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Chapter Two

Overview of Types of Lawsuits and the Prison Litigation Reform Act

 Chapter Two:
Overview of Types of Lawsuits and the Prison Litigation Reform Act

This chapter describes the different types of lawsuits you can bring to challenge conditions or treatment in prison or detention, including Section 1983 actions, state law actions, the Federal Tort Claims Act and Bivens actions. We also discuss international law and explain the impact of the Prison Litigation Reform Act (PLRA).

Chapter Two: Table of Contents

Section A Section 1983 Lawsuits

Section B State Court Cases

Section C Federal Tort Claims Act

Section D Bivens Actions

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

A Section 1983 Lawsuits

Section 1983 Lawsuits

Section 1983 lawsuits provide a way for people in state prisons or local jails to get relief from unconstitutional treatment or conditions. The main way to understand what kind of lawsuit you can bring under Section 1983 is to look at the words of that law:

“Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

Some of the words are perfectly clear. Others have meanings that you might not expect, based on years of interpretation by judges. In this section we will explore what the words themselves and judges’ opinions from past lawsuits tell us about what kind of suit is allowed under Section 1983.

Although Section 1983 was designed especially to help Black people, anyone can use it, regardless of race. The law refers to “any citizen of the United States or any other person within the jurisdiction thereof.” This means that you can file a Section 1983 action even if you are not a United States citizen. Martinez v. City of Los Angeles, 141 F.3d 1373 (9th Cir. 1998). All you need is to have been “within the jurisdiction” when your rights were violated. “Within the jurisdiction” just means you were physically present in the United States.

Not every harm you suffer or every violation of your rights is covered by Section 1983. There are two requirements. First, Section 1983 applies to the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” This means that the violations you are suing about must violate your federal rights. Federal rights are those given by the U.S. Constitution, Amendments to the Constitution, and laws passed by the U.S. Congress. They are explained in part 1, below. Second, Section 1983 also says “under color of any statue, ordinance, regulation, custom or usage, of any State or Territory.” Courts have developed a shorthand for this phrase. They call it “under color of state law.” This means that the violation of your rights must have been done by a state or local official. This requirement is explained in part 2 below.

1. Violations of Your Federal Rights

Section 1983 won’t help you with all the ways in which prison officials mistreat prisoners. You need to show that the way a prison official treated you violates the U.S. Constitution or a law passed by the U.S. Congress.

Prisoners most commonly use Section 1983 to enforce rights guaranteed by the U.S. Constitution. These are called “constitutional rights.” Your constitutional rights are explained in Chapter Three.

You can also use Section 1983 to enforce rights in federal laws, or “statutes.” But most federal laws which apply to prisoners provide their own cause of action, which you can use without reference to Section 1983. For example, the Americans with Disabilities Act, or the “ADA” can be found at 42 U.S.C. §§ 12101 – 12213. The ADA prevents discrimination against people with disabilities, including prisoners. If you have any sort of physical or mental disability, you can file an ADA lawsuit without making reference to Section 1983.

Another federal statute that may be useful to prisoners is the Religious Land Use and Institutionalized Persons Act, or “RLUIPA,” which was passed by Congress in 2000. 42 U.S.C. § 2000cc-1(a). RLUIPA protects prisoners’ rights to exercise their religion and may be used by any prisoner, whether in federal or state prison or in jail. A second federal statute protecting the religious rights of prisoners is the Religious Freedom Reformation Act, or “RFRA.” 42 U.S.C. § 2000bb-1(c). RFRA can only be used by prisoners in federal prison. It is not available to prisoners in state prison. Religious freedom is a constitutional right protected by the First Amendment, but RLUIPA and RFRA provide even more protection than the First Amendment. Chapter Three, Section B explains the protection provided by each of these laws. Like ADA claims, these claims can be brought in a Section 1983 suit, or on their own.

Prisoners can use Section 1983 to sue about conditions or treatment in prison. You cannot use Section 1983 to challenge the reason you are in prison, how long you are in prison, or to obtain immediate or speedier release from prison. If you want to challenge your trial, your conviction, or your sentence, you need to use a completely different type of action, called a writ of habeas corpus. This handbook will not help you with that kind of case, but some of the resources listed in Appendix K explain how to do it.

