use against them.

Depositions are much better for this purpose. You can take the deposition of any person with relevant knowledge. The deponent can’t know the questions in advance and must answer them right away. Regular depositions, however, are much less practical than interrogatories for a prisoner suing pro se. Judges are unlikely to order the authorities to set up a deposition within the prison or allow you to conduct one outside.

6. Procedure

The procedure for getting interrogatories and document production is fairly simple. Just send your questions and your requests for production to the lawyer for the prison officials, usually the deputy attorney general. Send separate requests and questions for each defendant. You don’t need to send your interrogatories to the court.

The prison officials must respond within 30 days unless the court or the parties agree otherwise. The officials may ask the judge for a “protective order” which blocks some of your questions or requests because they are irrelevant, privileged, or not proportional. They have to submit a motion to avoid responding to your requests. There is then an opportunity for memoranda of law and a court hearing.

If prison officials fail or refuse to answer questions or requests which are not covered by a protective order, you may need to submit a motion for an order compelling discovery. Many courts have Local Rules requiring the parties to try to work out discovery disputes on their own before filing a motion, through something called a “meet and confer.” Obviously, this is very hard to do if you are in prison and have no lawyer. You may want to try writing to the defendant’s lawyers setting out your discovery concerns first, before you file a motion. If this does not work, explain how you tried to “meet and confer” in your motion.

In your motion, you indicate what they refused and why you need it. Use the following example:

____District of_____________

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



Names of first defendantin the case, et al.,



Civil Action No._____

Plaintiffs move this court for an order pursuant to Rule 37(a) of the Federal Rules of Civil Procedure compelling Defendants [list defendants who failed to fully answer interrogatories] to answer fully interrogatories number [list unanswered questions], copies of which are attached hereto. Plaintiffs submitted these interrogatories, pursuant to Rule 33 of the Federal Rules of Civil Procedure on [date] but have not yet received the answers.


Plaintiffs move this court for an order pursuant to Rule 37(a) of the Federal Rules of Civil Procedure compelling Defendants [list defendant who did not produce documents] to produce for inspection and copying the following documents: [list requested documents that were not produced]. Plaintiffs submitted a written request for these documents, pursuant to Rule 34 of the Federal Rules of Civil Procedure on [date] but have not yet received the documents.

Dated: ________________________________________

Signed: ________________________________________
Type name and address

7. Their Discovery of Your Information and Material

Prison officials can and generally will use discovery against you. You must respond to discovery requests unless the defendants are asking for information that is irrelevant or privileged. If you don’t have an attorney, then the privilege that is most important for you to know about is the 5th Amendment right against self-incrimination. You can refuse to answer a question in a deposition or an interrogatory if it might amount to admitting that you have committed a crime for which you could face charges. However, if you refuse to answer questions about matters relevant to the case, the case may be dismissed as a result.

Under Rule 30(a) of the Federal Rules of Civil Procedure, a prisoner can only be deposed with leave of the court. If defendants ask to depose you, you may want to ask the judge to put off the deposition until after they reconsider your request for appointed counsel. Put in another request for appointment of counsel and see if the judge will at least appoint a lawyer to represent you at the deposition.

If you are deposed, it is important to stay calm and answer questions directly and honestly. You do not need to volunteer any information. You should also warn any witnesses you may have that the attorney general’s office probably will depose them once you’ve revealed their identities.

You must be notified in advance of any deposition scheduled in your case. If you have a lawyer, they are entitled to be present, to advise and consult with your witness, and ask them questions that become part of the official record of the deposition after the defendants have finished. The witness has a right to talk with your lawyer beforehand. The witness can also refuse to talk about your suit outside the deposition with anyone from the prison or the attorney general’s office.

F Summary Judgment

Summary Judgment

At some point, the prison officials will probably submit a motion for summary judgment. Be sure to read about the rules and procedure for summary judgment in Rule 56 of the Federal Rules of Civil Procedure. Defendants can ask for summary judgment along with their motion to dismiss your complaint or at some later time. You can also move for summary judgment. Your motion will be discussed separately at the end of this section.


