A Short Summary of a Lawsuit

Filing your lawsuit  is only the beginning. You must be prepared to do a lot of work after you file the complaint to achieve your goal. Throughout the suit, it will be your responsibility to keep your case moving forward or nothing will happen. This chapter will explain what may happen after you file the complaint and how to keep your case moving.

Once you send your complaint and summons to the court, the court clerk will give you a civil action number. You need to write this number in the case caption of all documents you file related to your case.

Next you will have to deal with a series of pretrial procedures. The PLRA creates several roadblocks for prisoners. You may have to deal with a waiver of reply and screening by the district court. Both of these issues are described in Section B of this chapter.

Once you make it through these two hurdles, a defendant has a certain period of time after they are served with your complaint to submit a motion to dismiss, a motion for a more definite statement (asking that you clarify some part of your complaint), a motion for an extension of deadline, or an answer. The amount of time depends on what process you used to serve your complaint and is explained in Rule 12 of the Federal Rules of Civil Procedure. Each defendant must eventually submit an answer, unless the judge dismisses your complaint in regard to that defendant. The answer admits or denies each fact you state. It can also include affirmative defenses.

When your case progresses to discovery, each side can get more information from the other through document requests, interrogatories, depositions, and other forms of pretrial discovery. Each side can submit additional declarations from people who have relevant information. Finally, each side can file motions for summary judgment which ask the judge to decide the case, or some part of the case, in its favor without a trial.

If the case goes to trial, you and your witnesses and defendants, and their witnesses, will testify in court and be cross-examined. Both sides may submit exhibits. If you request money damages, you can have that issue decided by a jury.

Whichever side loses in the district court after trial or summary judgment has a legal right to appeal to a U.S. circuit court of appeals. There are different courts of appeals in different parts of the country, listed in Appendix M. The appeals court may affirm (agree with) or reverse (disagree with) the district court’s decision. It may also remand, which orders the district court to hold a new trial or to take another look at a certain issue. The side which loses on appeal can ask the U.S. Supreme Court to review the case by filing a “petition for writ of certiorari.” The Supreme Court will review this petition but can choose not to consider the case, and usually will only consider cases that it thinks raise a very important legal issue. Very, very few cases are accepted by the Supreme Court.

This chapter of the Handbook will help you handle the key parts of pretrial procedure: the motion to dismiss, the motion for summary judgment, and pretrial discovery. It will also explain what to do if the court dismisses your complaint or grants the defendants summary judgment against you.

Unfortunately, a discussion of trial is beyond the scope of this handbook, and we cannot describe all pretrial procedures in detail or provide much in the way of strategy and tactics. But you can get a basic understanding of some of the procedures by reading the Federal Rules of Civil Procedure and this Handbook. Also, if your case goes to trial, the judge might appoint a lawyer to assist you.

Remember that much of the success of your suit depends on your initiative. If you don’t keep pushing, your suit can stall at any number of points. For example, if the defendants haven’t submitted an answer, a motion, or some other legal paper after the time limits set by the Federal Rules of Civil Procedure, submit a Declaration for Entry of Default. If the court accepts your Declaration, you will receive a Notice of Entry of Default from the court. You then submit a Motion for Judgment by Default. Forms and more information about these procedures are in Appendix D. You probably can’t win a judgment this way, but you can keep the case moving.

The prison officials may just submit an answer and then do nothing. If this happens, you should move ahead with discovery, which is explained in Section E of this chapter. This will make them realize you are serious about pushing forward your case and may get things moving. If your case stalls after discovery, you can move for summary judgment, which is explained in Section F of this chapter or ask the court to set a date for a trial.

Keep trying at every point to get the court to appoint a lawyer for you. If you don’t have a lawyer, don’t be afraid to keep moving forward pro se, which means “on your own behalf.” You can also try writing the court clerk and prisoners’ rights groups when you don’t know what to do next. The worst thing is to let your suit die.

