If you are trying to stop an official policy or practice within the prison, you will, of course, want to act as quickly as possible. If a rule has been issued or an official decision has been made, you do not need to wait until the new procedure is put into effect. You can sue right away to block it as long as you have first completed all internal grievance processes.

If you are suing mainly to recover damages for an abuse that has already ended, you may not be in such a hurry. But it is usually best to get your suit going before you lose track of important witnesses or evidence.

TIP: Before you start writing your complaint, request the following documents from your District Court:

  1. The District Court’s Local Rules;
  2. Forms for a Section 1983 pro se action;
  3. In Forma Pauperis forms;
  4. Forms for Appointment of Counsel.

1. Statute of Limitations

For suits where you will be asking for money damages, there is a “statute of limitations” which sets a deadline for how long you can wait after the events occurred before you start your suit. If your time runs out, your case is “time-barred,” which means your case will be dismissed.

To meet a statute of limitations, you need to file your suit before the deadline. As long as you file on time, it is OK if your case lasts past the deadline. The deadline for a Section 1983 suit is determined by your state’s general personal injury statute. Owens v. Okure, 488 U.S. 235, 236 (1989). This same rule applies to Bivens actions brought by federal prisoners. In some states, the statute of limitations is as short as one year, but most states give two or more years. Statutes of limitations can change, so always check current state statutes to make sure. To discover the statute of limitations in your state, look in the “civil code” or “civil procedure” section of the state code (your state’s collection of laws).

If you expect to get out of prison fairly soon – for example, you already have a parole date – then you might be better off waiting until you are out before you start a suit that is only for damages. You will obviously have more freedom to get your suit together when you’re out, and you’ll have access to a more complete law library. You may be able to raise the money to hire a lawyer, and prison officials will have a harder time getting back at you for filing a suit. Also, some sections of the PLRA, like exhaustion, and the limitation on damages for emotional injury, do not apply to prisoners who have been released.

You do not have to worry about the statute of limitations if you are asking for an injunction. However, if you want an injunction you need to start and finish your suit while you are inside prison. If you do not, then your case may be dismissed as “moot,” which is explained in Chapter Six, Section D.

If you file your complaint within the statute of limitations, you can usually file an “amended complaint” to add new claims that are related to the ones you initially included even if the statute of limitations has run out. However, you may have trouble if you try to add new defendants after the statute of limitations. Read Federal Rule of Civil Procedure Rule 15(c) to learn whether your new complaint will “relate back” to your first filing.

2. Exhaustion of Administrative Remedies

The PLRA 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.” 42 U.S.C.A. § 1997e(a).

This provision is known as the “exhaustion” requirement, and it means that you have to use the prison grievance system before you file your lawsuit. If you have not used your prison’s grievance system and you try to sue a prison official about anything he or she has done to you, the court will almost always dismiss your case. Not only do you have to file a grievance, but you also need to wait for a response, and appeal that response as far up as possible. If prison officials fail to respond in the amount of time stated on the form, you can treat that as a denial, and appeal immediately.

It doesn’t matter if you believe your prison’s grievance system is inadequate, unfair or futile. You may know that nothing is going to change by filing a grievance, but you still need to do it. Your case will be dismissed if you do not.

Very rarely, exhaustion may not be required if you can show that you were unable to file a grievance through no fault of your own. For instance, if you are in SHU without access to grievance forms, or if a prison official told you not to file a grievance, the court may decide to excuse the exhaustion requirement in your case. However, courts are very skeptical of these claims and show very little mercy, so you must go through the grievance process unless you are truly unable.

The language of the PLRA says that the exhaustion requirement applies to cases regarding “prison conditions.” Although “prison conditions” sounds like it might only include claims about things like inadequate food or dirty cells, in a case called Porter v. Nussle, 534 U.S. 516 (2002), the Supreme Court held that “prison conditions” refers to everything that happens in prison, including single incidents of guard brutality or inadequate medical care. Under another important Supreme Court case, Booth v. Churner, 532 U.S. 731 (2001), you have to use the prison’s grievance system even if it does not offer the type of relief you would like to sue for. The prisoner in that case, Timothy Booth, wanted money damages and the administrative grievance system at his prison did not allow money damages. The Court decided that even though Mr. Booth’s prison administrative grievance system could not award him money damages, Mr. Booth was still forced to go through the entire administrative grievance process before coming to court to seek money damages.

In the U.S. Supreme Court Case, Jones v. Bock, 549 U.S. 199 (2007), the Court stated that prisoners do not need to show in their complaint that they have exhausted all grievance procedures. However, defendants can rely on a prisoner’s failure to exhaust as a defense. The Court also said that when a prisoner brings a case with both exhausted and unexhausted claims, the court must let the exhausted claims move forward without dismissing the entire suit. The court can only dismiss the unexhausted claims.

You should always try to be as detailed as possible in your grievances. You should mention all the issues and facts you want to sue about, and try to comply with all the prison’s grievance rules and deadlines, even if they don’t make any sense.

To be safe, you should also name everyone who you think is responsible and who you may want to sue. If your prison grievance system requires you to name everyone, and you don’t, a court may not let you sue that person. If your prison grievance system does not require that you name the responsible people, you will be able to sue them even if you didn’t name them in the grievance.

If the court does dismiss your case or one of your claims for “failure to exhaust,” it will probably be a “dismissal without prejudice” which means that you can exhaust your remedies, and then re-file. The dismissal will probably not be considered a “strike” against you. (For more about “strikes” see Section C, Part 2 of this Chapter)

Unfortunately, statutes of limitation can run out while you are exhausting the grievance process. If the statute of limitations has run by the time you are done exhausting, you will be out of luck. So you want to make sure you start exhausting the grievance system immediately after the incident occurs. This is also important because many prison grievance systems have short time deadlines.

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