Author: James P. Chapman, Eric Dorkin, Sarah Geraghty
Last updated: April 2007
In Part II of the Handbook, you will find brief introductory comments about a variety of issues that may arise during your appointment as counsel. You will also find a sampling of some of the leading cases, primarily focusing on the Seventh Circuit, in order to give you a ready departure point for your research. Obviously, we have not included every case for each issue, though it is our hope that this will help save you time. Please, remember to check the status of the cases cited herein, as courts are continually reevaluating civil rights law as applied to prisoner-plaintiffs.
As for the structure of Part II, the subjects follow the order established in Part I of the Handbook. First, you will find information and case law about assessing the merits of and limits on the claims made by the prisoner-plaintiff. Please pay careful attention that all parties have been joined and that there is no danger of the statute of limitations running on the prisoner’s claim.
The next portion of Part II deals with the mechanics of the case, including choosing nonimmune defendants, discovery of prison records, calculations of and limitations on damages, and general trial strategies. Much of what is true about civil litigation strategies is true of prisoner civil rights litigation; however, remember that you are dealing with a large institution that can often move very slowly.
Part II continues with a look at the process of recovery, either via final judgment or settlement.
Part II concludes by discussing what the appointed counsel must do during the course of the representation to recover costs and expenses. Remember, keep precise records of when and how you spent money in representing the prisoner-plaintiff.
Filing Fees: The PLRA's Amendment to the In Forma Pauperis Statute
Statute of Limitations and "Relations Back"
Effect of Adequate State Remedy on Certain Constitutional Violations (Property Damage or Loss)
Exhaustion of Prison Grievance Procedures
Inmate-on-Inmate Assaults -- Duty to Protect
Guard-on-Inmate Assaults -- Excessive Use of Force
Mental Health Care/Suicide
Access to the Court
Freedom of Religion
Blood, Urinalysis Testing
General Conditions Cases
Conditions of Confinement
Racially Discriminatory Policies
Disabled Prisoners/Application of Disability Statutes
Civil Commitment of Sexually Violent Persons in Illinois
- Introductory Comment: Once the court has made the appointment, only the court can relieve the attorney of his or her fiduciary duties to the prisoner-plaintiff. Appointed counsel must represent prisoner-client with the same skill and care as he/she would use for a paying client.
- Mallard v. United States Dist. Court, 490 U.S. 296, 109 S. Ct. 1814, 104 L. Ed. 2d 318 (1989): Although Section 1915(e)(1) gives federal district courts the power to “request” an attorney to represent an indigent in a civil case, it does not authorize a court to compel an unwilling attorney to perform such work. But other powers, such as a court’s inherent authority, may permit federal court to require an attorney to serve in civil cases.
- Stanciel v. Gramley, 267 F.3d 575 (7th Cir. 2001): Prisoner who filed civil suit was not entitled to retrial on basis that his attorney's performance was so inadequate as to deprive him of fair opportunity to present his case; although performance of prisoner's attorney was deficient in several respects, there is no Sixth Amendment right to effective assistance of counsel in a civil case. Proper remedy for inadequate representation was malpractice action.
- Dunphy v. McKee, 134 F.3d 1297, 1301 (7th Cir. 1998): Court must bear in mind, when counsel has been appointed or recruited for Section 1983 action, that usual assumptions about agency relationship between lawyer and client must be relaxed; thus, in considering dismissal for want of prosecution, court should satisfy itself that appointed counsel is on the job and should consider appointing substitute counsel in cases in which fault seems to lie primarily with lawyer.
- Forbes v. Edgar, 112 F.3d 262 (7th Cir. 1997): Denial of prisoner’s request for counsel was not an abuse of discretion where prisoner was an "able litigant" who submitted comprehensible and literate documents to district court.
- Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992): Indigent civil litigants have no constitutional or statutory right to be represented by counsel in federal court. The district court, however, may in its discretion request counsel to represent indigent civil litigants in certain circumstances under 28 U.S.C. 1915(d). In determining whether to appoint counsel, the district court should consider: (1) the merits of the indigent’s claim for relief; (2) the ability of the indigent plaintiff to investigate crucial facts unaided by counsel; (3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel; (4) the capability of the indigent to present the case; and (5) the complexity of the legal issues raised by the complaint.