B Dismissal by the Court and Waiver of Reply

Once you have filed your complaint, the court is required to “screen” it. This means the court looks at your complaint and decides, without giving you the chance to argue or explain anything, whether or not you have any chance of winning your case. The PLRA requires the court to dismiss your complaint right then and there if it:

1. is “frivolous or malicious;”

2. fails to state a claim upon which relief may be granted; or

3. seeks money damages from a defendant who is immune from money damages.

If the court decides that your complaint has any one of these problems, the court will dismiss it “sua sponte,” without the defendant even getting involved. “Sua sponte” is Latin for “on its own.”

Hopefully, if the court does dismiss your case, it will note that it is doing so “without prejudice” or “with leave to amend.” This is OK. It means you can change your complaint and fix whatever problems the court brings to your attention. If the court dismisses your lawsuit without saying anything about amending, you can ask the court for permission to fix your complaint by filing a Motion for Leave to Amend. An example is in Appendix D. A court should not deny you at least one chance to amend, and maybe more, if it is possible for you to fix whatever the court thinks is wrong with your complaint. Shomo v. City of New York, 579 F.3d 176 (2d Cir. 2009) is one case in which a court talks about how important it is to give pro se prisoners a chance to amend their complaint.

If you think the court made a mistake, instead of amending, you may want to quickly respond with a Motion for Reconsideration. In this short motion, all you need to do is tell the court why you think they got it wrong. If the error is legal, cite cases or other authority that support your position. If the error is factual, for example the judge wrote that you did not include anything in your complaint about one defendant’s personal involvement, point out where you do that in your complaint. Motions for reconsideration are meant for pointing out things the judge overlooked, not for restating arguments you already made that the court rejected. The time to submit a motion for reconsideration is set forth in courts’ Local Rules, and some are very short—like 14 days.

If your complaint was recommended to be dismissed by a magistrate judge, you can file “objections” to the magistrate’s recommendation which will be reviewed by the district court judge.

If neither of these approaches work, you can appeal. Procedures for appealing are laid out in Section G of this chapter.

The other hurdle created by the PLRA is something called a waiver of reply. A defendant can file a waiver of reply to get out of having to file an answer or other motions. When a defendant does this, the court reviews your complaint to see if you have a “reasonable opportunity to prevail on the merits.” If the court thinks you have a chance at winning your lawsuit, it will order the defendants to either file a Motion to Dismiss or an Answer. If the court doesn’t do this, you can file a motion asking the court to order the defendants to reply.

C How to Respond to a Motion to Dismiss Your Complaint

If you get through the first hurdles, the next legal paper you receive from the prison officials may be a Motion to Dismiss your suit. Motions to dismiss are based only on what is in your complaint, not on documents or other evidence from Defendants. Motions to dismiss are different than Motions for Summary Judgment, which is based on Defendants’ version of the facts and usually happen after discovery. Rule 12(b) of the Federal Rules of Civil Procedure explains some of the grounds for a motion to dismiss. Defendants may give a number of reasons. One reason is sure to be that you did not “state a claim upon which relief can be granted,” which means defendants think that what you are complaining about does not violate the law.

The motion to dismiss is a written request that the judge end your suit, without you getting the chance to get discovery, or go to trial. Attached to the motion will be a memorandum of law (also called a “brief”) which gives the defendant’s legal arguments for dismissing your suit. Each court has different rules about how long you have to respond to this motion, but usually you will have at least two or three weeks to file an opposition to the defendant’s motion to dismiss. The opposition is a memorandum of law that responds to the defendant’s arguments. If you need more time, send the judge a letter explaining why and asking for a specific number of extra weeks. If you can, check the Local Rules to see if the court has any specific requirements for time extensions. If you cannot find any information, just send the letter and send a copy to the prison officials’ lawyer.

Chapter Seven explains in more detail how to research and write your opposition, so be sure to read it before you start working. After you read the suggestions in Chapter Seven, you may want to try to read all of the cases that the defendants use in their memo. If you read these cases carefully, you may come to see that they are different in important ways from your case. You should point out these differences. You can also try to find cases the defendants have not used that support your position.

