A Primer for Jail Litigators - Part 1, ACLU - Koren, 194
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. N.ational · Jail Project , ' A PFtIMER FOR JAIL ...LITIGATORS : Edward I. Koren John Boston . ElizabethAlex.ander . . '- . ' : ~ Oan, Manville J 2/10/84 A PRIMER FOR JAIL LITIGATORS: SOME PRACTICAL SUGGESTIONS FOR SURVIVING AND PREVAILING IN YOUR LAWSUIT Authors: Edward I. Koren - Project Director, National Jail Project Staff Attorney, National Prison Project John Boston - Staff Attorney, Prisoners Rights Project, Legal Aid Society of New York Elizabeth Alexander - Staff Attorney, National Prison Project Dan Manville - Coordinator, National Jail Project Staff Assistant, National Prison Project The authors express their gratitude to Betsy Bernat, a member of the staff of the National Prison Project, for her work on this opus beyond the call of duty. Copyright 1983 held by the National Jail Project of the American Civil Liberties Union Foundation In 1984 this article in a possibly different form will appear in Volume III of the Prisoners'Rights'Sourcebook edited by Ira Robbins and published by Clark Boardman I l Table of Contents I. Introduction................................................................................... 2 A. The Legal Context ................................................. .. .......... .. 2 B. The Importance of Remedy .......•...............•. 8 C. Political Realities . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 D. Your Clients ........................................... ~............................ 13 II .. Threshold Decisions .................................................. '. .. .. .. . .. .. .. .... 15 A. B. C. . Choice of Forum................................................................... 16 1. Factors influencing the choice of forum ....• 19 2. Enforcing state law in Eederal court, and v Ice versa.................................................................... 22 Remedial options................................................................. 28 1. Injunctive Relief...................................................... 28 2. Damages......................................................................... 29 3.. Prelimi!lary Relief.................................................... 35 Naming the Proper Defendants ................•.... 39 1. Respondeat Superior and Personal Responsibility..................................................... 40 Monell Actions: Direct Liability of Local Government . . . . . . . . . 0. • • • . • • . . • • • • • • . • . • • . . • • . 44 3. Individual and Official Capacity ...•......•. 45 4. Non-Jail Defendants ............•............ 46 III. Preliminary Planning and Research ...•..•............. 52 2. A. Initial Contact with Plaintiffs .....•............ 52 B. Gather ing Documen ts . . . . . . . • . . . . . . . • . . . . . . . . . . . • . . 53 C. Other Sources of Information and Assistance ...... 54 D. Preliminary Tour................................. 54 E. Resources and Money.............................. 55 · . . . ..... . . .. .. . . . . . .. . . . . .. . Types of . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . Uses of Experts .••.••.•• . . . . . . . . . . . . . . . . . . . . . . . . . Legal Limitations ••••••••••. · . . . . . . . . . . . . . . . 1. IV. Experts ••....••.••••. A. B. What To Do With Your Expert •••••..•••••••••• 59 59 61 61 62 . . . . . . .. . . . . . . . . . . . Finding and Selecting Experts. . . . . . . . . . . . . . . . . . . . C. Drafting the Complaint. · . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Class Actions ••..••.••• · .... . . . . . . . . . . . . . . . . . . . . . . . . . . Preparation for Filing. . . . . . . . . . . . . . . . . . . . . . . . . . . A. B. Requirements for Certification ••• · . . .. . . . . . . . . . . . C. The "Lack of Necessity" Argument. · . . . . .. . . . . . . . . . 86 D. If Certification Is Denied ...................... . 89 E. Notice ........................................... . 92 F. Settlement or Dismissal ....•••..•................ 95 3. VI. ,. E~perts. 2. V. ,. The Expert Tour .••..••••• 65 66 70 74 74 76 . . . . . . . . . . .. . . . . . .. . . . . . . .. . . . 98 VIII.Defenses in Jail Cases ....... .. . . . . . . . .. . . . . . . . . . . . . . . . 107 Lack of Funding Defense •••••• . . . ... . . . . . . . . . . . . . . 109 A. Improved Condi tions Defense. . . . . .. . ... .. . . . . . . . . . 110 B. c. Future Improvements Defense. . . . . . . . . . . . . . . . . . . . . . 112 Damaqe Case Defenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 D. IX. Proving the Case •••• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Making It Real .......... . . . . .. . . . . . . . . . . .. . . . . . . . 119 A. Making Sense Out of It ...... . . . .. . . . .. . . . . . . . . . . . 125 B. VII. Discovery ............. . C. Fitting the Facts to the Law ••••••••••••••••••••• 131 . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 1. Deference .••••• 2. Length of Stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 131 X. 3. Med ica1 Care .. ". . . . . . . . . . . . . . . . . . .. . . . . . . . . .. 134 4. Protection from Inmate Assault ••.••.••..•.•. 136 5. Access to Courts ••...•...........•...•...... 141 Enforcing and Defending a Judgement •..••.••••••..•.... 144 A. Writing an Enforceable Judgement •.••.••••..•••••. 144 B. Enforcing an Injunction •..••......•..••.•........ 152 C. Modification of Judgements ••.•••••••••••••..•••.. 157 XI. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 A.' Record Keepinq ••.•••••••••••••••••••.••.•.•..•... 163 B. Prevailing Party Status ....•......•.....•.•...... 163 C. Inter im Awards................................... 165 D. Awards to Public Interest Lawyers ••••.•.••.••.••• 166 E. Prevailing Under a Consent Decree .•••••••••.••••• 166 F. Prevailing as a Catalyst for Relief •••••••••••••• 168 G. prevailinq on Claim Other Than §1983 ••••••••••••. 169 H. Recovering Experts' Costs and Other Litigation Expenses. • • • • . • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • • 170 I. Recovering Fees Against the Governmental Unit •••• 171 J. Fees for Compliance Work .•••.••..•..•.•..•..•.•.• 172 K. Getting Paid .•.••..•.•.••.....•....•...•......... 172 Appendices I. Lea~i~g,post-Wolfish and Chapman Federal DeCiSions ........................................ 174 II. A List of Correctional and Other Relevant Standards (and Where to Obtain Them) ••.•••••••.•• 176 ) A Primer for Jail Litigators: Some Practical Suggestions for Surviving and Prevailing In Your Lawsuit This article suggestions which seek jails. for to is meant to planning, improve We also hope provide preparing the attorneys and way prisoners some prosecuting are it will help persuaqe treated practical lawsuits in local jail officials and their lawyers that the best way to prevent litigation and to get out from under court-imposed rules and supervision is to provide safe and decent conditions for those confined in jails. The suggestions in this article (as well as the questions to which they are addressed) jail and prison stem from several years of litigating lawsuits, providing information and advice to other attorneys, and moni tor ing the relevant trends in the law. We make no claim that this article is comprehensive in scope; we have attempted frequently only to asked questions. identify and respond to the most More specific questions should be addressed to the authors..1/ II In 1983, through the generous funding of the Edna McConnell Clark Foundation, the National Jail project was established. The Project expanded the ability and in some sense formalized the function in which the authors had been engaged for years to provide clear.inghouse services and back-up legal assistance to those lawyers and others directly involved in jail litigation. Your specific litigation inquiries and questions should be addressed to The National Jail Project, 1346 , Connecticut Avenue N.W., Suite 402, washington, D.C. 20036/(202) 331-0500. -2- Section I. INTRODUCTION Jail litigation is often slow, time consuming, expensive and frustrating for all concerned. on for years side. and go through several waves of expenses, Discoverv substantial. Moreover, the the case lawyers. several (or It is not unusual for cases to go expert trial and expenses), as fees and even after a is the settlement comprehensive court order entered. proceedings are brought, applications for ~ttorney motions costs are judgement do not usually end normal It is not unheard of that cases are, times lawyers on each has expectation of in effect, tried been reached or a Deadlines go by, enforcement for modifications fees and costs are filed. are made, Hearings and negotiations are held, settlements arrived at, and further orders handed down. A. The Legal Context. Jail conditions cases involve relat.ively well-settled legal principles, assuming you rely on the federal constitution file your lawsuit in a federal district court..Y two Supreme Court cases is essential: respect of to the rights pretrial and A reading of Bell v. wolfish,1I with detainees, and Rhodes v. Chapman,lI with respect to the rights of sentenced prisoners. 11 If you choose a state forum you must often look to state law, especially state procedural law. However most state courts will entertain lawsuits based on federal constitutional law, so federal substantive law principles retain their relevance even in a state forum. See ~II.A.2. below. 11 441 U.S. 520 (1979). iI 452 u.S. 337 (198l). Particular attention should be focused on Justice Brennan's concurring opinion at 352-68. -3- You should be familiar with the post-Wolfish and Chapman cases from the federal circuit in which you are litigating.2I Although the tone of the Wolfish and Chapman majority opinions is not favorable for prisoners, lawyers are advised not to give in to despair. While the Supreme Court has certainly tightened considerably the legal standard and proof requirements. in conditions litigation, it has not barred relief in appropriately pled and proven cases. the facilities respectively, progressive at issue This is because and Wolfish and Chapman were, "the architectural embodiment of the best and most penological Planning"if and flight, first class instead with "barred clanging i.n intervention steel facility. cells, gates,"Y significant litigation comparative analysis is "1/ If your clients are dank, upon colorless this possibilities. the "unquestionably a common In thread favored corridors, distinction fact, will th is running top- [and] rest type through of the post-Wolfish and Chapman cases. Under the the Supreme Court deCisions, you must establish that conditions of confinement subjecting pre-trial deny substantive due process prisoners to "genuine privation by and 21 See Appendix I for leading Post-Wolfish and Chapman Federal Decisions. if Wolfish at 525. 1/ Chapman at 341, quoting Chapman v. Rhodes, 434 F.Supp. 1007, 1009 (S.D. Oh. 1977). 8/ wolfish at 525. Also see i2., ,at 543 n •.27. -4- hardships over an extended period of time"1/ or to restrictions or conditions which are not "reasonably related to a legitimate goal," i.e., persons, Amendment you that of severity of For convicted "arbitrary or purposeless."lOI must in infliction 1/ are show they pain" or that conditions constitute are "the "grossly the crime warranting violate wanton and the unnecessary disproportionate imprisonment. ".111 Eighth to the Particular Wolfish at 542. A finding that conditions are merely "discomforting" or restrictive is inadequate. Id. at 541. 1Q/ Id. at 539. This standard is asserted in the context of a determination as to whether conditions and practices "amount hi~ .l'"~. t H'll'--h-'_c .~- C-·_-t's ____ . , ,. ...:;.,;;;...' _ •• _ _ U ....... VI.. UUL . a'ue to O... unl'-hmpnt process analysis is detainees' right to be free of punishment before an adjudication of guilt. The concepts of punishment and of punitive intent actually add little to an analysis which boils down to a standard balancing of ends and means, except in the extremely rare case in which the defendants concede that they are engaged in punishing detainees. See D.B. v. Tewksburv, 545 F.Supp. 896, 903, 905 (D. Ore. 1982). See also Gawreys v. D.C. General Hospital, 480 F.Supp. 853, 855 (D. D.C. 1979) (use of particularly uncomfortable restraints deemed ·punishment· where iail regulations forbade it and no reason was given for their use). For a general discussion of the theoretical issues presented by Wolfish, see "Note, Confused Concepts of Due Process for Pretrial Detainees -- the Disturbing Legacy of Bell v. Wolfish," 18 Am. Crim.L.R. 469 (1981) • ~ .111 t"'~l' ,-11~ Chapman at 347. A finding of "harph" conditions or practices is inadequate. ~. Under the Chapman standard, it appears that the severity of the crime for which a prisoner was convicted is of some relevance in determining the Eighth Amendment's demands in a particular case. Since most prisoners in local jails will have been convicted of minor offenses, it is open to jail ' litigators to argue that conditions that have been upheld in prisons containing convicted felons cannot be permitted in a jail. So far, this argument has not been seriously explored by the courts (or even presented to them, to our knowledge). In making this argument, remember that it will probably be balanced against the relatively short lengths of stay of jail inmates. (See!i IX.C. below for further discussion of length of stay.) -5- jail practices ground that or they conditions violate the may more also be struck down on the specific guarantees of the First, Fourth, Sixth Amendment, the guarantees of procedural due process or equal protection.W However, jail officials are entitled to "wide-ranging deference in the adoption and execution of policies and practices that in their judgement are needed to preserve internal order and . discipline and to maintain institutional security"11I unless there is "substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations."14/ (See S~ I.X.C. below for additional comment on the "deference" standard.) These considerations are equally applicable to pre-trial detainees and to convicts.W In general, courts have assumed for rhetor ical W See, e.g., Wolfish, at 544-60 (First Amendment, Fourth Amendment, and due process claims); Kincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982) (First Amendment claim); Smith v. Jordan, 527 F.Supp. 167 (S.D. Ohio 1981) (Fourth Amendment claim); Dawson v. Kendrick, 527 F.Supp. 1252, 1301, 1312-14 (S.D. W.Va. 1981) (procedural due process, Sixth Amendment, and equal protection claims). 111 Nolfish at 547. But see Lock v. Jenkins, 641 F.2d 488, 498 (7th Cir. 1981) ("We do not read anythinq in T~olfish as requiring this court to grant automatic deference to ritual incantations by prison officials that their actions foster the goals of order and discipline."). Accord, Beckett v. Powers, 494 F.Supp. 364, 367 (W.O. wis. 1980). Also note that, by implication, if a practice is not defended on grounds related to security and order, tEe deference rule should not apply. See Todaro v. ward, 565 F.2d 48, 54 (2d Cir. 1977). 1i/ Wolfish at 548, quoting Pell v. Procunier, 417 U.S. 817, 827 (1974) • 111 Wolfish at 547 n.29. -6- purposes that the Eighth Amendment sets a constitutional floor and that conditions for pre-trial detainees must be at least as favorable as those lawfully afforded convicts.1iI However, it is a mistake to conclude that any situation in which' detainees are worse off than convicts automatically denies equal protection; length of stay or other conditions may provide a rational basis for such distinctions.11I For both pre-trial and sentenced prisoners the so-called "totality of circumstances" test is applicable: •.• It is important to recognize that various deficiencies in prison conditions "must be considered together." Holt v. Sarver, 309 F.Supp., at 373. The individual conditions "exist in combination; each affects the other; and taken together they [may] have a cumulative impact on the inmates." Ibid. Thus, a court considering an Eighth Amendment challenge to condi tions of c~nfinement mp&t examine the totality of the Clrcumstances. n.10 The Court today adopts the totality-ofthe-circumstances test. See ante, at 2399 (Prison conditions "alone or in combination, may deprive inmates of the minimal civilized measure of life's necessities") (emphasis added). ~ also Hutto v. Finney, 437 U.S. at 687, 98 S.Ct., .at 2571 ("We find no error in 1iI City of Revere v. Massachusetts General Hospital, U.S. , 103 S.Ct. 2979, 2983 (1983); Lock v. Jenkins, 64r'F.2d 48'8';" 497 (7th Cir. 1981) and cases cited. 111 Feelev v. Sampson, 570 F.2d 364, 373 (1st Cir. 1978) (detainees' short length of stay is one factor which justifies denial of contact visits); Dawson v. Kendrick, 527 F.Supp. 1252, 1286 (S.D. W.Va. 1981) (no equal protection claim where jails and prisons operated by different governmental units). But see Hill v. Hutto, 537 F.Supp. 1185 (E.D. Va. 1982) (equal protection violated where convicts "backed up" in county jails experienced less favorable conditions than those in state prisons). See also McGinnis v. Royster, 410 U.S. 263 (1973) (rational basis test applied in equal protection analysis of detainees vs. convicts). -7- the court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment") (emphasis added). Even if no single condition of confinement would be unconsti tutional .i n itself, "exposure to the cumulative effect of prison conditions may subject inmates to cruel and unusual punishment." Laaman v. Helgemoe, 437 F.Supp. 269, 322-323 (N.H. 1977) .w Virtually with every lower federal court has utilized this test.12./ the notable exception of the Ninth Circuit which has been less than perfectly clear as to where it stands. 20 I W Chapman at 362-63 (concurring op. Brennan, J.) Accord, Lock v. Jenkins, note 13 above, at 491-92 (it is "appropriate to consider together all the conditions of confinement in order to determine whether they meet the Wolfish test of amounting to punishment" (footnote omitted); Smith v. Sullivan, 611 F.2d 1039 (5th Cir. 19BO); Campbell v. Cauthron, 623 F.2d 503, 505 (Bth Cir. 1980); LaReau v. Manson, 507 F.Supp. 1177, 1192-94, (D. Conn. 1980), aff'd as mod., 651 F.2d 96, 105-109 (2d Cir. 19B1) (sentenced jail prisoners). 