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So You've Been Asked to Take a Prisoner Litigation Case

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So You've Been Asked to Take a Prisoner Litigation Case ILLINOIS STATE BAR ASSOCIATION JUNE 2016 VOL 14 NO. 4 Federal Civil Practice The newsletter of the Illinois State Bar Association’s Section on Federal Civil Practice So you’ve been asked to take a prisoner litigation case BY STANLEY WASSER, FELDMANWASSER, SPRINGFIELD, IL Yes, as a member of the federal bar, other case that you take on that did not talk to about this can be helpful, so treat you may be called upon to take on a originate with your office, study the them kindly. prisoner litigation case. In other words, complaint, the answers and any affirmative Also, make sure that you read the a state prisoner has filed a pro se lawsuit defenses; review any prior Rule 12 motions Illinois DOC rules regarding how to alleging one or more civil rights claims, and orders thereon; review any prior handle mail from an attorney to your and possibly pendant state claims, against summary judgment motions and orders client. Your envelopes must bear the one or more correctional supervisors or thereon. Also, review any written discovery logo “Legal Mail” or “Privileged” and employees, and possibly against nurses, requests and responses and the transcripts must show your firm’s name. I suggest doctors, or corporate entities with whom of any depositions taken to date. making a sticker label that you can the state has contracted with to furnish Second, locate your client and find attach to the envelope that reads: medical services to its prisoners. The out how to communicate with him/her. “PRIVILEGED CLIENT/ATTORNEY case may have been pending for some Assuming your client is serving a prison CORRESPONDENCE - LEGAL MAIL time. Prior requests by the prisoner term in an Illinois correctional facility, - OPEN ONLY IN PRESENCE OF for appointment of counsel may have first click on and read the Attorney facts RESIDENT.” I also suggest that letter itself been denied. There may be one or more page of Illinois DOC found at: <http:// prominently indicates that it is “Privileged summary judgment rulings in the record. www.illinois.gov/idoc/aboutus/Pages/ & Confidential - Attorney-Client Mail.” The case could be coming up on the trial AttorneyFAQ.aspx>. See also the IDOC For any papers you send your client as an calendar. The federal judge has contacted rules at 20 Illinois Administrative Code attachment to your letter, I suggest that you to take the case pro bono. Assuming no Part 525 regarding visitation, mail, and you sandwich them between a brief cover conflicts of interest, the case is now yours. telephone calls. Contact the facility and at the top and bottom; that you put several Take a deep breath. Don’t panic. You can learn what telephone numbers you will pieces of tape around the edge of this do it—even if you have not handled a civil need to call and who you may need paper sandwich so that your client can tell rights case before. to speak to in order to arrange phone if someone was reading the papers; that This article is intended as a general conferences and in-person visits with your you spell out in your first communication guide to get you familiar with and to walk prisoner client. There will be time limits on to your client that this is how you will you through some of the essentials of the phone calls and visits. Find out what be transmitting paperwork to him/her; handling this type of case. they are and be prepared to stick to them. and that you alert your client to let you First, the obvious: you need to promptly I have found that if you prepare an agenda know if he/she suspects tampering with “get your hands around” the file. So of topics that you want to cover, you can the paperwork. I further suggest that you download from PACER the case docket have a productive conversation within the tape the outer envelope shut. Keep track and get the key case filings. As with any time limits. The correctional personnel you of when you sent mail to your client and Federal Civil Practice ▼ JUNE 2016 / VOL 14 / NO. 4 confirm with him/her when they received your client when he/she is on video so the The PLRA damage limitation provisions it so that you can know if the facility mail conversation you have with your client can and the exhaustion requirements (both room is properly processing your attorney- be overheard. If you need to you might the discussed below) covers claims under client mail. Likewise, as you certainly will federal judge to permit you to remain for a the federal Rehabilitation Act of 1973 [42 be getting letters from your client, save brief time in their courtroom