1. The Legal Standard

“Summary Judgment” means the judge decides some or all of your case without a trial. Through summary judgment, a court can throw out part or all of your case. Under Federal Rule 56(a), to win on summary judgment, the prison officials have to prove to the judge there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. In other words, the judge finds that there is no point in holding a trial because both you and the defendants agree about all the important facts and the judge can use those facts to decide that the defendants should win.

This test is very different from the test which is applied in a motion to dismiss your complaint. When the judge receives a motion to dismiss, they are supposed to look only at your complaint. In a motion to dismiss, the judge asks: could you win a judgment in your favor if you could prove in court everything you say in your complaint? When the judge receives a motion for summary judgment, however, they look at evidence presented by both sides, including affidavits, and ask: is there is any real disagreement about the important facts in the case?

The first part of the test for a motion for summary judgment that is important to understand is what is meant by “a genuine issue.” Just saying that something happened one way, when the prison says it happened another way, is not enough: You need to have some proof that it happened the way you describe. Sworn statements (affidavits or declarations), photographs, deposition transcripts, interrogatory responses, and copies of letters or documents count as proof because you or the prison officials could introduce the documents as evidence, and the people making sworn statements (including you) could testify if there were a trial in your case.

An “unverified” Complaint or Answer is not proof of any facts. It only says what facts you or the prison officials are going to prove. If you “verify” your complaint, however, then it counts the same as a declaration. See Chapter Five, Section C, Part 1 for more on verification.

If prison officials give the judge evidence that important statements in your complaint are not true and you do not give the judge any evidence that your statements are true, then there is no real dispute about the facts. The judge will see that the prison officials have submitted evidence about their version of the facts and that you have not. The judge can then end your case by awarding summary judgment to the prison officials.

On the other hand, if you give the judge some evidence that supports your version of the important facts, then there is a real dispute. The prison officials are not entitled to summary judgment and your case should go to trial.

For example, if you sue guards who you say locked you up illegally, the guards could submit affidavits swearing they didn’t do it and then move for summary judgment. If you do not present evidence supporting your version of what happened, the guards’ motion might be granted. But if you present a sworn affidavit from yourself or a witness who saw it happen, the guards’ motion for summary judgment should be denied.

A good way to think about a “genuine issue” is whether the judge can tell, by the evidence presented by you and the prison, that you disagree with specific facts the prison officials are relying on.

The second important part of the test is that the “genuine issue” explained above must be about a “material fact.” A material fact is a fact that is so important to your lawsuit that it could determine whether you win or lose. If the prison officials can show that there is no genuine issue (or disagreement, as discussed above) over any material fact, then the court may grant them summary judgment. To know whether a fact is “material,” you have to know what courts consider when they rule on your type of case.

Imagine a prisoner sues a guard for excessive force. As you know from Chapter Three, one of the most important facts in an excessive force claim is whether there was a legitimate need for the guard to use force against you. In your complaint, you write that you were quietly sitting in your cell when the guard entered and began to beat you for no reason. The guard submits an affidavit swearing that they only entered your cell after they saw you attack your cellmate, and that they used only the force necessary to pull you off your cellmate. Imagine they submit a declaration from your cellmate supporting their story. The question of why the guard entered your cell is a material fact. If you don’t provide any evidence to support your version of what happened, like an affidavit of your own, a declaration by another witness, or a doctor’s report showing your injuries were inconsistent with a guard merely pulling you off another inmate, the court may decide there is no “genuine issue of material fact” and dismiss your complaint. 