2. “Under Color of State Law”

Section 1983 only allows you to sue for actions taken “under color of state law.” This usually means that your rights must have been violated by a state or local official. This includes people who work for the state, city, county, or other local governments. If you are in a state prison, anything done to you by a prison guard, prison doctor, or prison administrator (like the warden) is an action “under color of state law.”

The “under color of state law” requirement does not mean that the action has to have been legal under state law. This is very important, and was decided in a case called Monroe v. Pape, 365 U.S. 167 (1961). All you need to show is that the person you sue was working for the prison system or some other part of state or city government at the time of the acts you’re suing about.

The decision in Monroe v. Pape that state government officials can be sued under Section 1983 was expanded in a case called Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978). In that case, the Supreme Court allowed for Section 1983 claims against municipal and city governments.

In a Section 1983 suit, you can sue over a one-time action that violated your rights. For example, you can sue if a guard beats you. You can also sue over a pattern or practice of certain acts, like if guards routinely look away and fail to act when prisoners fight with each other. Finally, you can also sue over an official prison policy. For example, you could sue if the prison has a policy that allows Catholic prisoners to pray together but doesn’t allow the same thing for Muslim prisoners.

You can’t use Section 1983 to sue federal employees over their actions because they act under color of federal law, not state law. You can sometimes use something called a “Bivens” action to sue in federal court when a federal official violates your constitutional rights, but this type of case is limited. Bivens actions are explained in Section D of this chapter.

You also can’t use Section 1983 to sue a private citizen who acted without any connection to the government or any governmental power. For example, if another prisoner assaults you, you cannot use Section 1983 to sue that prisoner, because they do not work for the government. You could, however, use Section 1983 to sue a guard for failing to protect you from the assault.

You can sometimes use Section 1983 to sue private citizens who are working for a state or local government. A person can exercise power from the government even if they don’t actually work for the state directly. You can use Section 1983 to sue a private citizen, such as a doctor, who mistreats you while they are working with or for prison officials. In a case called West v. Atkins, 487 U.S. 42 (1988), the Supreme Court held that a private doctor with whom the state contracts to provide treatment to a prisoner can be sued using Section 1983. And in Richardson v. McKnight, 521 U.S. 399 (1997) the Supreme Court ruled that private prison guards sued under Section 1983 are not entitled to the defense of qualified immunity.

When using Section 1983 against non-state officials, most courts will look at whether the individual is performing a traditional state function so that it looks just like the guard is acting “under color of state law.” One case that discusses this in detail is Skelton v. PriCor, Inc., 963 F.2d 100 (6th Cir. 1991). In Skelton, a private prison employee wouldn’t let a prisoner go to the law library or have a bible. The Sixth Circuit ruled that the private prison guard’s action was “under color of state law” and allowed the prisoner to sue using Section 1983. Another helpful case is Giron v. Corrections Corporation of America, 14 F. Supp. 2d 1245 (D.N.M. 1998). In that case a woman was raped by a guard at a private prison. The court held that the guard was “performing a traditional state function” by working at the prison, so his actions were “under color of state law.”

The Parties in a Lawsuit

P “Plaintiff” is the person who starts a lawsuit. If you sue a guard over prison abuse, you are a plaintiff.

P “Defendant” is the person who you sue. If you sue a prison doctor, guard, and a supervisor, they are all defendants.

B State Court Cases

State Court Cases

Section 1983 allows people in state prisons to bring federal claims in federal court. But people in state prisons can also bring 1983 claims and other claims in state court.

One reason you might want to sue in state court, rather than federal court, is the Prison Litigation Reform Act, or “PLRA.” The PLRA is a federal law that makes it difficult for a prisoner to file a federal lawsuit by imposing all sorts of procedural hurdles and requirements. We explain the PLRA in Section E of this Chapter. States have laws similar to the PLRA, but some provisions vary. It is important to find out about the PLRA-like statute in your state.