after the first U.S.C ‘701 et seq.] or the federal Americans the envelope and compare the date your hearing ends so that you can speak briefly with Disabilities Act (“ADA”). [42 U.S.C. ‘’ client puts on his/her letter (tell him/her to with your client before the video feed 1211112213], which acts apply to prisoners. date their letters) with the postmark date. shuts off. Again, there is no privacy in that See Pennsylvania Dept. of Corrections v. Oftentimes, your client’s letter and your conversation. Confidential matters should Yeskey, 524 U.S. 206 (1998); Cassidy v. last letter may have crossed in the mail. be left to the phone calls or the letters or the Indiana Dept. of Corrections, 199 F.3d Also, don’t forget—no staples, paperclips, personal visits. 374 (7th Cir. 2000). The only difference binding clips or apparatus can be sent to Just like any other case, you need to between a Rehabilitation Act claim and your client. marshal and master the facts and the law. an ADA claim is the element that the As for visiting your client in-person, Just like any other case, a good starting defendant IDOC received federal funds. you likely will not be able to take a brief point is the federal jury instructions. Any Jaros v. Illinois Department of Corrections, case into the facility; so you have to carry summary judgement orders previously 684 F.3d 667, 671-72 (7th Cir. 2012) (relief your papers in folders. Again, no staples, entered in the case may prove helpful. If under the Rehabilitation Act and ADA are paperclips, or binders of any kind. You and your client’s claims involve discrimination coextensive and the analysis under both your paperwork will be searched. Leave or retaliation claims, you will want to acts is the same, save for the element of your money, wallet, phone, and change in pay close attention to the case law that federal funding under the Rehabilitation your car. Bring only your driver’s license, addresses the allocation of burdens of proof Act); Wagoner v. Lemmon, 778 F.3d 586, ARDC card, and a quarter so that you can and persuasion in mixed-motive cases. 592 (7th Cir. 2015) (Rehabilitation Act use the locker in the processing point for One statute you must review is the and ADA are “functionally identical”). locking up your car keys, your hat and coat, Prisoner Litigation Reform Act of 1996 As discussed below, the attorney’s fee and anything you brought with you that is (“PLRA”), 42 U.S.C. ‘1997e. That Act is limitations provisions of the PLRA do not not allowed in the facility. Be prepared to likely to cover every federal claim your apply to Rehabilitation Act, but may apply possibly wait to process in, so arrive and get client has filed, for it covers any “action... to ADA claims. yourself checked in early. brought with respect to prison conditions The PLRA imposes a significant limit Third—network. Reach out and find under section 1983 of this title, or any on damages. The Act provides that unless another attorney who has handled a other Federal law....” 42 U.S.C. ‘1997e(a). you establish physical injury, you cannot prisoner litigation case at your courthouse. “Prison conditions” has been defined to recover for mental or emotional distress. Their assistance will be invaluable. In include “any civil proceeding arising under [42 U.S.C. ‘ 1997e(e)] The requirement addition, promptly review the various Federal law with respect to the conditions of physical injury only applies to money publications which the ACLU issues and of confinement or the effects of actions by damages; it does not apply to claims for which the AELE Law Enforcement Legal government officials on the lives of persons injunctive or declaratory relief. There is Center issues on the various aspects of confined in prison, but do not include some case law that would indicate that prisoner litigation. These can be found habeas corpus proceedings challenging the nominal or punitive damages could be easily on the internet. You may also want to fact or duration of confinement in prison.” recovered even if compensatory damages look at and pull up documents on PACER 18 U.S.C. ‘ 3626(g)(2). The Supreme Court are barred by reason of lack of evidence from other prisoner litigation case dockets in Porter v. Nussle, 534 U.S. 516, 532 of physical injury. You will also need to from your court. Another helpful resource (2002), held that “the PLRA’s exhaustion research the issue of what constitutes is the “Federal Court Prison Litigation requirement applies to all inmate suits sufficient harm to qualify as physical injury Project Handbook Part II” which is about prison life, whether they involve if you intend to seek recovery for mental/ available on the internet.
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