Trial Magazine

Richard, an inmate at a state-run correctional facility, learns that another inmate in his housing unit has threatened to assault him in retaliation for refusing a gang’s efforts to extort money from him. Richard repeatedly raises concerns for his safety with correctional officers, informing them of this threat, but the prison staff fail to take any steps to separate him from the other inmate or otherwise protect him. The other inmate eventually beats Richard severely. Richard files suit against the correctional officers, alleging that they failed to protect him from a known risk of physical harm and thus violated his constitutional rights.

Litigating a 42 U.S.C. §1983 suit involving constitutional violations within a correctional setting requires that you navigate several obstacles from beginning to end. Before you accept such a case, determine whether the doctrine of qualified immunity will prevent your client from obtaining damages. Another significant hurdle is the Prison Litigation Reform Act (PLRA), a federal law enacted to limit the number of prison condition cases tried in the court system.

There are also practical obstacles to work around if your client is still incarcerated during litigation. To protect the attorney-client privilege, you must take extra precautions when communicating with an incarcerated client because prison officials monitor the telephone calls, mail, and emails sent in and out of a correctional facility.

This can make drafting pleadings, preparing for depositions, discussing settlement negotiations, and getting ready for trial difficult since those tasks require that you and your client speak with each other freely. In addition, identifying, accessing, and staying in contact with eyewitnesses—who are often other inmates with limited means of communication—can be difficult.

If the case reaches a jury, you must contend with the unavoidable fact that your client has some kind of criminal history, regardless of how brief or insignificant it might be. Even if your client is a pretrial detainee and not convicted at the time that their cause of action arose, a jury might assume the worst about a plaintiff with a criminal background and evaluate claims and damages through an unfavorable lens.

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Qualified immunity does not protect contract employees from liability.

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Qualified Immunity

When a plaintiff alleges that a government actor violated their constitutional rights, defense attorneys will raise the issue of qualified immunity on either a motion to dismiss or a motion for summary judgment. This doctrine prevents certain suits for damages from proceeding against a government actor unless the conduct violated a “clearly established” statutory or constitutional right.¹

In evaluating a case, you should first determine whether the defendant is even entitled to qualified immunity. Offending parties in §1983 prison cases are often state employees; however, sometimes the defendant is a contractor employed by a private entity. For example, private health care contractors often provide medical care in correctional settings. Although these contract employees are generally considered government actors in §1983 prison cases, depending on the circuit you practice in, qualified immunity may not protect them from liability.²

If you determine the potential defendant can raise qualified immunity as a defense, consider the likelihood of their success. This involves a fact-specific inquiry into whether the defendant violated the plaintiff’s constitutional rights and whether the constitutional right at issue was clearly established at the time of the misconduct.³

The standards that apply can vary, depending on whether your client was a pretrial detainee or a convicted prisoner at the time of the constitutional violation. Although the Eighth Amendment applies to the latter, the Fourteenth Amendment applies to the former and may provide a more demanding standard when it comes to what is and what is not constitutionally adequate treatment of a pretrial detainee.

Keep in mind that even if a claim of qualified immunity can be defeated in district court, defendants can pursue an interlocutory appeal from a district court’s denial of qualified immunity on both a motion to dismiss and a motion for summary judgment.⁴ A defendant could potentially delay the conclusion of a case for years, and this ability to pursue multiple interlocutory appeals provides yet another tool to pressure a plaintiff into accepting a lower settlement offer in exchange for a timelier resolution.

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The Prison Litigation Reform Act requires strict compliance with a correctional facility’s grievance process and its unforgiving deadlines.

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Prison Litigation Reform Act

The PLRA applies in all actions where an incarcerated plaintiff files a claim alleging that some aspect of their confinement or the correctional facility’s conditions violates their constitutional rights, whether the claim is against a state employee or an employee of a private entity, such as a medical contractor.

