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Prisoner Education Guide

Anatomy of the Modern Prisoner's Rights Suit - A Practictioner's Guide, Pace Law Review, 2004

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24 Pace L. Rev. 691, *
Copyright (c) 2004 Pace Law Review
Pace Law Review
Spring, 2004
24 Pace L. Rev. 691
LENGTH: 13142 words
Successful Jury Trials on Behalf of Prisoner-Plaintiffs*
* The author wishes to thank Jennifer Branch of Laufman & Gerhardstein and Carrie Wood an
intern at the Prison Reform Advocacy Center for her assistance with the preparation of the text.
NAME: Alphonse A. Gerhardstein+
+ Alphonse Gerhardstein earned his B.A., at Beloit College; and J.D., at New York University
School of Law. For twenty-eight years Mr. Gerhardstein's practice has focused on civil rights,
including prisoner rights, police misconduct, discrimination and reproductive freedom. His
prison cases include many individual actions for injunctive relief and damages and a number of
significant class actions. He currently serves as one of the class counsel in a class action
challenging inadequate health care in Ohio prisons. Fussyl v. Wilkinson, No. C-1-03-704 (S.D.
Ohio filed Oct. 16, 2003). He also served as lead counsel for the inmates in a lawsuit that led to
the August, 2000, closing of the private prison in Youngstown, Ohio and established a settlement
fund of $ 2.2 million. He was lead counsel in In re S. Ohio Corr. Facility, 173 F.R.D. 205 (S.D.
Ohio 1997), a class action by the inmate victims of the 1993 Lucasville prison riot which
guaranteed single celling and created a $ 4.2 million settlement fund. Mr. Gerhardstein also
served as one of the class counsel for the seriously mentally ill inmates in Ohio. That case led to
expenditures of $ 65 million for reform of the prison mental health system. See Dunn v.
Voinovich, No. C1-93-0166 (S.D. Ohio 1995). Mr. Gerhardstein founded and serves as President
of the Board of the Prison Reform Advocacy Center (PRAC), a non-profit public interest legal
center promoting criminal justice reform, safe correctional settings, empowerment of women and
rehabilitation as an alternative to extended prison terms. He serves on the Editorial Board of the
Correctional Law Reporter and has contributed several articles to that journal on prisoner
litigation and law. Mr. Gerhardstein is a frequent speaker on civil rights and prison reform.
... In the past, the vast majority of prisoner litigation, including cases pursued by this author,
focused on injunctive relief to improve conditions of confinement and we therefore did bench
trials. ... " A prisoner cannot bring a claim for mental or emotional injury suffered while in prison
without first proving physical injury. ... A portion of the damage award must be used to pay the
prisoner-plaintiff's attorney fees. ... They offer the prisoner-plaintiff an opportunity to set out

facts which will prepare the jury to focus on the real issues of the case. ... If the law did not
permit discrimination against people based on whether they were G/L/B/T and you had to apply
that law, as a juror would that push you so far away from your own beliefs that you could not
follow the law? Q: Is this too much of a stretch for anyone else? [tn1,2]Transsexual Attorney:
You will learn that Jane Doe was born a biological male but had undergone a partial gender
transformation from male to female prior to her arrest. ... If the client is willing, non-economic
terms can be included in the goals the prisoner seeks to achieve through alternative dispute
resolution. ...
I. Introduction
This article is designed to serve as a practice guide for those representing prisoners in civil rights
jury trials. In the past, the vast majority of prisoner litigation, including cases pursued by this
author, focused on injunctive relief to improve conditions of confinement and we therefore did
bench trials. However, the 1996 Prison Litigation Reform Act (PLRA) has changed our focus.
As will be explained, the PLRA forces practitioners [*692] to sue for substantial damages.
This article should help a prisoner-plaintiff's attorneys do just that. From case selection through
verdict, I provide guidance on the practical and legal aspects of prisoner representation.


In the first part of this article we will address case and client selection. We will then work
backward from our desired verdict. Litigators must stay focused on the result that they want.
They must know what question the jury will be answering and go about advocating for the right
answer. Therefore, this article is largely organized backward from the verdict, similar to the
manner in which you would prepare for trial.
II. Trying Prisoner Cases to Win
A. Client Selection, Case Selection and Discovery
Jurors hate prisoners. Most are shocked to learn that prisoners have the right to sue corrections
officials and even more shocked to learn that they will be asked to award damages to those
prisoners. If the prisoner has a long record of assaults while in prison, has thrown human waste
at officers or has attempted escapes, and if counsel cannot keep these prior "bad acts" out of
evidence, this prisoner may be a challenging plaintiff in a civil rights case. But, even the most
obnoxious prisoner can be a winning plaintiff if the case is presented well and the need for
professionalism and law abiding conduct by the defendants is thoroughly established.
In order for the prisoner-plaintiff's attorney to accurately assess the prospects for success
thorough fact investigation and research should precede a formal retainer. A simple checklist of
prefiling activities that should be undertaken in most cases includes:
New Prisoner Case Checklist

[tdi1m,mp1,ql Name: Number: Current Prison: Former Prison: Date of event: Statute of Limit
To Do
1. Send the client a questionnaire. - - 2. Obtain a medical release from the client. - - 3. Request
medical records from the prison(s) and any outside hospital(s). - - 4. Obtain public portions of
the client and witness (discipline) file from the prison(s). - - 5. Interview the client by telephone,
for a brief assessment of the case. - - 6. Obtain all paperwork that the client has related to:
a.Grievances; b.Kites; c.Medical forms; and d.Computer information. - - 7. Determine if the
client has any outstanding restitution orders or unpaid filing fees etc., that might be deducted
from a verdict and advise the client. - - 8. Interview family members by telephone (someone
who knows the facts and can testify to humanize the client). - - 9. Interview any outside
witnesses by telephone. - - 10. Grievances: a.Was one filed? b.Appealed? c.Get the paper trail. - 11. Send an investigation only retainer. - - 12. Write to prisoner witnesses and notify them that
you will be interviewing them (if you request a written version of events will it be discoverable
or remain work product?). - - 13. Call the state patrol trooper (if the incident was investigated)
and chat. - - 14. Obtain the state patrol file (after the criminal investigation is over) and request
photos. - - 15. Request personnel records on all personnel involved in the incident. - - 16. Visit
and interview the client, decide whether to accept the case and sign a retainer. - - 17. If the
prisoner is deceased an estate may need to be opened; some probate courts will authorize
subpoenas for prisoner files and other records that could assist with an investigation of a
potential claim.

All issues arising under the PLRA must be identified and addressed before the case can move
forward. The PLRA is mainly codified at 42 U.S.C. 1997e and 28 U.S.C. 1915, but additional
requirements are codified at 18 U.S.C. 3626 and 28 [*694] U.S.C. 1914. The PLRA was
designed to reduce prisoner litigation and it has certainly been effective. Unfortunately, among
those cases dismissed under the PLRA many have been meritorious.


The requirement that a prisoner exhaust administrative remedies, under 1997e(a), has been the
most daunting for prisoner complaints since the passage of the PLRA. A prisoner must fully
exhaust all administrative remedies though the prison's grievance system before proceeding as a
plaintiff in a lawsuit. Typically, this requires securing a decision from the chief inspector or the
decision maker who hears the last administrative appeal.



If a prisoner has three or more prior lawsuits dismissed as "frivolous, malicious, or [for] failure
to state a claim," that prisoner is not allowed to file another lawsuit or appeal a judgment in a
civil action unless the prisoner "is under imminent danger of serious physical injury." The court,
"notwithstanding any filing fee," may dismiss the action or appeal if it is "frivolous or
malicious ... fails to state a claim on which relief can be granted" or if it "seeks monetary relief
against a defendant who is immune from such relief." A prisoner cannot bring a claim for
mental or emotional injury suffered while in prison without first proving physical injury.