A good thing about state court is that you may also be able to enforce rights that you don’t have in federal court. For example, a state “tort” claim is an entirely different way to address poor prison conditions. A “tort” is an injury or wrong of some sort. The advantage of suing in state court is that some conduct by prison guards may be considered a “tort” but may not be so bad as to be considered a constitutional violation.

For example, you will learn in Chapter Three that the Eighth Amendment prohibits “cruel and unusual punishment” and entitles prisoners to medical care that is not so poor as to amount to such punishment. For a constitutional medical care claim (described in detail in the Chapter Three) a prisoner needs to prove that they had a serious medical need and that the guard or doctor in question acted recklessly in failing to provide medical care. On the other hand, you can sue a prison doctor for the state tort of medical negligence if they mess up in your treatment, whether that mistake was reckless or not. Common torts are listed in Section C, Part 2 of this Chapter, under the heading, “Types of Torts.”

Another type of state claim is a claim based on your state’s constitution. Some state constitutions provide more rights than the federal constitution.

Sometimes a prisoner's suit will include claims based on state law as well as federal law. You can do this in a Section 1983 suit if the action you are suing about violates both state and federal law. But it is tricky to try this without an experienced lawyer, and usually it won’t make a very big difference. You can’t use Section 1983 to sue about an action that only violates state law. It is also important to know that if you bring federal claims in state court, your case may be “removed” to federal court by the defendants.

Historically, federal judges were more sympathetic to prisoners than state judges. However, the PLRA has made federal court a much less friendly place for prisoners. Sadly, that does not mean that you will necessarily get fair treatment in state court. Many state court judges are elected, rather than appointed, so they may avoid ruling for prisoners because it might hurt their chances of getting reelected.

C Federal Torts Claims Act (FTCA)

Federal Torts Claims Act (FTCA)

If you are a federal prisoner, or a pretrial or immigration detainee in a federal facility, your best chance for relief may be a claim under the Federal Tort Claims Act (“FTCA”) because Section 1983 cases are for state prisoners only.

Usually, you cannot sue the United States itself. The FTCA is an exception to this general rule. The FTCA allows federal prisoners and immigration or pretrial detainees in federal jails or facilities to file lawsuits against the United States when a federal employee has injured them.

The most important FTCA provisions are in Title 28 of the United States Code, sections 1346(b), 1402(b), 2401(b) and 2671-2680. When we reference Title 28 in this chapter, it will look like this: “28 U.S.C. § 2679(d)(2)” where “28 U.S.C.” means “Title 28 of the United States Code,” and the numbers and letters after it refer to a specific section in the code.

FTCA Claims and Qualified Immunity

One of the good things about an FTCA claim is that the United States does not have “qualified immunity.” “Qualified immunity” is described in Chapter Four. For both Bivens and Section 1983 claims, the qualified immunity defense makes it hard to win money damages from government officials.

The FTCA only allows you to sue over the “torts” described in Section B of this chapter. You’ll find examples of torts in the following section. The FTCA provides a way to sue the U.S. in federal court for torts committed by a federal employee. 28 U.S.C. § 1346(b).

You do not have to be a U.S. citizen to obtain relief under the FTCA. There are, however, many more FTCA cases that have been brought by citizen prisoners than noncitizen detainees.

FTCA actions must be brought in federal court, not state court. However, the federal court will use state tort law. Since torts are different from state to state, make sure that the tort you’re suing over exists under the law of the state where you are in prison or jail.

1. Who You Can Sue

When you bring a lawsuit using the FTCA , you will name the “United States” as the defendant. You cannot name the specific federal employee who hurt you, or an agency such as the “Bureau of Prisons.” Although you will name the United States as the defendant in your FTCA suit, you will discuss the actions of a specific federal employee.

