The Jailhouse Lawyer's Handbook

1 The Jailhouse Lawyer's Handbook How to Bring a Federal Lawsuit to Challenge Violations of Your Rights in Prison Published by the Center for Constitutional Rights and the National lawyers Guild 5th Edition, 2010. NOTE FROM THE EDITORS. This Handbook is a resource for prisoners who wish to file a federal lawsuit addressing poor conditions in prison or abuse by prison staff. It also contains limited general information about the American legal system. This Handbook is available for free to anyone: prisoners, families, friends, activists, lawyers and others. We hope that you find this Handbook helpful, and that it provides some aid in protecting your rights behind bars. Know that those of us who do this work from outside prison are humbled by the amazing work so many of you do to protect your rights and dignity while inside. As you work your way through a legal system that is often frustrating and unfair, know that you are not alone in your struggle for justice.

2 Good luck! Rachel Meeropol Ian Head The Jailhouse lawyers Handbook , 5th Edition. Revised in 2010. Published by: The Center for Constitutional Rights The National lawyers Guild, National Office 666 Broadway, 7th Floor 132 Nassau Street, Room 922. New York, NY 10012 New York, NY 10038. Available on the internet at: We would like to thank: All of the Jailhouse lawyers who wrote in with comments, recommendations and corrections for the Handbook , all those who have requested and used the Handbook , and who have passed their copy on to others inside prison walls. Special thanks to NLG Jailhouse Lawyer Vice President Mumia Abu-Jamal. The Sylvia Rivera Law Project for co-writing Issues of Importance to Transgender Prisoners in Chapter Two, and The ACLU Reproductive Freedom Project for helpful insights regarding Issues of Importance for Women Prisoners.. The original writers and editors of the Handbook (formerly the NLG Jailhouse lawyers Manual), Brian Glick, the Prison Law Collective, the Jailhouse Manual Collective and Angus Love.

3 And special thanks to Alissa Hull and John Boston for significant work on the 2010 edition. The dozens of volunteers who have come to the NLG offices every week since 2006 to mail Handbooks to prisoners, and to Claire Dailey, Merry Neisner and all the CCR staff, interns and volunteers who put in hours and hours of research, proofreading, cite-checking, and mailing. Jeff Fogel and Steven Rosenfeld for their work defending the Handbook in Virginia. LEGAL DISCLAIMER: This Handbook was written by CCR staff. The information included in the Handbook is not intended as legal advice or representation, and you should not rely upon it as such. We cannot guarantee the accuracy of this information nor can we guarantee that all the law and rules inside are current, as the law changes frequently. Table of Contents CHAPTER ONE: INTRODUCTION ..1. A. WHAT IS THIS Handbook ? .. 1. B. HOW TO USE THIS Handbook .. 1. C. WHO CAN USE THIS Handbook .

4 2. 1. Prisoners in Every State Can Use this 2. 2. Prisoners in Federal Prison Can Use this 2. 3. Prisoners in City or County Jails Can Use this 3. 4. Prisoners in Private Prisons Can Use this Handbook .. 3. D. WHY TO TRY AND GET A LAWYER .. 4. E. A SHORT HISTORY OF SECTION 1983 AND THE. STRUGGLE FOR PRISONERS' 5. F. THE USES AND LIMITS OF LEGAL 6. CHAPTER TWO: YOUR LEGAL OPTIONS ..7. A. SECTION 1983 LAWSUITS .. 7. 1. Violations of Your Federal 7. 2. Under Color of State Law .. 8. B. STATE COURT CASES .. 9. C. FEDERAL TORTS CLAIMS ACT (FTCA) .. 9. 1. Who You Can 10. 2. Types of Torts .. 11. a. NEGLIGENCE .. 11. b. INTENTIONAL TORTS .. 11. c. FALSE IMPRISONMENT .. 11. d. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS .. 12. 3. Administrative Exhaustion .. 12. 4. Damages in FTCA Suits .. 12. 5. The Discretionary Function Exception .. 12. D. BIVENS ACTIONS AND FEDERAL INJUNCTIONS .. 13. 1. Who is Acting Under Color of Federal Law?