There are also limitations on attorney fees. A portion of the damage award must be used to pay

the prisoner-plaintiff's [*695] attorney fees. The damage award is also subject to any debt or
restitution payments that the prisoner might owe. Additionally, if the judgment is against the
prisoner, the court can require that prisoner to pay costs, regardless of his or her financial status.



In addition to the PLRA, plaintiff's counsel must also understand and properly apply prisoner
rights law and basic 1983 principles. Defendants must be identified based on investigation and
legal research. Limit the number of defendants. Each defendant adds a greater burden with no
increase in compensatory damages. Similarly, claims should be reduced to those which are
necessary. Redundant claims, with confusing, overlapping jury instructions covering the same
conduct can backfire. At the same time a plaintiff does not want an "empty chair" across the well
- a clearly culpable, missing defendant. Make sure there is solid evidence against each defendant
supporting each claim and dismiss any defendants that do not meet this test.


A case plan should be drafted that sets out the necessary discovery. Depositions should be
pursued with a clear idea of the theory of the case. As set out below, much of the trial
presentation involves testimony from prison officials. The deposition transcripts are crucial
tools in maintaining witness control. Now we are ready to plan the trial itself.

B. The Final Pretrial Conference
The final pretrial conference typically results in the approval of the final pretrial statement which
has been prepared jointly by the parties. In one portion the plaintiff is invited to provide a short
statement of the claim. This statement is often read to the jury during the voir dire and again as
part of the jury instructions. The statement should use short, simple sentences and convey the
core of the case.
[*696] The joint final pretrial statement also lists the uncontroverted facts. These are often read
to the jury as stipulations and deserve careful attention. They offer the prisoner-plaintiff an
opportunity to set out facts which will prepare the jury to focus on the real issues of the case.
Remember, jurors are skeptical of prisoner claims. It is very helpful to learn that on February
24th the prisoner was escorted by the defendant correctional officers, the prisoner was in
restraints, force was used on the prisoner and the prisoner suffered a broken arm. Such
stipulations reassure the jury that the defendants did cause harm to the plaintiff and focus their
attention on the need for and degree of force. Stipulations eliminate any notion that the prisoner
fabricated the entire story.
The final pretrial conference should be used to clarify:

. The level of inquiry that will be permitted at voire dire.
. When drafts of the jury instructions and the verdict form will be due from the parties.
. The schedule that will be set for motions in limine.

. The security provisions that will be needed for prisoner witnesses.
. What, if any, "cross-examination" will the court permit if plaintiff calls correction employee
witnesses as hostile witnesses during the plaintiff's case in chief.
. The questioning that the court will permit regarding the prisoner-plaintiff's criminal

C. The Verdict Form
In a jury trial everything comes down to how the jury completes the verdict form. Counsel
therefore must think backwards from that point. All decisions, from defendant selection to
witness order, should reflect a course of action most likely to result in a successful verdict.
Questions on the verdict form should be simple and undiluted with legal baggage. Save all
legalese for the jury instructions.

Plaintiffs must have their burden of proof described with utmost simplicity, so that a juror who
believes that a guard beat [*697] the prisoner-plaintiff can see immediately what must be done
on the verdict form. There is no need, or obligation, to repeat all of the definitions, cautions and
barriers that the juror waded through in the jury instructions. Plaintiff's counsel should argue that
any such attempt is necessarily incomplete, and gives undue weight to the partial instructions the
defendants seek to repeat on the jury form. Jurors need punch lines. Simple questions that sum
up the critical points for determining liability against each defendant. As you can see, advocating
for a simple verdict form is extremely important.
D. Jury Instructions
Plaintiffs should focus on the critical civil rights issues in the case and make sure that the jury
instructions on those issues can be applied to the proof that will be presented to support a verdict.

Jury Instructions For A Prisoner Case All Persons Equal Before The Law The fact that the
plaintiff is a prisoner and that the defendant is a state official must not enter into or affect your
verdict. "This case should be considered and decided by you as a dispute between persons of
equal standing in the community, of equal worth, and holding the same or similar stations in life.
All persons[, including prisoners and state officials,] stand equal before the law and are to be
treated as equals" in a court of justice.

Credibility of Witnesses I have said that you must consider all of the evidence. This does not
mean, however, that you must accept all of the evidence as true or accurate.

"You, as jurors, are the sole and exclusive judges of the credibility [or 'believability'] of each of
the witnesses ... and only you determine the ... weight [to be given to each witness' testimony]."
In weighing the testimony of a witness you should consider the witness' relationship to the
plaintiff or to the defendant; the witness' interest, if any, in the outcome of the case; his or her
manner of testifying; the witness' opportunity to observe or acquire knowledge concerning the
facts about which he or she testified; the witness' [*698] candor, fairness, and intelligence; and
the extent to which he or she has been supported or contradicted by other credible evidence. You
may, in short, accept or reject the testimony of any witness in whole or in part.



The fact that a witness comes before you as a correctional official should not affect the way you
judge his or her credibility. Such testimony does not deserve either greater or lesser believability
simply because of the official status of a witness. Similarly, the fact that a witness is or was a
prisoner does not automatically suggest that less weight be given to that testimony. Whether or
not you believe a witness must be determined from his or her testimony, not his or her
occupation or status outside the courtroom. You should form your own conclusions as to whether
or not a witness is believable.
Also, the weight of the evidence is not necessarily determined by the number of witnesses
testifying as to the existence or nonexistence of any fact. You may find that the testimony of a
smaller number of witnesses as to any fact is more credible than the testimony of a larger number
of witnesses to the contrary.

42 U.S.C. 1983 The plaintiff has asserted his claims under a federal law, 42 U.S.C. 1983.
"Section 1983 ... provides that a person may seek relief in this court by way of damages against
any persons or persons who, under color of any state law or custom, subjects such person to the
deprivation of any rights, privileges, or immunities secured or protected by the Constitution or
laws of the United States."

In this case the defendant acted under color of state law.
Obligation to Protect Prisoners State actors are obligated to protect those whom the state
government is punishing by incarceration from know risks of serious physical harm. A prisoner
must rely on prison authorities for such protection because he is not free to protect himself from
all potential harms. Failure to protect a prisoner from such risks constitutes cruel and unusual
punishment and is proscribed by the Eight Amendment.

[*699] Failure to Protect The Eighth Amendment to the United States Constitution imposes
upon prison officials an affirmative obligation to protect prisoners from being assaulted by other
prisoners. A prison official's deliberate indifference to the safety of a prison inmate constitutes
cruel and unusual punishment.

Deliberate indifference requires something more than mere negligence. It is a recklessness
standard. That is, the plaintiff need not "show that the [prison] official acted or failed to act
believing that harm actually would befall an inmate; it is sufficient that the official acted or failed
to act despite the official's knowledge of a substantial risk of harm."

To find the defendant liable in this case, you must first find that the defendant knew of a
substantial risk of harm to Plaintiff's health or safety and disregarded that risk. You may infer
that the risk was known if you find that the risk was obvious.
Second, to find a defendant liable, you must find that given all of the facts known to the
defendant, that the defendant's conduct was not a reasonable response to the risk of harm.
A prison official who knows that a prisoner is at risk of harm from another prisoner but does not
take reasonable steps to guarantee the safety of that prisoner will thus be held liable to the
prisoner even though the official did not actually strike blows or otherwise commit acts against
the prisoner.
Excessive Force Defined The Eighth Amendment to the United States Constitution provides
that "cruel and unusual punishments" shall not be inflicted.


Plaintiff claims that he was subjected to excessive force or cruel and unusual punishment while
he was incarcerated at [prison]. The Eighth Amendment to the United States Constitution
prohibits the infliction of "cruel and unusual punishments" upon prisoners.

To prevail on an excessive force claim, plaintiff must prove by a preponderance of the evidence
that one or all defendants applied force to him maliciously and sadistically for the purpose of
causing harm rather than in a good faith effort to maintain or restore [*700] discipline. Plaintiff
need not show that he suffered a significant physical or mental injury for you to find he suffered
cruel and unusual punishment.
You should consider the following factors in making this determination:
a. The need for the application of force;
b. The relationship between the need and amount of force used;
c. The extent of the threat to the safety of staff and prisoners as reasonable perceived by the
responsible officials on the basis of facts known to them; and
d. Any efforts made to limit the amount of force.

