A What Is This Handbook?

This Handbook explains how a person in prison or detention can start a lawsuit in federal court to fight against mistreatment and bad conditions. As a result of the fact that most prisoners are in state prisons, we focus on those. However, people in federal prisons and city or county jails will be able to use the Handbook too.

We, the authors of the Handbook, do not assume that a lawsuit is the only way to challenge abuse in prison or that it is always the best way. We believe that a lawsuit can sometimes be one useful weapon in the struggle to change prisons and the society that makes prisons the way they are.

The Handbook discusses only some of the legal problems which prisoners face—conditions inside prison and the way you are treated by prison staff. The Handbook does not deal with how you got to prison or how you can get out of prison. It does not explain how to conduct a legal defense against criminal charges or a defense against disciplinary measures for something you supposedly did in prison.

The Importance of “Section 1983”

A prisoner can file several different kinds of cases about conditions and treatment in prison. This Handbook is mostly about only one kind of legal action: a lawsuit in federal court based on federal law. For prisoners in state prison, this type of lawsuit is known as a “Section 1983” suit. It takes its name from Section 1983 of Title 42 of the United States Code. The U.S. Congress passed Section 1983 to allow people to sue in federal court when a state or local official violates their federal rights. If you are in state prison, you can bring a Section 1983 suit to challenge certain types of poor treatment. Chapter Three of this Handbook explains in detail which kinds of problems you can sue for using Section 1983.

B How to Use This Handbook

The Handbook is organized into six chapters and several appendices:

• This is Chapter One, which gives you an introduction to the Handbook. Sections C through E of this chapter indicate the limits of this Handbook and explain how to try to get a lawyer. Sections F and G give a short history of Section 1983 and discuss its use and limits in political struggles in and outside prison.

• Chapter Two discusses the different types of lawsuits available to prisoners and summarizes an important federal law that limits prisoners’ access to the courts, called the Prison Litigation Reform Act.

• Chapter Three summarizes many of your constitutional rights in prison.

• Chapter Four explains how to structure your lawsuit, including what kind of relief you can sue for, and who to sue.

• Chapter Five gives the basic instructions for starting a federal lawsuit and seeking immediate help from the court—what legal papers to file, when, where, and how. It also provides templates and examples of important legal documents.

• Chapter Six discusses the first things that will happen after you start your suit. It helps you respond to a “motion to dismiss” your suit or a “motion for summary judgment” against you. It also tells you what to do if prison officials win these motions. It explains how to use “pretrial discovery” to get information and materials from prison officials.

• Chapter Seven gives some basic information about the U.S. legal system. It also explains how to find laws and court decisions in a law library and how to refer to them in legal papers.

C Who Can Use This Handbook

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 or territory they are 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 K. You can also check the books available in your prison and contact 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 of options. For some violations of your constitutional rights, you can use a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Bivens case allows people in prison to sue over some Eighth Amendment violations and maybe other constitutional violations as well. When you bring a lawsuit using Bivens, it 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 they can be run by any kind of 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.

D Why to Try and Get a Lawyer

Unfortunately, not that many lawyers represent prisoners, so you may have trouble finding one. You have a right to sue without a lawyer. This is called suing “pro se,” which means “in one’s own behalf.” Filing a lawsuit pro se is very difficult. Thousands of lawsuits are filed by prisoners every year, and most of these suits are lost before they even go to trial. We do not want to discourage you from turning to the court system, but encourage you to do everything you can to try to get a lawyer to help you, before you decide to file pro se.

A lawyer is also very helpful after your suit has been filed. They can interview witnesses and discuss the case with the judge in court while you are confined in prison. A lawyer also has access to a better library and more familiarity with legal forms and procedures. And despite all the legal research and time you spend on your case, many judges are more likely to take a lawyer seriously than someone filing pro se.

If you feel, after reading Chapter Three, that you have a basis for a lawsuit, try to find a good lawyer to represent you. You can look in the phone book to find a lawyer or to get the address for the “bar association” in your state. A bar association is a group that many lawyers belong to. You can ask the bar association to give you the names of some lawyers who take prison cases. Some prisoners’ rights organizations can sometimes help you find a lawyer.

You probably will not be able to pay the several thousand dollars or more which you would need to hire a lawyer. But there are other ways you might be able to get a lawyer to take your case.

