A When to File Your Lawsuit

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 prison 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 your goal is to get money 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.

1. Statute of Limitations

For suits asking for money damages, there is a “statute of limitations” which sets a deadline for how long you can wait after the events you are suing about occurred before you start your suit. If you do not file your case before this deadline, 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 figure out 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 may 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, most sections of the PLRA, in particular the exhaustion, and the limitation on damages for emotional injury, do not apply to suits filed by people who have been released from prison.

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 later file an “amended complaint” to add new claims that arose from the same factual situation that you alleged in your complaint 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 has expired. Read Rule 15(c) in the Federal Rules of Civil Procedure 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 any available administrative remedy. This is usually the prison grievance system, but if some other administrative complaint system is designated for your kind of complaint, you must use that. Information about some states’ grievance procedures can be found in Appendix E.

You must complete exhaustion 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 they have 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 grievance form, you may be able to treat that as a denial and appeal immediately. Read the grievance policy carefully and follow it to the letter.

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 the grievance system was not “available” to you such that you were unable to file a grievance through no fault of your own. Ross v. Blake, 136 S. Ct. 1850 (2016). For instance, in Tuckel v. Grover, 660 F.3d 1249 (10th Cir. 2011), a court held that the administrative grievance system is not “available” when a guard threatens a prisoner with harm, such that they are afraid to use the system. 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” means 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. If defendants want to claim you did not exhaust and your case should therefore be dismissed, they must raise non-exhaustion in their answer to your complaint, or in a motion to dismiss or a motion for summary judgment. 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. Even if your prison grievance system does not require that you name the responsible people you still need to provide enough information for the prison to investigate. Often this means that you need to state in the grievance who did the things you complain about.

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 as long as the statute of limitations has not expired. The dismissal will probably not be considered a “strike” against you (For more about “strikes” see Section C, Part 2 of this Chapter).

Exhaustion can take a while, and if the statute of limitations is running, it could expire or leave you with very little time to file suit after exhausting. In most jurisdictions, courts have held that the limitations period is “tolled" (suspended) during exhaustion, though they don’t agree on why. Try to find out whether the statute of limitations is tolled for exhaustion in your jurisdiction and state. Federal courts usually “borrow” state law tolling rules. Generally, you should figure out when the last day you can file suit is and file well in advance of it. The exception is if you are going to be released before the statute of limitations expires. In that case it is worth waiting until after release so you can file without being subject to the PLRA.

B Where to File Your Lawsuit

You will file your lawsuit at the federal trial court, called a “district court.” This is where all Section 1983 and Bivens cases start. Some states, such as Alaska, only have one district. Others have several. New York, for example, is composed of four districts: the Northern, Western, Eastern, and Southern Districts of New York. In total, there are 94 district courts. For more information on district courts, look at Chapter 7, Section A. What district you should file in is determined by the law of “venue.” The main venue rule for a Section 1983 or Bivens lawsuit is Section 139(b) of Title 28 of the United States Code.

It is usually easiest to file in the district “in which the claim arose.” That is, you should file in the district that includes the prison where your rights were violated. To determine what district this is and to get the address of the district court, locate your state in Appendix M and then check to see which district covers the county your prison is in.

You do not have to say in your complaint why you decided to file in a particular district. It is up to the defendants to challenge your choice of venue if they think you filed in the wrong place. However, the district court often will return your papers if the judge decides you sued in the wrong court. For this reason, we have included a sentence on “venue” in our sample complaint in Section C, Part 1 of this chapter.

D How to Serve Your Legal Papers

Besides sending your summons and complaint to the district court, you also have to “serve” both papers on each defendant in the case. The way to serve papers is explained in Rule 4 of the Federal Rules of Civil Procedure.

You can have a friend or family member serve papers for you, or you can pay the U.S. Marshals office or a professional process server to do it. One of the advantages to gaining in forma pauperis status is that Rule 4(c) of the Federal Rules of Civil Procedure directs that your complaint will be served quickly and without cost by the U.S. Marshals Service.

You should know that if you ask for in forma pauperis status at the start of your suit, your legal papers will not be served on the defendants—and so your suit will not begin—until the court decides whether you can sue in forma pauperis

While most courts grant in forma pauperis status quickly and routinely, some courts take a long time. This is a serious problem. If you discover that the court in your district has long delays, or your motion to proceed in forma pauperis is denied, you could try one of the following methods to serve your complaint.

1. If you can raise the money, pay the $350 filing fee yourself and have someone outside the prison serve your papers for free. Rule 4 of the Federal Rules of Civil Procedure describes how to do this and allows any person older than 18 who is not a party to the lawsuit to serve papers.

2. Another way to deal with the service of process fee is that you can ask the defendants to waive service under Rule 4(d) of the Federal Rules of Civil Procedure. You do this by mailing them a Request for Waiver of Service. Make sure you save copies of both the Notice of Lawsuit and Request for Waiver of Service of Summons (one document) and the Waiver of Service of Summons. When you send these documents, make sure to include a copy of your complaint, a stamped envelope or other prepaid means to return the waiver, and an extra copy of the request. If the defendant does not agree with your request to waive service, then you may later be able to recover the costs of personal service by a professional process service or a marshal.

The summons and complaint are the only documents you have to serve on defendants in this special way. However, it is very important to request the Local Rules from the district you plan to file in because different courts have different rules about filing and serving documents after the case has started. Different courts require different numbers of copies. You should follow the Local Rules whenever possible. In general, you will need to send the original of each document and one copy for each defendant to the clerk of the court for the U.S. District Court for your district. Also include two extra copies—one for the judge and one for the clerk to endorse (showing when and where it was filed) and return to you as your official copy. The court will have a marshal deliver a copy to each defendant unless you ask that someone else be appointed to deliver them.

Be sure to keep your own copy of everything you send the court in case your papers are lost in the mail or misplaced in the clerk’s office. If you cannot make photocopies, make copies by hand. If you are concerned about the safety of your documents, you might want to consider sending a copy of them to someone you trust on the outside. Try to always have a copy you can get access to easily.

E Getting Immediate Help from the Court

Ordinarily a federal lawsuit goes on for months or years before the court reaches any decision. But you may need help from the court long before that. A U.S. District Court judge has the power to order prison officials to stop doing certain things while the judge is considering your suit. The judge can do this by issuing a Temporary Restraining Order (TRO) or a Preliminary Injunction, or both.

Chapter Four, Section B explains when you are eligible for a preliminary injunction. If you decide to go ahead and try to get a preliminary injunction or a TRO, you will need to follow the instructions below.

If you think you meet all the tests for immediate help from the court, submit a “Temporary Restraining Order and Order to Show Cause for a Preliminary Injunction.” You can do this in one motion, and you can use this example:

F Signing Your Papers

All documents that you submit to the court must be signed by you personally if you are not represented by a lawyer. Rule 11 of the Federal Rules of Civil Procedure requires that you sign your name, your address, your email address, and telephone number. Obviously, you might not have all of these, and it is fine to just include your name, prison ID number, and the address of your prison.