111 See Appendix I below and Chapman at 353 n.l (Brennan, J. concu r.r i ng) • lQ/ wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981) at first rejects the totality approach but goes on to state: "Of course, each condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially where the ill-effects of particular conditions are exacerbated by other related conditions." See also: Hoptowit v. Ray, 6B2 F.2d 1237 (9th Cir. 1982). But see Toussaint v. Rushen, 553 F.Supp. 1365 (N.D. Ca. 19B3) (on remand from wright v. Rushen) aff'd F.2d , #B3-1678 (9th Cir. 1984); Martino v. Carey, 563 F.Supp. 9~ (D. Ore. 1983); Fischer v. Winter, 564 F.Supp 2Bl (N.D. Ca. 19B3). -8- Of necessity, nature. therefore, Discoverv, witnesses, and the use these cases are of trial preparation experts, fact-intens i ve the use (all discussed of later in pr isoner in this article) proceed from this basic fact. The court must examine the effect upon inmates of the conditions of the physical plant (lighting, heat, plumbing, ventilation, living space, noise levels, recreation space); sani tation (control of vermin and insects, food preparation, medical faci li ties, lavator if!s and showers, clean places for eating, sleeping, and working) ; safety (protection from violent, deranged, or diseased inmates, fire protection, emergency evacuation); inmate needs and services (clothing, nutrition, bedding, med ical, dental, and mental health care, visitation time, exercise and recreation, educational and rehabilitative programming); and staffing (trained and adequate guards and other staff, avoidance of placing inmates in po~itions of authority O~2r other inmatesj. See ibid.; Ramos v. Lamm, 639 F.2d, at 567-581. wtleri"" "the cumulative impact of the conditions of incarceration threatens the physical, mental, and emotional health and well-being of the inmates and/or creates a probability of recidivism and future incarceration," the court must conclude that the conditions violate the ?~~nstitution. Laaman v. Helgemoe, supra, at 323~ B. The Importance of Remedy. Another given in these cases is that liability -- the finding that the defendants have violated the constitutional rights of jail prisoners -- may be of secondary importance to the judge's interest I1.B., in III, questions.) an appropriate IX and X below, and for enforceable (See §§ discussions of various remedy Negotiation, settlement and the entry of a consent decree is a common scenario in these cases. 111 remedy. Chapman at 364 (Brennan, J., concurring). If the lawsuit goes -9- to trial it may quickly become apparent that the judge is already convinced that there primarily interested is in a constitutional learning what violation remedial effective and are within the courts' powers. steps and is will be Experts as well as contacts with other lawyers and organizations can provide advice including references same process. the to localities that have gone through the But the lawyer must be ready to provide or elicit information the judge is seeking no matter at what point in the proceedings it is requested. Therefore it makes good sense to think about remedy from the very beginning of the lawsuit. C. Political Realities. You should travelling. consider the political terrain you will be It is generally a mistake to place all defendants or all the major actors you will deal with in any lawsuit into an enemy camp. conditions In a will local community, a major lawsuit about jail usually involve a variety considerations as well as the adversary process. some idea of what and who of political You should have these political factors are because they can make your job much easier or much harder. A reform-minded sheriff or jailor can do a lot to persuade legislative or executive officials that the plaintiffs are right and the case should be settled. views If such persuasion fails, their on present conditions and proper remedies may be evidence in your favor if the case must go to trial. with them, stress the ways resources for the administrator. that the lawsuit can useful In dealing get more -10- Some jail administrators in' local communities are hampered by ignorance of modern correctional thinking as well as by' lack of resources. the In many cases, your experts may become resources for defendants' operation of the jail plaintiffs' preparation of their lawsuit. as well as for the Expert tours and other opportunities for your experts to make direct contact with jail administrators may be helpful in this regard. also help alleviate the lawsuit if jail officials' Such contacts may suspicion or resentment of the experts are able to develop a rapport with them. In many cases, the most articulate and knowledgeable critics of the jail may be professional people who work in it, especially if they are not actual employees of the correction department or sheriff's office. Since lawsuits getting enough resources so that, are often directed toward for example, medical, dental, psychiatric and other services can be provided effectively, these people may be your natural allies. Correctional officers and other low-level employees are also potential allies of jail litigators within certain limits. of the types of relief reduction, classification, a direct employees. and sought by lawsuits Many population increased staffing, etc. -- will have beneficial effect on working conditions This natural alliance rarely takes for jail form because of the political conservatism of most correctional employees' unions and because there are often other issues such as the control of brutality over which employees and the inmates' lawyers will be in direct conflict. Nonetheless, it may be possible to approach -11- jail employees or their unions and obtain substantial assistance in the form of testimony about jail information about jail practices. issues like population, conditions or informal If a complaint is limited to structure, and health and safety, this may be easy to do; it may also be feasible in a broader case if the plaintiffs first seek preliminary relief on these less volatile issues and not on issues more sensitive to employees. Local legislators and executives will be primarily concerned about money. recalcitrant It may be possible to go ·over the heads· of jail administrators for settlement purposes if the threat of a substantial award of attorneys' fees, in addition to a grant of relief, can be made known early to those responsible for the local concerned to budget. Legislators maintain a progressive adverse publicity about the and mayors image for may the also be community; jail, whether or not caused by the lawsuit, may make them more receptive to change even if it makes the jail administrators more defensive. Many states responsibility It may have agencies to supervise, be_ possible to which inspect, or enlist such lawsuit, either openly or implicitly. are charged regulate local agencies in with jails. support of a Their inspection or other reports may be very helpful as evidence or merely as background information. with Similarly, accounting government or generally, if states or localities have agencies inspection ft may investigating jail operations. be responsibilities possible to for interest local them in A state or local agency saying the same thing as plaintiffs' lawyers may intensify the pressure -12- on jail administrators or higher local officials to settle the case or at least to make changes without waiting for a judgement. Who represents actually answerable, lawsuit. If the the defendants, may largely case is and to determine being whom the handled counsel course by an of is the assistant corporation counsel in a large and bureaucratized office, there will be strong incentives for that attorney to settle the case to avoid being saddled with the grind of an immense, complicated and probably losing litigation. There may be many opportunities to drive attorney a wedge between the and his or her nominal It may be ambiguous as to exactly who the client is -- client. the jail administrator, the mayor, the city or county as a whole, etc. There may be opportunities to exploit this ambiguity and persuade the attorney, e.g., to go along with a settlement agreeable to the local executives even if the jail administrators prefer to fight to the end. In the smaller, case is more political offices, or defended corrections department, to a particular set of This can cut either way. a recalcitrant government practices house counsel to the sheriff prefer reformed. or the defense lawyer may be closely bound insti tut ional or poli tical loyal ties. A lawyer may represent the interests of jail administrator when other portions of would be by in situations where that the case Conversely, a be settled lawyer may and/or local that represent a reform-minded administrator who has no interest in defending the status guo in an antiquated and underfunded jai11 in this -13- situation, little effective defense may be presented, even if local legislative and executive bodies oppose improvements or a settlement. D. Your Clients. In a jail case, your clients will be persons who are already deeply entangled in the legal system, incarceration from doing many things for education and sophistication, official actions and and prevented themselves, highly pronouncements. by limited in suspicious These their of facts all have consequences for your repesentation of them. You will be subject to repeated requests or demands for personal favors, services, or information not directly related to the lawsuit. families, These will include conveying messages to prisoners' representing them in their criminal cases or in other individual litigation, assisting them with individual problems in the jail, etc. You will not be able these requests because of all either. time, fully to comply with all but you should not ignore them As a practical matter, maintaining contact with and getting the cooperation of witnesses and will requi.!;e_ some informants in the jail level of positive reinforcement on your part beyond the promise of a favorable judgement long after they have left the jail. Moreover, many of these requests are perfectly legitimate and reasonable, and they will be directed to you only because no one else will pay any attention. You should develop a consistent means individual requests early in the lawsuit. you can do is become sufficiently of responding to The most useful thing knowledgeable about the -14- criminal justice system to refer inmates to the person or agency best equipped to respond: parole and probation authorities, the public defender, legal services offices, agencies concerned with sentencing forward alternatives, inmates' behalf yourself. to action by a etc. requests It can be extremely helpful or wr i te to to these agencies on the ir Unresponsive bureaucracies are more often moved lawyer's letterhead than by a handwritten letter from someone who they know cannot corne in and yell at them. You will probably receive many complaints or inquiries from prisoners who are appeal counsel. lawyers do generally disputes with with Most frequently, not not dissatisfied visit them appropriate inmates' or to their trial or they will complain that their answer get criminal criminal their involved lawyers, letters. in but the it is It is merits of definitely worthwhile to convey to their attorneys their clients' requests for visits or letters, in writing, with a copy to the complaining prisoner. not, This procedure may get the attorney to respond and, if it will provide the prisoner with some concrete evidence to persuade the trial judge to provide new counsel. helpful t9 . administrative direct prisoners officials who may to bar hear It may also be committees their or complaints to about private or appointed counsel. Individual complaints about jail pursued where they appear meritorious, matters should also be even if all that can be done is to wr ite a letter to the warden or to oppos ing counsel. (You should probably reach an understanding with counsel early in the case as to which of these means to pursue.) If an individual -15- lawsuit appears justified but you cannot handle it yourself, you should direct the prisoner to any person or agency whom you think may be able to provide representation; you should also assist the prisoner might in complying with any iurisdictional requirements that later bar requirements. the Your lawsuit, " such assistance as notice may " consist of as of claim little as sending forms or telling the prisoner where to write for them and what the statute of limitations is. The most important things to do in dealing with your clients are to answer your mail promptly and to avoid making promises you cannot keep. Prisoners are hypersensitive to these matters because of their daily experience of being ignored or lied to by persons in authority. prisoner's question Even if you will not have time to answer a for several weeks, an immediate acknowledgment that you have received the letter and will reply more fully later will be " appreciated. Sometimes inmates' letters and questions about the litigation or about other sUbjects may appear very hostile or suspicious in tone. In most cases, a reasoned explanation -- even one contrary to the questioner's desires or views -- will be accepted. It is the lack of any response, or an evasive response, that will fuel their anger and cause you to be system" and not as their advocate. perceived as ·part of the -16- Section II. A. THRESHOLD DECISIONS Choice of Forum In most jurisdictions, litigation about jail conditions may be brought either in state or in federal court. liberties because" litigators of litigators' perceived its have familiarity familiarity as more generally with hospitable with federal Civil rights and civil favored the constitutional courts, substantive and federal forum issues, what the has been law and procedure. For these reasons, and because we cannot canvass the law and procedures of the fifty states, we have referred mainly to practice in the remaining sections of this article. sections should all be read wi th the question federal cour t However, these in mind, "Can I do better than this in state court?In federal court, the right to sue for constitutional violationE by state or local authorities is found in 42 U.S.C. §l98~ and the right to be heard in the distr ict courts is found in 28 U. S. C. 111 The statute provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State, Territory, or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the depr"ivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or the proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. The judicial gloss on ~1983 and on other federal civil rights statutes is by now extensive. For a comprehensive review, see S. Nahmod, Civil Rights and Civil Liberties Litigation (Shepard's/McGraw Hill, 1979). -17- H343 (3) and H331(a). If the jail is operated by the federal government, the claim will be based directly on the Constitution or on other substantive federal law whose violation is alleged, and jurisdiction of the district court will be found in 28 U.S.C. 'H331(a) .W confinement corpus While may be statutes,W some courts have litigated there is found pursuant no reason to to that conditions of the do federal so habeas because the litigator will be burdened with the requirement of exhaustion of state remedie~ and with other rules limiting the usefulness of th i s remedy.W At present, the retrenchment of federal courts in some jail and prison cases and the growing familiarity of state courts with institutional reform litigation make it worthwhile to investigate and consider filing your lawsuit in state court. o Many important W Carlson v. Green 446 U.S. 14 (1980); Bell v. Wolfish, 441 U.S. 520, 52/j n.6 (1979). W Roba v. United States, 604 F.2d 215, 219 (2d Cir. 1979); Knell v. Bensin~er, 522 F.2d 720, 726 n.7 (7th Cir. 1975). Contra, Crawfor v. Bell, 599 F.2d 890 (9th CiL 1979). See Bell v. Wolfish, 441 U.S. 520,526 n.6 (1979) (question reserved by Supreme Court) • 111 Harris v. MacDonald, 555 F.Supp. 137, 141-42 (N.D. Ill. 1982) • ~ 26/ See, e.g., United States ex reI. Hoover v. Franzen, 669 F.2d 433 (7th Cir. 1982) (pendent jurisdiction not available under habeas corpus statutes). -18- jail cases have been litigated in state courts,1:1l and at least one state court has pretrial detainees' under courts rights and the Bell .w may permit advantage of over one to avoid remedial powers local courts' v. Moreover, certain analysis of going to state restrictions on the (see SII.C.4, below) or to take supervisory or bail practices). wolfish adopted a more liberal standard its own state constitution • federal courts' (e.g., rejected Given administrative power the widespread perception that invoking federal jurisdiction means foreign intervention in local affairs, resort to a state court forum can be a tactically adroit decision.11I 27/ wayne County Jail Inmates v. Lucas, 391 Mich. 359, 216 N.W. 2d 910 (1974); Comm. ex reI. Brvant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (Pa. S.Ct. 1971) on remand 11 CLL. 2088 (Pa. Ct. Common Pleas, April 7, 1972) aff'd, Jackson v. Hendrick, 457 Pa. 405, 321 A.2d 603 (Pa. S.Ct. 1974); Wickham v. Fisher, 629 P.2d 896 (Utah S. Ct. 1981); Harper v. Zegeer, 296 S.E.2d 873 (w.Va. Sup.Ct.A. 1982); Morales v. Countv of Hudson, A.2d (N.J. Chan.Div., Hudson Co. Super.Ct., May 19, 1982\; In--re Inmates of Riverside Co. Jail v. Clark, 144 Cal. App. 3d. 850, 192 Cal. Rptr. 823 (Cal. Ct.APp. 4th Dist., 1983); Michaud v. Sheriff of Essex County, 390 Mass. 523 (Mass. Sup. Jud. Ct. 1983) • .w 121 Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168, 399 N.E.2d 1188 (1979), cert. den., 446 U.S. 984 (1980). Also see De Lancie v. Superi~Court, 31 Cal.3d 868, 183 Cal. Rptr. 859, 647 P.2d 142 (Cal. S.ct. 1982) (held that state statutory provisions whose purpose were to protect state prisoners' rights were applicable to pre-trial prisoners as well). See generally Neuborne, ftToward Procedural Parity in Constitutional Litigation,ft 22 Wm. & M. L.Rev. 725 (1981) (hereinafter cited as "Neuborne.") -19- 1. litigator Factors influencing the choice of forum. should consider the following factors in The jail making a decision between state and federal court.1Q/ (a) Choosing the appropriate judge. Who is on the bench and whether you can be sure of getting your case before a favorably disposed judge can obviously be all-important.l1I However, a liberal judge may not be much help if court rules or substantive ~oreover, rights or procedural law in that court are unfavorable. a record of ,!?olitical liberalism or concern for is not litigation, the only relevant the content of the consideration. judgement may be less In ~uman jail important than the effectiveness with which it is enforced, and a judge's firmness and persistence at the post-judgement stage may do more for your Consider, clients than an overwhelmingly in this connection, a favorable opinion. judge' s track record in complex and acrimonious commercial litigation as well as in civil rig~ts matters . .22/ See A.very an~ Rudovsky, Police ~lisconduct: Law and Litigation, ')3.7 (J.981) for a similar discussion more applicable to damage cases. 