- Pearson v. Gatto, 933 F.2d 521 (7th Cir. 1991): District court did not abuse its discretion in permitting late filing of notice of appeal by appointed counsel whose involvement in numerous court-appointed cases caused him to miss the filing deadline, particularly as over-commitment was due to an excess of public service and altruism, rather than mismanaged ambition or desire for financial gain.
- Di Angelo v. Illinois Dep’t of Public Aid, 891 F.2d 1260 (7th Cir. 1989): Civil appointment of attorney to represent prisoner in district court did not carry over on appeal. Counsel need not file briefs ("Anders" brief) revealing inadequacies of their client’s positions in order to be relieved of the appointments on appeal.
- Introductory Comment: In addition to appointed counsel’s duty under Fed. R. Civ. P. 11 to investigate the case from both a factual and legal perspective, a state statute can impose severe sanctions on the prisoner-plaintiff if a Rule 11 finding of frivolousness is made:
If a lawsuit is filed by a prisoner in an Illinois or federal court against the State, the Department of Corrections, or the Prisoner Review Board, or against any of their officers or employees, and the court makes a specific finding that a pleading, motion, or other paper filed by the prisoner is frivolous, the Department of Corrections shall conduct a hearing to revoke up to 180 days of good conduct credit by bringing charges against the prisoner sought to be deprived of the good conduct credits before the Prisoner Review Board . . . . - 730 ILCS 5/3-6-3(d)
The section defines "frivolous" in detail, tracking the language and case interpretation of Rule 11. The section specifically applies to Section 1983 actions, that is, the typical prisoner case. See 42 U.S.C. 1983. See also 735 ILCS 5/22-105, which provides that attorney’s fees and costs imposed against a prisoner in a Rule 11 sanction proceeding shall be taken from his prison trust fund account.
You should also be aware that under the PLRA, a prisoner who accumulates three "strikes" for filing complaints (or appeals) that are deemed "frivolous" or "malicious" is barred (with certain exceptions) from filing future suits in forma pauperis. See 28 U.S.C. 1915(g).
As noted earlier, counsel must not rely on the fact that the district court judge has appointed counsel to represent the prisoner-plaintiff in determining if the prisoner’s complaint is valid in law or factually supportable. That is appointed counsel’s obligation. As with any client, but particularly with a prisoner who will have one or more felony convictions that will affect his or her credibility, appointed counsel must always seek corroboration for the plaintiff’s version of the facts. This approach is simply good trial strategy. And as with any client, the prisoner may be mistaken in his or her version of the facts. Prisoners are moved often, their records are lost or destroyed, and their recollections may be hazy or incorrect. And, as with any client in the "free world," they may be lying.
Therefore, use all the formal and informal discovery tools available to you to corroborate your client’s version of the facts. Push your client for his documents, do an intensive, searching interview, and move on in the normal way. Most prisoners will welcome the opportunity to cooperate, and most, if counsel gives them a legitimate opportunity, will be helpful to counsel.
- As soon as possible, determine if the proper parties have been named and if parties that generally are not liable (the IDOC Director or the warden of the prison) have been sued.
Carefully consider the nature of your case. As a rule, officers cannot be liable on the basis of respondeat superior, that is, simply because they have supervisory responsibility over another IDOC employee who has acted wrongfully. See Supervisory Liability. Virtually all types of prisoner actions, under current Supreme Court law, require a party’s direct involvement for liability to attach.
Moreover, prisoners, because of lack of knowledge, will often name the wrong officers (wrong names or capacities), fail to name the officers who actually harmed them, or both. Note also, officers and prisoners are often known by their first names only or by nicknames. Prisoners have a difficult time knowing the correct names of others.
There is a two-year statute of limitations on Bivens suits or federal claims under Section 1983! See Statute of Limitations. (Other federal claims, such as Federal Tort Claims Act claims, have different limitations periods, as do potential pendant state claims.) Move quickly, even if it means making an emergency discovery motion before the trial judge. If you act quickly, most judges will shorten the response time to allow counsel to identify the proper parties if the statute of limitations will run shortly.
