See also: How to refer to laws


Corrections Officer Rumsfeld ties inmate Kelly to a pole outside of the prison and keeps him there for 6 hours in 30°C heat without any water, "'Cause I think you're just an asshole."
When we last left our inmate hero, we had just determined that Officer Rumsfeld had probably violated Kelly's right to be free of "cruel and unusual punishment" and that Kelly therefore had a cause of action under 42 U.S.C. §1983, and Rumsfeld might be subject to prosecution under 18 U.S.C. § 242. As we fade in on the next instalment, Kelly is faced with a new issue:
Can he sue Officer Rumsfeld?
This, like the last issue, is deceptively simple. It seems obvious that someone whose rights have been violated can go to court against the violator. And it used to be so simple. The problem now is that Kelly is a prisoner. However, in 1996, some members of Congress tacked a bill that had previously been rejected onto an omnibus bill. The result: The Prison Litigation Reform Act (PLRA).

As it turns out, Kelly had already gotten to know one provision of the PLRA, namely 18 U.S.C. § 3626(b)(1)(iii)(B)(2):
Immediate termination of prospective relief. - In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right.
Kelly wasn't the first inmate at his correctional institution to be tied to a pole in the heat just for kicks. Someone else had had it happen years before, and decided to go to court. The court agreed that it was unconstitutional, and granted prospective relief - an injunction - prohibiting prison guards from torturing prisoners and appointing a special master, a court-appointed supervisor. However, § 3626(b)(1)(iii)(B)(2) required that injunction to be terminated, removing the safeguards that were in place to make sure that the previous abuses did not recur.

Under previous law, if a prisoner brought a suit, the district judge had discretion to enter a stay so that the prisoner could pursue all speedy, transparent, and fair administrative remedies the prison system made available, if it was in the interests of justice to do so. The U.S. Attorney General had to certify that a grievance procedure complied with this fairness requirement before a prisoner could be required to participate in it. In the PLRA, Congress enacted 42 U.S.C. § 1997e(a), which provides:
Applicability of administrative remedies
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
There are two changes here. First, judges no longer have discretion to determine whether requiring prisoners to file an administrative grievance was in the interest of justice. The PLRA makes exhaustion of administrative remedies mandatory. More importantly, the fairness requirement has been eliminated. Under § 1997e(a), prisoners must complete even slow, unclear, and unfair grievance procedures in order to get their day in court. Perhaps in an attempt to demonstrate how Kafkaesque § 1997e(a) could be, the U.S. Supreme Court has held that prisoners must exhaust grievance procedures even if the grievance procedures cannot provide the relief they need. Booth v. Churner, 532 U.S. 731, 739 (2001) (Prisoner seeking money damages required to complete administrative grievance procedure even though money damages not available).

Now, in order to get into court, Kelly must first file an administrative grievance with the prison administration. His state's grievance procedures require that the grievance be lodged directly with the official whose conduct gave rise to the grievance. Thus, Kelly must file his grievance form directly with Officer Rumsfeld, and hope that Rumsfeld doesn't take offence. Assuming that he does not end up in the infirmary from his attempt to lodge the initial grievance, Kelly must now pursue his grievance all the way up to the director of the state department of corrections, a process that could take years, and will get him nothing.

Winter turns into spring, spring becomes summer, summer becomes fall, and glaciers move. Kelly has finally completed his grievance process. Now he may attempt to file his § 1983 suit in federal court. However, Kelly, like many inmates, is not independently wealthy. Thus, he will have to file his suit in forma pauperis (IFP). Before the PLRA, an indigent prisoner had the same ability to get the filing fee waived by filing IFP as any other litigant. Under the PLRA, however:
(2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.
(3) An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.
(b)(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of -
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.
(3) In no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action or an appeal of a civil action or criminal judgment.
(4) In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.
Thus, Kelly has to hope for the cooperation of the institution he's suing in preparing his trust account statement in order to demonstrate that he's broke; however, as long as he has ten dollars to his name, he is required to put 20% of his past month's income toward payment of the filing fees. Given how little prisoners generally are paid for prison labour, paying off an initial $120 filing fee can take years.

If this does not discourage Kelly, and he is able to get all of the necessary paperwork in order to be able to file his complaint, he will now have to draft and file his complaint. Since he has no money to hire a lawyer, he will have to do so pro se. In order to file his complaint, he'll have to sort through Rules 8 and 9 of the Federal Rules of Civil Procedure.
Rule 8. General Rules of Pleading
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

[ ... ]

Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

[ ... ]

Rule 9. Pleading Special Matters

It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.
For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.
(g) SPECIAL DAMAGE. When items of special damage are claimed, they shall be specifically stated.
A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Rule 15. A case that includes an admiralty or maritime claim within this subdivision is an admiralty case within 28 U.S.C. § 1292(a)(3).

In order to avoid a dismissal, Kelly will have to make sense of these rules. He must first figure out whether he just wants to sue Rumsfeld, or whether he also should sue the prison. Then, he must explain the legal basis for the court's jurisdiction. He must then determine which facts he must allege in order to state a claim upon which relief can be granted - that is to say, he must know the elements of a claim under § 1983 for a violation of the Eighth Amendment, including the fact that he must allege that there is a "policy" in the prison of allowing actions like Rumsfeld's in order to be able to sue the prison. Then, he has to know what he may ask the court to do for him. However, he can't go into too much detail, or he might run afoul of Rule 8(e)(1)'s requirement that pleadings be "simple, concise, and direct." While it has always been important for plaintiffs to plead their case properly, it is now particularly important for Kelly due to another provision of the PLRA:

28 U.S.C. § 1915(g)
(g) In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
This three-strikes provision may seem reasonable at first blush. We've heard all about frivolous lawsuits. However, what most people haven't heard is how easy it is for a semi-literate, unrepresented prisoner to get a lawsuit dismissed as "frivolous" or "malicious" based on ignorance of the complicated modalities of pleading in the federal courts. It is even easier to get a suit dismissed for "failure to state a claim upon which relief can be granted." (Rule 12(b)(6)) "Stating a claim" requires the plaintiff to allege every fact that is an element of the claim. Here, for example, Kelly would have to allege "'unnecessary and wanton' inflictions of pain [constituting cruel and unusual punishment forbidden by the Amendment] [including] those that are 'totally without penological justification,' " Rhodes v. Chapman, 452 U. S. 337, 346. He must allege that Officer Rumsfeld acted unnecessarily, wantonly, and without penological justification if the officer acts with "deliberate indifference" to the inmates' health or safety, Hudson v. McMillian, 503 U. S. 1, 8. In addition to the elements of the Eighth Amendment violation, he must also - if he wants to sue the prison - allege that the prison as an institution had a "custom" or "policy" of permitting the sort of treatment of which he complaints. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). If he fails to allege facts sufficient to show any of these elements, he hasn't stated a claim upon which relief can be granted. If he does that three times, he can't fire another IFP lawsuit for life. Under § 1915(g), he only will be allowed to file IFP again in the event that he is in danger of physical injury that is not only "imminent" but "serious." Of course, if he is in imminent danger of serious physical injury, it's hard to see what good exhausting the grievance procedures and filing suit in District Court will do.

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