31/ One way for a jail litigator to junge-shop in a multi-junge court is to investigate pending lawsuits filed ~ se by prisoners. If the court maintains a defendant-plaintiff index that the public may consult, counsel need only find out the names of the major officials in the jail to research the matter. If a E!2. ~ case is found pending before the desired judge, counsel may wish to approach the plaintiff directly, consistent with the Code of Professional Responsibility and local law. See In re Primus, 436 U.S. 412 (1978). A.lternatively, counseJ. may be able to file a separate complaint on behalf of other named plaintiffs and seek to ~ave it assigned to the judge in question pursuant to local ru~es concerning conSOlidation or transfer of related cases. -20- (b) The substantive law. Even if there are no favorable indications in the jailor prison area; you may detect a willingness on the part of. the appellate bench to expand the reach of particular state constitutional or statutory provisions with regard courts~ to issues that heretofore were left to the federal Remember, though, that in most cases state law can be enforced in federal court, and vice versa:.llI thus, differences in law, even if large, may not dictate the choice of forum. In action some situations it may be tempting in and state court federal court. a to file a state law constitutionally based action in Counsel should be extremely careful in choosing such a course: state law doctrines prohibiting ·splitting causes of action" may result in the preclusion of one of the actions .l1!I (c) entertain states, actions habeas State procedural law. brought corpus is under a 42 Most state courts will U.S.C. perfectly §1983.W appropriate In vehicle some for litigating conditions of confinement and obtaining broad ll/ See Neuborne at 725 n.l for an "unscientific sampling" of cases which demonstrate this trend. 1lI See §II.A.2 below. 33a/ Miqra v. Warren City School District Board of Education, _ u.S. _ , 52 u.s. L.W. 4151 (January 23, 1984). W The only states that have rejected concurrent jurisdiction are Georgia and Tennesee. Backus v. Chilivis, 236 Ga. 500, 224 S.E.2d 370 (1976): Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969). See Neuborne at 752 n.114 for a list of state courts which have entertained ~1983 actions. Neuborne argues that as a matter of federal constitutional law state courts are obligated to hear 51983 cases. Id. at 753 et seq. -21- relief.1V However, whatever form of action is available in state court should be carefully contrasted in several respects with practice under the Federal Rules of Civil Procedure and of Evidence. Burt Neuborn~ provides a useful checklist, suggesting that counsel should be wary of filing in a state forum if it: a. imposes burdensome pleading requirements; b. applies an unfairly short statute of limitations; c. restricts the availability of class actions; d. fails to afford broad discovery: e. imposes archaic notions of immunity, especially executive immunity: f. applies technical evidentiary rules in civil cases: and g. fails to provide for an award of attorneys' fees in appropriate circumstances.11I W See, e.g., Comm. ex reI. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (Pa. S.Ct. 1971): Harper v. Zegeer, 296 SE.2d 873 (W.Va. Sup.Ct.A. 1982): Bresolin v. Morris, 86 Wash.2d 241, 543 P.2d 325 (1975): State ex rel. Pingiey v. Coiner, 186 S.E.2d 220, 231 (W.Va. Sup.Ct.A. 1972): McIntosh v. Haynes, 545 S.W.2d 647, 654 (MO. S.Ct. 1977): Levier v. State, 209 Kan. 442, 497 P~2d 265, 272 (Kan. S.Ct. 1972). But see In Re Edsall 26 Oh.St. 2d 145 269 N.E.2d 848 (Oh. S.Ct. 1971): Foggy v. Eyman, 107 Ariz. 532, 490 P.2d 4, 5-6 (Ariz. S.Ct. 1971): State v. McCray, 267 Md. 111, 297 A.2d 265, 283 (Md. App. 1972). 1&1 111 Neuborne at 736. Neuborne at 736. This checklist was applied by Neuborne to New York law, which was found wanting. Id. at 737-47. These factors should be balanced by a jail lit:rcJator in New York against the relatively favorable legal standard applled in a jail.cas.e by the state's highest court. See note 28 above. -22- (d) State remedial options. 'l'he litigator must determine whether state judges possess a remedial discretion as broad as that enjoyed by federa1 district courts~ and whether the kinds of remedies frequently used in jail and prison cases have any precedent in state court. Federal judqes have often resorted to such devices as appointment of a master or monitor, mandatory compliance reporting by the defendants, etc.1 the unavailability of such relief may severely limit the utility of a state forum. (See §li ILS.l and X. below for discussions of various aspects of remedial discretion.) 2. Versa. Enforcing State Law in Federal Court and Vice In deciding whether to use a state or federal forum, bear in mind that either court may be able to enforce the law applied in the other. A federal court may hear a state law claim against ·local officials or governments under i.ts "pendent- jurisdiction as long as there is also a non-frivolous federal claim and the state and federal claims -derive from a common nucleus of operative 1!! Neuborne has suggested that a state judge may in fact have a -more flexible remedial armory than does a federal judge, doubly constrained by the Article III case or controversy requirements and federalism concerns.- Neuborne at 732, see id •.at n .21. Michaud v. Sher i i f of Essex Coun tv, 390 Mass. 523, 536 (Mass. Sup. Jud.Ct. 1983) (Court transfers jurisdiction of case to one justice of the Supreme Judicial Court to monitor c~mpliance with previously issued and affirmed court order in jail case). This hypothesis doubtless has more validity in some states than in others. See, e.g., Jones v. Beame, 45 N.Y.2d 402, 408 N.Y.S.2d 449, 380 N.E.2d 277 (1978) (claims that would require court involvement in -management and operation of public enterprisesnonjusticiable even if law violated.) -23- fact."121 The exercise of pendent jurisdiction is discretionary~ courts will often decline to exercise it if it will create a possibility of jury confusion, if the state law is uncertain, or if there would be a predominance of state law issues in the case •.!Q/ Federal jurisdiction over state claims against state officials is barred where "the relief sought and ordered has an impact directly on the state itself. "40a/ can not be exercised where a Congressional policy contrary.ill pendent Pendent jur isdiction Factors· weighing jurisdiction are in favor judicial of the is to the exercise of and, in economyill (1974)~ United Mine Workers v. Gibbs, 383 U.S. 715,725 (1966). The "common nucleus' test has been interpreted to mean approximately the sal1le transaction or occurrence. Nilsen v. City of Moss Point, Miss., 674 F.2d 379 (5th Cir. 1982) • 1!/ Hagans v. Lavine, 415 U.S. 528, 545-57 .!Q/ Moor v. County of Alameda, 411 U.S. 693, 715-17 (1973) 1 Cancel1ier v. Federated Dept. Stores, 672 F.2d 1312 (9th Cir. 1982) ~ Carrillo v. Illinois Bell Telephone Co., 538 F.Supp. 793, 799 (N.D. Iii. 1982). 40a/ Pennhurst State school and Hospital v. Halderman, U.S. ,52 O.S. L.W. 4155, 4162 (January 23, 1984). iftlether tJlis holding bars all pendent claims against state officals remains to be see~The Pennhurst opinion contains both .a broader formulation than the above quoted language and passages that could be construed more narrowly. Compare ide at 41ft4 (" • • • a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State • • • • " with ide at 4160 (emphasizing that all relief was "institutional and official in character"). " The Pennhurst holding may apply to suits against county or local officials when their activities "are dependent on funding from the State." Id. at 4164 n.34. ill Aldinger V. Howard, 427 U.S. 1 (1976)~ united States ex reI. Hoover V. Franzen, 669 F.2d 433 (7th Cir. 1982) 1 Clark V. Taylor, 710 F.2d 4", 11-13 (1st Cir. 1983). " ill United Mine Workers V. Gibbs, note 39 above, at 726. -24" consti tutional cases, the preference for consti tutional basis on which to rule oW cases, doctrines of ~deferenceft to finding a non- In jail and prison correctional authorities provide additional support for enforcing local or departmental standards that will also protect constitutional rights.iiI Pendent claims should be explicitly pled as such: otherwise, the court may refuse to hear them on the ground of lack of notice to the defendants~ or may misperceive the claim as an attempt to ftconstitutionalize- recent Supreme court local law contrary to the holdings of cases.~ In deciding whether to plead pendent claims, should be avoided. two, pitfalls First, a federal court hearing a pendent !lI Hagans v. Lavine, note 39 above at 547: Anderson v. Redman, 429 F.Supp. 1105 (D.Del. 1977). See also Mills v. Rogers, _ O.S. , 102 S.Ct. 2442, 2449 (1982) (where state law provideSi1iroader rights, federal constitutional rights ·would not need to be identified in order to determine the legal rights and duties of persons within that State·). But see Lightfoot v. Walker, 486 F.Supp. 504, 508-09 (S.D. Ill. 1980) (court rules on constitutional rather than pendent claims). iii See Bell v. Wolfish, 441 0.5. 52.0 , 548 (1979). But see Pennhurst State School and HosBital v. Halderman, note 40a above, at 4159 (~ • • • it is dlfficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law·). Whether'this reasoning applies beyond the Eleventh Amendment analysis of Pennhurst remains to be seen • .!2/ Ruiz v. Estelle, 679 F.2d 1115, 1156-69 (5th Cir. 1982), : J.P. v. DeSanti, 653 P.2d 1080 (6th Cir. 1981): United States ex re1. Plores v. Cuyler, 511 F.Supp. 386 (E.O. Pa. 1981). ~ See, e.g., Smith v. Sullivan, 611 F.2d 1039 (5th Cir,. 1980): compare Paul v. Davis, 424 U.S. 693 (1976). -25- state claim is bound by other relevant state law •.ilI Be sure there is not a state law rule that would defeat your claim or limit the remedies available under it. state la~ Second, be sure that the you invoke is not so ambiguous as to invite abstention as well as to defeat pendent jurisdiction.ill You should also keep in mind that state law can be repealed or changed by state authorities1 if there is a realistic probability that this will happen, pursuing a pendent claim may make less sense • .ill Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982) (state law of standing); Jones v. Diamond, 636 F.2d 1364, 1379 (en bane) (state limitation of liability); Hamilton v. Roth, 624 F.2d 1204, 1208-12 (3d Cir. 1980) (state requirement of administrative exhaustion); Albers v. Whitley, 546 F.Supp. 726 (D. Ore. 1982) (state immunity statute). 1!1 See 312 U.S. 496, 1280 (9th Cir. 1980). reserved for ·exceptional circumstances·, Colorado River Water Construction District v. united States, 424 U.S. 800, 813 (1976), and is generally disfavored in §1983 litigation. See e.g., Ramos v. 'Lamm, 639 F. 2d 559, 563-64 (10th Cir. 1980) 1 Campbell v. McGruder, 580 F.2~ 521, 525 (D.C. Cir. 1978) 1 Hanna v. Toner, 630 F.2d 442 (6th Cir. 1980); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); Grubbs v. Bradley, 552 F.Supp. 1052, 1056-57 (M.D. Tenn. 1982). See generally Barber, "Pullman Abstention: A Discussion of Issues and Strategies," 16 Clearinghouse 'Review 1093 (April 1983). -26- Pendent jurisdiction has been exercised frequently in jail and prison cases over state law claims ranging from constitutional provisions to the internal rules of prison or jail author i ties.w State or local law may come into play in a '§1983 action in various other ways. "property interests" State law may create "liberty interests" or protected by procedural due process.2Q/ State law may be adopted as a remedy by a court that has found liabili ty on constitutional grounds.w Violations of statutes or regulations may provide factual support for a claim that jail 11I See, e.g., Williams v. Thomas, 692 F.2d 1032 (5th Cir. 1982) (assault and battery); Clappier v. Flynn, 605 F.2d 519 (10th Cir. 1979) (assault and battery); Miller v. Carson, 563 F.2d 757 (5th Cir. 1977) (state requirement that jail standards be promulgated); McCaw v. Frame, 499 F.Supp. 424 (E.D. Pa. 1980) (negligence in sexual assault case); Smith v. Jordan, 527 F.Supp. 167 (S.D. Ohio 1981) (state statute limiting strip searches); Marcera v. Chinlund, 91 F.R.D. 579 (W.O. N.Y. 1981) (state constitutional requirement of contact visits for detainees); French v. Owens, 538 F.Supp. 910 (S.D. Ind. 1982) · (state statute governing treatment of juvenile inmates); Williams v. Lane, 548 F.Supp. 927 (N.D. Ill. 1982) (statute governing housIng and programs in protective custody); Canterino v. Wilson, 546 F.Supp. 174, 216-17 (W.D. Ky. 1982) (state education release statute); TaIlor v. Sterrett, 344 F.Supp. 411, 418 (N.D. Tex. 1972), af 'd as mod., 499 F.2d 367 (5th Cir. 1974), cert. den., 420 U.S.983(1975) (state statute regarding food handlers); Anderson v. Redman, 429 F.Supp. 1105, 1122 (D • . Del. 1977) (prison department rules). iQ/ Connecticut Board of Pardons v. Oumschat, 452 U.S. 458, 465 (1981); Helms v. Hewitt, U.S. , 103S.Ct. 864, 871-72 (1983) (prison regulations); Koz~wski v. Coughlin, 539 P .Supp. 852, 855-56 (S .D. N.Y. 1982) (state consti tiona 1 provision). i1I Gross v. Tazewell County Jail, 533 F.Supp. 413 (W.O. Va. 1982); Benjamin v. Malcolm, 495 F.Supp. 1357 (S.D. N.Y. 1980) • -27- officials acted negligently or with "deliberate indifference,"211 may defeat the defense of qualified or "good faith" immunity, or may help determine who can be held liable consistent with the ·personal discussion involvement" of doctrine. qualified immunity, (See SVIII.D. below for a and SII.C.l. below for a discussion of personal involvement.) Claims of federal constitutional violations may generally be litigated in state courts. Many states make provisions in their own statutes and court rules for determinations of constitutional claims,j]/ and both the United States Supreme Court and many state courts have held that state courts mayor must entertain actions under S1983~ Pleading one's claim under S1983 has the advantage that the state court will be required to apply the federal attorneys' fees statute.21/ The extent to which this 211 A "deliberate indifference" standard is applied to prisoners' claims of' denial of medical care and other failures to protect their health and safety. Estelle v. Gamble, 429 U.S. 97 (1976); Smith v. Wade, U.S. , 103 S.Ct. 1625, 1640 (1983) • (See SIX.C.3 and ;r-below fOr further discussions of these standards.) 111 See, e.g., Kovarshy v. Housing Development Adminstration, 31 N.Y. 2d 191, 335 N.Y.S.2d 383, 286 N.E.2d 882 (1972). 2!/ Martinez v. California, 444 U.S. 282, 283 n.7 (1980); New Times, Inc. v. Arizona Board of Regents, 20 Ariz.App. 422, 426, 513 P.2d 960, 964 (1973),~• .2!L other Erds., 110 Ariz. 367, 519 P.2d 169, 176 (1974). See note 34 a ove. 21/ Maine v. Thibotout, 448 U.S. 1, 11 (1980). " -28- -reverse Erie doctrine- requires state courts to apply other provisions of federal law in a 51983 action has not been fully explored in the courts.2!I Remedial options: B. Injunctions and Damages. There are two main types of relief it makes sense to pursue in a jail conditions case: injunctions and damages. While declaratory judgements are theoretically available, they are most useful in cases challenging particular rules or practices: they are of little institutional use reform to in a a litigator seeking context where far-reaching enforcement is al1- important. 1. oppressive Injunctive Relief. for prisoners injunction. In injunctions may federal be in a If you want to make life less local court, broad or jail, and you will seek an in most narrow, and state courts, may operate affirmatively, mandatorily or negatively (prohibitori1y)~ In injunctive cases, there is no right to a jury trial..llI The judge is therefore the applicable, defense, including statute of trie~ the of fact. qualified limitations, Certain defenses are not immunity or and the -good notice of faithclaim defense.· The so-called -personal involvement- requirement or no 2!1 For a general discussion of this problem, see Neuborne, passim. See also Martinez v. California, note 54 above, at 284 (state immunity statute could · not be applied in state court 51983 action). W Fo.r examples of the range of injunctive relief in jail cases, see the cases cited in Appendix I • .llI See Johnson v. Teasdale, 456 F.Supp. 1083, 1089 (w.O. Mo. 1978) and cases cited. -29- respondeat superior defense is of lesser importance in injunctive actions. the (See sheriff or federal action, ~II.C.l. If proper service is made on below.) the chief executive officer of a any subsequent court order Damages. "W Damages in jail cases are subject to the same general rules as in other types of li t iga·t ion. constitutional actions, compensatory damages including both are as in ordinary available nspecial damages" and other out-of-pocket costs) suffering, in a is binding on their "agents, servants, employees, and attorneys •.•. 2. facility humiliation, to tort emotional litigation, "make the victim who.le," (medical hills, and In federal lost earning, "general damages" distress) .