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. 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 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).
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 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 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, as long as you do so within 21 days of defendants answering or filing a motion to dismiss. If the defendants have already answered, or you have already amended once, Rule 15 allows you to ask the defendants to consent to you 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.
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 these new techniques “to the extent practicable.”
If the judge does decide to dismiss your complaint, he or she must send you a decision stating the grounds for his or her action. The judge may or may not dismiss your case with leave to amend. Either way, you can appeal from that decision. Part G of this chapter explains what else you can do if the court dismisses your complaint.
Instead (or before) a Motion to Dismiss, you may receive a Motion for Extension of Time or a Motion to Relate from the prison. 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.
A motion to relate tries to combine your suit with others which the court is already considering. 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.