Strope v. Collins, 492 F. Supp. 2d 1289 (D. Kan. 2007), provides a helpful example. In that case, two pro se prisoners sued various officials at Lansing Correctional Facility for violating their First Amendment right to receive information in prison, and their Fourteenth Amendment right to procedural due process after defendants censored magazines containing nudity. Defendants moved for summary judgment before any discovery had occurred. You’ll remember from Chapter Three that a prison regulation which denies a prisoner books or magazines is valid if it is reasonably related to a “legitimate penological interest,” decided by the Turner Test. The judge denied summary judgment on the First Amendment claim because there wasn’t yet a factual record allowing for Turner analysis.

However, the court granted summary judgment on the procedural due process claim because both parties agreed that the prisoners were provided notice of the censorship, and under the law, notice is all the process that is required. Had the prisoners filed a verified complaint or an affidavit stating they did not receive notice of the censorship, this might have presented a genuine issue of material fact.

In deciding summary judgment, a court isn’t supposed to decide which party is telling the truth or compare the strength of evidence. If there is a real dispute, the court should just deny summary judgment. In reality, however, if the prison officials moving for summary judgment have a lot of evidence, like witness statements and medical records, and all you have is a verified complaint, you may lose summary judgment. So you should try to present as much evidence as you can to the court, and not just rely on a verified complaint.

When the judge considers a motion for summary judgment, they are supposed to view the evidence submitted by both sides “in the light most favorable to the party opposing the motion.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 160 (1970); see also Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001). If defendants in your case move for summary judgment against you, you are the “opposing party.” This means that as the opposing party you get the benefit of the doubt if the meaning of a fact could be interpreted in two different ways.

2. Summary Judgment Procedure

If prison officials move for summary judgment, you will then have a chance to submit your own evidence in opposition: declarations, deposition transcripts, interrogatory responses, and other evidence. You need to submit all your evidence, and a memorandum explaining what you are submitting within 21 days or ask for an extension. The memorandum of law should summarize your evidence and explain how it supports each point that you need to prove. Check Chapter Three for the requirements of your claim. Be sure to repeat the major cases which support your argument that the prison officials violated your federal constitutional rights. Your memorandum should also point out to the judge all the specific facts that show there are material issues in dispute.

Most courts have Local Rules about summary judgment, and one thing they may require is a numbered statement of undisputed facts. Read your Local Rules carefully to understand what is required. If you don’t submit a statement of undisputed facts, the court may treat it as if you are accepting the defendants’.

Defendants may try to move for summary judgment before you have had a chance to get discovery against them. It also may be difficult for you to get declarations, especially from prisoners who have been transferred to other prisons or placed in isolation. If this is a problem, write a declaration to the judge explaining what facts you think you can get, how you want to get them, how those facts will create a genuine issue of material fact, any effort you have already made to get them, and why that effort was unsuccessful.


Examples of Evidence or Proof of What You Say in Your Complaint:

  • Affidavits and Declarations

  • Photographs

  • Interrogatory Responses

  • Deposition Transcripts

  • Copies of Letters

  • Copies of Documents

  • Your Verified Complaint

Under Rule 56(d) of the Federal Rules of Civil Procedure, the judge can deny the prison officials’ motion for summary judgment because you cannot get the declarations you need or because you haven’t yet had access to discovery. The judge can also order that you should have more time to get the declarations you need. This means the judge puts off ruling on the motion. Some courts have been very supportive of the fact that prisoners may need extra time to get declarations. Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), is a good case explaining this rule.

The judge also has the power under Rule 56(d) to “issue any other appropriate order.” This could include ordering prison officials to let you interview witnesses or write to prisoners in other prisons.

3. Summary Judgment in Your Favor

You also have a right to move for summary judgment in your favor. You may want to do this in a case where everyone agrees that the prison is following a particular policy and the only question for the court is whether that policy is legal.

For example, suppose your complaint says that you were forced to let prison officials draw your blood to get your DNA and put it in a DNA database. The prison officials admit they are doing this but deny that it is illegal. You may move for summary judgment on your behalf. Since the material facts are agreed on, the judge should grant you summary judgment if they agree with your interpretation of the law. On the other hand, if your suit is about brutality, prison conditions, or denial of medical care, you usually will have to go to trial since what actually happened is bound to be the major issue.