~Ol (pain and Most courts require concrete proof of either special or general damages support an constitutional award of violation compensatory without proof damaqes; of proof consequential of a injurv will permit only an award of Sl.OO in "nominal damages. n61 1 591 Rule 65(d), F.R.C.P. to Even See also Shakman v. Democratic 533 F.2d 344, 352 (7th Cir. ~o~r~g~a~n~i~z=a~t~i~o~n~o~f~c=o=o~k~C~o~u~n~t=y~, 1976) • 601 Mary and Crystal v. Ramsden, 635 F.2d 590, 600· (7th Cir. 1980); Rhodes v. Robinson, 612 F.2d 756 (3d Cir. 1979); Baskin v. Parker, 602 F.2d 1205, 1209 (5th Cir. 1979). ill This rule was stated by the Supreme court in the context of a procedural due process claim. Carey v. Piphus, 437 U.S_ 247 (1978). Many courts have also applied it to substantive constitutional riqhts violations as well. Doe v. District of Columbia, 697 F.2d 1115, 1122-1123 (D.C. Cir. 1983); Kincaid v. Rusk, 670 F.2d 737, 745-46 (7th Cir. 1982); ~cNamara v. Moodv, 606 F.2d 621, 626 (5th Cir. 1979). For arguably contrary authority, see Owen v. Lash, 682 F.2d 648, 657-59 (7th Cir. 1982) (Potter Stewart, J.) and cases cited. See also the discussion in Avery and Rudovsky, Police Misconduct: Law and Litigation ')lO.2(d) (2). ·-30- where proof of injury is presented, damages in jail and prison cases are often generally.ill modest compared to tort recoveries Large awards are usually reserved for cases of serious physical injury or outrageously bad treatment, both in bench trials and ·in Punitive damages may be jury cases.W assessed against individuals (but not local governments)~ on a showing of reckless indifference or malice,W but courts and juries are reluctant to award Damage particula~ cases may be individuals, institutional reform~ but them~ useful no continuing redressing they are poor vehicles they may supervision. wrongs for to broad tell the defendants what they shouldn't have done, but they offer and for li~tle They affirmative guidance mayor may not have .w See, e.g. Stanley v. Henderson, 597 F.2d 651 (8th Cir. 1979) ($1000 compensatory and $2500 punitive for beating) ~ Steinberg v. Taylor, 500 F.Supp. 477 (D. Conn. 1980) ($475 for seizure of legal papers)~ Brooks v. Shipman, 503 F.Supp. 40 (W.O. Pa. 1980) ($100 compensatory and $50 punitive for improper search)~ Vaughn v. Trotter, 516 F.Supp. 886 (M.D. Tenn. 1980) ($2040 for harassment of jailhouse lawyer). 63/ Spicer v. Hilton, 618 F.2d 232, 235 (3d Cir. 1980) ($50,000 for amputation of foot)~ Redmond v. Baxley, 475 F.Supp. 1111 (E.D~ Mich. 1979) ($130,000 for homosexual rape, beating, and consequent psychological damage): TUcker v. Hutto, ,78-0l6l-R (E.D. Va. 1979) (approximately $500,000 settlement for medical mistreatment causing permanent paralysis). !!I City of Newport v. Fact Concerts, Inc., 453 U.S: 247 (1981). !2/ Smith v. Wade, U.S. , 103 S.Ct. 1625 (1983): Silver v. Cormier, 529 F.~16l, l~(lOth Cir. 1976). See also Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), cert. den., 429 U.S. llB (1976). - !!I See Simpson v. Weeks, 570 F.2d 240, 243 (8th Cir. 197B), quoting from Lee v. Southern Homesites Corp., 429 F.2d 290, 294 (5th Cir. 1970). -31- substantial deterrent value, depending on how large the judgement is, who pays it,67/ and prisoner litigation. how familiar jail officials are with The most effective jail damage case may be the first one in a particular jail, because it informs personnel of their potential vulnerability and provides the community a glimpse of jail conditions which may not have been previously publicized. Once these purposes have been served, the marginal utility for reform of additional damage cases may be relatively small. for Damage cases also have little or no value as test cases establishing new rules of law: novel, defense defendants of will qualified almost immunity- if the plaintiff's claim is certainly (see be §VIII.D. entitled to the below), and the merits will not be reached. You should realize that although an individual damage action may initially injunctive seem less relief, complicated damage significant complications. actions than a may class action actually for involve They require consideration of various defenses such as immunity and the statute of limitations as well as strict adherence to doctrines of personal liability. II.C., ill VII.D. below.) Most importantly, (See §§ in many damage claims In many communities, defendants will be provided with counsel by the local government; judgements may also be paid by the local government pursuant to an indemnity statute or a labor contract, or by an insurance company. Wherever possible, lawyers tend to pursue the governmental "deep pocket"- through Monell actions or respondeat superior suits in state court, see §II.C.2 below. At the other extreme, judgements against ' lower-level employees who are neither insured nor indemnified may be unenforceable because of the defendants' lack of resources. -32- you will be dealing with sharp factual disagreements between two hostile or antagonistic groups, prisoners and jail staff, which you are asking a local jury to make a decision. jury believes prisoner testimony,.§!! it in Even if a is a quantum leap to convince it to come in with a significant monetary award or any award at all~" the usual sometimes recipients Moreover, damage actions may provoke more than level of judges) of opposition who damage do not awards from defendant think under prisoners any attorneys should circumstances. (and be the As a resul t, more time, money and resources are put into these cases than one might initially assume. You should be particularly careful in injunctive claims in the same lawsuit. Do joining damage and not assume that you can pursue both remedies with little more effort than is required to litigate one 1 each involves a number of legal and factual issues which the other one does not. will have to try them separately. It is very likely that you Litigators sometimes find also that the perceived urgency of injunctive claims causes discovery and preparation of related damage claims to be postponed until !!/ See Darbin v. Nourse, 664 F.2d 1109 (9th Cir. 1981), where the court of Appeals reversed a decision of the trial court for refusing to ascertain during voir dire whether prospective jurors would believe testimony of law enforcemen"t personnel over prisoners solely on the basis of the former's official positions. i!I See, e.g., Picarriello v. Fenton, 491 F.Supp. 1021, 1022 (M.D. Pa. 1980), where a jury found liability against a warden and other correctional staff for beating and torturing prisoners but nonetheless determined that defendants -acted with a reasonable good faith belief that their actions were lawful. • -33- evidence demand is stale and that damage injunctive claims, plaintiffs This is joined. in not a hard claims Defense lawyers may also be before waived in a class action, conflict to to find. say of that two will settle this may place the n-amed interest with the they the class members. remedies should never be Where you are confronted with serious injuries caused by persistent conditions and practices, it may be irresponsible not to pursue both. However, you must begin with a realistic If you are understanding of the complications that may result. planning a large-scale injunctive case -- especially one in which medical care or protection from assault will be at issue -- you may wish to arrange in advance to refer meritorious damage cases to other attorneys. The courts are only beginning to explore the availability of class damages unlawful for entire conditions.(See class actions.) , approximately incarceration groups SVI below of prisoners subjected to further discussion of for In DOe v. District of Columbia, a jury awarded one $500,000 during a four-year dollar each for to period a day of class of prisoners based on proof of exposure to the danger of violent assaul t and sexual abuse ~ Although the court of appeals overturned the verdict based on defective jury instructions, remanded for a new trial without objection either to the class lQ/ 697 F.2d 1115 (D.C. Cir. 1983). it -34- format of the case or to the stanQard ized award of damages.11I Similarly, in "1cElveen v. County of Prince William, the trial judge rejected defendants' motion for a judgment notwithstanding the verd ict after prisoners a jury awarded $210,000 subjected to severe overcrowding, unconstitutional to a class of 7,000 conditions, including for a year and a half.11/ Courts have also approved awards in cases involving a single transaction or course of conduct involving large numbers of prisoners~ Despite present these some counsel should (and have favorable major think answers precedents, theoretical them for and through the trial class damages management before judge filing at problems, the the cases and complaint time class 111 But see Doe v. District of Columbia, 701 F.2d 948 (D.C. Cir. 1983) for.additional separate statements concerning, inter alia, the appropriateness of class treatment of the case. 111 McElveen v. County of Prince william, .81-l049-AM (E.D. Va., July 21, 1982). On appeal the Court upheld the class damage award stating that "Numerous actual and compensable inj.uries were presented by plaintiffs at trial. Fact-finding by a jury will be set aside only where the evidence ••. is so clear the reasonable persons could reach no other conclusion than that asserted on appeal." F.2d , 182-5679 (4th Cir. 1984). Slip Cp. at 10. - 111 Dellums v. Powell, 566 F.2d 167, 188 n.56, 197 n.89 (D.C. Cir. 1977) (class certification approved, class damages approved in part and vacated in part in mass arrest and detention case) 1 Dellums v. Powell, 566 F.2d 216, 227-28 (D.C. Cir. 1977) (class should have been divided irito subclasses for Eighth Amendment damage calculation); Allman v. coughlin, 82 Civ. 1149 (S.D. N.Y., June 10, 1983) (Memorandum Decision) (class certified in damage action based on physical abuse and destruction of property after disturbance at jail). See also Anderson v. Breazeale, 507 F.2d 929, 931 (5th Cir. 1975) (sustaining uniform awards of $500 to 157 plaintiffs based on proof of conditions suffered after mass arrest; no class certification). -35- certification is sought). to support testify? class What is the quantum of proof required liability? How many class members must Can damages be sufficiently standardized to permit a class award?.ll/ If not, should subclasses be created, or should class certification be limited to the question of liability? will class members be identified and located for purposes notice and distribution of any damages that are awarded? should look to other How of Counsel types of mass tort litigation for helpful analogies. its In prepar i ng a lawsu it or Preliminary Relief. 3. initial stages, in the question of seeking preliminary relief arises. Conventional wisdom in Rtotality of circumstances R cases teaches that detrimental presented seeking and · obtaining such effect of compartmentalizing together to that emphasize relief issues their will have the that should be interdependence. There is also the tactical advantage of stronger issues carrying weaker ones. Moreover, if you wait for a plenary trial, you obviously have more time to prepare. Although the above analysis makes sense, other considerations may support the opposite conclusion: (a) the benefits to your clients of immediate partial relief; .ll/ Variations in the degree of plaintiffs' injury may make class treatment inappropriate or difficult as to compensatory damages. However, no such problem is presented bV punitive damages, since these are tailored to the conduct and situation of the defendant and not to the injuries of the plaintiff. See McFadden v. Sanchez, 710 F.2d 907, 913-14 (2d Cir. 1983). -36- (b) the nature cli~nts and to scope take of some pressure action to from your ameliorate their situation; (c) the necessity officials of demonstrating that prisoners can to invoke jail judicial power and get a hearing; (d) the necessity of. focussing the attention of an uninvolved, lazy or unsympathetic iudge; (e) the importance of ca"pitalizing on publicity or poli tical momentum created by the filing of the lawsuit; (f) the necessity of focussing the attention of jail officials and perhaps forcing defendants to negotiate; (g) the possibilities of obtaining a judge or depending avoiding upon the an sympathetic I.lnsympathet ic jurisdiction and one, court rules; (h) the need to prevent mootness of the case or staleness of your evidence; (i) the need to protect your clients against reprisals or threatened reprisals for bringing the lawsuit22./; 121 Such a claim may be pressed in. a motion for preliminary relief or as a separate laWsuIt. See, e.g., Havmes v. "Iontanye, 547 F'".2d 188 (2d Cir. 1977); Milhouse v. Carlson, 652 F.2d 371 (3rd Cir. 1981); Ruiz v. Estelle, 550 F.2d 238 (5th Cir. 1977); Ruiz v. Estelle, 5';0 F.2d 238 (5th Cir. 1977); Cruz v. Beto, 603 F.2d 1178 (5th Cir. 1979); WOlfel v. Bates, 707 F.2d 932 (6thCir. 1983). See also Kush v. PutleClge, _ U.S. _ , 103 S.Ct. 1483 (1983). ~ -37- (j) abi lity the conditions" getting to defense into blunt the (see court "impro'led ~VIII.S. before below) bv substantial improvements are made; (k) the like lihood that you wi 11 work barder than your adversary and that time pressure will therefore be to plaintiffs' advantage; (1) the benefits of litigating issues in a setting that you have structured, rather than spending your time responding to defendants' motions to dismiss or for summary judgment; (m) the need to avoid getting the case bogged down in protracted discovery disputes or other side issues; and (n) the benefits of obtaining an appealable order at an early stage in the case. In deciding whether should consider how necessary; much to move for discovery preliminary and trial relief, preparation you is it may be that a motion for preliminary rel teE will involve so much work that you may as well go ahead and try the entire case. Also, a judge may find your motion so complex and weighty that he or she prefers to consolidate the motion with the plenary trial. (This may be a way of getting an early trial date in a court with a large trial backlog.) To obtain preliminary relief, you must convince a judge that prisoners will suffer irreparable harm during the pendency of the -38- lawsuit if you do not obtain an order:~ that there is a probability of success on the merits:11I that if you balance the hardships suffered bv the parties the prisoners will suffer the greater harm if an order is not entered: and that it is in the public interest to grant the requested relief.1!I If you allege that jail officials have violated the Constitution, statutes or even jail rUles and regulations, they of course are not acting lawfully and therefore not in the public interest~ In the federal courts, the district court may require a person obtaining a preliminary injunction to post a security bond under Rule 65 (c) of the Federal Rules of Civil Procedure. I f you ~ A showing of a violation of constitutional rights is sufficient to establish irreparable harm. Elrod v. Burns, 427 U.S. 347 (1976): Deerfield Medical center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981): Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978). 111 Likelihood of success need not constitute a mathematical probability. washington MATC v. Holiday Tours, 559 F.2d 841, 843 (D.C. Cir. 1977): Williams v. Barry, 490 F.Supp. 941, 943 (D. D.C. 1980). If you can show irreparable injury and that the balance of interests and public policy strongly favor injunctive relief, the court may grant an order even though your chances of winning your case on the merits are weaker. 1!1 121 See Hecht Co. v. Bowles, 321 ·U.S. 321, 329-30 (1944). Preliminary relief has been granted in numerous jail and prison cases. See, e.g., Miller v. Carson, 401 F.Supp. 835 (M.D. Fla. 1975) (jail overcrowding conditions): Vasquez v. Gray, 523 F.Supp. 1359 (S.D. N.Y. 1981) (jail overcrowding): Inmates of Attica C.F. v. Rockefeller, 453 F.2d 12 (2d Cir. 1971) (brutality after retaking of prison): Liles v. Ward, 424 F.SUpp. 675 (S.D. N.Y;> 1976) (transfer to hospital for criminally insane): Northern Penn. Legal Services v. County of Lackawanna, 513 F.Supp. 678 (M.D. Pa. 1981) (retaliation by County for bringing jail and other institutional litigation) • . -39- are proceeding in forma pauperis under Title 28 ~1915, U.S.C. requiring such a bond is especially inappropriate.