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Pro Se Tips and Tactics: The Pro Se Complaint
The last column in the September, 2004, issue of PLN discussed "Proceeding In Forma Pauperis."2 That article explains that a prisoner is usually required to pay a partial filing fee before the complaint will be filed by the federal court clerk. The federal court will establish a payment schedule, which prison officials will remove from your prison account, and mail it to court. This issue will discuss what the pro se complaint should contain.
When drafting a complaint, remember that judges know what the law is and you should not provide case citations in the complaint. Judges, and their clerks, are interested in hearing facts from you that will support the violations you are claiming.
Requirements of a Complaint
A civil lawsuit starts with a complaint.3 The main object of a complaint is to state a claim against each defendant. This means the complaint should allege facts that, if you can prove them, will establish the defendant violated your legal rights.
A federal court complaint should be separated into numbered paragraphs. Each paragraph should be short and should be limited to "a single set of circumstances" _ usually meaning facts relating to the action taken by a party, whether plaintiff or defendant. A civil complaint should contain the following specific information:
(1) A short and plain statement of the basis of the court's jurisdiction.4 This section should have the heading "Jurisdiction' so the court can find it easily.
(2) The name and address of the plaintiff, usually you, and where you are incarcerated, along with the same information for any additional plaintiffs. This section and the next one should be headed "Parties."
(3) The name of each defendant and his official position and duties, with citation to any statutes, rules or policy directives explaining those duties. If you don't know the identities of some defendant, you will have to list them as "John Doe" defendants and amend the complaint to add their identities later.5
(4) A short and plain statement explaining how you have exhausted the prison grievance system.6 You should attach a copy of the exhausted grievance to the complaint.7 This section should be entitled "Exhaustion of Administrative Remedies."
(5) A "short and plain statement of the claim showing that the pleader is entitled to relief"8 _ i.e. your factual allegations, usually in chronological order, showing that your legal rights have been violated and how each named defendant is connected to those legal violations. This section should be headed "Facts."
(6) A separate paragraph or paragraphs stating which of your legal rights were violated. This section should be headed "Claims" or "Causes of Action."
(7) The final section is called "Relief Requsted." This section should contain a demand for the relief to which you are entitled, such as damages and injunction, or both. You may demand more than one kind of relief.9
Standardized Form Complaint
Some federal district courts require pro se litigants to use a standardized form complaint provided by the court. The form will generally call for the same information as in the preceding list, plus additional items such as information on lawsuits you have previously filed and whether you have exhausted administrative remedies.
Some courts have adopted their own forms. In the Southern District of New York federal courts, prisoners who send a complaint to the court receive a package of forms to fill out from the Pro Se Clerk's office. The case is not considered filed until those forms are completed and returned.
Make sure you know what the federal court in which you are filing the complaint requires.
Facts Alleged in Complaint
The facts alleged in the complaint must support each element of the claim you are asserting. For example, any complaint under 42 U.S.C. § 1983, the most frequently used civil rights statute, must contain facts showing that (a) you were denied a right protected by federal law, and (b) this was done by persons acting under color of state law. Particular legal claims have additional elements; for example, to establish a violation of your Eighth Amendment medical care right, you must show (a) that you had a serious medical need, and (b) the defendants acted with deliberate indifference toward it.
There may be other requirements depending on the kind of case you are bringing and the court you are in. For example, in federal court you are required to exhaust administrative remedies prior to bringing a civil rights lawsuit. Many state courts require exhaustion of prison grievance systems and/or the filing of a notice of claim before bringing suit. These courts may also require that your complaint set out the facts establishing that you have done this.10 There are also a few other items that must be specifically pled in federal court complaints,11 but most of them have little application to prisoners' cases.
Notice versus Specificity Pleadings
There is some dispute over how specific and detailed a pro se civil rights complaint must be. Federal court complaints generally need only give "fair notice of what the plaintiff's claim is and the grounds upon which it rests,"12 and courts generally hold pro se complaints to less stringent standards than formal pleadings drafted by lawyers.13 Even though there is no "heightened pleading" or "heightened specificity" requirement, "[c]omplaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation."14 This requirement is satisfied if "the complaint ... at least sets forth minimal facts as to who did what to whom, when, where, and whyalthough why, when why means the actor's state of mind, can be averred generally"15 or if "the plaintiff tell[s] his story, relating the pertinent information that is already in his possession."16
Here is an example of a "simple conclusion":
Defendant Hoffman retaliated against me.
Now here are allegations that "outline the facts":
(1) Defendant Hoffman came to my cell.
(2) Defendant Hoffman told me that since I like filing lawsuits against officers he was going to place me in segregation for a long, long time.
(3) Defendant Hoffman then told me that he was writing a misconduct against me for threatening to stab him the next time I was out of my cell.
(4) Defendant Hoffman then wrote a misconduct claiming that I had threatened his life.
(5) I was found guilty of the threatening behavior misconduct.
(6) As a result of Defendant Hoffman writing the false misconduct, I spent two years in segregation until the misconduct was set aside.
(7) As a result of the writing of this false misconduct, I lost my prison job; I was denied parole; I could only have non-contact visitation instead of contact visiting; I was removed from prison programs it was recommended I complete prior to being paroled.