The FTCA only allows you to sue over actions by federal officials or employees. This means you can’t sue over the actions of a state or local law enforcement agent. You also can’t sue about an independent contractor under the FTCA unless federal employees directly supervised the day-to-day activities of the contractors. Figuring out whether someone is a contractor or federal employee can be tricky, but you should look to the standard set out in the Supreme Court case, United States v. Orleans, 425 U.S. 807 (1976). Most courts decide the question by looking at facts like who owned the tools used by the contractor and who paid the salary, worker’s compensation, and insurance of the employee. In one good case, a prisoner succeeded in an FTCA case arising from a fever outbreak at a prison owned by the Bureau of Prisons but operated by a private prison company. The United States defended the case by arguing that the private contractornot the United Stateswas responsible. The Ninth Circuit Court of Appeals disagreed, saying that the Bureau of Prisons had a duty to warn prisoners about the risks of valley fever. Edison v. United States, 822 F.3d 510 (9th Cir. 2016).

The FTCA is most useful for people held in federal immigration detention centers, or federal jails or prisons. But if you are a federal detainee injured in a state, county, or local jail you may also be able to bring a claim against the United States under the FTCA for negligently housing you in an unsafe non-federal facility. You should argue that the United States has a duty to use reasonable care in ensuring the safety of federal detainees no matter where they are housed. The law is not settled in this area, but you should carefully read a Supreme Court decision, Logue v. U.S., 412 U.S. 521 (1973) which held that the federal government was not responsible for the suicide of a federal prisoner who was negligently confined in a municipal jail because the municipal employees were federal contractors, not federal employees. Probably, you will only be able to succeed on this theory if a federal employee knew or should have known you were being put into an unsafe situation. One example is Cline v. United States Department of Justice, 525 F. Supp. 825 (D.S.D. 1981), a good case in which the court allowed a claim by a federal prisoner held in a county jail after U.S. Marshals placed him into a situation they knew was unsafe.

The FTCA requires that the government employee whose acts you are complaining of was acting within the “course and scope of employment.” The meaning of this requirement is also a matter of state law, so you will have to figure out what the law is in your state. Under the law in some states, this requirement is relatively easy to meet. For example, in California the court asks whether the risk of this kind of tort is generally foreseeable given the enterprise. Perry v. County of Fresno, 215 Cal.App.4th 94 (2013). In other words, the court will consider whether the type of injury you are complaining about is something that happens often in a prison.

But in other states, the standard can be difficult to meet. In Shirley v. United States, 232 F. App’x. 419 (5th Cir. 2007), for example, a federal prisoner filed an FTCA claim after she was sexually assaulted by a correctional officer. The Court dismissed her case because under Texas law, an employee only acts under the scope of employment when they act to further the employer’s business.

At least one court has gotten around this requirement altogether. In Bolton v. United States, 347 F. Supp. 2d 1218 (N. D. Fla. 2004), the court held that it doesn’t matter if a guard is acting in the scope of their employment, as long as they are acting “under color of federal law.” Under this theory, all that matters is that the person who hurt you or acted wrongfully is a federal employee.

2. Administrative Exhaustion

Before you can raise an FTCA claim, first you must present the claim to the appropriate federal agency, such as the Federal Bureau of Prisons (BOP) or Immigration & Customs Enforcement (ICE), and you have to do that within two years of the action that leads to the injury. 28 U.S.C. § 2675(a). If you are in a federal prison, your claim needs to be submitted to the Bureau of Prisons at 320 First Street, NW, Washington, D.C. 20534.

Use Government Standard Form 95 to make the administrative claim. A copy of this form is included in Appendix C. If this form is unavailable, you can write a letter specifying that you are making an administrative claim. Your administrative request must include a specific dollar amount requested for damages and the facts supporting your claim. Make sure you sign the form and include all the detail you can. You must include enough information to allow the agency to investigate your claim.

In very rare cases, the agency could respond by accepting your claim and giving you money without you having to sue.

If your administrative claim is denied, you have six months from the date the agency denies your claim to file a FTCA lawsuit in federal court under 28 U.S.C. § 2401(b) and 28 U.S.C. § 2675(a).

If the agency doesn’t respond to your administrative claim within six months you may “deem” the claim denied under 28 U.S.C. § 2675(a) and file your suit. You must state in your complaint that you have completed the administrative claim process, or if you file a suit under the “deeming provision” of the FTCA, state that you meet the exhaustion requirement because the government did not respond to your administrative claim within six months.