To support their motion to dismiss, the prison officials can make all kinds of arguments which have been dealt with in other parts of this Handbook. They may say you failed to exhaust administrative remedies (see Chapter Five, Section A), or that you cannot sue top prison officials who did not personally abuse you (see Chapter Four, Section D). They may claim you sued in the wrong court (“improper venue”—see Chapter Five, Section B) or that your papers weren’t properly served on some of the defendants (see Chapter Five, Section D). They may say the issues in your lawsuit are now “moot” (see Section D of this chapter).

The prison officials may also argue against your constitutional claims. They might say that you failed to state a proper claim because the actions you describe do not deny you due process or equal protection, or are not cruel and unusual punishment. Your memorandum of law should respond to whatever arguments the government makes.

Unfortunately, writing a memorandum of law requires quite a bit of legal research and writing. Because time to do this research might be an issue for you, you can prepare for this memorandum before you even receive the motion to dismiss. Research cases that are both helpful and harmful to your case. There is a chance that defendants will use some of them and you will have already done a lot of your research.

Defendants might point out something that is wrong with your case that you want to fix, instead of defending against the motion to dismiss. Under rule 15(a) of the Federal Rules of Civil Procedure, you have the right to amend your complaint once without anyone’s permission as long as you do so within twenty-one days of serving it or within twenty-one days of defendants answering or filing a motion to dismiss. If these time periods have passed, or if you have already amended once, Rule 15 allows you to ask the defendants to consent to your filing an amended complaint or ask the court for permission to amend. Courts are supposed to give you permission “freely” when “justice so requires.” Ask for consent first, and if you don’t get it, file a Motion for Leave to Amend in which you describe your proposed changes or attach the proposed amended complaint.

One thing you will have going for you is that in considering the defendant’s motion to dismiss, the judge must assume that every fact you stated in your complaint is true. The judge must then ask: if all those facts are true, is it plausible that the defendants violated your rights? If any combination of the facts stated in your complaint might qualify you for any form of court action under Section 1983, then the judge is legally required to deny the prison officials’ motion to dismiss your complaint. In making this decision, courts are supposed to treat unrepresented parties, including prisoners, more leniently that people who are filing a suit with a lawyer. In considering a motion to dismiss, a pro se complaint should be held to less strict standards than a complaint drafted by a lawyer.

It is important to remember in writing your opposition that defendants have to deal with the facts as you put them in your complaint. For example, if you stated in your complaint that you were “severely beaten” by two guards, yet the defendant says in his motion to dismiss that an “inadvertent push” doesn’t amount to cruel and unusual punishment, you should tell the court in your memo that you did not allege an “inadvertent push,” you alleged a severe beating, and that is what the court has to assume is true.

Sometimes defendants support motions to dismiss by submitting factual materials such as affidavits, declarations, or documents. You should ask the court not to consider this “extrinsic evidence,” since a motion to dismiss is supposed to consider only the adequacy of the complaint.

Send three copies of your memo to the court clerk (one will be returned to you to let you know they accepted your papers) and one copy to each defendant’s lawyer. Usually, all the prison officials are represented by one lawyer from the office of the attorney general of your state. The name and office address of that lawyer will be on the motion to dismiss.

In some cases, after the parties exchange memoranda of law, attorneys for both sides appear before the judge to argue for their interpretation of the law. However, when dealing with a case filed by a prisoner pro se, most judges decide motions based only on the papers you send in, not on arguments in person. In the rare case that a judge does want to hear argument, many federal courts now use telephone and video hook-ups or hold the hearing at the prison. It is quite hard to get a court to order prison administrators to bring you to court, because the PLRA requires that courts use remote access techniques “to the extent practicable.”

If the judge does decide to dismiss your complaint, they must send you a decision stating the grounds for their action. The judge may or may not dismiss your case with leave to amend. Either way, you can appeal from that decision. Section G of this chapter explains what else you can do if the court dismisses your complaint.