E. Jury Selection
Jurors are taxpayers, voters, victims of crime and often next of kin or friends of law enforcement
officers. Jurors are challenged by a legal system that would award a prisoner damages when the
victim of the prisoner's crime may never be compensated for the brutality of that prisoner. Jurors
likely have bought into the "tough-on-crime" agenda. Equally important, most jurors are white
and far too many prisoners are black. Because of these realities, jury selection is the most
important aspect of the trial.

Plaintiff's counsel must seek an opportunity to question jurors. No amount of canned questions
posed by the court can replace the role of counsel in exposing bias; jury panel members always
assure the court that they will be fair. Counsel-directed voir dire can be effective at exposing
bias, establishing challenges for cause and identifying jurors that are actually willing to be fair
to the plaintiff. The prisoner's crimes that are going to be revealed during trial should be named
during the voir dire. Prospective jurors should be asked questions that will expose those who
harbor prejudices too deep to overcome and reveal those jurors who are truly open to following
the instructions of the court. What follows is an outline of a voir dire in [*701] which the
plaintiff Jane Doe, a transsexual, was attacked by another prisoner. The defendants, officials in a
protective custody unit, were sued for failure to protect :


[tn1,2]Voir Dire For A Prisoner Case [tn1,2]Law Enforcement
Attorney: I see that several of you have been in law enforcement jobs or have relatives who are
police officers, prison guards or prison staff, probation or parole officers. Q: Mr. X, you have
worked as a teacher for Ohio Department of Youth Services (DYS) - you are aware of instances
when managing prisoners can be difficult, correct? Q: You work with a security staff, who keep
order? Q: Security staff must protect civilian staff like teachers? Q: Security staff must also
protect prisoners from other prisoners? Q: Did you have any positive experiences with DYS
prisoners? Q: Did you have any negative experiences? Q: You have had no prior experiences
with Ms. Doe? Q: Now, can you set that experience aside - approach this with open mind? Q:
Here's what I mean by that. The judge will instruct you that all people are equal under the law.
This means that no one is assumed to be telling the truth just because he wears a uniform or a
badge. Can you set aside your tough experiences with convicts and follow that instruction?
When you hear facts from officers can you give their testimony no more or no less weight simply
because they are officers? [tn1,2]Victim of the Crime
Attorney: Many of you have also been the victim of a crime. Q: Mr. X, tell us briefly what
happened? [Get the facts] Q: Frightening? Q: You felt violated? Q: You probably remember
those events often? Q: Think about it when you're in unfamiliar settings? Q: It would be normal
to do that; to still be angry about it. Q: You still have feelings about it? Q: The person who
committed that crime was not Jane Doe? Q: What I will ask you is not easy. Can you honestly set
aside that awful experience and listen to Jane Doe testify without bringing that terrible episode to
mind? [tn1,2]Convicts Can Sue
[*702] Attorney: Members of the panel, in this case a former convict is suing two prison staff
members for failing to protect her. That is, she claims that the defendants failed to protect her
from an assault by another prisoner. Does anyone have a problem; is anyone uneasy with the
idea that a convict can even do this - come into court and make such accusations against her
jailers? Q: Does it bother anyone that such cases can even be heard? Q: Does anyone feel that it
is a waste of your time to hear this type of case? Q: Now, if the judge tells you that Jane Doe has
a right to be in this court and a right to make these allegations, will you follow the law and serve
on this case with an open mind? [tn1,2]Plaintiff Criminal Record
Attorney: I will also tell you that this former convict - Jane Doe - is not just any convict. You
will learn that she was serving time from 1993 to 1997. She has been a free, employed citizen for
over four years. But, previously, she was serving time in Ohio for felonious assault, misuse of a
credit card, forgery, and receiving stolen property. You will also learn that, in 1997, she served
several months in Arizona for two counts of forgery, and that she was on probation for fraud and
theft in Colorado in 1992. You will learn that she has used other names - aliases - in the

commission of some of these crimes. Q: How many of you are troubled by that criminal record?
Q: That's natural. Will that natural feeling of disgust make it hard for you to accept that Jane Doe
has a right to use the courts to pursue these claims that her civil rights were violated? Q: And
what if you do believe that the defendants failed to protect Doe, will any disgust at ex-convict
Doe for all of these crimes keep you from following the law and ruling in her favor? I mean, is
this just too great a stretch for you? [tn1,2]Comfort with Different People
Attorney: If you had a choice of where you could work and live - assuming equal safety, income
etc., - and one choice was a community of people that shared your religion, lifestyle and values,
and the other choice had people who were law abiding but they were different - people who did
not share your religion, lifestyle and values; so one community where people are basically the
same and the other community where people are different. Q: How many would choose to live
and work in the community where religion, lifestyle and values were shared? [Show of hands] Q:
How many would choose to live and work in the community where the members followed the
law but where religion, lifestyle and values were not shared? [Show of hands] Q: How many do
not know? [Show of hands] [tn1,2]Gender, Sexual Orientation and Perceptions
[*703] Attorney: This case raises sensitive issues about gender, sexual orientation and
perceptions. Some people believe that everyone is born heterosexual and that people should not
mess with their sexual identity - these individuals would have personal objections to those who
do not live a standard heterosexual lifestyle. Not judging, but many people base this view on
religious or other beliefs. We can do this at the sidebar if necessary because I really want to
respect your privacy on sensitive matters, but I would like to start with the people in the jury and
ask you to rate yourself on a one to five scale. One being accepting of any sex orientation;
tolerant, no problem in interacting with folks who are gay, lesbian, bisexual or transgendered
(G/L/B/T). Five being that you really cannot accept people who claim not to be heterosexual or
who do not act heterosexual If you are a five that's ok - do not feel bad - this is what jury
selection is about, trying to determine if the facts in the case will push out of your comfort zone.
So one - accepting of any sexual orientation, no problems with a person just because they are
G/L/B/T, to five - really cannot accept people who claim not to be heterosexual or who do not
act heterosexual. Q: Juror X, you rated yourself as a five. If the law did not permit discrimination
against people based on whether they were G/L/B/T and you had to apply that law, as a juror
would that push you so far away from your own beliefs that you could not follow the law? Q: Is
this too much of a stretch for anyone else? [tn1,2]Transsexual
Attorney: You will learn that Jane Doe was born a biological male but had undergone a partial
gender transformation from male to female prior to her arrest. So Jane Doe is a transsexual - it's
like being born into the wrong skin - physically one sex but emotionally the other. Q: Does
anyone personally know a transsexual? Q: Does anything about your experience with that
transexual make it hard for you to be fair and impartial? Q: Has anyone seen a transexual
portrayed in a play, movie or show? Q: Can you separate what you learned there? Q: There is a
CBS television show on Sunday Night - The Education of Max Bickford. One of the characters
is a male who underwent sex reassignment surgery to become a female. The lead character has
been friends with the transsexual both before and after her gender reassignment and has a
positive relationship with her. Is anyone familiar with the show? Q: Is there anything about the
way the transsexual character is portrayed on that show that makes it hard for you to be fair and
impartial in this case? [*704] Q: Jane Doe was in the protective custody unit at the prison
because she had some female characteristics - she was female from the waste up and male from
the waste down. Does the fact that Doe was a transsexual when she was in need of protection in

