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 do 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 to Amend. (See 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.

Instead of amending, you may want to quickly respond (within ten days if possible) with a Motion for Reconsideration. In this short motion, all you need to do is tell the court why they got it wrong, and cite a case or two that support your position. The next section of this Handbook will give you some advice on what kind of arguments you can make.

If your complaint was dismissed by a Magistrate Judge, you can file “objections” to the Magistrate’s recommendation.

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

The other new 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 does nothing for a few weeks, you can file a motion asking the court to order the defendants to reply.

 

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