NOTE: If you defeat the prison officials’ motion for summary judgment, be sure to renew your request for appointment of counsel. Follow the procedure outlined in Chapter Four, Section C, Part 3. The judge is much more likely to appoint a lawyer for you at this stage of your case, as you are most likely going to trial. You may also want to consider approaching attorneys with your case at this point even if you tried before and didn’t have any luck. Since summary judgment is a big hurdle to clear, some attorneys might see it as a sign that your case has the potential to win.

G What to Do If Your Complaint Is Dismissed or the Court Grants Defendants Summary Judgment

What to Do If Your Complaint Is Dismissed or the Court Grants Defendants Summary Judgment

The sad truth is that people in prison file thousands of Section 1983 cases every year, and the vast majority of these are dismissed at one of the three stages described in Sections B, C, and F of this chapter. This may happen to you even if you’ve detailed all your claims and present a great argument. It may happen even if you work very hard on your papers and follow every suggestion in this Handbook perfectly. The important thing to remember is that you don’t have to give up! You can choose to keep fighting. You have already learned how to file an amended complaint in Section C, and the next few pages tell what else you can do if your case is dismissed or the court grants summary judgment in favor of the defendants.

1. Motion to Alter or Amend the Judgment

Your first option is to file a motion to alter or amend the judgment under Federal Rules of Civil Procedure Rule 59(e). This motion must be filed within 28 days after entry of judgment. Include a memorandum of law that cites the cases from your circuit.

You can only make this kind of motion if the court dismisses your complaint after denying leave to amend or grants summary judgment to the defendants. Like motions to reconsider, motions to alter or amend the judgment are intended to call the court’s attention to matters it overlooked, not to restate arguments the court rejected.

2. How to Appeal the Decision of the District Court

If you lose your motion to alter the judgment, or if you decide not to make one, you can appeal to the U.S. Court of Appeals for your district. You begin your appeal by filing a Notice of Appeal with the clerk of the U.S. District Court whose decision you want to appeal. Follow the form in Appendix D. If you filed a motion to alter under Rule 59(e), file your Notice of Appeal within thirty days after the court denies your motion to alter. Otherwise, file your notice within thirty days after the order or judgment was entered by the district court judge.

The appeals process is governed by the Federal Rules of Appellate Procedure. These rules are supposed to be in your prison library, included as part of Title 28 of the United States Code (U.S.C.). There is an annotated version of the U.S.C. called the United States Code Annotated (U.S.C.A.) which gives summaries of important court decisions which interpret the Federal Rules of Appellate Procedure. The U.S.C. will only have the text of the Federal Rules while the U.S.C.A. will give some explanation and cases, and is probably more helpful to you. Chapter Seven explains how to use the U.S.C.A. and other law books. Some of the books listed in Appendix K give more information on the appeals process.

If you sued in forma pauperis, you can appeal in forma pauperis, unless the district court finds that your appeal is not taken “in good faith.” If the district court decides this, you have to send to the appeals court in forma pauperis papers like those you sent to the district court, except that you should explain the basis of your appeal. Submit these papers within 30 days after you are notified that the district court ruled that your appeal was not in good faith.

Soon after you receive a notice that your appeal has been transferred to the court of appeals, submit another Motion for Appointment of Counsel. Use the form in Chapter Four, Section C, Part 3, for requesting counsel but change the name of the court and state the basis of your appeal. If you have to submit new in forma pauperis papers, send them together with the motion for counsel.

Along with your Motion for Appointment of Counsel, submit a Memorandum of Law which presents all your arguments for why the appeals court should reverse the decision of the district court, for example, because the district court got the law wrong. If the appeals court thinks your appeal has merit, it is more likely to appoint a lawyer for you. Otherwise, you may get a summary dismissal of your appeal.