5 13. 2. Unconstitutional Acts by Federal Officials .. 14. 3. Federal Injunctions .. 14. E. PROTECTION OF PRISONERS UNDER INTERNATIONAL LAW .. 14. F. BRIEF SUMMARY OF THE PRISON. LITIGATION REFORM ACT (PLRA) .. 15. 1. Injunctive 15. 2. Exhaustion of Administrative Remedies .. 15. 3. Mental Emotional Injury .. 16. 4. Attorneys' 16. 5. Screening, Dismissal and Waiver of 16. 6. Filing Fees and the Three Strikes Provision .. 16. CHAPTER THREE: YOUR RIGHTS IN A. YOUR FIRST AMENDMENT RIGHT TO FREEDOM OF. SPEECH AND ASSOCIATION, AND THE TURNER 17. 1. Access to Reading Materials .. 18. 2. Free Expressions of Political Beliefs .. 20. 3. Limits on Censorship of Mail .. 21. a. OUTGOING MAIL .. 21. b. INCOMING MAIL .. 21. c. LEGAL 22. 4. Access to the Telephone .. 22. 5. Your Right to Receive Visits from Family and Friends and to Maintain Relationships in Prison .. 23. a. ACCESS TO VISITS .. 23. b. VISITATION FOR LESBIAN, GAY, BISEXUAL AND.

6 TRANSGENDER PRISONERS .. 24. c. RELATIONSHIPS WITH OTHER PRISONERS .. 25. d. CARING FOR YOUR CHILD IN PRISON .. 25. B. YOUR RIGHT TO PRACTICE YOUR RELIGION .. 26. 1. Free Exercise 26. 2. Establishment Clause .. 27. 3. Fourteenth Amendment Protection of 27. 4. Religious Freedom Restoration Act (RFRA) and Religious Land Use and Institutionalized Persons Act (RLUIPA).. 28. 5. Cases and 28. C. YOUR RIGHT TO BE FREE FROM DISCRIMINATION .. 29. 1. Freedom from Racial Discrimination .. 30. 2. Freedom from Gender 31. a. THE SIMILARLY SITUATED ARGUMENT .. 32. b. THE EQUAL PROTECTION TEST FOR GENDER DISCRIMINATION .. 32. 3. Freedom from Other Forms of Discrimination .. 33. D. YOUR PROCEDURAL DUE PROCESS RIGHTS. REGARDING PUNISHMENT .. 33. 1. Two Important Supreme Court Cases Govern Due Process Rights for 33. 2. Transfers and Segregation .. 34. E. YOUR RIGHT TO BE FREE FROM UNREASONABLE. SEARCHES AND 35. F. YOUR RIGHT TO BE FREE FROM CRUEL AND.

7 UNUSUAL 36. 1. Protection from Physical 36. 2. Rape, Sexual Assault and Sexual Harassment .. 37. a. OUTRAGEOUS CONDUCT VS. UNCONSTITUTIONAL CONDUCT .. 38. b. PSYCHOLOGICAL HARM .. 38. c. CONSENSUAL SEX BETWEEN PRISONERS AND GUARDS .. 39. d. CHALLENGING PRISON SUPERVISORS AND PRISON 39. 3. Your Right to Decent Conditions in 39. 4. Your Right to Medical Care .. 41. a. SERIOUS MEDICAL 42. b. DELIBERATE INDIFFERENCE .. 42. c. CAUSATION .. 43. G. YOUR RIGHT TO USE THE 43. 1. The Right to File Papers and Meet with lawyers and Legal Workers .. 44. 2. Access to a Law 45. 3. Getting Help from a Jailhouse Lawyer and Providing Help to Other 45. 4. Dealing with Retaliation .. 46. H. ISSUES OF IMPORTANCE TO WOMEN 47. 1. Medical 47. a. PROPER CARE FOR WOMEN PRISONERS .. 48. b. MEDICAL NEEDS OF PREGNANT WOMEN .. 48. 2. Your Right to an Abortion in Prison .. 49. a. FOURTEENTH AMENDMENT CLAIM .. 49. b. EIGHT AMENDMENT 50. 3. Observations and Searches by Male Guards.