Instead of (or before) a Motion to Dismiss, you may receive a motion for extension of time from the defendants. A motion for extension of time (or “enlargement”) gives the other side more time to file an answer or motion. One extension is usually automatic. If your situation is urgent, write the court to explain the urgency and ask that the prison officials not get another extension.

You may also receive a letter or motion asking the court to treat your case as related to another previously filed case. Check out what the other suit is about, who is bringing it, and what judge is considering it. This could be a good or bad thing for you, depending on the situation. If you think you’d be better off having your suit separate, submit an affidavit or memorandum of law in opposition to the motion to relate. Say clearly how your suit is different and why it would be unfair to join your suit with the other one. For example, the facts might get confused.

D The Problem of Mootness

One argument that prison officials often raise, either in their motion to dismiss or later on, is that you have no legal basis for continuing your suit because your case has become “moot.” This is only a problem if you are asking for injunctive or declaratory relief. If you are asking for money damages, your case cannot become moot.

A case may be moot if, after you have filed your suit, the prison stops doing what you complained about, releases you on parole, or transfers you to a different prison. The prison officials can ask the court to dismiss your case as moot, saying there is no longer anything the court can order the prison to do that would affect you.

For example, imagine you sue the prison for injunctive relief because they are not providing medical care for your diabetes. In your suit, you ask the court to order the prison to provide you with adequate medical care in the future. Then, after you file your complaint, the prison starts to provide you with medical care. The prison can argue that your case is moot because the only remedy you asked for has already been given to you by the prison.

The good news is that the defendants will have the burden of proving that the case is really moot. This is a heavy burden, since they must show that there is no reasonable expectation that the violations of your rights will happen again. There are five arguments you may be able to make to defeat the prison’s efforts to get your case dismissed because of mootness:

• If you have asked for money damages, your suit can never be moot. You have a right to get money for injuries you suffered in the past as long as you sue within the period allowed by the statute of limitations. This does not just apply to physical harm: if you have been denied your constitutional rights, it is an “injury” for which you might be able to get money damages. For more on damages, read Chapter Four, Section C.

• A violation of your rights may not be moot if it is “capable of repetition, but evading review.” In other words, the court will allow you to continue your case in a situation where the illegal action will almost always end before the case could get to court. Imagine that a prisoner wants to sue to force the prison to improve conditions in administrative segregation. By the time the prisoner actually gets into court, however, they have been moved back to general population. This case should not be dismissed as moot because it is “capable of repetition,” meaning they could get put in administrative segregation again, and it “evades review” because they might never stay in segregation long enough to get to trial.
  To meet this test, the condition must be reasonably likely to recur. Most courts have not applied this exception when a prisoner is transferred to another prison, since it is only “possible” and not “likely” that he will be transferred back. Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). Transfer may not moot your case, however, if the department or officials whom you sued are also in charge of the new prison. Scott v. District of Columbia, 139 F.3d 940, 942 (D.C. Cir. 1998).

• Sometimes, being transferred away from where the violation happened does not make your suit moot. Courts have found that a state-wide policy that violated your constitutional rights in one facility may still violate your rights in the new facility. See Pugh v. Goord, 571 F.Supp.2d 477 (S.D.N.Y. 2009) and Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002).

• If you get a lawyer and file a “class action” suit on behalf of all the prisoners who are in your situation and the class is certified, your suit will not be moot as long as the prison continues to violate the rights of anyone in your class. If you are paroled or transferred, the court can still help the other members of your class. Section F of Chapter Four discusses class action lawsuits. Remember that it is very hard to bring a class action without an attorney.If any negative entries have been put in your prison records because of your suit or the actions you are suing about, you may be able to avoid mootness by asking the court to order the prison officials to remove (or “expunge”) these entries from your records. The federal courts have held that a case is not moot if it could still cause you some related injury. If you can show that there are documents in your prison records which could affect you in the future, asking the court to expunge them can keep your case from becoming moot. A few cases good cases to read on this issue are Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. 1998), Kerr v. Farrey, 95 F.3d 472, 476 (7th Cir. 1996) and Dorn v. Mich. Dep’t of Corr., 2017 WL 2436997 (W.D. Mich. June 6, 2017).  