prison - does that fact in and of itself - make it hard for you to approach the case with an open
mind? Q: Is this too weird? Q: Too difficult to approach without overcoming some negative
feelings you may have against convicts or transsexuals? I mean, this is a lot to absorb and we
haven't even told you what the proof is! [tn1,2]G/L/B/T and Ex-offender Experience
Attorney: Does anyone know any people who are G/L/B/T? Q: Is there anything about an
experience with that person that makes it hard to be fair in this case? Q: Does anyone know any
people who are ex-offenders, people who have been incarcerated in prison? Q: Anything about
an experience with that person that makes it hard to be fair in this case? [tn1,2]Conclusion
Attorney: Okay, there's more. This is not just a swearing match between a former convict and
law enforcement officers. The judge will instruct you that the Eighth Amendment to the United
States Constitution prevents prison staff from inflicting cruel and unusual punishment on
prisoners and that it requires staff to protect prisoners. If you hear all of the evidence and law in
this case and decide based on the evidence and law that the former convict should win and that
the prison staff members did fail to protect the prisoner will you be open to awarding money
damages to the prisoner as compensation for her injuries? Q: Or is that just too much? Money
damages to a person who committed so many crimes? Money damages to a person who entered
prison as a transsexual? Can you clear your mind enough and accept as a jury the duty to be open
to that result? Or does that just push you too far? Please raise your hands if I am asking too much
of you [Show of hands]
There is no script for an effective voir dire. The key is to establish rapport with the jury and to
make them respond honestly. Once a jury is empanelled the focus turns to the actual testimony,
telling the story effectively.
G. Trial Presentation: Tell an Honest Tale
i. Excessive Force
Each case has its own story and the presentation theme must arise from that story. Some general
comments are appropriate [*705] based on the type of claim. In excessive force cases the
plaintiff must prove actions that are "malicious[] and sadistic[.]" In reality the officer probably
acts appropriately 99% of the time. On the day in question, the officer "went-off," "snapped," or
otherwise acted out. Obviously a pattern of similar conduct will help to tell the story, but even a
single incident can result in a verdict if the story is relayed in a manner that answers all of the
obvious questions. What triggered the incident? What portion of the force was excessive? Does
the medical proof confirm the story? Was the matter supposed to be videotaped but was not?
Was the officer disciplined?

A typical excessive force case involves an incident provoked by the prisoner. For example, the
prisoner is using abusive language toward the escort officer who decides to retaliate with force
rather than to simply write a disciplinary ticket. Officers may feel that the disciplinary process is
too slow or too lenient and they may occasionally "supplement" formal discipline with an
"attitude adjustment" for a prisoner who acts out against the officer. In such a case the prisoner
should testify fully. He should agree that he was indeed speaking disrespectfully and that he
deserved a ticket and discipline for his act. He was in restraints and did not "head-butt" or use
force. The video and/or medical reports do not support the story of the officer. The point is not to

pretend that all prisoners are angels and all officers are evil. The plaintiff need only prove that at
that time and place excessive force was used. That burden is most easily met if accurate stories
that reflect the true prison environment are forth for the jury.
ii. Medical Claims and Failure to Protect
Allegations that defendants denied a prisoner adequate medical care or failed to protect the
prisoner do not require proof of evil, sadistic or malicious conduct. Rather, plaintiff will prevail
if the defendant was deliberately indifferent to the serious medical or security needs of the
plaintiff. The legal standard is lower, but as a practical matter these cases are more [*706]
difficult to win. The defendant typically does not cause the harm, but rather just does not do his
job well enough. The defendant may be an overworked doctor; a staff member supervising an
overcrowded block; or an onlooker who saw the violation but failed to act quickly. The jury must
not be promised evil. The presentation must anticipate the instruction - focusing on the
seriousness of the risk; the obviousness of the risk; the alternative courses of action that were
open; the decision to proceed with a course of action that ended with predictable injury. The
defendant is a trained professional, when he acts causing injury in the face of an obvious risk that
makes him liable.



In many failure to protect cases the defendant argues he had no knowledge of the risk of harm.
Therefore, the focus at trial is to prove the obviousness of the risk. However, when the
defendant admits knowledge of the risk the focus at trial is on the response by that defendant.
Here you may be able to demonstrate that the actions taken actually increased the risk of harm.

In deliberate indifference cases it is often helpful to have expert testimony. A classification
expert can reassure the jury that housing an assaultive prisoner with the plaintiff violates all
reasonable standards. A medical expert can similarly explain that the defendant acted beyond all
reasonable boundaries for the delivery of medical care.
H. Witness Order, Topics
i. Prison 101
The walls that keep prisoners in, keep others out. Prison for most people is a foreign place,
known only from various media presentations. Prisons appear to be dark structures where
prisoners are expected to fend for themselves. Most jurors expect that violence is common and
deprivations routine. Jurors need to learn from corrections witnesses that prisons are expected to
be safe; that staff is professional and that policies, procedures and routines govern all activities
which are recorded on contemporaneous logs and reports and, at times, on video. Only [*707]
by learning the norm may jurors appreciate the deviation related to the incident portrayed in the
The first witness, therefore, is typically a relatively neutral corrections employee whose
questions and answers result in a "Prison 101" course for the jury. Terms, procedures,
equipment, post orders and the like will all be quickly explained and then used when framing the
important facts leading up to the violation of the prisoners rights. It is often effective to show a

video of the scene and have the first witness narrate that video.
ii. Calling Defendants as Hostile Witnesses
It may also be very effective to call the defendant during the plaintiff's case, as if on crossexamination . This examination should be carefully scripted and thoroughly anchored in the
deposition transcript. It should commence with a review of the defendant's conduct as it should
have occurred based on post orders or other policies and it should move to challenge the
defendant on the core facts of the case. At the final pretrial conference ask the judge to require
that direct examination be delayed until the defendant's case, thus allowing your story into
evidence without interruption.

iii. Plaintiff and Other Prisoner Witnesses
Counsel should aggressively argue to present the prisoner-plaintiff live, in court. The plaintiff
should also be present during the entire trial, including the voir dire. Some practitioners seek to
have the client dressed in street clothes, provided at the courthouse and worn at all times the
prisoner is in the presence of the jury. It is enough that the client is in clean clothes that fit
appropriately. If some restraints are required a black box is less noticeable than handcuffs. If at
all possible the client [*708] should be permitted to attend the trial without restraints. This
should be resolved at the final pretrial conference. Similarly, at the final pretrial conference the
court should direct that the prisoner be housed close enough to the courthouse to avoid
exhaustion during trial.

Testimony from the plaintiff should flow easily. This is worth as many pretrial trips to the prison
as it takes to get it right. Give the client his deposition testimony and all of the statements he has
given during any investigations. Practice cross-examination. The story should not change but the
prisoner should relate the story in terms the jury can follow and free of all expletives. If the
criminal record will come into evidence it, and any inappropriate conduct by the prisoner on the
day in question, should all be brought out on direct, demonstrating that the plaintiff has nothing
to hide. Some prisoners claim to remember the sequence of each blow and kick in excessive
force cases. Even if true, such testimony is rarely credible to juries. It is better practice to simply
have the prisoner state, for example, that he was repeatedly kicked and punched. Injuries should
not be overstated but it is important to present injury testimony so that the jury has some sense of
what the beating or other harm was like. If the juror can visualize the events, the prospects for
damages for pain, suffering and mental anguish are more likely.
Use as few prisoner witnesses as possible. Prisoner witnesses may be subject to some level of
cross-examination about their crimes, under the Federal Rules of Evidence (Federal Rules),
which can be a distraction to the jury. Many prisoner witnesses also have discipline records that
may be admissible under the Federal Rules. It is simply more persuasive to prove the case
primarily through prison records, the absence of expected prison records and corrections