~ Like relief success is witnesses. at usually trial, success on preliminary motions dependent on the preparation of for expert Identification of your needs and obtaining access to the facility for these individuals is obviously a must. If you cannot arrange a tour by agreement, a Request for Entry Upon Land should be made. (See §VII below.) If plaintiffs obtain preliminary relief in a ~1983 case, they may be entitled to a fee award and reimbursement of costs on an interim basis. (See §XI.C. below.) Funds obtained in this manner may be utilized to support later discovery and' expert expenses incurred in the case. tempered by the realization appealed or resisted Optimism that in this fees respect awards are should very be often in other ways so that the date of payment can rarely be pred icted. On the other hand, a substant ial fees award may early in the case have a salutary effect on jail officials, defense attorneys and the fiscal authorities to whom they are ultimately responsible, by discouraging ·stonewalling· litigation in postures that will be reflected the final attorneys' fees bill. C. Naming the proper Defendants. Whom to name as defendants in a jail case depends both on the facts of the case and, in a §1983 case, on a variety of legal ~ J .L. v. Parham, 412 F.Supp. 112 (N.D. Ga. 1976), rev'd. ~ other grds., 442 U.S. 584 (1979). -40- considerations discussed in this section. In state law actions, the proper defendants will be determined by state law. 1. Respondeat The scope of which ~1983 prescribes Superior vs. Personal Responsibility. liability is outlined in the statute itself, liability for any person who under color of state law "subjects, or causes to be subjected" the plaintiff to a violation respondeat of federal superior law. an Under employer's §1983, the vicarious doctrine liability of for torts committed by employees in the course of em?loyment -- has no application.!l/ personally omitted to The involved act in in a defendants the unlawful manner which must either conduct or caused have have been acted or the plaintiff to be subjected to a violation of federal 1aw.!li This principle has its primary application in damage cases, in which the pinpointing of fault for the plaintiff's injury may be the most important factual and legal issue.!l/ In injunctive cases, courts rarely stop to parse lines of authority as long as the higher-level administrators of the jail are named as ! l / Parratt v. Taylor, 451 U.S. 527, 537, n.3 (1981). !11 Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). ! l / See, e.g., Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1982), cert. ~., sub.!!2!!!.. Bennett v. Williams, 104 S.Ct. 335 (1983). -41- However, defendants.W it is the better practice, even in an injunctive case, to join all those persons up and down the chain of command whose acts or omissions might be said to ncause" the constitutional violations. This is particularly true when dealing with a specialized and technical aspect of jail life such as medical or psychiatric care, where a sheriff or warden may claim to have no involvement or knowledge beyond hiring personnel with appropriate qualifications. may have some wasteful causative pre-trial opportunity to motion point the role Joining all those persons who in the practice finger violations and at an reduce may minimize the defendants' off-stage nfall guy." Certainly, no litigator should rely on the statements made in a few cases that respondeat superior applies in § 1983 injunctive cases.W The list personnel. be W W named, of defendants should not be limited to jail Local political and budgetary authorities should also since full relief may require additional staffing, In Rizzo v. Goode, 423 U.S. 362, 375-76 (1976), an injunctive case not involving a jaii or other closed institution, the "no respondeat superior" doctrine was invoked where the link between the named defendants' conduct and the claimed constitutional violation was held unduly remote. Such a ruling is less likely in a jailor prison case, where the alleged violations take place in a restricted setting controlled by a small number of identifiable officials and . employees. See also Ruiz v. Estelle, 679 F.2d 1115, 1154-55 (5th Cir. 1982); Campbell v. MCGruder, 580 F.2d 521,526 (D.C. Cir. 1980); Doe v. New York City Department of Social Services, 649 F.2d 134, 142 (2d Cir. 1981). See Isaac v. Jones, 529 F.Supp. 175 (N.D. Ill. 1981); Ganguly v. New York State Dept. of Mental Hygiene, 511 F.Supp. 420, 424 (S.D. N.Y. 1981). See alsO' Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979) (overruling pr ior cases adopting state respondeat superior doctrines in §1983 cases). -42- funding, construction, or other actions not within the authority of the jailer generally or warden. include some administrator, or manager, local the The higher-level defendants combination corrections commissioner, legislative the of body, sheriff's sheriff, the the government, and department. Deperiding on the structure of should mayor city department or or or jail city county correction local government in your state, you may also wish to sue one or more state officials with supervisory or budgetary authority over local jails. (Particular problems involved in suing these and other types of defendants are discussed later in this section.) Obviously, case require selecting the proper defendants in a S1983 substantial information about operated, financed, and ultimately governed. how the jail jail is If this information is not readily available before the lawsuit is brought, questions of particular officials' responsibility and involvement in jail affairs must be promptly pursued in discovery, with the object of filing an amended complaint adding or dropping parties as necessary. In determining omission are commission."!iI whom to sue, actionable ••. to keep the in mind same that extent as "[aJ cts of acts of Thus, §1983 liability may be based on knowledge 86; Smith v. Ross, 482 F.2d 33, 36 (6th Cir. 1973). See also Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("acts or omissions"); Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978) ("nonfeasance as well as misfeasance"). -43- of and acquiescence manifested: inferred !11 from in the constitutional violation, however in some cases, knowledge and acquiescence may be surrounding circumstances W Liabili ty 'may be premised on the promulgation of an unconstitutional policy!1l or on the failure to have any policy.2Q! Failure to perform a duty imposed by a statute or regulation may support liability if it causes a violation of federally protected rights.11I of supervisory subordinates officials •.ll! officials may support However, to the train and liability The failure supervise of their supervisory the courts will not infer a failure to 87/ See Harris v. Chanclor, 537 P.2d 203, 206 (5th Cir. 1976) (failure to intervene in unlawful beating): Villanueva v. George, 659 F.2d 851 (8th Cir. 1981) (en banc) (failure to correct unconstitutional living conditions): Holland v. Connors, 491 F.2d 539 (5th Cir. '1974) (same): Vaughn v. Franzen, 549 P.Supp. 426 (N.D. Ill. 1982) (inadequate disciplinary procedures). i!I See McClelland v. Facteau, 610 F.2d 693 (lOth Cir. 1979). !11 Ruiz v. Estelle, 679 F.2d 1115, 1154-55 (5th Cir. 1982): Black v. Stephens, 662 F.2d" 181 (3d Cir. 1981): wanger v. Bonner, 621 F.2d 675 (5th Cir. 1980): Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977). 1Q/ Murray v. City of Chicago, 634 F.2d 365 (7th Cir. 1980): Fowler v. Cross, 635 F.2d 476 (5th Cir. 1981): Williams v. Heard, 533 F.Supp. 1153 (S.D. Tex. 1982): Doe v. Burwell, 537 F.Supp. 186 (S.D. Ohio 1982): Redmond v. Baxley, 475 F.Supp. 1111 (E.D. Mich. 1979): Bryant v. McGinnis, 463 F.Supp. 373 (W.O. N.Y. 1978). 111 Tatum v. Houser, 642 F.2d 253 (8th Cir. 1981): DOe v. New York City Dept. of Social Services, 649 F.2d 134 (2d Cir. 1981); Johnson v. Duffv, 588 F.2d 740 (9th Cir. 1978); United States ex reI. Larkins v. Oswald, 510 F.2d·S83, 589(2d Cir. 1975) • 111 Pearl v. Dobbs, 649 F.2d 608 (8th Cir. 1981); O'Connor v. Keller, 510 F.Supp. 1359 (D. Md. 1981). -44- train and supervise subordinates, "deliberate and from most the courts mere fact require a indifference" before they will of misbehavior concrete impose showing by of liability on this basis.w Monell 2. Actions: under §1983; however, the called "no Liabili ty of Local You may sue a city or county government or agency Government. by Direct local government liability is also limited respondeat after the liability under superiorR case established local (so government which arise from ·a policy statement, ordinance, regulation, or officers,· Some or courts executive adopted and ·customs R of from have restricted liability law violations officially is Monell to federal decision §1983) which rule. held that officials meet the acts promulgated by that body's the municipal government.1!I or decisions by requirements for Monell high-level liability without much further inquiry into whether they actually represent official policy.w adequate funding, 11/ Acts failure of omission failure to provide to deal with an overcrowinq problem, Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979), cert. den. sub Owens, 444 U.S. 980 (1979)-.--Jo~ v. Denton, 527 F.S,upp. 106 (S.D. Ohio 1981). ~. County of Nassau v. 1!1 Monell v. New York City Department of Social Services, 436 U.S. 658, 690-94 (1978). ·Custom" has been defined as Rthe deeply imbedded traditional ways of carrying out ••• policy." Knight v. Carlson, 478 F.SuPP. 55, 59 (E.D. Cal. 1979). See also Webster v. City of Houston, 689 F.2d 1220, 1225-27 (5th Cir. 1982). ; Wolf-Lillie v. Sonquist, 699 F.2d 864 (7th Cir. 1983). 11/ Bennett v. City of Slidell, 697 F.2d 657 (5th Cir. 1983); Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980); Jones v. City of Philadelphia, 491 F.Supp. 284 (E.D. Pa. 1980). But see guinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980). -45- failure to "decisions· or purpose J!i/ officials, establish As failure required "customs· with to train the municipality against individual of suits may procedures and supervise may constitute for this supervisory support Monell liability if a sufficient factual showing is made.ilI 3. Individual individual defendants, and official capacity. When naming it is the usual practice to name them "in their individual and official capacities.· This distinction is mainly relevant to damage suits against state officials, helping define those monetary Amendment inununity of awards which are barred by the Eleventh states.w The relevance to injunctive cases. 1iI distinction ~as little In suits about local jails, in Powe v. City of Chicago, 664 F.2d 639 (7th Cir. 1981); Parnell v. Waldrep, 538 F.Supp. 1203 (w.O. N.C. 1981); Mayes v. Elrod, 470 F.Supp. 1188 (N.D. Ill. 1979); Watson V. McGee, 527 F.Supp. 234 (S.D. Ohio 1981); McKenna v. County of Nassau, 538 F.Supp. 737 (E.D. N.Y. 1982). 97/ Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981); Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979), cert. den. sub nom. County of Nassau v. OWens, 444 U.S. 980 (1979) ;~pow v. City of Margate, 476 F.SUpP. 1237 (D. N.J. 1979). But see Lenard v. Argento, 699 F.2d 874 (7th Cir. 1983); Turpin v. Mailet, 619 F.2d 196 (2d Cir.) cert. ~. ~~. Turpin v. west Raven, 449 U.S. 1016 (1980); Harlee v. Hagen, 538 F.Supp. 389 (E.D. N.Y. 1982). W Owen v. Lash, 682 F.2d 648, 655 (7th Cir. 1982); Jacobson v. Coughlin, 523 F.SUpp. 1247, 1248-49 (N.D. N.Y. 1981). -46- which the Eleventh Amendment will not usuallv be an issue,991 the individual/official capacity whether the official or against a local a However, prudent serves only to indicate local government is liable for a there is no difference between a suit government capacity and the the Indeed, money judgement. dis~inction official in his or her Monell claim against the government practice in this technical official itself.l.Q.Q.I and sometimes poorly understood area is probably to name all defendants in both individual ann official capacities and name the county, city, or other local agency dismissal; the as well. This tactic will not only prevent it will also save you potential headaches caused by unavailability of certain kinds of discovery against non- parties. lOl / 4. Non-Jail Defendants. Particular types of defendants may present special problems under §1983. 21/ The Eleventh Amendment generally does not apply to counties and municipal corporations. Mt. Healthy City School District v. Doyle, 429 U.S. 274, 280 (1977). HO'tlever, i f local activities "are dependent on funding from the state," the Eleventh Amendement may bar relief against the locality as well as pendent state claims. Pennhurst State School ~nd Hospital v. Halderman, note 40a, at 4164 n.34. l.Q.Q.I Monell v. New York City Department of Social Services, note 94 above, at 690 n.55; Kincaid v. Rusk, 670 F.2d 737, 741-42 (7th Cir. 1982). However, one federal court has recently held that the governmental body must be joined as a party if liability is sought against it. Hart v. Walker, 720 F.2d 1443, 1445 (5th Cir. 1983). 1011 Rules 33, 34, F.R.C.P. -47- Local legislators are generally held to be immune from both in;unctive However, the relief action or standards ?ersonal and damages for inaction by a for Monell immun i ty poses no their acts. l02 / legislative body clearly meets liability real legislative discussed d iff icul ty; above, counsel so this need only join the local government itself.lQ1/ Judges and prosecutors are held to be absolutely immune from damages for in the acts taken, course prosecution.10 4 / l21I of respectively, in i tia ting and in a judicial capacity or prese.nt ing a cr iminal This immunity has not yet been extended to Supreme Court of Virginia v. Consumers Union, 446 U.S 719, 732 (1980); Bruce v. Riddle, 631 F.?d 272 (4th Cir. 1980). Contra, Jones v. Diamond, 519 F.2d 1090, 1101 (5th Cir. 1975). Some courts have held that legislative immunity is not applicable where the challenged action was not legislative in nature. See cases collected in Lake county Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 404 n.26. ~ven if counsel believes that local legislators may be sued individually, it is debatable whether joining them is worthwhile. This judgement should probably be made based on what one reasonably expects from the legislators. If the local legislature has been a stumbling block, suing its members may have some salutory effect on their attitude. By contrast, if one ho?es that the legislature will be a more positive force helping counsel to "get past" the jailor, naming ann serving the legislators may antagonize them for no useful purpose. The emotional impact of being sued and served with process is likely to be greater in small communities whose legislators are often part-time, unpaid, and unfamiliar with litigation. lQl/ Hernandez v. City of Lafavette, 643 F.2n IlB8 (5th Cir. 1981) • 104/ Stump v. Sparkman, 435 U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1975). -48- injunctive actions, although the question is open. 105 / in federal their courts personnel injunctive has often doctrines of "comity· and cases, federal court relief been against rejected state based However, courts on ill-defined "equitable restraint.· 106/ injunctions have changes in state court practices. l07 / been and entered In other requiring Litiqators should be aware that this area of the law inVOlves many unsettled questions about the power of the federal courts. The perceived need judges or prosecutors as parties defendant in a usu3.11y it be related courts and not the jails beyond balances the to overcrowding, for One approach meaningful to relief join jail case will is generally jailors who are responsible for capacity. need since to this filling the problem against the which sensitive questions of federalism and avoids enjoining courts or judges is lQ1/ Supreme Court of Virginia v. Consumers Union, note 102 above at 735. 106/ O'Shea v. Littleton, 414 U.S. 488, 499-502 (1974); Newman v. Alabama, 683 F.2d 1312, 1320 (11th Cir. 1983); Wallace v. Kern, ~20 F.2d 400 (2d Cir. 1975), cert. den., 424 U.S. 12 (1976). See Inmates of Middlesex County ~Demos, 519 F.Supp. 770 (D. N.J. 198 1 ) (juClges could not be joined as defendants absent allegation that their bail, sentencing or calendar practices cause unconstitutional results). 107 / Gerstein v. Pugh, 420 U.S. 103 (1975), on remand sub ~. Pug'! v. Rainwater, 422 F.Supp. 498 (S.D. Fla. 1976); Allen v. Burke, 690 F.2d 376, 377-78 (4th Cir. 1982); Fernandez v. Trias Monge, 586 F.2d 848 (1st Cir. 1978); Conover v. Montemuro, 477 F.2d 1073 (3d Cir. 1973) (en banc). See Newman v. Alabama, F.SUpp. Civ. Action #3501-N Memorandum Opinion (M.D. AI. November 4, 1983), appeal pending (state court proceedings enjoined where they would interfere with compliance with federal court orders). See also Gilliard v. Carson, 348 F.Supp. 757 (M.D. Fla. 1972); Ackies v. Purdy, 322 F.SUpp. 38 (S.D. Fla. 1970). -49- ':0 seE'l< to im!,ose a f)oQulation cao on th" iail. 'lla" al"o oresr::r ihe a f('lr!Tlula hI" released authority the if to cao, iail while for r1ecir'linq ,,'hich ,nisoners are to po~ulation the Such an or'ler i~ limit authorities to permitting anv exceeded release orisoners state court: iurisciction t() suhstitute a r'lUEerent release 0f an~ give to maintain comoetent formula. 1031 In state court, ()f c()urse, these prohlems of fec1eralism will not he Tn SOMe sheriff's ~xecutive cases, office there or persons correction and legislative be ;oined as parties are aGencies c1eoartment aut~orities "efen~ant. or and ol.ltsine the the hicrher of the lor::alitv who shou]" Some states and localities have seoarate aqencies whose ioh is to regulate, inspect or rno~itor '081 [luran v. Elrod, 713 F.2d 29/ (7th r.ir. ,g83): "ross v. "'azewell Co. Jail, 'i;\l F.SuPo. 413 ('''.0. Va. 19 82) (release or i1 er to issue i f cao cannot he l'I'aintainE'd); In'11at c- s Of l>.1.1eghenv ('0. Jail v. "Techt, ')1;') F.Supo. 1278 ("7.0. Pa. 1~8:1) (staqpd popuilltion reduction ordered): Valvano v. r"alc0lm, ~o. 70-C-1390, Partial Final Judgment at ~ (R.O. N.Y. Jan. 8, 1976), on rema!1~ fr()m Detainees 13roo'<lvn 'Iouse of netention for ~'en v "a1colm, 520 F.7n ,q~ (( -1 "ir. lQ7'i). See also Be!11 -3 min v. "a'colm, 51;4 F.Suop. 1;~8 (S.D. T\f.Y. lQR3) (oopul? ti on Ci'\O reaF"irmeti): l"e s t v. Lamb, 497 F.Supp. oAo (D. Nev. 1 0 80) (pooulation cao i.mpose"). 0: -_'V- local condi.tions. l09 / iail In some cases, other speci.al i.zed agencies, such as health departments or fire safety agencies, have oversight jails. l1O / Or over particular other state or conditions local and agencies ~ay practices may be i.n directly involved in providing services or designing programs. lll / '!'hese agencies or their personnetlll/ may be joined as defendants under the same there is standards of personal a factual basis for involvement described above; claiming omissions causen the federal law violations that their com?laine~ acts if or of, they 109/ In New York, the State Commission on corrections is statutorily required to promulgat~ and enforce c~rtain rules governing local jails and to create a grievance mechanism for their inmates. lOB MCKinney's ~orrection Law, ~~41, 4S (Suop. 19B2-B3), see Lucas v. Wasser, 425 F.Supp. 9S5, 9~1 (S.D. N.Y. 1976). A seoarate New York Citv Board of Corrections has regulatory authority over York City jails. New York City Charter ~626. In Michigan and ~assachusetts, the state corrections departments have similar suoervisory authority over local jails. Dimarzo v. Cahill, 575 F.2d 14, 17-lB (lst Cir. 197B); ~ichigan Stat. Ann. ~23.2322. See also Fla. Stat. Ann. 5951.23(2) and Texas Civ. Stat. ~5l15. See also Miller v. Carson, 563 F.2d 757, 760 (5th Cir. 1977). 11Q/ For example in Alabama, county health departments and the state Fire Marshal have statutory responsibility to inspect and regulate local iails. Adams v. Mathis, 45B F.Supp. 302 (/II.D. Ala. 1978). 111/ In New York City, the municipal Department of Health has substantial responsibilitv for providing health care in New York City jails. In Kentucky, the state Deoar·tment of Education provides vocational training in state prisons. Canterino v. Nilson, 546 F.Supp. 174, IBB (W.D. Ky. 1~83). 