3. Types of Torts

Under the FTCA and state law, you can sue for negligence or for intentional torts like assault, battery, false arrest, abuse of process, and intentional infliction of emotional distress. These common torts are explained below.

You can sue on almost any tort that exists under state law. There are a few exceptions. You can’t bring a libel or slander case under the FTCA and you can’t sue if the government mishandles, detains, or loses your belongings. However, you can file an administrative claim for damage or loss to personal property under 31 U.S.C. § 3723(a)(1).

a. Negligence

A government employee is negligent when they “fail to use reasonable care.” Since people have different ideas about what is reasonable, courts ask what a “reasonably prudent person” would do in a similar situation.

There are four things you need to show in a negligence claim: duty, breach, causation, and damages. “Damages” are usually the easy part—you just have to show you have been hurt in some way. But “duty” is harder. Correctional officials do not have a duty to provide a “risk-free” environment. They do, however, have a duty to keep prisoners safe and protect them from unreasonable risks. To prove negligence, the employee must have “breached” (failed in) this duty to keep you safe. Lastly, the harm that you suffered must have been caused by the actions of the federal employee, not some other person or event.

You can use the FTCA to challenge any kind of negligence by a detention center or federal prison employee, including the negligent denial of medical care or an officer’s failure to protect a detainee from another detainee. Prisoners often bring negligence claims against prison doctors and nurses for medical malpractice. For example, in Jones v. United States, 91 F.3d 623 (3d Cir. 1996), the court found the prison breached a duty to a prisoner who had a stroke after prison officials withheld his medication. And in Plummer v. United States, 580 F.2d 72 (3d Cir. 1978), prisoners successfully made a negligence claim based on exposure to tuberculosis.

Sometimes, a court will find that the federal employee did not breach their duty of care. For example, the Seventh Circuit denied William Dunne’s FTCA claim for injuries he suffered when he slipped and fell three times on ice during recreational time at a prison. The court held that the accumulation of snow or ice where Dunne fell was so small that an official using ordinary care could not reasonably be expected to know about it. Dunne v. United States, 989 F.2d 502 (7th Cir. 1993).

What if you are injured by another prisoner? An important Supreme Court case on this topic is United States v. Muniz, 374 U.S. 150 (1963). Muniz, one of the plaintiffs in the case, was beaten unconscious by other prisoners after a guard locked him in a dormitory. The prisoner argued that the prison officials were negligent in failing to provide enough guards to prevent the assault. The court said that this type of claim is appropriate under the FTCA, but found against the prisoner because the officials followed prison regulations and could not have reasonably prevented the assault. 

If a prison official has violated a federal or state statute, you can use it to strengthen your FTCA claim. You can argue that the statute defines or creates a duty, which was breached by the official. For example, one court found that the Bureau of Prisons breached a duty to let a prisoner make phone calls to his attorney based on the language from the Code of Federal Regulations. Yosuf v. United States, 642 F.Supp. 415 (M.D.Pa. 1986).

b. Intentional Torts - Assault and Battery

Assault and battery often go together, but they are two separate torts. An assault is when someone does something that makes you fear they are about to harm you. It is a threat. If that threat becomes a touch, like if a guard hits, kicks, or beats you, that is a battery. A battery is any “offensive touch or contact” where some kind of force is applied.

You can use the FTCA to sue a government employee who assaults or batters you. While the exact standard in each state is different, courts will generally look at whether the use of forces was justified under the circumstances. 

c. False Imprisonment

You may have a claim for false imprisonment if you are imprisoned longer than your sentence or held in SHU longer than the time of your punishment for a disciplinary offense. For example, under New York law there are four elements to a false imprisonment claim (1) the defendant intended to confine you, (2) you were aware of the confinement, (3) you did not consent to the confinement, and (4) the confinement was not otherwise privileged. In Gittens v. New York, 504 N.Y.S.2d 969 (Ct. Cl. 1986), a New York court held the plaintiff had a claim for false imprisonment because he was held in SHU for nine days beyond the last day of the penalty imposed, and the only reason given was “investigation.” It is important to note that the prisoner in that case got no process whatsoever. You would most likely not be able to succeed with a claim like this if you got any process related to your extra time in the SHU.

d. Intentional Infliction of Emotional Distress

Another tort is Intentional Infliction of Emotional Distress or IIED. This tort arises when someone purposefully does something outrageous that makes you feel very upset. Under the law of most States, an IIED claim requires a showing that: (1) the defendant acted in a way that is extreme or outrageous for the purpose of causing emotional distress; (2) the plaintiff actually suffered severe or extreme emotional distress; and (3) the defendant’s conduct caused the emotional distress.