• You can argue that just because the prison has stopped doing something illegal or has reversed a policy does not mean that the court can’t review the case. You may have a strong argument if you can convince the judge that the prison has just changed course to avoid litigation. You can quote the U.S. Supreme Court that “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case.” Los Angeles County v. Davis, 440 U.S. 625, 631 (1979). This argument against mootness has been successful in several Section 1983 claims brought by prisoners. Two examples to read are Burns v. PA Dep’t of Corrections, 544 F.3d 279 (3d Cir. 2008) and Aref v. Holder, 953 F. Supp. 2d 133 (D.C. Cir. 2013). The prison officials must show that there is no reasonable expectation that the violations will recur. They must also show that the relief or changes in policy that they put in place have completely fixed the constitutional violation, and the effects it may have had.

F Summary Judgment

At some point, the prison officials will probably submit a motion for summary judgment. Be sure to read about the rules and procedure for summary judgment in Rule 56 of the Federal Rules of Civil Procedure. Defendants can ask for summary judgment along with their motion to dismiss your complaint or at some later time. You can also move for summary judgment. Your motion will be discussed separately at the end of this section.

 

1. The Legal Standard

“Summary Judgment” means the judge decides some or all of your case without a trial. Through summary judgment, a court can throw out part or all of your case. Under Federal Rule 56(a), to win on summary judgment, the prison officials have to prove to the judge there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. In other words, the judge finds that there is no point in holding a trial because both you and the defendants agree about all the important facts and the judge can use those facts to decide that the defendants should win.

This test is very different from the test which is applied in a motion to dismiss your complaint. When the judge receives a motion to dismiss, they are supposed to look only at your complaint. In a motion to dismiss, the judge asks: could you win a judgment in your favor if you could prove in court everything you say in your complaint? When the judge receives a motion for summary judgment, however, they look at evidence presented by both sides, including affidavits, and ask: is there is any real disagreement about the important facts in the case?

The first part of the test for a motion for summary judgment that is important to understand is what is meant by “a genuine issue.” Just saying that something happened one way, when the prison says it happened another way, is not enough: You need to have some proof that it happened the way you describe. Sworn statements (affidavits or declarations), photographs, deposition transcripts, interrogatory responses, and copies of letters or documents count as proof because you or the prison officials could introduce the documents as evidence, and the people making sworn statements (including you) could testify if there were a trial in your case.

An “unverified” Complaint or Answer is not proof of any facts. It only says what facts you or the prison officials are going to prove. If you “verify” your complaint, however, then it counts the same as a declaration. See Chapter Five, Section C, Part 1 for more on verification.

If prison officials give the judge evidence that important statements in your complaint are not true and you do not give the judge any evidence that your statements are true, then there is no real dispute about the facts. The judge will see that the prison officials have submitted evidence about their version of the facts and that you have not. The judge can then end your case by awarding summary judgment to the prison officials.

On the other hand, if you give the judge some evidence that supports your version of the important facts, then there is a real dispute. The prison officials are not entitled to summary judgment and your case should go to trial.

For example, if you sue guards who you say locked you up illegally, the guards could submit affidavits swearing they didn’t do it and then move for summary judgment. If you do not present evidence supporting your version of what happened, the guards’ motion might be granted. But if you present a sworn affidavit from yourself or a witness who saw it happen, the guards’ motion for summary judgment should be denied.

A good way to think about a “genuine issue” is whether the judge can tell, by the evidence presented by you and the prison, that you disagree with specific facts the prison officials are relying on.

The second important part of the test is that the “genuine issue” explained above must be about a “material fact.” A material fact is a fact that is so important to your lawsuit that it could determine whether you win or lose. If the prison officials can show that there is no genuine issue (or disagreement, as discussed above) over any material fact, then the court may grant them summary judgment. To know whether a fact is “material,” you have to know what courts consider when they rule on your type of case.