However, the PLRA does not apply when the plaintiff is no longer detained or confined at the time the suit is filed. Rule 12(b)(6), the most draconian of the PLRA’s requirements, commands that an incarcerated plaintiff exhaust all prison grievance procedures before filing suit, even when they are seeking money damages only—a remedy not available in the prison grievance process.⁵

This exhaustion requirement applies to all inmate suits seeking redress for prison circumstances or occurrences, whether the constitutional violation arose from general circumstances, such as inadequate medical care, or a single incident, such as excessive force by a correctional officer.⁶ The only exception to the exhaustion requirement arises when there are no administrative remedies available to the prisoner, through no fault of their own.⁷

Because the PLRA requires strict compliance with a correctional facility’s grievance process and its unforgiving deadlines, you can miss the opportunity to file an otherwise meritorious case before you even have a chance to retain the client. If an incarcerated person contacts you immediately or soon after they suffer an alleged constitutional violation, encourage them to exhaust the facility’s administrative remedies and to comply strictly with the grievance procedures, including all appeals processes, even if the relief they seek is not one that the procedures provide. Once the client retains you to represent them, you can go through the grievance procedure on their behalf.

If the plaintiff doesn’t retain you until months after the constitutional violation, still attempt to exhaust the grievance procedure. Ask the client to send you all documents related to the grievances they’ve filed; get a copy of the correctional facility’s inmate handbook, which should contain its grievance procedure, from your client or via a Freedom of Information Act request; and prepare for opposing counsel’s Rule 12(b)(6) motion alleging that all administrative remedies were not exhausted.

If your client failed to exhaust all administrative remedies before filing suit, the only way to successfully defeat that Rule 12(b)(6) motion is to demonstrate that those remedies were not available to your client. For example, courts have found administrative remedies to be unavailable when correctional officials somehow deterred or prevented an inmate from filing grievances.⁸

The PLRA imposes several other limitations. For example, although a prevailing plaintiff in a §1983 action is entitled to reasonable attorney fees pursuant to 42 U.S.C. §1988, in cases governed by the PLRA, district courts must apply as much as 25% of a judgment for the plaintiff to satisfy those attorney fees.⁹ Value your client’s case appropriately to take attorney fees into account and ensure that they receive a fair judgment.

Some incarcerated litigants must also contend with state-law versions of the PLRA. Many jurisdictions have their own equivalents of the act that you must consider when bringing state-law claims alongside federal claims. For example, in Virginia, inmates who intend to raise state-law claims based on the conditions of their confinement must do so within one year of the constitutional violation or within six months after they have exhausted all administrative remedies.¹⁰

Interacting With Your Client

When your client is still incarcerated, you’ll need to account for numerous practical matters throughout the life of the suit. First, determine how to maintain contact with your client, who likely has limited access to communication with the world outside of prison. Generally, inmates must have money in their accounts to fund their use of telephones or email. Even if they have the financial means to make phone calls or send electronic messages, prison lockdowns and solitary confinement could hamper their ability to do so.

Set a schedule where you can expect some type of contact from your client twice a month. Should your client miss a scheduled phone call, you will know that they have likely lost access to the telephones. Send them a letter if you need to contact them sooner rather than later.

This is why it is important to provide them with trial and discovery deadlines well in advance: If you wait until the last minute to get interrogatory answers from your client, you will be forced to ask defense counsel for an extension if the facility enters a lockdown before you can speak to your client. These regular check-ins from your client are especially important when they are incarcerated in a jail or prison where it is difficult for individuals on the outside to call into the facility.

A related issue involves protecting attorney-client confidentiality when communicating with an incarcerated individual. Generally, correctional facilities monitor inmates’ phone calls, emails, and letters, so you need to take additional steps to ensure that the facility treats the contents of your communications as privileged and confidential. Contact the facility for instructions on how to arrange for unmonitored phone calls with your client. Make sure to label all written correspondence with your client as “Confidential Legal Mail.”

Try to meet with your client in person to discuss extremely sensitive issues when possible. Also, ask your client for the contact information of close friends or family who are on their approved call list. They will likely be the people your client is able to, or will want to, call when communication at the facility is limited.

Arranging and preparing for depositions can be difficult, even when your client is no longer incarcerated, because many inmate eyewitnesses will be hard to identify, much less locate—especially if your client is no longer at the same correctional facility as the witnesses. Prisons and jails usually will not provide information about other inmates, citing privacy and security concerns. You may be able to look the witness up on VineLink.com, which allows anyone to locate an incarcerated person by location, name, or inmate identification number and provides the individual’s name, incarceration facility, and custody status.