The conduct really must be outrageous and extreme. One successful example of an IIED claim is Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999), where a prisoner who had both legs amputated was not given a wheelchair or other accommodation by the jail, and thus had to crawl around on the floor.

4. Damages in FTCA Suits

Damages (money you can get from a lawsuit) are explained in Chapter Four. For now, just note that under the FTCA, you can sue the United States for actual (money) damages to compensate you for your injury. You cannot get punitive damages from the United States under the FTCA. Usually, you can’t get more money than the amount of damages you asked for in your administrative claim. One exception is if your injuries have gotten a lot worse since the time you filed your administrative claim. state tort law ultimately determines how high your damages can be.

5. The Discretionary Function Exception

The United States often defends against FTCA claims based on the “discretionary function exception.” When an employee has the freedom to act on their own judgment, rather than just follow a rule, they are said to have performed a “discretionary function or duty” and their actions cannot make the United States liable under the FTCA. This is true even if they abused their discretion. 28 U.S.C. § 2680[a]. This is in contrast to when an employee is just implementing a policy or prison regulation. Unfortunately, courts have interpreted the discretionary function exception very broadly.

In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court laid out a test to help figure out whether an action is discretionary or not. First, you should ask if the employee exercised “judgment” or “choice” in doing what they did. If they just implemented a policy or regulation of the prison, they didn’t exercise their own judgment and the act is not discretionary. The Tenth Circuit, for example, said that a doctor’s decisions about how to medically treat a patient at an Air Force base are not discretionary. Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977).

On the other hand, if the employee did make their own choice, the act probably was “discretionary” and subject to the exception. For example, a prisoner who sued a Tennessee prison for losing his property when they transferred him lost his case on the discretionary function exception. The court said the warden exercised his discretion in making the arrangements for the prisoner’s transfer. Ashley v. United States, 37 F. Supp. 2d 1027 (W.D. Tenn. 1997). The widow of a murdered federal prisoner ran into the same problem when she tried to argue the prison negligently understaffed the area of the prison where her husband was killed. The court said that the decision about how many officers to station in a given compound was discretionary. Garza v. United States, 413 F. Supp. 23 (W.D. Okla. 1975).

A good case to read where a prisoner was able to overcome the discretionary function exception is Keller v. United States, 771 F.3d 1021 (7th Cir. 2014). In that case, a mentally ill person in a federal prison was placed in general population and brutally attacked. His illness prevented him from defending himself. The prisoner sued the prison for negligence, and the Seventh Circuit said that the discretionary function exception didn’t apply to negligent behavior. The court said that “carelessness would not be covered by the discretionary function exception, as it involves no element of choice or judgment grounded in public policy considerations.”

D Bivens Actions and Federal Injunctions

Bivens Actions and Federal Injunctions

FTCA claims can only be brought for torts, not constitutional violations. If a federal prisoner wants to make a constitutional claim for money damages, they must do so through a “Bivens action.” The name comes from a lawsuit, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in which the Supreme Court established the right to bring a lawsuit for money damages against individual law enforcement officials, acting under color of federal law, for violations of constitutional rights. You might notice that this sounds very similar to the language in Section 1983. The key difference is that Section 1983 applies to state actors, while Bivens applies to federal actors. If you are an immigration detainee in the custody of ICE, a federal agency, or a federal prisoner in the custody of the Bureau of Prisons, in most situations, you will be relying on Bivens and not on Section 1983.

There are two main elements to a Bivens action:  (1) a federal actor and (2) unconstitutional acts by that person that are properly the subjects of a Bivens Claim. This section discusses each of those elements in turn.