1111 State agencies cannot be sued in federal court because of their Eleventh Amendment immunity. Alabama v. pugh, 43B U.S. 7Bl (197B) (per curiam); Rui.z v. Estelle, f579 F.?d 1115, 1136-37 (5th Cir. 19B2). This immunity may be avoided simply by suing the state officials involved in their individual capacity. -51- are proper defendants .113/ Before jOining them as defendants, however, one should think through the practical consequences. It may an be easier to get discovery and possible to get injunction -- against a regulatory or supervising agency if it is a party defendant. On the other hand, the agency is cooperative, it may be preferable, if to keep one's contacts informal. It may also be possible to present such an agency as an impartial third party for purposes of monitoring a judgement or developing standards to be more difficult incorporatel'! to do (and in a judgement; 114/ this would be the agency might be less willing to cooperate) if the agency had been sued. If counsel does elect to join a state official as a defendant, the claim must be carefully framed to allege a federal law violation. that The Supreme Court has recently held that "a claim state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected Eleventh (sic] by the Amendment. 114a / officials can be shown to have caused a constitutional If state vi~lation by failing to perform their state law duties, a federal court may presumably still direct that state law be followed as a remedy for the constitutional wrong. 113/ See cases cited in notes 109 - 111 above. 114/ See, e.g., Vest v. Lubbock count, Commissioners Court, 444 F.Supp. 824, 837-38 (N.D. Tex. 19 7); Campbell v. McGruder, 416 F.Supp. 100, 105 (D. D.C. 1976); Alberti v. Sheriff of Harris County, 406F.Supp. 649, 677 (S.D. Tex. 1975); Jones v. Wittenberg, 330 F.Supp. 707, 716 (N.D. Ohio 1971); Valvano v. McGrath, 325 F.Supp. 408, 411-12 (E.D. N.Y. 1971). 114a/ Pennhurst State School and Hosoital v. Halderman, note 40a above, at 4164 (emphasis supplied). -52- SECTION III. Before one PRELIMINARY PLANNING AND RESEARCH commences initial planning and preliminary responding steps a challenge to research effort are to motions is advisable. accomplished, to dismiss or jail conditions, drafting for Once a some these complaint, summary judgement, and planning discovery will be made much easier. A. Initial Contact with Plaintiffs. We have assumed that you have received a complaint about jail conditions from a prisoner has sent a prisoner letter or local judge or court~ complaint.) prisoner or other filed individual. a pro ~ Perhaps a complaint with a (See §V below about the content of the Your first step must be to interview the individual and independently check out his or her story with witnesses the prisoner identifies, with others familiar with the jail, and through such documents as are available. It is wise to obtain an affidavit or a declaration under penalty of perj ury l16/ from your proposed client in order to nail down the story and as a means of protection as recollections fade or change over the course of years: such a sworn statement may also be useful later in moving for preliminary relief or summary judgement or in resisting motions by the defendants. 115 If you have a E!.2.~ pleading, amending it may be useful. See Rule 15, F.R.C.P. 116/ See Title 18 U.S. 51746. court proceedings. This device can be used in federal -53- Also because of the lengthy nature of these cases and because jail confinement tends to be of short duration, you should at the first opportunity obtain the names and addresses of someone always in touch with the individual prisoner and the names of other prisoners interview them. who have similar or other complaints and Li tigators should attempt to stay in touch by letter, phone or visits with the named plaintiff or plaintiffs concerning significant incidents at the jail, and worsening or improvements in conditions of confinement. B. Gathering of Documents. Counsel should as a preliminary matter begin gathering materials and documents that are generally available or available to the public. of Clippings from local newspapers are good sources information about incidents, occurrences, lawsuits, budget battles and other controversies concerning the jail, the local courts and governmental entities that bear on the case. documents such transcripts of as grand budget jury hearings reports, and budget testimony Public requests, before funding agencies and bodies, prior consultant or planning agency reports, state and local regulatory agency reports or aud~ts will be very useful. (See SII.C.4. above concerning regulatory bodies.) You should request from the sheriff or jail administrator copies of any written jail. rules, regulations or policies in effect at the The budget process over the previous years is a fertile source of information about the various positions of the major actors, (see 51.5. above) , and possible above), allies. potential defendants, (see 5Ir.C. This material may also reveal -54- potential defenses lawsuit. that may be raised in response to the Where material is not readily available to the public, state or local freedom of information laws may be helpful. C. Other Sources of Information and Assistance. Your interviews with prisoners and the initial gathering of materials should organizations assistance which and lead you may to sympathetic provide resources. further Former individuals relevant prisoners, and information, family members, lawyers from the community, public defender or legal aid lawyers, social service continuing present) or church groups should be contacted relationship should be developed. jail staff may provide useful Former information and (or even initially, although one should be wary about their later use at trial. might have or be perceived to have an -axe t~ a They grind- or some other agenda that could compromise their testimony if not their information. D. Preliminary Tour. Extremely useful at. this stage if it can be achieved is a tour of the facility itself. A tour will help orient and familiarize you with the layout and put the information you have already gathered into context. If you are provided a tour, do not heSitate to take the opportunity of speaking to staff and prisoners, posted, reading and written requesting notices any and relevant policies that published or may be wr i tten policies, rules and regulations of the jail. An expert tour, if it can be arranged, can be the single most important step at this early stage of your lawsuit. (See §IV. ; / -55- above concerning discovery and trial expert's report getting experts.) Not only can you get a preparation, you may be able (not necessarily in written form) the defendants to jump on to use an as a way of begin thinking and perhaps talki~g settlement. E. Resources and Money. These cases are expensive in terms of both out-of-pocket expenses and the use of lawyer and staff time. A budget must be prepared which realistically reviews likely expenses and funding sources. The largest items on the expense side are probably experts and depositions. litigation. Both are virtual (See §UV, VII below.) necessities for jail The total amount for each varies considerably with the nature and scope of the litigation planned the size of the facilities, the number of issues involved, the numbers of defendants and persons to be deposed, degree of opposition, and the length of time over which the case is litigated. will be experience, an Particularly with respect to the experts there enormous variation and qualifications. ll7 / depending on Obviously, reputation, local experts will probably charge less in terms of fees than nationally-known experts and certainly travel expenses will be less. The only way you can really assess these costs is to identify individuals and 117/ In the mid-1970's, when experts were first introduced into jail and prison litigation, many experts would work virtually ~ bono, asking only reimbursement for expenses. Since then fees have gradually increased and within the last few years have increased dramatically. -51;- find out what they are charging. If possible, you should plan for two tours of the facility for each expert: help you prepare and a "brush-up" tour an early tour to just before the expert testifies .11BI Depositions litigation. (See are generally ~VII below.) used heavily in jail and prison One way to economize is to tape- record depositions and have them transcribed in your own offices (or not have them transcribed at all if you do not expect to use them in court). A stipulation by the parties or a motion is required. 1191 Expert fees and nn i'" ... 120 I arr-0 n_l!'!,~n_~ expenses can be reduced by seeking court You shculd be aware how~ver of the potential dangers associated with this technique, including losing control of selection of the expert and the ability to help structure the expert's report and testimony. The money inevitable question is to come from Currently it is our faced adequately by litigators to support impression that is this where the litigation. jail litigation is funded primarily by Legal Services organizations~ the private bar on llBI Settlement may cut down on your costs, but remember that you probably will need an expert tour and advice in the inevitable enforcement phase. See SX.B. below concerning enforcement. -1191 Rule 30 (b) (4), F.R.C.P. 1201 See Stickney v. List, 519 F.Supp. 617 (D. Nev. 19B1) 1 Lightfoot v. Walker, 4B6 F.Supp. 504, 506 (S.D. Ill. 19BO). 1211 The recent cut-back in funding for the Legal Services Corporation necessarily has diminished its ability to finance and provide staff. -57- an appointment basis, 122/ and other organizations such as the American Civil Liberties Union l23/(through its state affiliates and local chapters) or the Legal Defense Fund its local network of (through and with attorneys) ..ill! cooperating The availability of funds depends primarily on the financial support of these organizations and, in the case of appointed counsel, on the financial resources of the firms with whom they are associated. With the advent of the Civil Rights Attorney Fees Award Act of 1976,125/, reasonable prevailing attorney fees parties and in have 'i1983 their actions can obtain costs reimbursed. Because these fees and costs are contingent on success and the 122/ Title 28 U.S.C. §19l5(d) provides for the discretionary appointment of counsel upon a finding of indigency. There is no provision for the payment of counselor for litigation expenses, except that prepayment of fees and costs may be excused, and costs of preparing a record may be paid under some circumstances. 11l/ The National Jail Project, described above at note 1, is a special project of the ACLU Foundation. Presently it has no funds to underwrite litigation efforts . .illI The U.S. Department of Justice, Civil Rights Division through its Special Litigation Section, has in the past filed and prosecuted jail cases. Under the Civil Rights of Institutionalized Persons of 1980, 42 U.S.C. 5Sl9Q7 et seq., it is authorized to file such lawsuits or intervene in ongOing cases. Since the statute was passed, it has filed and intervened in none. 125/ 42 U.S.C. ~198B. -58- amount awarded and the date received are speculative, you really cannot budget for them. (See §XI below for a discussion of attorneys' fees.) Staffing for. of a Considering jail case is another factor to be planned the mUlti-issue and factual nature of these cases, as well as the emergencies that tend to crop up, it is advisable always to have two attorneys assiqned to the case or at the very least, one full-time attorney and a back-up lawyer to assist. Para-professionals, extremely useful especially phases of the case. legal in the assistants or discovery and interns are enforcement Law students can be helpful but remember that they may only be available during school terms and usually have other obligations as well. Certainly, br ight and resourceful non-legal volunteers can be useful as well. It jail is not our purpose cases. We intend to discourage attorneys the opposite. However, conditions case cannot be supported properly, brought at all. from taking if a jail it should not be In a case where resources are unavailable but the situation cries out for action, counsel may wish to look for a particularly dramatic damage case, or bring an injunctive action limited to one or two life- or health-threatening issues, thus avoiding the danger of a bad decision as to other which might preclude future, better-funded litigation. issues -59- SECTION IV. EXPERTS. A jail conditions case cannot be litigated without the use of experts. Experts can profitably be used at every stage of the lawsuit, beginning before the complaint is filed. type of experts required will depend on the The number and issues raised and perhaps on the seriousness of defendants' opposition. A. Types of Experts. Expert "scientific, assist the witnesses may technical, trier of testify or fact as other to to specialized understand determine a fact in issue .••• • 126 / any the subject where knowledge will evidence or to Most expert testimony used in jail cases falls into the following broad areas: 1. workinq in, Corrections and security. supervising, or studying Persons with experience jails and prisons often testify concerning the necessity, adea:uacy, or consequences jail conditions, alternative of jail officials' practices, the availability of measures, the causes of particular problems, etc. 127 / 11i/ Rule 702, Federal Rules of Evidence (F.R.E.). 127/ See, e.g., Dawson v. Kendrick, 527 F.Supp. 1252, 1269-70 (S.D. W.Va. 1981): Parnell v. Waldrep, 511 F.Supp. 764, 767, 771 (W.O. N.C. 1981): Ramos v. Lamm, 485 F.Supp. 122, 139 (D. Colo. 1979), aff'd in-part, ~. in part, <;39 F.2d 559 (10th Cir. 1980), cert. ~., 450 U.S. 1041 (1981). -60- 2. Physicians, medical administrators, Med ical care. and nurses often testify as to the adequacy either of the system for medical care delivery or of the treatment provided to particular prisoners.~ Mental health. 3. Psychiatrists, psychologists, and mental health admin istrators may offer testimony concerning the system for providing mental health care, or the care provided to particular prisoners. 129 / Mental health professionals may also offer psychological opinions as to the consequences of other conditions and practices or of the totality of conditions in the institution. 130 / Environmental 4. sanitarians, plumbers, health . dietitians, Public health exterminators, e~perts, and other technical specialists may testify regarding the cleanliness of a jail, its food services, pest control, heating, ventilation, plumbing and water supply, etc. 131/ 11]/ See, e.g., Inmates of Allegheny county Jail v. Pierce, 612 F.2d 754, 760 (3d Cic. 1979) 1 Canterino v. Wilson, 546 F.Supp. 174, 200 (W.o. Ky. 1982) 1 Palmigiano v. Garrahv, 443 F.Supp. 956, 973-76 (D. R.I. 1977). 129/ See, e.g., Inmates of Allegheny Co. Jail v. Pierce, note 128 above, at 761, ~ remand 487 F.Supp. 638 (W.D. Pa. 1980) 1 canterino v. Wilson, note 128 above, at 200-01. 11Q/ See, e.g. Canterino v. Wilson, note 128 above, at 182-83, 186-881 OWens-El v. Robinson, 442 F.Supp. 1368, 1380 (W.o. Pa. 1976), aff'd, Inmates of AIle henv Ctv. Jail v. Pierce, note 128 above 1 FraZIer v. War F.Supp. ~ ~.D. N.Y. 1977). 131/ Canterino v. wilson, note 128 above, at 1981 Dawson v. Kendrick, note 127 above, at 1275; Palmigiano v. Garrahy, note 128 above, at 961-64, 968; Owens-El v. Robinson, note 128 above, at 1376. -61- 5. Structure. Architects and engineers may testify as to the physical condition of a jail, whether it can continue to be used safely for confinement purposes, and what repairs or renovations are necessary to restore it to usable condition.111I B. Uses of Experts. Legal Limi ta tions • 1. Counsel should understand the courts' reservations about the use of experts in prison and jail The Supreme Court has stated that litigation. "assum[e1 that conditions opinions suffice to of experts establish as to it is error to desirable contemporary prison standards of decency"; that expert opinions "may be helpful and relevant with respect to some questions, but they simply do not establish the constitutional minima; rather they establish goals recommended by the organization opinions of [sic] experts in cannot question'"; weigh contemporary standards of decency as a given sanction. ,"133/ as and that heavily in "generalized determining the public attitude toward These comments do not reject reliance on expert testimony;134/ rather, they appear to reflect the Court's view that expert testimony should remain confined to its 1l1I See, e.g., Ramos v. Lamm, note 127 above, at 136; Pa1migiano v. Garrahy, note 128 above, at 977. 1111 Rhodes v. Chapman, 452 U.S. 337, 348 n.13, (1981), quoting Bell v. Wolfish, 441 U.S. 520, 543-44 n.27 (1979) and Gregg II. Georgia, 428 U.S. 153, 173. (1976) (joint opinion) . 