Imagine a prisoner sues a guard for excessive force. As you know from Chapter Three, one of the most important facts in an excessive force claim is whether there was a legitimate need for the guard to use force against you. In your complaint, you write that you were quietly sitting in your cell when the guard entered and began to beat you for no reason. The guard submits an affidavit swearing that they only entered your cell after they saw you attack your cellmate, and that they used only the force necessary to pull you off your cellmate. Imagine they submit a declaration from your cellmate supporting their story. The question of why the guard entered your cell is a material fact. If you don’t provide any evidence to support your version of what happened, like an affidavit of your own, a declaration by another witness, or a doctor’s report showing your injuries were inconsistent with a guard merely pulling you off another inmate, the court may decide there is no “genuine issue of material fact” and dismiss your complaint. 

Strope v. Collins, 492 F. Supp. 2d 1289 (D. Kan. 2007), provides a helpful example. In that case, two pro se prisoners sued various officials at Lansing Correctional Facility for violating their First Amendment right to receive information in prison, and their Fourteenth Amendment right to procedural due process after defendants censored magazines containing nudity. Defendants moved for summary judgment before any discovery had occurred. You’ll remember from Chapter Three that a prison regulation which denies a prisoner books or magazines is valid if it is reasonably related to a “legitimate penological interest,” decided by the Turner Test. The judge denied summary judgment on the First Amendment claim because there wasn’t yet a factual record allowing for Turner analysis.

However, the court granted summary judgment on the procedural due process claim because both parties agreed that the prisoners were provided notice of the censorship, and under the law, notice is all the process that is required. Had the prisoners filed a verified complaint or an affidavit stating they did not receive notice of the censorship, this might have presented a genuine issue of material fact.

In deciding summary judgment, a court isn’t supposed to decide which party is telling the truth or compare the strength of evidence. If there is a real dispute, the court should just deny summary judgment. In reality, however, if the prison officials moving for summary judgment have a lot of evidence, like witness statements and medical records, and all you have is a verified complaint, you may lose summary judgment. So you should try to present as much evidence as you can to the court, and not just rely on a verified complaint.

When the judge considers a motion for summary judgment, they are supposed to view the evidence submitted by both sides “in the light most favorable to the party opposing the motion.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 160 (1970); see also Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001). If defendants in your case move for summary judgment against you, you are the “opposing party.” This means that as the opposing party you get the benefit of the doubt if the meaning of a fact could be interpreted in two different ways.

2. Summary Judgment Procedure

If prison officials move for summary judgment, you will then have a chance to submit your own evidence in opposition: declarations, deposition transcripts, interrogatory responses, and other evidence. You need to submit all your evidence, and a memorandum explaining what you are submitting within 21 days or ask for an extension. The memorandum of law should summarize your evidence and explain how it supports each point that you need to prove. Check Chapter Three for the requirements of your claim. Be sure to repeat the major cases which support your argument that the prison officials violated your federal constitutional rights. Your memorandum should also point out to the judge all the specific facts that show there are material issues in dispute.

Most courts have Local Rules about summary judgment, and one thing they may require is a numbered statement of undisputed facts. Read your Local Rules carefully to understand what is required. If you don’t submit a statement of undisputed facts, the court may treat it as if you are accepting the defendants’.

Defendants may try to move for summary judgment before you have had a chance to get discovery against them. It also may be difficult for you to get declarations, especially from prisoners who have been transferred to other prisons or placed in isolation. If this is a problem, write a declaration to the judge explaining what facts you think you can get, how you want to get them, how those facts will create a genuine issue of material fact, any effort you have already made to get them, and why that effort was unsuccessful.

 

Under Rule 56(d) of the Federal Rules of Civil Procedure, the judge can deny the prison officials’ motion for summary judgment because you cannot get the declarations you need or because you haven’t yet had access to discovery. The judge can also order that you should have more time to get the declarations you need. This means the judge puts off ruling on the motion. Some courts have been very supportive of the fact that prisoners may need extra time to get declarations. Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), is a good case explaining this rule.

