FIRST STEPS

1. Know Your Rights! Ask yourself: have my federal rights been violated? If you have experienced one of the following, the answer may be yes:

  • Guard or prisoner brutality or harassment
  • Unsafe cell or prison conditions
  • Censorship, or extremely limited mail, phone, or visit privileges
  • Inadequate medical care
  • Interference with practicing your religion
  • Inadequate food
  • Racial, sexual or ethnic discrimination
  • Placement in the hole without a hearing

2. Exhaust the Prison Grievance System! Use the prison complaint or grievance system and write up your concerns in detail. Appeal it all the way and save your paperwork. It is very important you do this before filing a suit.

3. Try to Get Help! Consider trying to hire a lawyer or talking to a jailhouse lawyer, and be sure to request a pro se section 1983 packet from your prison law library or the district court.

Most of the prisoners in the Country are in State prison, but prisoners in other sorts of prisons or detention centers can use this book too.

1. Prisoners in Every State can use this Handbook.
Section 1983 provides a way for State Prisoners to assert their rights under the United States Constitution. Every State Prisoner in the country, no matter what state he or she is in, has the same rights. However, different courts interpret these rights differently. For example, a federal court in New York may come to one conclusion about an issue, while a federal court in Tennessee may reach a totally different conclusion about the same issue.

States also have their own laws, and their own constitutions. State courts, rather than federal courts, have the last word on what the state constitution means. This means that in some cases, you might have more success in state court than in federal court. You can read more about this possibility in the next chapter.

Unfortunately, we don’t have the time or the space to tell you about the differences in the law from state to state. So while using this Handbook, you should also try to check state law using the resources listed in Appendix J. You can also check the books available in your prison and contact the nearest office of the National Lawyers Guild or any other lawyers, law students or political groups you know of that support prisoners’ struggles.

2. Prisoners in Federal Prison can use this Handbook.
If you are in federal prison, this Handbook will also be helpful. Federal prisoners have basically the same federal rights as state prisoners. Where things are different for people in federal prison, we have tried to make a note of it for you.

The major difference is that federal prisoners cannot use Section 1983 to sue about bad conditions and mistreatment in federal prison. Instead, you have a couple options. You can use a case called Bivens v. Six Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court said that you can sue in federal court whenever a federal official violates your rights under the U.S. Constitution. This is called a “Bivens action.”

Federal prisoners can also use a federal law called the “Federal Tort Claims Act” (FTCA) to sue the United States directly for your mistreatment. Both Bivens and FTCA suits are explained in more detail in Chapter Two. The bottom line is that federal and state prisoners have mostly the same rights, but they will need to use slightly different procedures when filing a case.

3. Prisoners in City or County Jails can use this Handbook.
People serving sentences in jail have the same rights under Section 1983 and the U.S. Constitution as people in prison. Usually, these are city jails but can be any kind of jail run by a municipality. A “municipality” is a city, town, county or other kind of local government.

People in jail waiting for trial are called “pretrial detainees,” and sometimes have more protection under the Constitution than convicted prisoners. Chapter Three, Section J discusses some of the ways in which pretrial detainees are treated differently than convicted prisoners. However, you can still use most of the cases and procedures in this Handbook to bring your Section 1983 claim. Where things are different for people in jails, we have tried to make note of it for you.

4. Prisoners in Private Prisons Can Use This Handbook
As you know, most prisons are run by the state or the federal government, which means that the guards who work there are state or federal employees. A private prison, on the other hand, is operated by a for-profit corporation, which employs private individuals as guards.

If you are one of the hundreds of thousands of prisoners currently incarcerated in a private prison, most of the information in this Handbook also applies to you. The ability of state prisoners in private prisons to sue under Section 1983 is discussed in Chapter Two, Section A. In some cases it is actually easier to sue private prison guards, because they cannot claim “qualified immunity.” You will learn about “qualified immunity” in Chapter 4, Section D.

Federal prisoners serving sentences in private prisons can use the Bivens action described in Chapter Two, Section D, with some limitations. In Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001), a federal prisoner who had a heart attack at a halfway house sued after a private guard made him climb up five flights of stairs. The Supreme Court held that he could not sue the halfway house itself using the Bivens doctrine. However, someone in this situation may be able to sue the private prison employees directly. Another choice for a prisoner in this situation is to file a claim in state court.

How Do I use this Handbook?

This is the Jailhouse Lawyers Handbook. Sometimes it will be referred to as the “JLH” or the “Handbook.” It is divided into seven Chapters, which are also divided into different Sections. Each Section has a letter, like “A” or “B.” Some Sections are divided into Parts, which each have a number, like “1” or “2.”

Sometimes we will tell you to look at a Chapter and a Section to find more information. This might sound confusing at first but when you are looking for specific things, it will make using this Handbook much easier.

We have tried to make this Handbook as easy to read as possible. But there may be words that you find confusing. At the end of the Handbook, in Appendix A, we have listed many of these words and their meanings in the Glossary. If you are having trouble understanding any parts of this Handbook, you may want to seek out the Jailhouse Lawyers in your prison. Jailhouse Lawyers are prisoners who have educated themselves on the legal system, and one of them may be able to help you with your suit.

In many places in this Handbook, we refer to a past legal suit to prove a specific point. It will appear in italics, and with numbers after it, like this:

Smith v. City of New York, 311 U.S. 288 (1994)

This is called a “citation.” It means that a court decided the case of Smith v. City of New York in a way that is helpful or relevant to a point we are trying to make. Look at the places where we use citations as examples to help with your own legal research and writing. Chapter Seven explains how to find and use cases.

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