11i/ See Rhodes v. Chapman, note 133 above, at 363 (Brennan, J., concurring) (" •.. in seeking relevant information about conditions in a prison, the court must be open to evidence and assistance from many sources, including expert testimony and studies on the effect of particular conditions on prisoners"). -62- traditional role of assistance in the fact-finding process rather than become a source of ultimate policy judgements which the courts are not authorized to make. For this testimony reason, very ultimate counsel carefully conclusions to or to should factual be careful arguments professional to tie rather standards expert than as desirability or acceptability of a practice or condition. to to the Thus, if counsel is using expert testimony to sugport a demand for a higher staff/inmate ratio, it is not enough that a professional consensus or the standards of a particular organization require ratio~ the higher the expert must explain that the reason for the requirement is that a lower ratio presents risks of inadequate supervision resulting in pervasive inmate-on-inmate violence and inadequate attempts, response to fires, and other dangers medical emergencies, to health and safety. It suicide is this last conclusion that gives the expert opinion some weight in a constitutional case. 135 / medical care, Expert testimony concerning appropriate environmental conditions, or any other aspect of confinement must ultimately connect with some factual assertion about conditions in the jail that arguably states a violation of law. 2. What To Do .with Your Expert. Experts can be of great assistance before the complaint is filed or even drafted. They ll2I can review documentary materials or inmate complaints, See Ruiz v. Estelle, 679 F. 1115, 1140-41 (5th Cir. 1982) ~ Ramos v. Lamm, 639 F.2d 559, 572-74 (lOth Cir. 1980), cert. den., 101 S.Ct. 1759 (1981) 1 Dawson v. Kendrick, 527 F.Supp. 1252, 1265 n.7, 1268-70, 1290-91 (S.D. W.Va. 1981) (jail) 1 Palmigiano v. Garrahy, 443 F.Supp. 956, 980 (D. R.I. 1977). -63- advise counsel of the factual merits of various issues, and in some cases identify some cases, issues previously unknown where the impending lawsuit to counsel. In is no secret or there seems to be no reason to keep i t a secret, you may be able to arrange a tour with your expert based on the representation that a pre-filing view may narrow the issues and thus save both sides time and money. after with the tour an eye You can also offer to meet with the defendants and discuss deficiencies toward avoiding shortly after the complaint. will get your and possible litigation or filing remedies a settlement You should. make it clear that you tour eventually in discovery so that there is no advantage to defendants in refusing your pre-filing request. Experts can be of great assistance in helping you formulate discovery requests. A medical administrator, for example, can identify types of records or logs which will reveal deficiencies in access to medical care (or whose nonexistence is itself a deficiency). Experts can also review discovery you have already obtained tell you what, and if anything, it proves, and what additional information you must pursue to complete the picture. Expert testimony may also be required in interpreting discovery materials such as medical records. Expert testimony may take various forms. The distinguishing feature of expert testimony may give an opinion.11i! 11i! Rule 702, F.R.E. is that an expert, once qualified, The Federal Rules of Evidence have -64- substantially relaxed former rules or customs requir ing the use of hypothetical questions and the introduction into evidence of the expert's opinion. 137 / all bases for expert testimony is therefore judgement rather than rules. The precise form of largely a matter of tactical Sometimes the traditional style of hypothetical questions has great rhetorical or summarizing value: in other circumstances, it may be cumbersome and confusing. Experts may assist in suggesting or formulating remedies for challenged conditions. This may be appropr iate either judgement when ·the. parties are settling an order at the liability stage, availability of alternatives may influence the constitutes where court an the in determining whether -exaggerate.d response- to or after existing practice security or other concerns J1!I Finally, experts may assist in settlement, either by advising counselor negotiations. in some case · by actually taking part in the A jail administrator may be more willing to listen to a professional colleague than to a lawyer with no correctional experience. 137/ Rules 703, 705" F.R.E. See also Barefoot v. Estelle, U.S. ___, 103 S.Ct. 3383, 3399-40 (1983). 138/ Bell w. Wolfish, 441 U.S. 520, 54B (1979), quoting Bell v. Procunier, 417 U.S. B17, B27 (1974). See also Rutherford v. Pitchess, 710 F.2d 572, 575-76, 577 (9th Cir. 1983), cert. grant. ~.n!2.!!!.. Block v. Rutherford, 104 S.Ct. 390 (1983). -65- 3. to take The Expert Tour. the expert on a In most cases it is indispensable tour of the facility.11i/ below for additional discussion of tours.) (See ~VII In matters pertaining to physical structure and conditions, there is no substitute for a view of the premises; even as to matters like medical care delivery and recreation and visiting procedures, a "walk through" of the process understanding. is talking is invaluable to the expert's (and counsel's) Moreover, a witness who has seen what he or she about will carry far more weight with the trier of fact. An effective tour requires preparation. You should find out from the expert what he or she needs to see and make sure that the tour includes those things.liQ/ If the expert has testified or has made reports in prior cases, you should read these to help you understand what the expert will be looking for. You must accompany the expert on the tour. You will need to take notes of the expert's comments and of information elicited 1121 Exceptions may occur in cases where the expert is asked to testify on an extremely narrow point, such as the interpretation of a particular prisoner's medical records or the psychological impact of strip searches. liQ/ The best way to do this is to spell out the scope of the tour in a written notice. See Rule 34, F.R.C.P. The notice should specify the purpose of the tour, the areas of the jail to be viewed, the approximate length of the tour, the names of inmates and staff, if known, that the expert may wish to speak with at length, the type of records that the expert may wish to review, and the names and titles of persons who will accompany the expert on the tour. -66- by the expert from staff and inmates. 141 / You should also note your own observations and communications with inmates and staff. After the tour, you should debrief your expert. go through have. your notes and You should have relevant conditions, clear up any factual the expert give you their compatibility You should questions you an opinion of the with professional standards, and the possible effect on prisoners if the conditions are not remedied. You should also discuss the remedies necessary to bring the facility to an acceptable standard and, if you know of the defenses that will be raised, ask for comments on them. You should not A report. wait for post-tour the expert discussion to with send the you expert a written may help structure any wr i tten report so it will be more useful to you. In some cases (e.g., where you do not find the expert's opinion helpful), you altogether. may (See wish §VII to dispense below with concerning the written report discoverability of experts' reports and opinions.) C. Finding and Selecting Experts. Before seeking an expert, you must make at least a preliminary identification of the issues in the lawsuit for which 141/ It is accepted in institutional litigation that experts touring the premises must have substantial freedom to question staff and inmates. New York State Association for Retarded Children v. Carey, 706 F.2d 956, 960-61 (2d Cir. 1983), cert. den. 104 S.Ct. 277 (1983). Testimony based on such questioning is discussed in Jones v. Diamond, 594 F.2d 997 (5th Cir. 1979): Garrity v. Thomson, 81 F.R.D. 633 (D. N.H. 1979): Lightfoot v. Walker, 486 F.SUpp. 504, 507 (S.D. Ill. 1980): Battle v. Anderson, 447 F.Supp. 516, 524 (E.D. Okla. 1977). -67- expert will test imony or probably be adv ice wi 11 be necessary. subject to revision as Th is the judgement litigation progresses. The next step is can to obtain This information be both legal.11Y and professional, the names of possible ex\?erts. obtained from national organizations, attorneys who have previously litigated jailor prison cases, and judicial opinions recounting relevant testimony. For technical subjects like fire safety, sanitation, pest control, etc., you may be able to obtain from state or local regulatory agencies the names of retired or other former employees with expertise. subject areas which are Academics may also be useful in highly technical (e.g. , noise measurement) or in which they have actually conducted research in prison environments (e.g., the causes of violence or the effects of overcrowding). Whenever you learn of a possible expert, you should seek whatever documentary material is available -- resume, reports, prior testimony, publications -- to determine whether the person in question has the background and approach needed in your case. If the expert has testified before, you should find out from the attorneys involved what that person was like to work with, what his or her presence on the witness stand was like, how the expert reacts to questioning and cross-examination, and what 1i1/ E.g., the National Jail Project of the American Civil Liberties Union, see note 1 above, maintains lists of such experts with their credentials, prior depositions or testimony, publications and lawyers who have used their services. The National Coalition on Jail Reform, 1828 L St., N.W., Suite 1200, Washington, D.C. 20036, also maintains such lists. -68- other strengths and weaknesses the expert may have. There are many considerations that may influence the selection of an expert witness. Expense is obviously important. So is national reputation, but it may cut different ways; a nationally known expert may have less time and attention to give to your case and may appear poorly informed as to the facts of the particular jail. You should consider whether the judge you are before is more likely to be impressed by local or by out-oftown witnesses. connections You should consider whether a local witness has with the defendants or with the local political structure that will cause him or her to be reluctant to criticize or to weigh local fiscal concerns too heavily. You should try to engineer a precise fit between the qualifications of the expert and the testimony that is to be given. For example, a former line correctional officer with some administrative experience may be more convincing on the subject of str ip search procedures or the proper limits on the use of force than a former Commissioner of Corrections facility. with no experience actually working in a with respect to medical, dental and mental health care and food services, you should understand that their organization and delivery in prisons and jails is by now a separate field of specialization, and you should seek experts with some corrections background to testify as to narrower purposes, however defects in a jail's system. For analysis of particular individuals' medical records, say, or the nutritional adequacy of menus or the cleanliness of the kitchen -- a local expert with prison experience may be satisfactory (and cheaper). no jailor Sometimes -69- the most effective approach will be to use a combination of experts -- e.g., a prison health administrator to explain why a jail's medical system is show care that inadequate. the actual inadequate, delivered and a local physician to to particular inmates is -70- SECTION v. DRAF~ING THE COMPLAINT. Federal courts adhere to the philosophy of "notice pleading" under which the primary purpose of the complaint is to provide notice of the factual basis of the claim without regard to technical pleading rules.1i1I A federal complaint should also contain statement of the grounds upon which the "a short and plain court's jurisdiction depends,·144/ which will include 28 U.S.C. §§1331(a) and 1343(3) in almost all cases, plus the court's pendent jurisdiction where state law claims are raised. (See SII.A.2. above concerning pendent jurisdiction.) The complaint should list and identify the parties both in the caption and in the body. should spell out the whether a party In the body of , the complaint, you relationships between the parties, noting is an agent of employee of another party of a federal, state or local government agency. Plaintiffs should be identified as pre-trial detainees or as convicted misdemeanants or felons. In a §1983 action you must allege that the defendants act or acted ·under color of state law".ill! This is rarely a serious issue in jail cases, and it is sufficient to state each 1i1I Rule 8(e) (1), F.R.C.P. This pleading philosophy is increasingly prevalent in state courts as well. Be sure you know the difference, if any, between federal and state pleading requirements before you file. The National Jail Project will provide samples of acceptable complaints in jail cases. 1ii/ Rule 8(a), F.R.C.P. ill! Monroe v. Paoe, 363 u.S. 167, 184 (1961). -71- defendant's official position and allege that all of them act under color of state law. The caption should also note that the defendants are capacities." concepts.) sued (See in their ~II.C.3. above "individual for a and official discussion of these Individuals whose identity you have not been able to determine may be named as "John Doe" defendants and their names substituted when they are learned during discovery.1iiI If the case is to be brought as a class action, the complaint should allege the facts required to support class certification (see ~VI.B. below) "Class Action" on and the complaint should probably be labelled the front page. Many distr ict courts have specific requirements in this regard in their local rules. For purposes of clarity, it is useful to organize the factual allegations into "claims· containing all allegations related to a particular subject (e.g., medical care, physical condition of the premises, etc). For each claim, there should be one or more summary paragraphs stating what provision of law is violated by the facts alleged in the claim: for example, "The actions of the defendants described in paragraphs 3-24 denied the plaintiff the U.S. riue process of law. paragraphs can appear collected after all at the Const., the end cIa ims. Amend. of There XIV." each These summary claim should be or a can be separate summary paragraph for each legal theory, including pendent state 146/ See McCurry v. Allen, 688 F.2d 581, 584-85 (8th Cir. 1982); Wood v. Woracheck, 618 F.2d 1225, 1229-30 (7th Cir. 1980); Gillesoie v. Civiletti, 629 F.2d 637 (9th Cir. 1980); Davis v. Krauss, 93 F.R.D. 580 (E.D. N.Y 1982); Campbell v. Bergeron, 486 F.Supp. 1246 (M.D. La. 1980). -72- law theories, on which counsel plans to rely. can be immensely gravamen of a helpful to mUlti-issue valuable to counsel the court lawsuit; it This organization in understanding can also be the extremely in clarifying positions which may not have been fully thought through. A federal complaint should also contain "a judgment for the relief" which counsel seeks.147/ sought in the alternative. It is not demand for Relief may be necessary to be very specific as to the relief sought: a request that the court "order the defendants plaintiffs· to provide adequate (or adequate medical care or humane recreation, to the living accommodations, etc.) will suffice.l!!I It is rare complaint. understanding, for a Changes jail case in generally the amended once as a facts, require supplemental comp1a int. matter to the be or litigated changes filing In federal court, of of on a in counsel's an single amended or a complaint can be right before an answer is filed: subsequent amendments must be sought by motion and are required to be "freely granted. n149 / When counsel comes into a case that 147/ Rule B(a), F.R.C.P. 148/ If you are too specific in the complaint about the nature of the relief sought, you may get bogged down in a dispute about the propriety of particular relief at an inappropriately early stage, e.g., on a motion to dismiss before there is time for substantial discovery. Moreover, remedial choices should be made only after you are sure what the problems are and understand the physical and administrative structures into which they must fit. In the course of a mU1ti-isssue jail lawsuit, your views as to remedies may change more than once. li2I Foman v. Davis, 371 U.S. 178, IB2-83 (1962). F.R.C.P. See Rule 15, -73- has been brought E!2. the compla int; necessary. ~, usually, it is almost always necessary to amend some addition of parties defendant is -74- SECTION VI. Class certification is CLASS ACTIONS far more important cases than in other civil rights litigation. in jails in jail reform Because confinement is normally short and often unpredictable in length, without class certification most injunctive cases will be mooted Also, before decision. class certification notice procedures are vital to counsel's ability to maintain contact with a highturnover jail population. lawsui t may depend on Thus, the the ultimate successful success of pursuit of the class certification. A. Preparation for Filing. Generally, plaintiffs class at detention to in a the putative time cases, avoid the this mootness, the named class action must class is pia inti ff "r be members of the certified.J.2Q! requirement is In relaxed pre-tr ial to permit certification if the named plaintiffs were members of the class when the complaint was filed .151/ This places the • burden on plaintiffs' counsel at a minimum to get a complaint drafted and filed while the named plaintiffs are still in the jail. Sometimes the best way to accomplish this is to obtain a large number of named plaintiffs so the release of a few will not 150/ Sosna v. Iowa, 419 U.S. 393, 402 (1975). 151/ Gerstein v. PU~h, 420 U.S. 103, 110 n.ll (1975) 1 Ahrens v. Thomas, 570 F.2 286, 288 (8th Cir. 1978) 1 Inmates of San Diego county Jail v. Duffy, 528 F.2d 954, 956 (9th Cir. 1975). But see Inmates of Lincoln Intake and Detention Facility v. Boosalis, 705 F.2d 1021 (8th eir. 1983) (burden on plaintiffs to prove that case could not reasonably have been certified before mootness of individual claims). -75- matter. and be Alternatively, counsel can file with a few plaintiffs prepared necessary. to file motions to intervene new ones as Counsel should not rely on sentence lengths or court schedules that seem to suggest that particular inmates will have lonl) stays. Jail officials may have named plaintiffs released or transferred for the precise purpose of mooting the case. COunsel should also be prepared to move for class certification as quickly as is consistent with adequate factual preparation..illl the The class alleqations in the complaint and in certification motion should be as factually specific as , The burden is on the party seeking certification to 153/ show' that the requi.rements for certification have been met. In some cases,. discovery will be required to establish the facts; possible. if not, the certification motion should be filed with or immediately after filing the complaint. courts usually determine class motions on papers, but some have a preference for a hearing, and if there are factual disputes counsel should probably seek a hearinq 154/ 152/ RUle 23(c). F.R.C.P., prescribes that the class certification decision shall be made -[a]a soon as practicable aiter the commencement of an action •••• • Some district courts have promulgated fixed time limits for class certification motions in their local rules. untimeliness of a class certification motion is not by itself grounds for refusing certification. Pabon v. McIntosh, 546 F.Supp. 1328, 1331-32 (E.D. Pa. 1982)~ see also Cruz v. Hauck, 627 F.2d 710,716 (5th Cir. 1980). . 