If a federal prisoner is not seeking money damages, but instead wants to change a prison policy, or stop ongoing illegal action, the prisoner can file a case for an “injunction” in federal court under 28 U.S.C. 1331. These federal injunctions are also described below.

1. Who is acting under color of federal law?

Who should you name as the defendant in your lawsuit? In other words, who should you sue? First, it is important to know that Bivens provides a right of action against individuals only, and not against federal agencies, private corporations, or private contractors. This means you must name actual people as the defendants in your lawsuit, not the prison or the Bureau of Prisons.

When it comes to immigration detention, it can sometimes be tricky to determine whether or not someone is acting under federal law, because immigrants can be detained in a variety of different types of facilities, including facilities run by private corporations. However, no matter what kind of facility you are detained in, you are in the custody of ICE, a federal agency.

  • If you are in a Bureau of Prisons prison, all of the prison personnel you have contact with are acting under federal law.

  • If you are in a federal detention center, all of the prison personnel you have contact with are acting under federal law for the purpose of Bivens.

  • If you are in a private facility or a state, county, or other local facility that has a contract with ICE to hold immigration detainees, you may be able to sue an ICE official who oversees conditions at your facility, but you cannot bring a Bivens suit against the facility itself, the private guards, or the state guards, but you can sue the state guards under Section 1983.

If you can’t figure out whether the person you want to sue is a state actor or a federal actor, you can bring your lawsuit under both Bivens and Section 1983, and the Judge will decide which approach is appropriate.

2. Unconstitutional Acts by Federal Officials Subject to Bivens Claims

In general, the same constitutional standards that apply in Section 1983 actions apply in Bivens actions. We explain those constitutional standards Chapter Three. Where there are differences, we have tried to highlight them throughout.

But Bivens actions are much harder to bring than Section 1983 claims. That is because, unlike a Section 1983 lawsuit, Bivens actions are not available to challenge every unconstitutional thing that happens in prison. Ever since a Supreme Court case called Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), prisoners have had a much harder time succeeding with Bivens Claims.

If you bring a Bivens Claim, the court will first ask whether your claim arises in a “familiar Bivens context.” If what happened to you is the same as (or very similar to) what has happened to other prisoners in Bivens cases courts have allowed in the past, then your case arises in a familiar Bivens context, and you will be allowed to move forward. However, if your case is different from previous Bivens cases, your case will be dismissed unless you persuade the court that Bivens should be expanded to cover the type of claim you are making.

One good case to read about where this issue arose is Jerra v. United States, No. 12-cv-01907, 2018 WL 1605563 (C.D. Ca. May 25, 2018). In that case, a court decided that a prisoner’s claims about excessive force and guard retaliation did not arise in a familiar Bivens context, but the court decided that an extension of Bivens was appropriate, so the case was allowed to move forward.

Most courts have recognized that prisoner claims about inadequate medical care (described in Chapter 3, Section F) do arise in a familiar Bivens context, because in 1980, the Supreme Court allowed one of these claims to go forward in a very important case called Carlson v. Green, 446 U.S. 14 (1980). However, since the Ziglar case in 2017, many courts have decided that other constitutional claims by prisoners require an expansion of Bivens, and many of those courts have decided not to extend it.

The question of whether or not a federal prisoner can bring a Bivens Claim is a very complicated and difficult area of the law which is changing every day, so you might want to ask the court to appoint a lawyer to help you brief the issue. In a case called Houck v. United States, No. 16-CV-1396-JPG-DGW, 2018 WL 2129771, at *2 (S.D. Ill. May 9, 2018) the Court granted a prisoner’s motion for recruitment of counsel on this ground, noting, “the analysis required by Ziglar is complex.” There is more information in Chapter 5, Section C, Part 3 on how to ask the court to assign you a free lawyer.

PRACTICE TIP: You can bring Bivens Claims and FTCA claims in the same lawsuit. And given how unclear Bivens law is right now, if you can bring an FTCA claim, it is probably a good idea to do so, and not rely on Bivens alone. If you prove your claims, however, you will only be able to recover money under one of the two causes of action.