The judge also has the power under Rule 56(d) to “issue any other appropriate order.” This could include ordering prison officials to let you interview witnesses or write to prisoners in other prisons.

3. Summary Judgment in Your Favor

You also have a right to move for summary judgment in your favor. You may want to do this in a case where everyone agrees that the prison is following a particular policy and the only question for the court is whether that policy is legal.

For example, suppose your complaint says that you were forced to let prison officials draw your blood to get your DNA and put it in a DNA database. The prison officials admit they are doing this but deny that it is illegal. You may move for summary judgment on your behalf. Since the material facts are agreed on, the judge should grant you summary judgment if they agree with your interpretation of the law. On the other hand, if your suit is about brutality, prison conditions, or denial of medical care, you usually will have to go to trial since what actually happened is bound to be the major issue.

G What to Do If Your Complaint Is Dismissed or the Court Grants Defendants Summary Judgment

The sad truth is that people in prison file thousands of Section 1983 cases every year, and the vast majority of these are dismissed at one of the three stages described in Sections B, C, and F of this chapter. This may happen to you even if you’ve detailed all your claims and present a great argument. It may happen even if you work very hard on your papers and follow every suggestion in this Handbook perfectly. The important thing to remember is that you don’t have to give up! You can choose to keep fighting. You have already learned how to file an amended complaint in Section C, and the next few pages tell what else you can do if your case is dismissed or the court grants summary judgment in favor of the defendants.

1. Motion to Alter or Amend the Judgment

Your first option is to file a motion to alter or amend the judgment under Federal Rules of Civil Procedure Rule 59(e). This motion must be filed within 28 days after entry of judgment. Include a memorandum of law that cites the cases from your circuit.

You can only make this kind of motion if the court dismisses your complaint after denying leave to amend or grants summary judgment to the defendants. Like motions to reconsider, motions to alter or amend the judgment are intended to call the court’s attention to matters it overlooked, not to restate arguments the court rejected.

2. How to Appeal the Decision of the District Court

If you lose your motion to alter the judgment, or if you decide not to make one, you can appeal to the U.S. Court of Appeals for your district. You begin your appeal by filing a Notice of Appeal with the clerk of the U.S. District Court whose decision you want to appeal. Follow the form in Appendix D. If you filed a motion to alter under Rule 59(e), file your Notice of Appeal within thirty days after the court denies your motion to alter. Otherwise, file your notice within thirty days after the order or judgment was entered by the district court judge.

The appeals process is governed by the Federal Rules of Appellate Procedure. These rules are supposed to be in your prison library, included as part of Title 28 of the United States Code (U.S.C.). There is an annotated version of the U.S.C. called the United States Code Annotated (U.S.C.A.) which gives summaries of important court decisions which interpret the Federal Rules of Appellate Procedure. The U.S.C. will only have the text of the Federal Rules while the U.S.C.A. will give some explanation and cases, and is probably more helpful to you. Chapter Seven explains how to use the U.S.C.A. and other law books. Some of the books listed in Appendix K give more information on the appeals process.

If you sued in forma pauperis, you can appeal in forma pauperis, unless the district court finds that your appeal is not taken “in good faith.” If the district court decides this, you have to send to the appeals court in forma pauperis papers like those you sent to the district court, except that you should explain the basis of your appeal. Submit these papers within 30 days after you are notified that the district court ruled that your appeal was not in good faith.

Soon after you receive a notice that your appeal has been transferred to the court of appeals, submit another Motion for Appointment of Counsel. Use the form in Chapter Four, Section C, Part 3, for requesting counsel but change the name of the court and state the basis of your appeal. If you have to submit new in forma pauperis papers, send them together with the motion for counsel.

Along with your Motion for Appointment of Counsel, submit a Memorandum of Law which presents all your arguments for why the appeals court should reverse the decision of the district court, for example, because the district court got the law wrong. If the appeals court thinks your appeal has merit, it is more likely to appoint a lawyer for you. Otherwise, you may get a summary dismissal of your appeal.