• If you have a good chance of winning a substantial amount of money (explained in Chapter Four, Section C), a lawyer might take your case on a “contingency fee” basis. This means you agree to pay the lawyer a portion of your money damages if you win (usually between 30-40%), but the lawyer gets nothing if you lose. This kind of arrangement is used in many suits involving car accidents and other personal injury cases outside of prison. In prison, it may be appropriate if you have been severely injured by guard brutality or due to unsafe prison conditions.

• If you don’t expect to win money from your suit, a lawyer who represents you in some types of cases can get paid by the government if you win your case. These fees are authorized by the United States Code, Title 42, Section 1988. However, the Prison Litigation Reform Act of 1996 (called the “PLRA” and discussed in Chapter Two, Section E) added new rules that restrict the court’s ability to award fees to your lawyer. These new provisions may make it harder to find a lawyer who is willing to represent you.

• If you can’t find a lawyer to represent you from the start, you can file the suit yourself and ask the court to “appoint” a lawyer for you. This means the court will recruit a lawyer to take your case. Unlike in a criminal case, you have no absolute right to a free attorney in a civil case about prison abuse. This means that a judge is not required by law to make a lawyer take your Section 1983 case, but they can do so if they choose to and are able to find a willing lawyer. You will learn how to ask the judge to get you a lawyer in Chapter Five, Section C, Part 3 of this Handbook.

• A judge can appoint a lawyer as soon as you file your suit. But it is much more likely that they will only appoint a lawyer for you if you successfully get your case moving forward and convince the judge that you have a chance of winning. This means that the judge may wait until after they rule on the prison officials’ motions to dismiss your complaint or motion for summary judgment. Chapters Five and Six of this Handbook will help you prepare your basic legal papers and respond to a motion to dismiss or a motion for summary judgment.

Even if you have a lawyer from the start, this Handbook is still useful to help you understand what they are doing.

Be sure your lawyer explains the choices you have at each stage of the case. Remember that they are working for you. This means that they should answer your letters and return your phone calls within a reasonable amount of time. Don’t be afraid to ask your lawyer questions. If you don’t understand what is happening in your case, ask your lawyer to explain it to you. Don’t ever let your lawyer force decisions on you or do things you don’t want.

E A Short History of Section 1983 and the Struggle for Prisoners’ Rights

As you read in Sections A and C, most prisoners who decide to challenge abuse or mistreatment in prison will do so through a federal law, 42 U.S.C. § 1983, usually just known as “Section 1983.” Section 1983 is a way for any individual (not just a prisoner) to challenge something done by a state employee or local government employee. The part of the law you need to understand reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …

Section A of Chapter Two will explain what this means in detail, but we will give you some background information here. Section 1983 was passed by the United States Congress over 150 years ago. Section 1983 was originally known as Section 1 of the Ku Klux Klan Act of 1871. Section 1983 does not mention race, and it can be used by people of any color, but it was originally passed specifically to help Black people enforce the new constitutional rights they won after the Civil War—specifically, the 13th, 14th and 15th Amendments to the U.S. Constitution. Those amendments made slavery illegal, established the right to “due process of law” and equal protection of the laws, and guaranteed every male citizen the right to vote. Although these amendments became law, white racist judges in the state courts refused to enforce these laws, especially when Black people had their rights violated by other state or local government officials. The U.S. Congress passed Section 1983 to allow people to sue in federal court when a state or local official violated their federal rights.

Soon after Section 1983 became law, however, Northern big businessmen joined forces with Southern plantation owners to take back the limited freedom that Black people had won. Federal judges found excuses to undermine Section 1983 along with most of the other civil rights bills passed by Congress. Although the purpose of Section 1983 was to bypass the racist state courts, federal judges ruled that most lawsuits had to go back to those same state courts. Their rulings remained law until Black people began to regain their political strength through the civil rights movement of the 1960s.

In the 1960s, a series of very good Supreme Court cases reversed this trend and transformed Section 1983 into an extremely valuable tool for state prisoners. People in prison soon began to file more and more federal suits challenging prison abuses. A few favorable decisions were won, dealing mainly with freedom of religion, guard brutality, and a prisoner’s right to take legal action without interference from prison staff. But many judges still continued to believe that the courts should let prison officials make the rules, no matter what those officials did.

This way of thinking is called the “hands-off doctrine,” because judges keep their “hands off” prison administration.

