An injunction is an order issued by a court that tells the defendant to do or not do some act or acts. The court can order the defendants to stop doing harmful and unconstitutional things to you. It can require the defendants to act in a way that will prevent them from violating your rights in the future. If the defendants don’t follow the court’s order, as set out in the injunction, they can be held in “contempt” by the court that issued the injunction. Contempt means that the Judge can order the defendants fined or jailed.

In considering whether to ask for an injunction in your lawsuit, you should think about the harm you have suffered and identify whether it happened just once, is still happening, or is likely to happen again soon. You may be able to get an injunction if the harm is continuing or is very likely to happen again soon.

The Supreme Court in Lewis v. Casey, 518 U.S. 343 (1996), stated that in order to get an injunction, a prisoner must show “actual or imminent injury.” In this context, “injury” does not have to mean physical damage to your body. It just means that you are, or will be, worse off because of the illegal acts of the prison staff, such as: your mail isn’t sent out, your books are taken away, or you have to live in a strip cell.

What is an Injunction?

An injunction is an order issued by a court that tells the defendant to do or not do something. You can get an injunction to stop the defendants from harming you. Or, you can get an injunction to make the defendants do something to improve conditions or care in the prison. Sometimes an injunction is referred to as “prospective relief.” You can ask for an injunction if you are experiencing any of the following:

  1. Overcrowded, unsafe, or extremely harsh conditions;
  2. A pattern of guard brutality or harassment;
  3. Inadequate medical care; or
  4. Continuing violation of any of your rights.

“Actual or imminent injury” means that you have to show the court that you are being harmed in some way, or that it is likely that you will be harmed very soon. It is not enough to show that there is something wrong in your prison. To get an injunction, you must show that you are being harmed or are likely to be harmed by whatever it is that is wrong.

An injunction is only appropriate if the injury you face is ongoing. For example, if you are currently imprisoned in a severely overcrowded prison, that is a current and ongoing harm, and you can request an injunction.

On the other hand, if the overcrowding just happened for a week or two, and you do not have a good reason to believe that it is likely to happen again in the near future, you should not request an injunction. An example of harm that is not ongoing is being beaten once by a guard. Unless the guard threatens to beat you again, or engages in a pattern of violence, there is nothing that the court can order the prison officials to do that will fix the abuses that you suffered in the past. That situation is better dealt with by asking for money damages.

1. Preliminary Injunctions and Permanent Injunctions

Most injunctions are called permanent injunctions. The court can only give you a permanent injunction at the end of your lawsuit. However, lawsuits take a very long time, and many prisoners can’t wait years for the court to decide whether to grant them a permanent injunction. Perhaps you are facing serious injury or even death. In a case like that, you can ask the court for a preliminary injunction. You can get a preliminary injunction much faster than a permanent injunction and it protects you while the court is considering your case, and deciding whether or not you will get a permanent injunction.

There are four things that you have to show to win a preliminary injunction:

(1) You are likely to show at trial that the defendants violated your rights;

(2) You are likely to suffer irreparable harm if you do not receive a preliminary injunction. “Irreparable harm” means an injury that can never be fixed;

(3) The threat of harm that you face is greater than the harm the prison officials will face if you get a preliminary injunction; and

(4) A preliminary injunction will serve the public interest.

Chapter Five includes sample documents to show how to seek a preliminary injunction.
If you are successful in winning your preliminary injunction, the battle is unfortunately not over. Under the PLRA, the preliminary injunction lasts only 90 days from the date that the court issues it. This usually means that you have to hope that you are able to win your permanent injunction within those 90 days. As stated before, lawsuits take a long time and it is unlikely that this will happen. You can get the preliminary injunction extended for additional 90-day periods if you can show the same conditions still exist. Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001).

Even a permanent injunction is not actually permanent under the PLRA. After the first two years of a permanent injunction, defendants can challenge it every year. To keep the injunction, you will have to show that without it, your rights would still be violated. Under the PLRA you will have to convince the court that continuing the injunction is “necessary to correct a current or ongoing violation” of your rights and that you still meet the requirements for an injunction listed above.

But don’t let this stop you from filing for an injunction. It is very likely that if you win an injunction, but are faced with it ending under the PLRA, you will be able to find a lawyer to help you.

2. Exhaustion and Injunctions

You must also consider the “exhaustion” requirements of the PLRA. “Exhaustion” means that you must complete your prison’s grievance system before filing a lawsuit. You will learn more about this in Chapter Five, Section A. It is smart to use the prison grievance system while are working on your lawsuit.

If you have an emergency situation and you do not have time to use the prison grievance system, you can request a preliminary injunction anyway. Usually, you will have to exhaust your prison’s administrative remedies while you are getting relief through the injunction. One case to read on this issue is Jackson v. District of Columbia, 254 F.3d 262 (D.C. Cir. 2001). That case states that the court can only protect prisoners with a preliminary injunction while the court waits for them to exhaust grievance procedures.

To get a preliminary injunction without having exhausted, you will have to show the court that if you are forced to wait until after using the prison grievance system to sue, you will be irreparably harmed. Irreparable harm is an injury that would cause permanent injury or damage that cannot be fixed by money or some other form of relief. In your complaint, explain what that harm. On-going pain is an example of irreparable harm, as are many ongoing violations of your constitutional rights.

3. Temporary Restraining Orders

There is another means of relief that you can get even faster than a preliminary injunction, called a “temporary restraining order” or “TRO.” Sometimes you can get a TRO before the prison officials are even aware of the lawsuit. These are issued in emergency situations and only last for a short period of time.

A TRO is very difficult to get, especially without a lawyer. Rule 65 of the Federal Rules of Civil Procedure sets out the standard for a TRO. To get one you must show that you will suffer “immediate and irreparable injury, loss or damage” if the court doesn’t help you before the other side has a chance to respond.

Chapter Five has a sample TRO request.

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