Nonetheless, a prisoner witness often is needed to offer crucial facts. Under the PLRA a federal
judge may permit prisoner [*709] testimony to be presented by trial deposition. Many prisons

have teleconference equipment available for their medical specialty consultations. That same
equipment may be available for real-time trial testimony. If the prisoner testifies live the court
should set the ground rules. Counsel should make sure that the prisoner is dressed in clean,
pressed prison blues and not in some baggy coveralls. Male witnesses should be permitted to
shave and all witnesses should be permitted a timely shower. Transport should be set so as not to
have the prisoner awake from 2:00 a.m. for testimony at 3:00 p.m. These matters should be
discussed at the final pretrial conference and, if necessary, addressed in the writ of habeas corpus
ad testificandum. Prisoner testimony should be short and focused directly on the matter for
which their testimony is needed. In a beating case, testimony from a prisoner eye witness may be
as brief as ten minutes. One technique for enhancing the credibility of prisoner witnesses is to
use witnesses that were relied upon by the state in disciplinary proceedings and, if possible,
make this fact known to the jury.
I. Admissibility of a Prisoner's Criminal Record and Other Bad Acts
When the plaintiff or witness is a prisoner most judges will allow the criminal conviction leading
to incarceration to be admitted into evidence. The best practice is simply to get a stipulation or
ruling on exactly what will be permitted. Typically the type of crime and the sentence imposed
are admitted. Permitting the defendant to explore the details of the crime would be very
prejudicial and is not generally permitted.
i. Criminal Record of the Prisoner-Plaintiff
The use of the criminal record for impeachment of a witness, other than the accused, is subject to
a weighing of the probative value versus its prejudicial effect. Conduct more than [*710] ten
years old is rarely admitted for impeachment purposes, except for under extraordinary
circumstances. Even if within the ten period, the plaintiff's criminal record cannot be used for
impeachment purposes if the potential for prejudice substantially outweighs its probative value
under Federal Rule 403. For example, in Lewis v. Velez, the court excluded the prisonerplaintiff's prior assault conviction when the present claim was one of excessive force. The court
found that the assault conviction did not relate to the elements of the excessive force claim and
that admitting it was too prejudicial. However, if the criminal record does not result in unfair
prejudice, under Federal Rule 609(a)(1), and falls within the narrow definition of those
convictions listed under Federal Rule 609(a)(2), it can be admitted for purposes of assessing
credibility. In Young v. Calhoun, the court admitted the fact that the prisoner-plaintiff was a
felon as well as the amount of time imposed through sentence. The nature of the conviction and
the details of the crime were not admitted.









Even if prior criminal convictions are inadmissible for impeachment they can still become
admissible evidence "if [they are] relevant to a material issue and if [their] probative value
[*711] outweighs the possibility of unfair prejudice," per Federal Rules 401 and 403. Under
this standard, courts have allowed facts beyond that of the charge, the date and the conviction to
enter the record. Although defendants cannot use these facts to shift the focus of the trial, they
can use some of the facts surrounding the criminal record, under Federal Rule 401, in so much as
they are relevant to elements of the claim, such as defendant's state of mind. The specific
details of the crime should not be admitted as they are minimally relevant, especially in a


cumulative presentation because it will shift the focus of the civil trial to that of re-trying the
criminal case.

ii. Prior Bad Acts of the Prisoner-Plaintiff
In Huddleston v. United States, the Supreme Court set out a test for the admissibility of prior bad
acts, such as a prisoner's disciplinary record. While evidence "of crimes, wrongs, or acts [are]
not admissible to prove the character ... " or criminal propensity of a prisoner, they may be
admissible to prove motive, intent or plan under Federal Rule 404(b). However, in order to be
admissible for these purposes the evidence must be [*712] relevant to the factual inquiry in the
case. This applies to a prisoner-plaintiff's disciplinary records and criminal records.




There is another relevance inquiry required by Huddleston that applies to a prisoner's
disciplinary records in particular. This is the requirement, under Federal Rule 104(b), that a jury
can "reasonably conclude the act occurred and that the [prisoner] was the actor." This is the
preponderance of the evidence standard, and it allows for the admission of such evidence as
prisoner disciplinary records or rule infraction board (RIB) files. This evidentiary standard
means that the "government must at least provide some evidence that the [prisoner] committed
the prior bad act." Prior to admission, the evidence should be subject to a balancing test,
weighing its probative value against its potential prejudice to the prisoner; the strength of the
evidence is also considered in the balancing test. Once the evidence is admitted it must be
accompanied by a limiting instruction.







The Seventh Circuit, in Young v. Rabideau, upheld as admissible general questions about a
prisoner's past discipline in a 1983 excessive force claim where the past discipline was probative
of the plaintiff's intent. In that case the plaintiff testified that he pointed a finger in the guard's
face by accident. The defense argued that this action was not an accident, [*713] but rather
that his actions were intended to provoke the officer and to start a fight.



The Seventh Circuit established a four-part test for the admissibility of such prior misconduct:
Admission of evidence of prior or subsequent acts will be approved if (1) the evidence is directed
toward establishing a matter in issue other than the defendant's propensity to commit the crime
charged, (2) the evidence shows that the other act is similar enough and close enough in time to
be relevant to the matter in issue ... , (3) the evidence is clear and convincing, and (4) the
probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

The court found that "admission of past misconduct is proper when presented in rebuttal to [the
prisoner-plaintiff's] main defense that he did not intend to pole the prison guard in the face ... ."
Having found that the evidence established plaintiff's intent, a matter in issue other than
propensity to commit the act, the court also found that the "record clearly and convincingly
shows that his other actions were similar enough and close enough in time to be relevant to the
matter in issue." The court then determined that because the evidence was limited to general
questions about the plaintiff's disciplinary record "the danger of unfair prejudice was minimized
and the probative value of the evidence dominated."




Federal Rule 608(b) prohibits the introduction of extrinsic evidence of specific instances of

conduct to attack the credibility of a witness, except for criminal convictions. Therefore, counsel
can ask questions about whether a particular instance occurred, if the instance goes to the
truthfulness or untruthfulness of the witness, but cannot introduce any evidence surrounding that
[*714] incident. Federal Rule 608(b) may keep the disciplinary file out of the record, but the
defendant may still be able to inquire into plaintiff's conduct for impeachment purposes.


J. Admitting a Prison's Internal Investigation into Evidence
The plaintiff's presentation will be even more persuasive if investigations of the incident that are
favorable to the prisoner-plaintiff can be introduced into evidence. A use of force committee or
other internal investigation may actually contain information and findings that are helpful to the
prisoner-plaintiff in his civil rights case. Objections to prison reports will usually be on the basis
of Federal Rule 801, the hearsay rule, as the reports will contain statements from officers,
employees or prisoners that are not present to testify. However, there are a number of
exceptions under Federal Rule 803 that are applicable to prison reports or investigations which
can be cited to support the admissibility of such reports.

Federal Rule 803(6) contains a "record of regularly conducted activity" or a business records
exception and Federal Rule 803(8) contains a public records exception to the hearsay rule. The
documents that fall under these exceptions have been defined quite broadly. It is important to
note, however, that the business records exception requires that a person with knowledge
transmit the reports. Therefore, in order to admit a report under this exception a foundation
must be laid showing that the person who wrote the report had actual, first-hand knowledge or
that the sources cited therein were the actual, first-hand sources for those facts cited. The
business records exception can be used to admit the standard reports that an institution [*715]
generates following an incident, such as "use of force."






In order for a report to be admitted under the public records exception it must relate to "matters
observed pursuant to [a] duty imposed by law ... " or contain "factual findings resulting from an
investigation made pursuant to authority granted by law ... ." Reports can also be admitted
under the public records exception as extrinsic evidence, to show motive or intent in an excessive
force case. In Combs v. Wilkinson, the Sixth Circuit relied on the public records exception to
allow an investigative committee's report, detailing facts, conclusions and opinions, into
evidence. Portions of a report that contain interview transcripts or other statements of third
parties may be excluded as "hearsay within hearsay," which is not covered by the public records
exception, and there can be additional exclusions based on prejudice, relevance and






An investigative report could also be admitted under the general residual exception of Federal
Rule 807. Federal Rule 807 requires trustworthiness and sufficient notice of the intent to offer
the statement in advance of trial. In addition, the court must find that the evidence fulfills the
following three factors:

(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on

the point for which it is offered than any other evidence which the proponent can procure
through reasonable efforts; and (C) the general purposes of these rules and the interests of justice
will be best served by admission of the statement into evidence.