3. Federal Injunctions

You may not always be interested in suing for damages. In some cases, you may just want to try to change a prison policy you believe is unconstitutional. Section 1983 allows these types of claims, called “injunctions” for prisoners in state or local custody. Injunctions are explained in Chapter Four, Section B.

Federal law also allows federal prisoners to bring these types of claims in federal court. 28 USC 1331 states that federal district courts have the power to hear “all civil actions arising under the Constitution, laws, or treaties of the United States.” The courts have taken this language to mean that federal courts can order federal prisons to stop acting in an unconstitutional way. You can bring a claim for an injunction in the same lawsuit as your FTCA and Bivens Claims.




State Tort (examples: assault, battery, medical negligence)

Constitutional Violation


The United States

The Guards who are responsible
for what happened to you


Yes. Must file an administrative claim with BOP before suing

Yes. Must
use prison’s administrative grievance system


Yes, from the United States treasury

Yes, from the individual defendants




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

Brief Summary of the Prison Litigation Reform Act (PLRA)

The PLRA is an anti-prisoner statute which became law in 1996 and has made it much harder for prisoners to gain relief in the federal courts. While you will learn more about the PLRA in the following chapters, this section provides a brief outline of its major parts, or “provisions,” so that you keep them in mind as you start to plan your lawsuit. The full text of several important sections of the PLRA are included in Appendix F. One important thing to keep in mind is that most of these provisions only apply to suits filed while you are in prison. If you want to sue for damages after you are released, you will not need to worry about these rules.

1. Injunctive Relief

18 U.S.C. § 3626 limits the “injunctive relief” (also called “prospective relief”) that is available in prison cases. Injunctive relief is a court order to make the prison do something differently or stop doing something altogether. For example, if the prison you are held in says you can only pray alone, and you file a suit asking that the prison change their policy to let you pray in a group, that is a case for injunctive relief. Injunctive relief and the changes in its availability under the PLRA are discussed in Chapter Four.

2. Exhaustion of Administrative Remedies

42 U.S.C. § 1997(e)(a) states that “[n]o action shall be brought with respect to prison conditions[…]by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”

This is known as the “exhaustion” requirement. It is very important. If you try to sue a prison official about anything they have done to you, the court will dismiss your case unless you have first used the administrative grievance system at your prison to raise the issue you want to sue over. You also have to appeal that grievance as far as possible. You will learn more about exhaustion in Chapter Five, Section A, Part 2.

3. Mental or Emotional Injury

The PLRA also states that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.”42 U.S.C.A. § 1997e(e).

Courts disagree about whether this allows you to sue for money damages for a constitutional violation that does not cause physical injury or involve sexual abuse. The different interpretations of this provision are explained in detail in Chapter Four, Section C, Part 2. If you are suing to change a prison policy, you do not need to worry about this provision.

4. Attorney’s Fees

Usually, if you win a Section 1983 case and you have an attorney, the defendants will have to pay your attorney for the work they did on your case. However, the PLRA limits the court’s ability to make the prison officials you sue pay for “attorney’s fees” if you win your case. While this will not affect you if you are suing without the assistance of an attorney, it is part of the reason why so few attorneys are willing to represent prisoners.

5. Screening, Dismissal, and Waiver of Reply

The PLRA allows for courts to dismiss a prisoner’s case very soon after filing if the judge decides the case is “frivolous,” “malicious,” does not state a claim, or seeks damages from a defendant with immunity. The court can do this before requiring the defendant to answer your complaint. This is discussed further in Chapter Six, Section B.

6. Filing Fees and the Three Strikes Provision

Courts charge everyone fees when they file a lawsuit. However, poor people are not required to pay all these fees up front. Under the PLRA, if you have had three prior lawsuits dismissed as “frivolous, malicious, or failing to state a claim for relief,” you may not proceed “in forma pauperis” (which means “as a poor person”) and will have to pay your fees up front. There is an exception for prisoners who are “in imminent danger of serious physical injury.” Chapter Five, Section C, Part 2 describes how to file “in forma pauperis papers” and provides more information about the three strikes provision.