(8) My First Amendment right to petition the courts was violated by the filing of this false misconduct by defendant Hoffman.
Alleging More than One Claim
Rule 18(a), Fed.R.Civ.P., sets no limitation on the number and kind of claims you can bring in a single case against a particular defendant. You are not required to bring all your claims against one defendant at the same time unless they arise out of the same factual situation. If they do arise from the same facts, and you fail to bring them all at the same time, you may not be permitted to raise the other claims later.17
You have a better change of surviving defendant's motion to dismiss your lawsuit if you will take the time and only state facts in the complaint and not conclusory statements, as discussed above.
The next article will discuss the Prison Litigation Reform Act requirement of exhaustion of administrative remedies and the article after that will discuss the three-strikes provision of the PLRA.
1 This article is authored by Daniel E. Manville. He is the author and publisher of the recently released Disciplinary Self-Help Litigation Manual and is presently working on a rewrite of the Prisoners' Self-Help Litigation Manual with John Boston. Mr. Manville is presently an Adjunct Professor and Staff Attorney for Wayne State University Law School Civil Rights Clinic, Detroit, Michigan.
2 See Prison Legal News Vol. 15, No. 9.
3 This document is called a "petition" in federal habeas corpus and post-conviction proceedings and in some state court proceedings. In some state proceedings it is called a "claim."
4 Rule 8(a), Fed.R.Civ.P. Prisoners alleging constitutional or other federal law violations should cite 28 U.S.C. § 1331(a), the general federal question jurisdiction statute. If your suit is based on diversity of citizenship, cite 28 U.S.C. § 1332(a)(1).
5 For cases discussing the use of John Doe defendants, see Davis v. Kelly, 160 F.3d 917, 921 (2nd 1998) and cases cited; Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 37 (2nd Cir. 1996); Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995); Graham v. Jones, 709 F.Supp. 969, 974 (D.Ore. 1989); East v. City of Chicago, 719 F.Supp. 683, 686 (N.D. Ill. 1989) and cases cited.
6 A later article will discuss the requirement of exhausting the prison grievance process.
7 Some courts require the complaint to contain a statement stating what steps were taken to exhaust and to attached supporting documents, see, e.g., Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000) (prisoner must allege that all available administrative remedies have been exhausted and should attach documentation to the complaint indicating the administrative disposition of any grievances that have been filed), while others courts do not require any statement showing exhaustion but places the burden upon the defendant to raise failure to exhaust as an affirmative defense, see, e.g., Casanova v. Dubois, 304 F.3d 75 (1st Cir. 2002) (failure to exhaust remedies pursuant to PLRA is an affirmative defense that is to be raised by defendants).
8 Rule 8(a), Fed.R.Civ.P.
9 Rule 8(a), Fed.R.Civ.P. You may request nominal, compensatory and/or punitive damages. These different types of damages are discussed in a later article.
10 See, e.g., Retzlaff v. Texas Dept. of Criminal Justice, 94 S.W.3d 650, 653 (Tex.App. 2002) ("claim has no arguable basis in law if a prisoner has failed to exhaust his administrative remedies"); Casteel v. McCaughtry, 168 Wis.2d 758, 484 N.W.2d 579, 585 (Wis.App. 1992) (exhaustion of administrative remedies and compliance with a notice of claim requirement must be pled in the complaint), aff'd in part and rev'd in part on other grounds, 176 Wis.2d 571d, 500 N.W.2d 277 (Wis.), cert. denied, 114 S.Ct. 327 (1993).
11 See Rule 9, Fed.R.Civ.P.
12 See, Swierkiewicz v. Sorema, 534 U.S. 506, 512, 122 S.Ct. 992 (2002) (complaint must "`give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests'" (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99 (1957)). See also Billman v. Indiana Department of Corr., 56 F.3d 785, 789-90 (7th Cir. 1995) (Posner, C.J.) ("The peculiar perversity of imposing heightened pleading standards in prisoner cases ... is that it is far more difficult for a prisoner to write a detailed complaint than for a free person to do so, and again this is not because the prisoner does not know the law but because he is not able to investigate before filing suit.").
13 Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173 (1980), citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594 (1972) (per curiam) (pro se complaints are entitled to liberal construction).
14 Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979); accord, Johnson v. Williams, 768 F.Supp. 1161, 1165 (E.D. Va. 1991) (claim of "inadequate" food was conclusory); Smith v. Meachum, 764 F.Supp. 260, 261 (D. Conn. 1991) (claims of "denial of proper health and safety care" and "racial prejudice" unsupported by factual allegations were conclusory); see also Jackson v. City of Beaumont Police Dept., 958 F.2d 616, 620-21 (5th Cir. 1992) (allegation that plaintiff was beaten "without justification" and "in bad faith" were too conclusory to overcome qualified immunity defense).
15 Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004).
16 Hunter v. District of Columbia, 943 F.2d 69, 76 (D.C. Cir. 1991).
17 This is because of the rule of res judicata. See Migra v. Warren City School Dist. Bd. of Education, 565 U.S. 75, 104 S.Ct. 892 (1984); Landrigan v. City of Warwick, 628 F.2d 736, 740 (1st Cir. 1980) (plaintiff who recovered damages for assault and battery could not later bring a claim for civil rights violations against the same officer based on the same incident).
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