[*716] A report resulting from the investigation of an incident can be admitted as it is
reasonable to infer that the investigators who prepared the report relied on the first-hand
knowledge of prison officials who have a duty to be accurate. Even though the report may have
been prepared in preparation for litigation, the evidence is being offered against the party for
whom it was prepared so the report is circumstantially trustworthy.


K. Damages
The PLRA restricts damage awards. The availability of compensatory and/or punitive damages
depends on the constitutional claim brought by the prisoner-plaintiff and on the PLRA. Section
1997e(e) provides that "no Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury." The definition of "physical injury" is generally
more than de minimums, although it does not have to be substantial.



The constitutional claims to which 1997e(e) apply are currently under debate, although Eighth
Amendment claims are certainly covered. Courts have reached different conclusions on whether
1997e(e) bars an award of mental or emotional damages under First and Fourteenth Amendment
claims. The Ninth and Seventh Circuits, along with some district courts, have held that the First
and the Fourteenth Amendment entitle a prisoner-plaintiff to judicial relief completely separate
from any physical injury that they can show. Other circuits have barred compensatory damages
for emotional injury on non- [*717] Eighth Amendment constitutional injury claims that do not
result in actual, physical injury.


However, the physical injury requirement of 1997e(e) does not necessarily preclude the
collection of nominal or punitive damages. Nominal and punitive damages are not barred
under the rationale that their preclusion would allow prison officials to intentionally harass or
harm the rights of prisoners and, without inflicting physical injury, be allowed to escape suit.
In some circuits this is also true for Eighth Amendment violations that do not result in physical
injury. The Supreme Court's decision in Carey v. Piphus dictates that nominal damages
should be recoverable on pure constitutional injury claims.




Punitive damages are awarded under 1997e(e) when the defendant has an evil motive or intent or
when the behavior involves reckless or callous indifference. Under this standard, punitive
damages may be recovered under constitutional claims that do not result in physical injury. In
alleging and proving punitive damages, care should be taken not to base the award of punitive
damages on the extent of emotional injury to the prisoner or the amount of compensatory
damages awarded, rather damages should be based on the malicious behavior of the prison



It is also important to note that a portion of any damage award collected, up to twenty-five
percent, is to be used to pay for attorney's fees.

[*718] Despite the many burdens imposed by the PLRA, there have been significant damage
awards, although most such awards stem from Eighth Amendment claims with serious physical

L. Attorney Fees
Attorney fees in civil rights actions are governed by 42 U.S.C. 1988. However, the PLRA adds
hurdles to obtaining attorney fees in prisoners' rights litigation. Under 1988 attorney fees are
awarded to the plaintiff when he is the prevailing party. A prevailing party is defined as one
that "succeeds on any significant issue in litigation." A significant issue is one which achieves
some of the benefit or the primary benefit that the parties sought in bringing suit. When
success is partial or limited, the court compares the product of hours reasonably expended on the
litigation as a whole and a reasonable hourly rate, to the overall relief obtained by the plaintiff.
The court [*719] then determines if attorney fees are excessive. An hourly rate for attorney
fees is that which is comparable to other attorneys in the community of similar background and





The PLRA caps the hourly rate awardable to prisoner-plaintiff attorneys at 150% of the fee for
court appointed criminal defense attorneys. Fees are also limited by the amount of damages
awarded. Attorney fees cannot exceed 150% of the award. The court will then look at the
lesser of the two calculations. Additionally, the PLRA requires twenty-five percent of the
damages to go to attorney fees. If twenty-five percent of the damages are less than the amount of
attorney fees that the court finds reasonable, then the defendant pays the remainder.





In order to obtain attorney fees on a preliminary injunction or a temporary restraining order
counsel should ask that the court decide the injunction or restraining order on the merits. A
decision on the merits can result in an award of attorney fees even if no final judgment is
obtained. A simple procedural win is not enough to award fees.


So far, efforts to challenge the constitutionality of the PLRA fee caps have been largely

M. Using Verdicts to Solve Problems
Most prison litigators have used litigation as a vehicle to improve conditions, including safety
and medical care. Such prison reform cases are severely restricted under the PLRA. In [*720]
fact, the PLRA causes litigation to focus on money. The cases counsel will likely pursue most
vigorously are death claims and suits based on severe physical injuries. These have the greatest
potential to generate the large damage award needed to finance the case and support adequate

So what about prison reform? Settlements may still be employed to improve conditions. The best
time is after verdict or after the court has denied summary judgment and the matter is clearly
headed for trial. If the client is willing, non-economic terms can be included in the goals the
prisoner seeks to achieve through alternative dispute resolution. In one recent case, a prisoner-

plaintiff sued a warden at a reception center following a brutal attack by his cellmate. The
plaintiff was a minimum security prisoner doing a flat one-year sentence for selling marijuana
and his cellmate was a mass murderer. The attack was terrorizing but there were no severe
physical injuries. After losing his bid to dismiss based on qualified immunity, the warden agreed
to settle for $ 50,000 in damages and fees, and included plaintiff's counsel in the dialogue that
resulted in a new classification policy at the reception center.

III. Conclusion
The PLRA is forcing prison reform activists to press for large damage awards as a vehicle to
trigger institutional reform. This article has hopefully helped the practitioner focus the trial
presentation in a way that will make a plaintiff verdict more likely. When the state or local
government must pay a large verdict conditions may return to the taxpayer agenda. There is no
serious political lobby for prisoners. Often the only way their concerns will be addressed is
through litigation. By keeping cases lean and presentations effective as recommended in this
article, we can help prisoners secure at least a safe environment with adequate medical care.

n1. Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (codified at 11
U.S.C. 523; 18 U.S.C. 3624, 3626; 28 U.S.C. 1346, 1915, 1915A; 42 U.S.C. 1997-1997h).
n2. See infra Part II.K.
n3. See 18 U.S.C. 3682 (1986).
n4. In this section I will simply summarize the law since there are already several excellent and
comprehensive materials available to help the practitioner with compliance.
n5. See, e.g., Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003) (holding that the prisoner failed
to exhaust his administrative remedies under the PLRA by failing to name the observing officers
in the grievance).
n6. See Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1628 (2003).
n7. See, e.g., Mass. Gen. Laws ch. 127, 38E (2002); Ohio Rev. Code Ann. 2969.26 (Anderson
2004); Tenn. Code Ann. 41-21-817 (2004); Tex. Gov't Code Ann. 501.008 (Vernon 2004); Ariz.
Dep't of Corr., Department Order Manual, Department Order 802 (2000) (detailing the
procedures involved in Arizona's "Inmate Grievance System") [hereinafter Order Manual]; see
also supra note 5.
n8. But see Boyd v. Corr. Corp. of Am., 2004 FED App. 0299P (6th Cir.) (failure of prison
administrator to timely respond to grievance accepted as compliance with exhaustion

n9. 28 U.S.C. 1915(g) (2004).
n10. Id. 1915(e)(2).
n11. Id. 1915(e)(2)(B)(i)-(iii).
n12. 42 U.S.C. 1997e(e) (2004).
n13. See infra Part II.L.
n14. 42 U.S.C. 1997e(d)(2).
n15. See 18. U.S.C. 3626 (2004).
n16. 28 U.S.C. 1915(f)(2).
n17. While this article focuses on trial practice and not substantive law, a clear understanding
of prisoners' rights law and of 1983 is essential to success.
n18. See Weeks v. Chaboudy, 984 F.2d 185, 189 (6th Cir. 1993) (liability for compensatory
damages is joint and several in a 1983 prisoner case).
n19. See infra Part II.H.
n20. For example ask, "Did the defendant Ashcroft use excessive force on the plaintiff?" not
"Did the plaintiff prove by a preponderance of the evidence that the defendant Ashcroft engaged
in acts constituting cruel and unusual punishment under the Eighth Amendment of the United
States Constitution?"
n21. Kevin O'Malley et al., Federal Jury Practice and Instructions Civil 103.11 (5th ed. 2000).
n22. Id. at 15.01.
n23. See id.
n24. Id. at 14.16.
n25. Id. at 165.10.
n26. See generally O'Malley et al., supra note 20, at 166.20.
n27. See generally id. at 166.
n28. Id.