8 51. I. ISSUES OF IMPORTANCE TO TRANSGENDER PRISONERS .. 52. 1. 52. a. PLACEMENT IN MALE OR FEMALE FACILITIES .. 52. b. INVOLUNTARY SEGREGATION .. 53. c. ACCESS TO PROTECTIVE 54. 2. Health .. 55. a. ACCESS TO GENDER-AFFIRMING HEALTH CARE .. 55. b. CONFIDENTIALITY .. 57. 3. Free Gender 57. a. CLOTHING AND GROOMING .. 57. b. NAME AND ID GENDER CHANGES .. 59. c. ACCESS TO READING MATERIAL .. 60. d. JOB/PROGRAM DISCRIMINATION .. 60. 4. Dealing with Violence and Abuse .. 61. a. VERBAL HARASSMENT .. 61. b. RAPE AND SEXUAL ASSAULT .. 61. c. STRIP 62. J. ISSUES OF IMPORTANCE TO PRETRIAL 62. K. ISSUES OF IMPORTANCE TO NON-CITIZENS. AND IMMIGRATION DETAINEES .. 64. CHAPTER FOUR: STRUCTURING YOUR LAWSUIT ..67. A. WHAT TO ASK FOR IN YOUR LAWSUIT .. 67. B. INJUNCTIONS .. 68. 1. Preliminary Injunctions and Permanent Injunctions .. 68. 2. Exhaustion and Injunctions .. 69. 3. Temporary Restraining Orders .. 69. C. MONEY DAMAGES .. 69. 1. The Three Types of Money Damages.

9 69. 2. Damages Under the PLRA .. 70. 3. Deciding How Much Money to Ask For .. 71. D. WHO YOU CAN SUE .. 71. 1. Who to Sue for an 72. 2. Who to Sue for Money Damages: the Problem of Qualified Immunity .. 73. 3. What Happens to Your Money 74. E. SETTLEMENTS .. 74. F. CLASS 74. CHAPTER FIVE: HOW TO START YOUR LAWSUIT ..76. A. WHEN TO FILE YOUR LAWSUIT .. 76. 1. Statute of 77. 2. Exhaustion of Administrative Remedies .. 77. B. WHERE TO FILE YOUR LAWSUIT .. 78. C. HOW TO START YOUR 78. 1. Summons and 79. a. COMPLAINT .. 79. b. 84. 2. In Forma Pauperis Papers .. 84. 3. Request for Appointment of Counsel .. 87. 4. Declarations .. 88. D. HOW TO SERVE YOUR LEGAL PAPERS .. 89. E. GETTING IMMEDIATE HELP FROM THE 90. F. SIGNING YOUR PAPERS .. 91. CHAPTER 6: WHAT HAPPENS AFTER YOU FILE SUIT ..92. A. SHORT SUMMARY OF A 92. B. DISMISSAL BY THE COURT AND WAIVER OF REPLY .. 93. C. HOW TO RESPOND TO A MOTION TO. DISMISS YOUR COMPLAINT .. 94.

10 D. THE PROBLEM OF MOOTNESS .. 95. E. 96. 1. Discovery Tools .. 97. 2. What You Can See and Ask About .. 99. 3. 99. 4. Some Basic Steps .. 99. 5. Some Practical 100. 6. 100. 7. Their Discovery of Your Information and 101. F. SUMMARY JUDGMENT .. 101. 1. The Legal 101. 2. Summary Judgment Procedure .. 103. 3. Summary Judgment in Your Favor .. 103. G. WHAT TO DO IF YOUR COMPLAINT IS DISMISSED. OR THE COURT GRANTS DEFENDANTS. SUMMARY JUDGMENT .. 103. 1. Motion to Alter or Amend the 104. 2. How to Appeal the Decision of the District Court .. 104. CHAPTER 7: THE LEGAL SYSTEM AND LEGAL A. THE IMPORTANCE OF 105. 1. The Federal Court System .. 105. 2. How Judges Interpret Laws on the Basis of Precedent .. 105. 3. 107. 4. Other Grounds for Court Decisions .. 107. B. LEGAL CITATIONS HOW TO FIND COURT. DECISIONS AND OTHER LEGAL MATERIAL .. 107. 1. Court Decisions .. 107. 2. Legislation and Court Rules .. 110. 3. Books and Articles .. 110.