The next big breakthrough for prisoners did not come until the early 1970s. Black people only began to win legal rights when they organized together politically, and labor unions only achieved legal recognition after they won important strikes. In the same way, prisoners did not begin to win many important court decisions until the prison movement grew strong.

Powerful, racially united strikes and rebellions shook Folsom Prison, San Quentin, Attica, and other prisons throughout the country during the early 1970s. These rebellions brought the terrible conditions of prisons into the public eye and had some positive effects on the way federal courts dealt with prisoners. Prisoners won important federal court rulings on living conditions, access to the media, and procedures and methods of discipline.

Unfortunately, the federal courts did not stay receptive to prisoners’ struggles for long. In 1996, Congress passed and President Clinton signed into law the Prison Litigation Reform Act (PLRA). The PLRA is very anti-prisoner and works to limit prisoners’ access to the federal courts. Why would Congress pass such a bad law? Many people say Congress believed a story that was told to them by states tired of spending money to defend themselves against prisoner lawsuits. In this story, prisoners file mountains of unimportant lawsuits because they have time on their hands and enjoy harassing the government. The obvious truth—that prisoners file a lot of lawsuits because they are subjected to a lot of unjust treatment—was ignored.

The PLRA makes filing a complaint much more costly, time-consuming, and risky to prisoners. Many prisoners’ rights organizations have tried to get parts of the PLRA struck down as unconstitutional, but so far this effort has been unsuccessful. You will find specific information about the individual parts of the PLRA in later chapters of this Handbook. Some of the most important sections of the PLRA are included in Appendix F at the end of this book.

History has taught us that convincing the courts to issue new rulings to improve day-to-day life in prisons and change oppressive laws like the PLRA requires not only litigation, but also the creation and maintenance of a prisoners' rights movement both inside and outside of the prison walls.

F The Uses and Limits of Legal Action

Only a strong prison movement can win and enforce significant legal victories. But the prison movement can also use court action to help build its political strength. A well-publicized lawsuit can educate people outside about the conditions in prison. The struggle to enforce a court order can play an important part in political organizing inside and outside prison. Good court rulings backed up by a strong movement can convince prison staff to hold back so that conditions inside are a little less brutal, and prisoners have a little more freedom to read, write, and talk.

Still, the value of any lawsuit is limited. It may take several years from starting the suit to win a final decision that you can enforce. There may be complex trial procedures, appeals, and delays in complying with a court order. Prison officials may be allowed to follow only the technical words of a court decision while continuing their illegal behavior another way. Judges may ignore law which obviously is in your favor because they are afraid of appearing “soft on criminals,” or because they think prisoners threaten their own position in society. Even the most liberal, well-meaning judges will only try to change the way prison officials exercise their power. No judge will seriously address the staff’s basic control over your life while in prison.

To make fundamental changes in prison, you can’t rely on lawsuits alone. It is important to connect your suit to the larger struggle. Write press releases that explain your suit and what it shows about prison and about the reality of America. Send the releases to newspapers, radio and TV stations, and legislators. Keep in touch throughout the suit with outside groups that support prisoners’ struggles. Look at Appendix J for tips we collected from journalists on how to approach media and groups that may be able to help you.

You may also want to discuss your suit with other prisoners and involve them in it even if they can’t participate officially. Remember that a lawsuit is most valuable as one weapon in the ongoing struggle to change prisons and the society which makes prisons the way they are.

Of course, all this is easy for us to say, because we are not inside. All too often, jailhouse lawyers and activists face retaliation from guards due to their organizing and lawsuits. Chapter Three, Section G, Part 4 explains some legal options if you face retaliation. However, while the law may be able to stop abuse from happening in the future, and it can compensate you for your injuries, the law cannot guarantee that you will not be harmed. Only you know the risks that you are willing to take.

Finally, you should know that those of us who fight this struggle from the outside are filled with awe and respect at the courage of those of you who fight it, in so many different ways, on the inside.

“Jailhouse lawyers aren’t simply, or even mainly, jailhouse lawyers. They are sons, daughters, uncles, nieces, parents, sometimes teachers, grandparents, and occasionally writers. In short, they are part of a wider, broader, deeper social fabric.”

– Mumia Abu-Jamal
Award-winning journalist, author, and jailhouse lawyer,
from his 2009 book “Jailhouse Lawyers.”