After completing your investigation, drop all improperly named parties using an amended pleading.
The Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915 amended the in forma pauperis statute to require prisoners who file a civil action to pay – over time, if necessary – the full amount of the court filing fee. A prisoner who is totally indigent may not be prevented from filing suit. A prisoner who has funds when he files suit, however, must pay an initial partial filing fee. After payment of the initial fee, the prisoner is required to make monthly payments until the fee is paid. See 28 U.S.C. 1915(b)(1)-(3). The PLRA sets forth three grounds for denying in forma pauperis status to a prisoner plaintiff: the prisoner has not established indigence; the appeal is in bad faith; or the prisoner has three strikes. See 28 U.S.C. 1915(a)(2)-(3), (g). If the prisoner has three strikes against him, Section 1915(g) requires prepayment of the entire fee in future cases, unless the prisoner "is under imminent danger of serious physical injury."
- Hall v. Stone , 170 F.3d 706 (7th Cir. 1999): "Section 1915 does not give prisoners a veto power over collection–and at all events, once the district court enters an order under the PLRA, a warden must comply . . . Custodians must remit as ordered under Section 1915 without regard to the prisoner’s wishes. A prisoner’s complaint or notice of appeal is all the authorization needed to debit his trust account; wardens must follow the statute (and judicial orders) rather than contrary directions from their charges."
- Lucien v. DeTella, 141 F.3d 773 (7th Cir. 1999): Prison Litigation Reform Act provision barring inmates with three or more prior frivolous cases from proceeding in forma pauperis did not apply to action filed by inmate before PLRA’s effective date.
- Newlin v. Helman, 123 F.3d 429 (7th Cir. 1997), overruled in part by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000) and Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000): Much of Newlin remains good law and provides guidance for many PLRA procedures employed in this circuit. Waiver of the initial filing fee for a prisoner allowed to proceed IFP is allowed under Section 1915(b)(4) only when the prisoner has "no assets and no means." A prisoner with periodic income has "means" even when he lacks "assets." In cases where the prisoner has been allowed to proceed IFP, the case will not proceed to decision until the initial partial filing fee has been collected.
- Leatherman v. Tarrant County Narcotics Intel. and Coord. Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993): The Supreme Court unanimously held that the federal court may not apply a "heightened pleading standard" for claims brought pursuant to 42 U.S.C. 1983. The federal rules establish a liberal system of notice pleading. See also McCormick v. City of Chicago, 230 F.3d 319, 323 (7th Cir. 2000)(reversing district court’s dismissal of plaintiff’s municipal liability claim as premature given Section 1983's liberal pleading standard.).
- Gomez v. Toledo, 446 US. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980): Two allegations are required to state a cause of action under Section 1983: (1) that some person has deprived plaintiff of a federal right; and (2) that the person who has deprived him of that right acted under color of state or territorial law. Qualified immunity is a defense that must be affirmatively pleaded by defendant.
- Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957): "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
- Davis v. Ruby Foods, Inc., 269 F.3d 818 (7th Cir. 2001): The dismissal of a complaint on the ground that it is unintelligible is permitted. "But when the complaint adequately performs the notice function prescribed for complaints by the civil rules, the presence of extraneous matter does not warrant dismissal."
- Johnson v. Univ. of Wisconsin-Eau Claire, 70 F.3d 469 (7th Cir. 1995): Section 1983 claims must specifically allege a violation of the Constitution. Section 1983 provides a remedy for constitutional violations, but does not create substantive rights.
Note that an amended complaint joining the correct parties after the statute of limitations has run will usually fail, even where the initial complaint named "John Does" or "unknown parties." See King v. One Unknown Federal Correctional Officer, 201 F.3d 910 (7th Cir. 2000).
In addition, make certain that each named defendant has been properly served with summons. Failure to serve a defendant within 120 days of the filing of the action may result in a dismissal without prejudice (Fed. R. Civ. P. 4(m)). Although a new action may be filed against the dismissed defendant, the new pleading must be filed within the two-year statute of limitations.
- Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989): The Court expounded on Wilson v. Garcia, 471 U.S. 261 (1985), requiring courts to borrow and apply to all Section 1983 claims a state's personal injury statute of limitation. Whereas Wilson did not indicate which statute of limitations applied in states having multiple personal injury statutes, Owens held that in such instances, courts should borrow a state's general or residual personal injury statute of limitations.
- Bd. of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L. Ed. 2d 440 (1980): Plaintiff’s attempt to exhaust judicial remedies under state law did not toll state statute of limitations applicable to plaintiff’s Section 1983 suit.
- Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001): This case examined the date of accrual for a Section 1983 action alleging inadequate medical care. A prisoner with an untreated hernia sued officers at Cook County Jail. If the suit was for medical malpractice, the date of accrual would be when plaintiff discovered he had medical problem. But this was a suit charging that defendants inflicted cruel and unusual punishment. The refusal to provide medical care continued for as long as defendants had the power to do something about his condition. "Every day that they prolonged his agony by not treating his painful condition marked a fresh infliction of punishment that caused the statute of limitations to start running anew."
- Owens v. Boyd, 235 F.3d 356 (7th Cir. 2001): In habeas corpus action, statute of limitations begins to run when the prisoner knows (or through reasonable diligence could discover) the important facts, not when the prisoner recognizes their significance.
- Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001): "The correct statute of limitations for Section 1983 actions filed in Illinois is two years as set forth in 735 ILCS 5/13-202."
- King v. One Unknown Federal Correctional Officer, 201 F.3d 910 (7th Cir. 2000): An amendment to a complaint for purposes of naming the proper party relates back to the original complaint only when (1) there has been an error made concerning the identity of the proper party and (2) that party is chargeable with knowledge of the mistake. See Fed. R. Civ. P. 15(c)(3). Here, plaintiff could not amend the complaint to identify a correctional officer defendant after the limitations period ran.
- Worthington v. Wilson, 8 F.3d 1253 (7th Cir. 1993): Arrestee brought Section 1983 action against village and "unknown police officers," alleging violations of his constitutional rights. The court affirmed the district court’s dismissal of the plaintiff’s amended complaint as time-barred. The court held that Fed. R. Civ. P. 15(c)’s "relation back doctrine" was not applicable because the plaintiff’s failure to name specific police officers was not due to a mistake but rather to a lack of knowledge as to their identity. The court also held that plaintiff could not claim fraudulent concealment to toll the statute of limitations. Plaintiff did not set forth affirmative acts or words by defendants which prevented him form discovering their identity; instead, his failure to obtain names was due to his own lack of diligence.
These claims may remain in the case only if they are "pendent" to the primary or federal claim which gives the federal court subject matter jurisdiction. The leading case on this issue is United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed 2d 218 (1966), where the Supreme Court held that a federal court in a federal question case has jurisdiction to hear state claims only where the state and the federal claims "derive from a common nucleus of operative fact."
Note that the case law doctrines of "pendent" and "ancillary" jurisdiction have been codified at 28 U.S.C. 1367 under the term "supplemental" jurisdiction:
Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. 1367(a).
Often, defendants will not file motions to dismiss these claims. Their presence may come to the court’s attention only when the typical Northern District pre-trial order is filed. And then, if not earlier, the court, on its own motion, may question the presence of these unrelated or so-called pendent claims in the action. We suggest that counsel deal with such claims soon after their appointment to determine (1) if they should remain in the case; and (2) if so, whether the complaint should be amended to designate these claims as separate pendent claims.
- Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984): Parratt v. Taylor applies to intentional as well as to negligent acts so that state employee’s intentional unauthorized deprivation of property does not violate due process if state provides a meaningful post-deprivation remedy for the loss.
- Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981): Negligent deprivation of prisoner’s property does not violate due process where state has adequate post-deprivation remedy. Nebraska court of claims procedure deemed adequate. Later overruled by Daniels v. Williams, 474 U.S. 327 (1986) to the extent Parratt suggests that a negligent act may ever be sufficient to constitute a deprivation under the Due Process Clause.
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