153/ Zeidman v. J. Ra ( th C r. 1981)~ B McDermott & Co. Inc., 651 F.2d 1030, 1038 Moore s Federal Practice , 23.020-2. 154/ The trial court's failure to hold a hearing in the face of an inadequate record to determine whether the class should be certified may be an abuse of discretion. Jonesv. Diamond, 519 F.2d 1090. 1098 (5th Cir. 1975)~ Mead v. Parker, 464 F.2d 1108,1112 (9th Cir. 1972). . -76- B. Requirements for Certification. There are five requirements for certification as a federal class action seeking injunctive or declaratory relief, set out in Rules 23(a) and (b) (2), P.R.C.p.·155/ (1) The class must be so numerous that joinder of all members is impracticable; (2) There must be questions of law or fact common to the class; (3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (4) the representative parties must fairly and adequately protect the interests of the class; 155/ Declaratory and injunctive jail reform" cases may also satisfy the requirements of Rule 23(b) (1), which refers to cases in which the prosecution of individual lawsuits would risk (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests •••• However, since Rule 23(b) (2) is most clearly applicable to the cases under discussion, and there are no practical advantages to certification under Rule 23(b) (1), we will not discuss the latter rule. Class damage claims must be certified under the more stringent standard of Rule 23(b) (3), which requires that common questions of law or fact ·predominate- over individual questions and that the court find a class action superior to other available methods of adjudication. (See SII.B.2. below for further comment on class damage actions.) -77- (5) the party opposing the class must have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. These five requirements will be discussed in turn. 1. Numerosity and Impracticability of Joinder. Often there will be public documents available showing average daily population and highest daily population totals. population is not known, a If the exact class may be certified based on a reasonable approximation supported by facts .156/ Thus, if you know the number of cells in the jail and that most them hold ·two inmates, you can provide such an approximation. In a small jail, an affidavit from one or more of the inmates may suffice. If necesso:ry, in defendants can be asked this information interrogatories or a request for admissions can be filed. As a practical matter, jails with average daily populations of 40 or more will generally meet the numerosity requirement 156/ Sims v. Parke Davis & Co., 334 F.Sup. 774 (E.D. Mich. 1971), aff'd., 453 F.2d 1259 (6th Cir. 1971), cert. den., 405 U.S. 978 (1972). -78- without serious question~ Even in smaller jails, class certification should be pursued because of mootness problems in the absence of a class action. size is but one impracticable. class is lawsuit. time, the factor in The argument should be made that determining whether joinder is In jail litigation, by its nature, the putative fluid, rather than fixed at the beginning of the While there may be very few class members at any given changing impracticable ..!2!1 membership of It helpful may be the class in makes this joinder respect to determine or estimat-e for the court the total number of inmates who pass through the jail in the course ot a year. 157/ See Nadeau v. He1gemoe, . 423 P.Supp. 1250, 1254 (D. N.B. 1976) (class of 35 prisoners); Cudnik v. Kreiger, 392 P.Supp. 305, 310 (N.D. Ohio 1974) (class of 35 jail inmates): United States ex reI. Walker v. Mancusi, 338 P.SuPp. 311, 316 (W.O. N.Y 1971), aff'd, 467 F.2d 51 (2dCir. 1972) (class of 38 prisoners), Adder1y v. Wainwright,- 46 P.R.D. 97, 98 (M.D •. Pla. 1968) (class of 50 prisoners). See also Ballard v. Blue Shield of Southern West Virginia, Inc ... 543 P.2d 1075, 1080 (4th Cir. 1976), cert. den., 430 U.S. 922 (1977) (class of 45): Cortriaht v. Resor~25 F.Supp. 797, 807 (E.D. N.Y. 1971), rev' ..2!!. other grds., 447 P.2d 245 (2d Cir. 1971) (class of 56). 158/ Por representative cases discussing the appropriateness of certifying a fluctuating class in the context of litigation against institutions, see Green v. Johnson, 513 F.Supp. 965 (D.C. Mass. 1981); Glover v. Johnson, 85 F.R.D. 1 (E.D. Mich. 1977); Jones v. wittenberq, 323 F.Supp. 93 (N.D. Ohio 1971) aff'd ~..!!2!!!.. Jones v. Metzqer, 456 F.2d 1654 (6th Cir. 1974); Santiago v. City of Philadelphia, 72 F.R.D. 619 (E.D. Pa. 1976). See also Leeds v. Watson, 630 F.2d 674 (9th Cir. 1980) (jail class is certified without discussion in cases involving an injunction that limited population to 14 with certain exceptions): Nicholson v. Choctaw Co., Ala., 498 F.Supp. 295 (S.D. Ala. 1980) (class certified without discussion of numerosity where current daily population was approximately 11 or 12). -79- The fact that many class members are poorly educated or have little access to attorneys -- which is certainly true in most jail cases -- also makes joinder of individuals impracticable and supports class certification. l59 / Commonality. 2. Ord inar ily , in a challenge to the totality of conditions at a jail, or in a challenge to one or more policies affecting all inmates, there is little difficulty demonstrating the questions.J!Q/ practices existence of common factual or legal The latter may be written policies or unwritten regarding exercise, disciplinary procedures, or visiting, or pervasive conditions such as physical dilapidation or unsanitary food preparation. If immediate certification is sought, the named plaintiffs may file affidavits indicating that they are in a position to observe the situations of other inmates, and these inmates suffer from the same conditions that the named plaintiffs raise in the lawsuit. Alternatively, the uniformity of policies or condi t~·)ns can be established through discovery. courts have generally interpreted the commonality requirement permissively and have emphasized that not all questions of law or 159/ united States ex reI. Sero (2d eIr. 1974). Y. Preiser, 506 F.2d 1115, 1126 160/ While virtually all major prison and jail cases have been litigated as class actions, frequently the commonality requirement has provoked little discussion. For prison and jail eases explicitly discussing it, see Martarella v. Kelley, 349 P.SupP. 575 (S.D. N.Y. 1972)1 Holland v. Steele, 92 F.R.D. 58 (N.D. Ga. 1981) 1 Glover v. Johnson, 85 F.R.D. 1 (E.D. Mich. 1977) 1 Inmates of Lycoming County Prison v. Strode, 79 P.R.D. 228 (M.D. Pa. 1978). -80- fact raised in the case must be conunon .1611 If one or more common issues exist, other factual variations among individuals will not defeat class certification. 162 / applicable legal standards for Even a difference in example, between pre-trial detainees and sentenced inmates -- goes only to the relief that might be granted to different subclasses and not to the commonality of factual issues at the point of certification. 163 / Two major feasibility defendants of in cases point certifying in opposite statewide directions classes jail conditions cases.llY on the of plaintiffs or Certification of a state-wide class of jail prisoners has been granted in cases 161/ Stewart v. Winter, 669 F.2d 328,335 (5th Cir. 1982): MCCoy v. Ithaca Housing Authority, 559 F.Supp. 1351, 1355 (N.D. N.Y. 1983): In re Federal Skywalk Cases, 93 F.R.D. 415, 421 (w.O. Mo. 1982). See Wright & Miller, 7 Federal Practice and Procedure §1763 (1972). 162/ Like v. Carter, 448 F.2d 798, 802 (8th Cir. 1971): Escalera v. New York City Housing Authority, 425 F.2d 853, 867 (2d cir. 1970). 163/ 8 (N.D. Ga. 1981). ~ See Holland v. Steele, 92 F.R.D. 5 164/ Compare Marcera v. Chinlund, 565 F.2d 253 (2d Cir. 1977), subsequent opinion, 595 F.2d 1231, 1237-1240 (2d Cir. 1979), vac. sub nom. Lombard v. Marcera, 442 U.S. 915, (1979), opTnion-ontremand, 91 F.R.D. 579 (W.o. N.Y. 1981), with Stewart v. Winter, 669 F.2d 329 (5th Cir. 1982). -81- where the plaintiffs charged that the responsible state agency had failed perform its supervising local jails. 165 / 3. to Typicality. commonality, and it requirement simply certification. 166 / affidavits describing statu tor ily mandated role in .., Typicality is hard to distinguish from has been duplicates Again, their the argued that other named particular the typicality requirements plaintiffs situation, may such for file as a denial of medical treatment, and indicate that they have observed other inmates with similar complaints regarding the conditions or practices. The requirements of Rule 23 (a) (3) are met if the claims of the class representatives are based on the same legal or remedial theory as the claims of the class members~ This is obviously the case when institutional conditions are challenged. 1!11 Arias v. wainwright, TCA 79-792 (N.D. Fl. 3/10/81) (certification of class which includes all persons who now or in the future will be confined in Florida jails); Bush v. Viterna, tA-80-CA-411 (W.O. Tex. 12/1/82) (class certification order similar to Arias). See also, note 109 above for examples of such statutorily mandated state supervision of jails. 166/ 3B Moore's Federal Practice, 23.06-2 (1982). 1!lI Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (lOth Cir. 1976); 7 wright' Miller, Federal Practice and Procedure H764 (1972). -82- Accordingly, differences in the factual details of the situations of the named plaintiffs and other members of the class will not defeat class status. 1681 Sometimes certification is opposed on the ground that the named representatives have not personally experienced the harm that the litigation challenges. Where pervasive conditions are alleged, but the named plaintiffs have not yet suffered concrete injury from them, the Fourth C'ircui t has treated the question as one of standing: however, its reasoning could equally support a finding of typicality of the elaims: It is true that plaintiff has not alleged that brutality or other aisconduct has been practiced on him, but he has, in effect, alleged that he is part of an institutional population wh i ch must live from day to day under the conatant threat of brutal! ty and misconduct. It would seem, .tberefore, that plaintiff is -injured,- is a .amber of a class that is -injured- and is thus competent to maintain a class action for bimself and others similarly si tuated .169 1 The same rule should apply to issues such as inadequate medical care when plaintiffs allege that systemic inadequacies pose a potential threat to every member of the class~ 1681 See Newberg, Class Actions SlllSc (1977). See also Stewart v. winter, 669 F.2d 329, 333-34 (5th Cir. 1982) (differences in length of stay should not defeat certification). 16g1 Hayes v. Secretary of Dept. of Public Safety, 455 F.2d 798, 801 (4th Cir. 1972). 1701 See, e.g., Bishop v. Stoneman, 508 F.2d 1224 (2d Cir. 1974): Smith v. Sullivan, 553 F.2d 373 (5th Cir. 1977): . Alle~heny County Jail Inmates v. Pierce, 612 F.2d 754 (3d Cir. 1 79) : Martino v. Carey, 563 F.Supp. 984 (D. Ore. 1983). -83- A slightly different problem is presented when the jail contains separate populations whose conditions of confinement are not identical or identifiable subgroups who should be separated or who have special needs. If the jail contains detainees and sentenced inmates, males and females, juveniles and adults, you should attempt to have named representatives from each group, whether your claim is that their separate treatment violates the law or that they must be segregated within the jail. If you allege a lack of specialized treatment for particular types of inmates -- e.g., the mentally ill, or those in need of protective custody -- representatives of these. groups should be included among the named plaintiffs if possible. be practicable to join individuals In some cases it may not in all these categories initially: the alternative is ' to add them later by a motion to interveDe..!2!l 4. plaintiffs' Adequate Representation. representation of determined by two factors: qualified, proposed experienced, litigation, and the The adequacy of the named interests of the class is (1) the plaintiffs' attorneys must be and (2) generally the able plaintiff to conduct the must not have interests antagonistic to those of unnamed class members. 172 / Because the named plaintiffs will usually have been released from jail long before trial, it is beside the point to be greatly 171/ See Rule 24, F.R.C.P. 172/ wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir. 1975), cited with approval in 3B Moore's Federal Practice '23.07 [11 (1982) • -84- concerned with how vigorously the named plaintiffs, as distinct from their lawyers, will prosecute the case. Indeed, in one pre- tr ial detention case, the Supreme COurt acknowledged that the named plaintiffs' role was largely formal in nature I the COurt upheld class certification in the face of the probable mootness of the named plaintiffs' claims and pointed to the institutional interest of pursuing the should the plaintiffs' claims of include in the counsel, class..!W a public defender, Nonetheless, in counsel the certification motion affidavits by the named parties attesting the lack of any interest antagonistic to that of other class Since members. imprpvements in jail conditions wlll hardly be barmful to ja11 inmates, this wlll rarely be a controversial point. li4 / 'l'he real focus of the plaintiffs.' requirement should be plaintiffs' claias. on the adequacy Because of submlssion as to this of counsel to press counsel's enhanced responsibilities in jail litigation for substantive decisions as well as technical expertise, it is particularly appropriate to inquire into the competence, experience, vigor, and integrity of 173/ Gerstein v. Pugh, 420 U.S. 103, 111, n.ll (1975). 174/ Although a number of court decisions speak of a requirement that the interests of the named plaintiffs be coextensive with those of other members of the class, this is essentially but a restatement of the rule that the claims of the representative party must be typical, and·the requirement of adequate representation should not be read to impose a higher standard than that imposed under the typicality requirement. See 3B Moore's Pederal Practice' 23.07[21 (1982); 7 Wright' Miller, Pederal Practice and Procedure 51769 (1972). -85- counsel. Although courts tend to review counsel's competence in a relatively ~ forma manner, counsel should place in the record relevant information regarding experience in federal litigation, in particular civil rights litigation, and in class action and other complex litigation. This can be done by affidavit. The second aspect of the adequacy of counsel is the adequacy of the provisions plaintiffs. In for the costs jail litigation, of litigation made as a practical matter, by this generally means the ability of counsel, or an organization, to advance the costs of litigation. submissions to th~ Accordingly, the plaintiffs' court should allow the court to conclude that reasonable provision for the anticipated costs of the action has been made 115/ 5. Injunctiv~ Relief. The last requirement for a Rule 23 (b) (2) class action should be satisfied by a prayer for final declaratory or injunctive relief in the complaint. Since this is a legal rather than factual requirement, no factual submission as to this criterion should be necessary. The fact that individual damage claims are attached to an action will generally not defeat certification under Rule 23(b) (2) so long as the action remains primarily directed toward J11/ Plaintiffs should, however, resist free-wheeling, harassing discovery into the financial resources of the lawyers or their clients. See cases cited in 3B Moore's Federal Practice ,23.07[1-.1], n.10 (1982). -86- injunctive relief-1l!l whole, certification 23(b) (3). If damages are sought for the class as a should probably be sought under Rule (See SII.B.2. above for additional discussion of class damages.) C. EVen The "Lack of Necessity· Argument. when the reqUirements of Rule 23 are met, class certification is sometimes opposed and denied on the ground that it is "unnecessary" because "it may be assumed that the defendants, as government officials, will respect the judge.ent of the court and the invalidated policy will not be applied to all others similarly situatSd as the plaintiff."l771 ThiEr argu~nt is badly flawed as applied to jail conditions cases, whatever its merits in other contexts. The following points should be made in response to it. 1781 1761 See 3B Moore's Federal Practice ,23.40 (1982): 7A Wright & Miller, Pedera1 Practice and Procedure S1775 (1972). Some courts have certified a class under Rule 23(b) (2) even though some monetary relief is requestd if the primary relief sought is injunctive or declaratory, and the monetary relief is either incidental or equitable in nature. Marshall v. ~irkland, 602 P.2d 1282 (8th Cir. 1979): Elliot v • . Weinberger, 564 P.2d 1219 (9th Cir. 1977): La Re v. Chase Manhattan corp.,~31 F.Supp. 189 (S.D. N.Y. 1977). 1771 Ruiz v. Blum, 549 F.Supp. 871, 878 (S.D. N.Y. 1982). Accord, Galvan v. Levine, 490 P.2d 1255 (2d Cir. 1972), cert.den., 417 u.s. 936 · (1974). 1781 Some federal courts have simply rejected the notion that lack of "need" can justify the denial of class certification when the requirements of Rule 23 are met. Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978), cert.~., 447 U.S. 905 (1980), Geraghty V. United States Parole Commlssion, 579 P.2d 238, 252 (3d cir. 1978), vac. and remanded on other grds., 445 U.S. 388 (1980): Johnsori1T; ~te of Missll!isippi, 78 P.R.D. 37 (N.D. Miss. 1977), remanded, 586 F.2d 387 (5th Cir. 1978): Kornbluh v. Stearns & Foster Co., 73 F.R.D. 307 (S.D. Oh. 1976). .