n29. See generally id. at 166.23.
n30. U.S. Const. amend. VIII.
n31. Id.
n32. See Dennis Schrantz & Jerry McElroy, Reducing Racial Disparity in the Criminal Justice
System: A Manual for Practitioners and Policymakers (Jenni Gains Borough & Marc Mauer eds.,
2000), available at
n33. The author has been involved in jury selections that have resulted in one-third of the panel
being excused for cause.
n34. Doe v. Bowles, 254 F.3d 617 (6th Cir. 2001).
n35. The Education of Max Bickford (CBS 2001).
n36. Whitley v. Albers, 475 U.S. 312, 320 (1986) (quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973)).
n37. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
n38. See Farmer v. Brennan, 511 U.S. 825, 830-32 (1970).
n39. See generally O'Malley et al., supra note 20, at 166; see also supra note 19 and
accompanying text.
n40. See Farmer v. Brennan, 511 U.S. 825, 843 n.8 (1994).
n41. Fed. R. Evid. 611(c) permits the court to authorize the examination of a hostile witness by
leading questions.
n42. Several cases have addressed the issue of restraining the civil prisoner-plaintiff. The
courts look first to whether the prisoner-plaintiff's history deems restraint necessary and, if so, if
the restraints would be unduly prejudicial given the nature of the case or the role credibility
would play in its outcome. The decision must be one made by the court; it is impermissible for
the court to delegate its authority to the security personnel or to the court marshals. If restraints
are found necessary the court should still use the least restrictive restraints and take steps to
further minimize any prejudicial effect, including instructions to the jury. See Illinois v. Allen,
397 U.S. 337 (1970); see also Davidson v. Riley, 44 F.3d 1118, 122-23 (2d Cir. 1995); Woods v.
Thieret, 5 F.3d 244, 247-48 (7th Cir. 1993); Lemon v. Skidmore, 985 F.2d 354, 358 (7th Cir.
1993); Holloway v. Alexander, 957 F.2d. 529, 530 (8th Cir. 1992).
n43. See Fed. R. Evid. 609.
n44. See Fed. R. Evid. 404(b); see also infra Part II.I.ii.

n45. See 42 U.S.C. 1997e (f)(1) (2004).
n46. See Fed. R. Evid. 609. After the 1990 amendment to Rule 609 evidence that a witness,
other than the accused, has been convicted of a crime shall be subject to Fed. R. Evid. 403. Prior
to the 1990 amendment, prejudice to the defendant was the only consideration and a civil
plaintiff's felony record was compelled. Compare Earl v. Denny's, Inc., No. 01- C5182, 2002
U.S. Dist. LEXIS 24066, 2002 WL 31819021 (N.D. Ill. Dec. 13, 2002), with Green v. Bock
Laundry Mach. Co., 490 U.S. 504 (1989); see generally Donald v. Wilson, 847 F.2d 1191 (6th
Cir. 1988).
n47. See Zinman v. Black & Decker, Inc., 983 F.2d 431, 434 (2d Cir. 1993) (quoting S. Rep.
No. 1277 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7062). The ten year period runs either
from the date of conviction or the date of release from confinement, whichever is later. Fed. R.
Evid. 609(b).
n48. See Fed. R. Evid. 609(a)(1); see also Miller v. Hoffman, No. 97-7987, 1999 U.S. Dist.
LEXIS 9276, 1999 WL 415402 (E.D. Penn. June 22, 1999) (specifically defining the balancing
test of Federal Rule 403 in the context of Federal Rule 609).
n49. Lewis v. Velez, 149 F.R.D. 474, 483 (S.D.N.Y. 1993).
n50. Id.; see Essick v. Debruyn, No. 3: 94- CV-804RP, 1995 U.S. Dist. LEXIS 18458, 1995
WL 729313 (N.D. Ind. Nov. 22, 1995).
n51. "Four factors when balancing probative weight and prejudicial effect under 609(a)(1):
[include] 1) the nature (i.e., impeachment value) of the prior conviction; 2) the age of the
conviction; 3) the importance of credibility to the underlying claim; and 4) the potential for
prejudice from admitting the convictions." Miller, 1999 U.S. Dist. LEXIS 9276, at 6, 1999 WL
415402, at 2; Daniels v. Loizzo, 986 F. Supp. 245, 250 (S.D.N.Y. 1997).
n52. This list is limited to those crimes "involving dishonesty or false statement," and is
interpreted narrowly. Fed. R. Evid. 609(a)(2); see United States v. Hayes, 553 F.2d 824, 827 (2d
Cir. 1977).
n53. Young v. Calhoun, No. 85 CIV 7584 (SWK), 1995 U.S. Dist. LEXIS 4555, at 12, 1995
WL 169020, at 4 (S.D.N.Y. Apr. 10, 1995).
n54. Id.
n55. Gora v. Costa, 971 F.2d 1325, 1331 (7th Cir. 1995).
n56. Geitz v. Lindsey, 893 F.2d 148, 151 (7th Cir. 1990) (the names and ages of the victims of
a sexual assault and the physical evidence found at the crime scene was allowed to show the
defendants' state of mind when using a gun to prevent plaintiff's escape from the police station).

n57. Walker v. Mulvihill, No. 94-1508, 1996 U.S. App. LEXIS 14397, at 8-10, 1996 WL
200288, at 2-4 (6th Cir. Apr. 24, 1996) (admitting repetition of the hysteria of the crime victim
by four witnesses - at least one of which was not witness to the arrest - a detailed account by the
victim herself, an admission by the prisoner-plaintiff of his crime and repeated details of the
victim and the crime by the defense council constituted reversible error).
n58. 485 U.S. 681 (1988). The Court found, that the protection against unfair prejudice
emanates ... from four ... sources: first, from the requirement of Rule 404(b) that the evidence be
offered for a proper purpose; second, from the relevancy requirement of Rule 402 - as enforced
through Rule 104(b); third, from the assessment the trial court must make under Rule 403 to
determine whether the probative value of the similar acts evidence is substantially outweighed by
its potential for unfair prejudice; and fourth, from Federal Rule of Evidence 105, which provides
that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be
considered only for the proper purpose for which it was admitted.
Id. at 691-92 (citations omitted).
n59. Fed. R. Evid. 404(b).
n60. See Fed. R. Evid. 401; see also Eng v. Scully, 146 F.R.D. 74, 77-78 (S.D.N.Y. 1993) (a
fact of consequence or relevance was the amount of force applied; plaintiff's intent or motive will
not aid in this inquiry); Lombardo v. Stone, No. 99 Civ. 4603 (SAS), 2002 U.S. Dist. LEXIS
1267, 2002 WL 113913 (S.D.N.Y. Jan. 29, 2002) (prior assaults were excluded because offered
to show propensity and the defendants were unaware of the prior assaults at the time of the
incident, so they inadmissible to show state of mind; the recent assault on an aide was admissible
because it went to defendants' state of mind and provided an explanation for their response).
n61. Scully, 146 F.R.D. at 77-78.
n62. 485 U.S. at 689.
n63. United States v. Ramirez, 894 F.2d 565, 569 (2d Cir. 1990).
n64. Id.
n65. United States v. Gonzalez, 936 F.2d 184, 189-90 (5th Cir. 1991).
n66. 485 U.S. at 691-92; see also Fed. R. Evid. 403.
n67. 485 U.S. at 689 n.6.
n68. Id. at 692; Loizzo, 986 F. Supp. 245, 248 (S.D.N.Y 1997) (admitting bond warrants but
not the crimes for which they were issued).
n69. 821 F.2d 373, 379 (7th Cir. 1987).

