. 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[4] (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).
.