When you are able to contact incarcerated eyewitnesses, setting up the deposition is a complicated process since you must obtain leave of court if the deponent is confined in prison.¹¹ Once the court grants you permission to depose an incarcerated witness, you must then arrange the deposition with the facility. Depending on how accommodating the facility administration is, this can be difficult, even with an order from a federal judge.

Tempering the Jury’s Perception of Your Client

In §1983 prisoner cases, it is axiomatic that the plaintiff’s constitutional rights would not have been violated had they not been detained or incarcerated in the first place. As such, jurors will inevitably wonder what your client did to end up in a correctional facility. That information is usually irrelevant to the plaintiff’s claims and will thus be inadmissible at trial, unless the defendant attempts to impeach your client under Federal Rule of Evidence 609, which states that an attorney can try to impeach a witness’s credibility with evidence of a prior criminal conviction when the witness was convicted of a crime punishable by death or imprisonment for more than one year¹² or any crime involving a dishonest act or false statement.

Under most circumstances, opposing counsel cannot elicit details of your client’s prior convictions. However, blatantly attempting to avoid the topic can have the opposite effect. You could draw jurors’ attention to your client’s criminal history, leading them to speculate about what you are trying to hide. Although the Eighth Amendment’s prohibition on cruel and unusual punishment applies even to those who commit the most vicious felonies, jurors might understandably have a difficult time keeping such edicts in mind when determining what constitutes acceptable treatment of someone who might or might not have committed some of the worst crimes imaginable.

In these types of cases, it is best to settle the case before it reaches the jury. A client whose civil rights were violated in a correctional facility already has a thumb on the scale against them due to society’s biases against incarcerated people. However, should negotiations fail, the next best way to address your client’s criminal history is to humanize your client and demonstrate that they are more than just someone who has committed a crime.

Remind the jurors that the person standing before them is a human being capable of experiencing pain. Highlight their relationships with friends and family members outside of prison. Avoid the temptation to address the details of your client’s prior criminal history on direct examination. Doing so opens the door for opposing counsel to do the same on cross-examination.

Litigating cases on behalf of clients whose constitutional rights were violated in prison requires Herculean levels of persistence and ingenuity. Because of the obstacles that accompany these types of claims, successfully resolving §1983 prison cases is an uphill battle, but one that is undeniably worth fighting, not only for your client but for the good of society as a whole.

Without litigators willing to take on the challenge, pretrial detainees and convicted prisoners can most certainly expect to have their rights violated with impunity in direct contravention of the Eighth and Fourteenth Amendments.

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Helen Vu is an associate attorney at Halperin Law Center in Glen Allen, Va., and can be reached at helen@hlc.law.

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Notes

1. Pearson v. Callahan, 555 U.S. 223, 231 (2009).
2. Compare McCullum v. Tepe, 693 F.3d 696, 699–704 (6th Cir. 2012), Jensen v. Lane Cty., 222 F.3d 570, 574–76 (9th Cir. 2000), and Hinson v. Edmond, 192 F.3d 1342, 1345–48 (11th Cir. 1999), with Estate of Lockett ex rel. Lockett v. Fallin, 841 F.3d 1098 (10th Cir. 2016).
3. Pearson, 555 U.S. at 236–43.
4. See Behrens v. Pelletier, 516 U.S. 299, 310 (1996); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[A] district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. §1291 notwithstanding the absence of a final judgment.”).
5. 42 U.S.C. §1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001).
6. Porter v. Nussle, 534 U.S. 516, 532 (2002).
7. See, e.g., Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008); Kaba v. Stepp, 458 F.3d 680, 686 (7th Cir. 2006); Mitchell v. Horn, 318 F.3d 523, 529 (5th Cir. 2003).
8. See Turner, 541 F.3d at 1085; Kaba, 458 F.3d at 686.
9. §1997e(d)(2) (“[A] portion of the [prisoner’s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.”).
10. Va. Code Ann. §8.01–243.2.
11. Fed. R. Civ. P. 30(a)(2)(B).
12. Subject to Fed. R. Evid. 403.