n70. Id. at 377.
n71. Id. at 379.
n72. Id. at 378 (quoting United States v. Shackleford, 738 F.2d 776, 779 (7th Cir. 1984)).
n73. Id. at 379.
n74. 821 F.2d at 381.
n75. Id.; see Hynes v. Coughlin, 79 F.3d 285 (2d Cir. 1996) (where defendants were unaware
of the prison record it was inadmissible); see also United States v. Bunch, No. 91-6309, 1993
LEXIS , 1993 WL 5933, at 2 (6th Cir. Jan. 13, 1993) (affirming decision not to admit prior acts);
Harris v. Davis, 874 F.2d 461, 465 (7th Cir. 1989) (discipline record inadmissible to impeach
credibility); Lataille v. Ponte, 754 F.2d 33, 37 (1st Cir. 1985).
n76. Hynes, 79 F.3d at 293-94 (since case hinged on credibility, questions to truthfulness of
corrections officer should have been admissible, assuming there was a good faith basis).
n77. Eng. v. Scully, 146 F.R.D. 74, 78 (S.D.N.Y. 1993).
n78. See Fed. R. Evid. 801(c).
n79. Fed. R. Evid. 803(6).
n80. Both the business records and public records exceptions have a "trustworthiness"
n81. Stone v. Morris, 546 F.2d 730, 738 (7th Cir. 1976).
n82. Fed. R. Evid. 803(6).
n83. Hynes v. Coughlin, 79 F.3d 285, 294-95 (2d Cir. 1996). This showing can contribute to
the trustworthiness of the report as well.
n84. Id.
n85. Fed. R. Evid. 803(8)(B); see Combs v. Wilkinson, 315 F.3d 548, 554-56 (6th Cir. 2002)
(using Fed. R. Evid. 803(8)).
n86. Fed. R. Evid. 803(8)(C); see White v. United States, 164 U.S. 100, 103 (1896).
n87. Eng v. Scully, 146 F.R.D. 74, 80 (S.D.N.Y. 1993).
n88. See Combs, 315 F.3d at 554-56 (using Fed. R. Evid. 803(8)); see also Beech Aircraft
Corp. v. Rainey, 488 U.S. 153, 170 (1988) ("As long as the conclusion is based on a factual

investigation and satisfies the Rule's trustworthiness requirement, it should be admissible along
with other portions of the report.").
n89. Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence 803.10 n.21
(Joseph M. McLaughlin ed., 2002).
n90. See Evans v. Dugger, 908 F.2d 801, 809 (11th Cir. 1990).
n91. See Fed. R. Evid. 807.
n92. Id.
n93. Moffett v. McCauley, 724 F.2d 581, 584 (7th Cir. 1984).
n94. Id. at 584 n.1.
n95. If possible, file the lawsuit after the prisoner is released from custody to avoid the PLRA
n96. 42 U.S.C. 1997e(e) (2004).
n97. See, e.g., Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); Harris v. Garner, 190 F.3d
1279, 1286 (11th Cir. 1999); Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999); Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
n98. See, e.g., Calhoun v. Detella, 319 F.3d 936, 941 (7th Cir. 2003) (citing Rowe v. Shake,
196 F.3d 778, 781-82 (7th Cir. 1999)); Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998);
Mason v. Schriro, 45 F. Supp. 2d 709, 717 (W.D. Mo. 1999).
n99. Allah v. Al-Hafeez, 226 F.3d 247, 250-51 (3d Cir. 2000).
n100. Id. at 251.
n101. 319 F.3d at 940.
n102. Id.
n103. 435 U.S. 247, 266 (1978).
n104. Allah v. Al-Hafeez, 226 F.3d, 247, 251-52 (quoting Smith v. Wade, 461 U.S. 30, 56
n105. See, e.g., Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002); Oliver v. Keller, 289
F.3d 623, 630 (9th Cir. 2002); Doe v. Delie, 257 F.3d 309, 314 n.3 (3d Cir. 2001).
n106. See Allah, 226 F.3d at 252; Searles v. Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001). It

should be noted that the corrections defendant may often have a spouse or family members in the
courtroom. The prisoner-plaintiff should do likewise. Jurors need to be reminded that even
prisoners have loving families.
n107. 42 U.S.C. 1997e(d) (2004).
n108. Gregory v. Shelby County, 220 F.3d 433 (6th Cir. 2000) (compensatory damages in the
amount of $ 778,000; punitive damages totaling $ 2,275,000; where a guard allowed a violent
prisoner into the cell of the plaintiff who died as a result of the beating, prior to which there was
evidence that the officer forced the now deceased to perform oral sex and then left the prisoner in
his cell for ten hours before getting him medical attention); Johnson v. Howard, No. 1:96- CV662, 2001 U.S. App. LEXIS 1317, 2001 WL 1609897 (6th Cir. Dec. 12, 2001) (Eighth
Amendment claim under which plaintiff was attacked without provocation and the beating was
covered up resulting in $ 15,000 in actual or nominal damages and $ 300,000 in punitive
damages); Williams v. Patel, 104 F. Supp. 2d 984 (C.D. Ill. 2000) (deliberate indifference to
medical needs resulting in loss of prisoner-plaintiff's eye; compensatory damages $ 1 million and
punitive damages $ 1 million); Miller v. Shelby County, 93 F. Supp. 2d 892 (W.D. Tenn. 2000)
(deliberate indifference to prisoner safety, where the plaintiff was injured in an attack which
resulted in damages of $ 40,000); Beckford v. Irvin, 60 F. Supp. 2d 85 (W.D.N.Y. 1999) (Eighth
Amendment claim and ADA claim resulting in a total of $ 25,000 in punitive damages and $
125,000 in compensatory damages, resulting in attorney fee award of $ 50,899, $ 6,250 of which
to be paid from damage award); Perri v. Coughlin, No. 90-CV-1160(NPM), 1999 U.S. Dist.
LEXIS 20320, 1999 WL 395374 (N.D.N.Y. June 11, 1999) ($ 50,000 plus attorney fees and
costs for deficient treatment of mental illness and cell conditions); Trobaugh v. Hall, No. C970125, 1999 U.S. Dist. LEXIS 23107, 1999 WL 336557 (N.D. Iowa Dec. 6, 1999) ($ 100 a day
for each day plaintiff was put in isolation in retaliation for his filing of grievances, but no
punitive damages).
n109. 42 U.S.C. 1988(b) (2003).
n110. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
n111. Id.
n112. Id. at 436. (2,557 hours is reasonable in light of the fact that they succeeded on five of
the six claims).
n113. Blum v. Stenson, 465 U.S. 886, 900 (1984).
n114. 42 U.S.C. 1997e(d)(3) (1996).
n115. 18 U.S.C. 3006A (2000).
n116. 42 U.S.C. 1997e(d)(2); Foulk v. Charrier, 262 F.3d 687, 704 (8th Cir. 2001).
n117. Schlanger, note 6, at 1654.

n118. 42 U.S.C. 1997e(d)(2).
n119. Haley v. Pataki, 106 F.3d 478 (2d Cir. 1997); Fitzharris v. Wolff, 702 F.2d 836 (9th Cir.
1983); Coalition for Basic Human Needs v. King, 691 F.2d 597 (1st Cir. 1982); Deerfield
Medical Center v. City of Deerfield Beach, 661 F.2d 328 (5th Cir. 1981).
n120. Hanrahan v. Hampton, 446 U.S. 754 (1980).
n121. Morrison v. Davis, 88 F. Supp. 2d 799 (S.D. Ohio 2000) (attorney fee caps do not violate
equal protection); Walker v. Bain, 257 F.3d 660 (6th Cir. 2001) (same).
n122. Alphonse A. Gerhardstein, PLRA Can Affect Private Practitioner's Ability to Represent
Inmates, Correctional L. Rep. (Civic Research Institute, Kingston, N.J.), Feb.-Mar. 2002.
n123. Crutcher v. Edwards, No. C2-01-1159 (S.D. Ohio Mar. 2003) (settlement).


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